Harper v. Hall

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-121

No. 413PA21

Filed 16 December 2022

REBECCA HARPER; AMY CLARE OSEROFF; DONALD RUMPH; JOHN
ANTHONY BALLA; RICHARD R. CREWS; LILY NICOLE QUICK; GETTYS
COHEN, JR.; SHAWN RUSH; JACKSON THOMAS DUNN, JR.; MARK S.
PETERS; KATHLEEN BARNES; VIRGINIA WALTERS BRIEN; and DAVID
DWIGHT BROWN

v.
REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House
Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his
official capacity as Co-Chair of the Senate Standing Committee on Redistricting
and Elections; SENATOR RALPH HISE, in his official capacity as Co-Chair of the
Senate Standing Committee on Redistricting and Elections; SENATOR PAUL
NEWTON, in his official capacity as Co-Chair of the Senate Standing Committee
on Redistricting and Elections; SPEAKER OF THE NORTH CAROLINA HOUSE
OF REPRESENTATIVES, TIMOTHY K. MOORE; PRESIDENT PRO TEMPORE
OF THE NORTH CAROLINA SENATE, PHILIP E. BERGER; THE NORTH
CAROLINA STATE BOARD OF ELECTIONS; and DAMON CIRCOSTA, in his
official capacity

NORTH CAROLINA LEAGUE OF CONSERVATION VOTERS, INC.; HENRY M.
MICHAUX, JR.; DANDRIELLE LEWIS; TIMOTHY CHARTIER; TALIA FERNÓS;
KATHERINE NEWHALL; R. JASON PARSLEY; EDNA SCOTT; ROBERTA
SCOTT; YVETTE ROBERTS; JEREANN KING JOHNSON; REVEREND
REGINALD WELLS; YARBROUGH WILLIAMS, JR.; REVEREND DELORIS L.
JERMAN; VIOLA RYALS FIGUEROA; and COSMOS GEORGE

v.

REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House
Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his
official capacity as Co-Chair of the Senate Standing Committee on Redistricting
and Elections; SENATOR RALPH E. HISE, JR., in his official capacity as Co-Chair
of the Senate Standing Committee on Redistricting and Elections; SENATOR
PAUL NEWTON, in his official capacity as Co-Chair of the Senate Standing
Committee on Redistricting and Elections; REPRESENTATIVE TIMOTHY K.
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

MOORE, in his official capacity as Speaker of the North Carolina House of
Representatives; SENATOR PHILIP E. BERGER, in his official capacity as
President Pro Tempore of the North Carolina Senate; THE STATE OF NORTH
CAROLINA; THE NORTH CAROLINA STATE BOARD OF ELECTIONS;
DAMON CIRCOSTA, in his official capacity as Chairman of the North Carolina
State Board of Elections; STELLA ANDERSON, in her official capacity as
Secretary of the North Carolina State Board of Elections; JEFF CARMON III, in
his official capacity as Member of the North Carolina State Board of Elections;
STACY EGGERS IV, in his official capacity as Member of the North Carolina State
Board of Elections; TOMMY TUCKER, in his official capacity as Member of the
North Carolina State Board of Elections; and KAREN BRINSON BELL, in her
official capacity as Executive Director of the North Carolina State Board of
Elections

Appeal pursuant to N.C.G.S. § 7A-27(b)(1) from the unanimous decision of a

three-judge panel entered on 23 February 2022 in the Superior Court, Wake County,

approving Legislative Defendants’ Remedial House and Senate Plans, rejecting their

Remedial Congressional Plan, and adopting a Modified Remedial Congressional Plan.

Heard in the Historic 1767 Chowan County Courthouse on 4 October 2022.

Patterson Harkavy LLP, by Burton Craige, Narendra K. Ghosh, and Paul E.
Smith; Elias Law Group LLP, by Lalitha D. Madduri, Jacob D. Shelly, Graham
W. White, and Abha Khanna; and Arnold & Porter Kaye Scholer LLP, by
Elisabeth S. Theodore, R. Stanton Jones, and Samuel F. Callahan, for Harper
Plaintiffs.

Robinson, Bradshaw & Hinson, P.A., by John R. Wester, Adam K. Doerr,
Stephen D. Feldman, and Erik R. Zimmerman; and Jenner & Block LLP, by
Sam Hirsch, Jessica Ring Amunson, Karthik K. Reddy, and Urja Mittal, for
Plaintiff North Carolina League of Conservation Voters.

Southern Coalition for Social Justice, by Allison J. Riggs, Hilary H. Klein,
Mitchell Brown, Katelin Kaiser, Jeffrey Loperfido, and Noor Taj; and Hogel

-2-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Lovells US LLP, by J. Tom Boer and Olivia T. Molodanof, for Plaintiff Common
Cause.

Nelson Mullins Riley & Scarborough LLP, by Phillip J. Strach, Thomas A.
Farr, John Branch, and Alyssa M. Riggins; and Baker & Hostetler LLP, by E.
Mark Braden and Katherine L. McKnight, for Legislative Defendants.

North Carolina Department of Justice, by Amar Majmundar, Senior Deputy
Attorney General, Terence Steed, Special Deputy Attorney General, Mary Carla
Babb, Special Deputy Attorney General, and Stephanie Brennan, Special
Deputy Attorney General, for State Defendants.

HUDSON, Justice.

¶1 The foundational democratic principles of equality and popular sovereignty

enshrined in our Constitution’s Declaration of Rights vest in the people of this state

the fundamental right to vote on equal terms. N.C. Const. art. I, §§ 1 (equality and

rights of persons), 2 (sovereignty of the people), 10 (free elections), 12 (freedom of

assembly), 14 (freedom of speech), 19 (equal protection of the laws); see Harper v.

Hall, 380 N.C. 317, 2022-NCSC-17, ¶ 158–59 (summarizing these principles and

rights). This fundamental right “encompasses the opportunity to aggregate one’s vote

with likeminded citizens to elect a governing majority of elected officials who reflect

those citizens’ views.” Harper, ¶ 160. Put differently, it requires that “voters of all

political parties [have] substantially equal opportunity to translate votes into seats.”

Id. ¶ 163. Therefore, when a districting plan systematically makes it harder for

individuals of one political party to elect a governing majority than individuals of

another party of equal size based upon that partisanship, it deprives a voter of his or

-3-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

her fundamental right to equal voting power. Id. “[S]uch a plan is subject to strict

scrutiny and is unconstitutional unless the General Assembly can demonstrate that

the plan is ‘narrowly tailored to advance a compelling governmental interest.’ ” Id. ¶

161 (citing Stephenson v. Bartlett, 355 N.C. 354, 377 (2002)).

¶2 In accordance with these principles, on 4 February 2022, this Court struck

down the General Assembly’s 2021 Congressional Map, State Senate Map, and State

House Map as unconstitutional partisan gerrymanders that failed strict scrutiny. See

generally Harper, 2022-NCSC-17. In doing so, we noted a few potential statistical

measures that could be used by the General Assembly and reviewing courts in

determining whether redistricting plans demonstrate “a significant likelihood . . . [of]

giv[ing] the voters of all political parties substantially equal opportunity to translate

votes into seats across the plan.” Id. ¶ 163. However, we expressly declined to

“identify an exhaustive set of metrics or precise mathematical thresholds which

conclusively demonstrate or disprove the existence of an unconstitutional partisan

gerrymander.” Id. Rather than relying on certain measures dispositively, we

emphasized that ultimately “[w]hat matters here . . . is that each voter’s vote carries

roughly the same weight when drawing a redistricting plan that translates votes into

seats in a legislative body.” Id. 169.

¶3 This was neither accident nor oversight. An individual statistical measure

standing alone, though helpful, is not dispositive of constitutional compliance.

-4-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Rather, it constitutes one datapoint within a broader constellation of principles that

a court may consider in reaching its ultimate constitutional determination: whether

the proposed maps uphold or violate the fundamental right of all voters to vote on

equal terms. Id. ¶¶ 163–69.

¶4 After determining that the 2021 Maps failed strict scrutiny, this Court gave

the General Assembly the opportunity to submit remedial maps in accordance with

N.C.G.S. § 120-2.4(a). Id. ¶ 178. We remanded the case to the trial court to oversee

and assess the constitutionality of those remedial maps. Id. ¶ 223.

¶5 On 23 February 2022, the trial court issued its remedial order assessing the

General Assembly’s remedial maps. Therein, the trial court rejected the General

Assembly’s Remedial Congressional Plan but approved its Remedial House Plan and

Remedial Senate Plan. The parties appealed each of these rulings to this Court.

¶6 Now, this Court must review the alignment of the trial court’s remedial order

with the foundational principles established in Harper. We determine that the trial

court properly concluded that the Remedial Congressional Plan fell short of

constitutional standards and that the Remedial House Plan met constitutional

standards. These conclusions of law were supported by adequate factual findings,

which were in turn supported by competent evidence. However, we hold that the trial

court erred in its approval of the Remedial Senate Plan. Unlike the trial court’s

conclusions regarding the other plans, the trial court’s conclusion of law regarding

-5-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

the Remedial Senate Plan lacked adequate factual findings supported by competent

evidence. Indeed, the evidence dictates the opposite finding and conclusion.

Therefore, we affirm the trial court’s rejection of the Remedial Congressional Plan,

affirm the trial court’s approval of the Remedial House Plan, and reverse the trial

court’s approval of the Remedial Senate Plan.

¶7 In accordance N.C.G.S. § 120-2.4(a1), we now remand this case to the trial

court to oversee the creation and adoption of a Modified Remedial Senate Plan that

modifies Legislative Defendants’ Remedial Senate Plan only to the extent necessary

to achieve constitutional compliance. See N.C.G.S. § 120-2.4(a1) (2021).

¶8 In so doing, we expressly and emphatically reaffirm the fundamental right of

citizens to vote on equal terms enshrined within our Constitution’s Declaration of

Rights, and this Court’s constitutional responsibility and authority to assess

legislative compliance therewith. See Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992)

(“It is the state judiciary that has the responsibility to protect the state constitutional

rights of the citizens; this obligation to protect the fundamental rights of individuals

is as old as the State.”). These principles are—and must remain—the enduring

bedrock of our sacred system of democratic governance, and may be neither

subordinated nor subverted for the sake of passing political expediency.

I. Factual and Procedural Background

-6-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶9 A complete factual and procedural background of the liability phase of this

litigation can be found in Harper, ¶¶ 12–93. Here, we briefly restate that background

and summarize the subsequent remedial proceedings leading to the present appeal.

A. Liability Phase: 2021 Maps and Harper I

¶ 10 Every ten years, following the national census, the General Assembly is tasked

with redrawing North Carolina’s congressional and state legislative districts. See

U.S. Const. art. I, § 4; N.C. Const. art. II, §§ 3, 5. Accordingly, on 4 November 2021,

the General Assembly enacted new maps for North Carolina’s congressional districts

and state House of Representatives and Senate districts (2021 Maps). S.L. 2021-174,

S.L. 2021-175, S.L. 2021-173; see Harper, 2022-NCSC-17, ¶¶ 14–18 (describing the

2021 redistricting process).

¶ 11 On 16 and 18 November 2021, NCLCV Plaintiffs1 and Harper Plaintiffs2

respectively filed complaints against Legislative Defendants challenging the

constitutionality of the 2021 Maps under the North Carolina Constitution.

1 NCLCV Plaintiffs include the North Carolina League of Conservation Voters, Inc.,
Henry M. Michaux Jr., Dandrielle Lewis, Timothy Chartier, Talia Fernos, Katherine
Newhall, R. Jason Parsley, Edna Scott, Roberta Scott, Yvette Roberts, Jereann King Johnson,
Reverend Reginal Wells, Yarbrough Williams Jr., Reverend Deloris L. Jerman, Viola Ryals
Figueroa, and Cosmos George.
2 Harper Plaintiffs include Rebecca Harper, Amy Clare Oseroff, Donald Rumph, John

Anthony Balla, Richard R. Crews, Lily Nicole Quick, Gettys Cohen Jr., Shawn Rush, Mark
S. Peters, Kathleen Barnes, Virginia Walters Brien, Eileen Stephens, Barbara Proffitt, Mary
Elizabeth Voss, Chenita Barber Johnson, Sarah Taber, Joshua Perry Brown, Laureen Floor,
Donald M. MacKinnon, Ron Osborne, Ann Butzner, Sondra Stein, Bobby Jones, Kristiann
Herring, and David Dwight Brown.

-7-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Specifically, Plaintiffs asserted that the 2021 Maps engaged in extreme partisan

gerrymandering and racial vote dilution in violation of the Free Elections Clause, art.

I, § 10, the Equal Protection Clause, art. I, § 19, and the Freedom of Speech and

Assembly Clauses, art. I, §§ 12, 14. Plaintiffs sought a declaratory judgment, a

permanent injunction against the use of the 2021 Maps, and the creation and

implementation of new, constitutionally compliant maps.

¶ 12 Plaintiffs’ cases were consolidated and assigned to a three-judge panel of the

Superior Court, Wake County, pursuant to N.C.G.S. § 1-267.1 and Rule 42 of the

North Carolina Rules of Civil Procedure.3 On 15 December 2021, the trial court

granted Plaintiff Common Cause’s motion to intervene in the consolidated case. In

response to Plaintiffs’ claims, Legislative Defendants asserted, inter alia, that the

only limitations on redistricting legislation are those expressly found in article II,

sections 2, 3, 4, and 5 of the North Carolina Constitution, and that Plaintiffs’ claims

were nonjusticiable.

¶ 13 From late December 2021 to early January 2022, the trial court conducted an

expedited and extensive discovery and trial process. Plaintiffs and Legislative

Defendants submitted evidence from several expert witnesses and accompanying

reports regarding the 2021 Maps.

3 We take a moment of privilege to express the Court’s gratitude to the panel for their
diligent service to the state in this case: Judge A. Graham Shirley, Judge Nathaniel J.
Poovey, and Judge Dawn M. Layton.

-8-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 14 On 11 January 2022, the trial court issued its final judgment. Therein, the trial

court found that all three of the 2021 Maps indeed constituted extreme partisan

outliers that were the product of intentional, pro-Republican redistricting at the

subordination of traditional, neutral redistricting principles. However, the trial court

concluded that claims of partisan gerrymandering present purely political questions

that are nonjusticiable under the North Carolina Constitution. Accordingly, the trial

court held that the 2021 Maps were not unconstitutional and denied Plaintiffs’

requests for declaratory and injunctive relief. Plaintiffs appealed to this Court from

the trial court’s judgment.

¶ 15 In February 2022, this Court reversed.4 Harper, ¶ 223. The Court concluded

that partisan gerrymandering claims are justiciable under the North Carolina

Constitution, that our Constitution’s Declaration of Rights enshrines the

fundamental right to vote on equal terms, and that the 2021 Maps violated that right.

Id. ¶¶ 7, 94.

¶ 16 First, the Court addressed Plaintiffs’ standing. Id. ¶ 95. The Court noted that

in accordance with Committee to Elect Dan Forest v. Employees Political Action

Committee, 376 N.C. 558, 2021-NCSC-6, “direct constitutional challenges to statutes

or other acts of government . . . require only the requisite concrete adverseness which

4 On 4 February 2022, the Court issued a preliminary order. On 14 February 2022,
the Court issued its subsequent full opinion.

-9-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

sharpens the presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions.” Harper, ¶ 96 (cleaned up). Here,

the Court determined that the parties’ allegations of the violation of their legal rights,

even if widely shared with others, were sufficient to show such concrete adverseness.

Id. The Court thus concluded that each individual and organizational plaintiff met

the requirements for legal standing under our Constitution. Id. ¶ 99.

¶ 17 Second, the Court addressed justiciability. Id. ¶ 100. The Court noted that

“simply because the Supreme Court [of the United States] has concluded partisan

gerrymandering claims are nonjusticiable in federal courts, it does not follow that

they are nonjusticiable in North Carolina courts.” Id. ¶ 110 (emphasis added) (citing

Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019)). Further, “the mere fact that

responsibility for reapportionment is committed to the General Assembly does not

mean that the General Assembly’s decisions in carrying out its responsibility are fully

immunized from any judicial review.” Id. ¶ 115. Rather, the General Assembly’s

reapportionment power is subject to constitutional limitations, including compliance

with the fundamental rights enshrined in the Declaration of Rights. Id. ¶ 119.

¶ 18 Then, the Court considered whether partisan gerrymandering violates those

rights. Id. ¶ 121. After surveying the history of our Declaration of Rights generally,

id. ¶¶ 122–32, the Court considered each pertinent clause in turn. First, the Court

concluded that partisan gerrymandering “is cognizable under the free elections clause

-10-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

because it can prevent elections from reflecting the will of the people impartially and

. . . diminish[ ] or dilut[e] voting power on the basis of partisan affiliation.” Id. ¶ 141;

N.C. Const. art. I, § 10. Second, the Court concluded that partisan gerrymandering is

cognizable under the equal protection clause because it “diminishes or dilutes a

voter’s opportunity to aggregate with likeminded voters to elect a governing

majority[,]” thus “infring[ing] upon that voter’s fundamental rights to vote on equal

terms and to substantially equal voting power.” Id. ¶ 150; N.C. Const. art. I, § 19.

Third, the Court concluded that partisan gerrymandering is cognizable under the free

speech and freedom of assembly clauses because it imposes a burden on the

fundamental right to equal voting power based on political viewpoint. Id. ¶ 157.

¶ 19 The Court summarized the intersection of the Declaration of Rights and

partisan gerrymandering, emphasizing that together, the fundamental principles of

equality and popular sovereignty “reflect the democratic theory of our constitutional

system: the principle of political equality.” Id. ¶ 158. In order to realize this principle,

the channeling of “political power” from the people to their
representatives in government through the democratic
processes envisioned by our constitutional system must be
done on equal terms. If through state action the ruling
party chokes off the channels of political change on an
unequal basis, then government ceases to “derive[ ]” its
power from the people or to be “founded upon their will
only,” and the principle of political equality that is
fundamental to our Declaration of Rights and our
constitutionally enacted represented system of government
is violated.

-11-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Id. Accordingly, “[t]o comply with the constitutional limitations contained in the

Declaration of Rights which are applicable to redistricting plans, the General

Assembly must not diminish or dilute on the basis of partisan affiliation any

individual’s vote.” Id. ¶ 160. Therefore, “when a districting plan systematically makes

it harder for individuals [of one party] to elect a governing majority than individuals

in a favored party of equal size[,] the General Assembly deprives on the basis of

partisan affiliation a voter of his or her right to equal voting power.” Id. “[S]uch a

plan is subject to strict scrutiny and is unconstitutional unless the General Assembly

can demonstrate that the plan is narrowly tailored to advance a compelling

governmental interest.” Id. ¶ 161 (cleaned up).

¶ 20 The Court also noted various ways to measure partisan vote dilution. The

Court explained that partisan vote dilution

can be measured either by comparing the number of
representatives that a group of voters of one partisan
affiliation can plausibly elect with the number of
representatives that a group of voters of the same size of
another partisan affiliation can plausibly elect, or by
comparing the relative chances of voters from each party
electing a supermajority or majority of representatives
under various possible electoral conditions.

Id. However, the Court did “not believe it prudent or necessary to . . . identify an

exhaustive list of metrics or precise mathematical thresholds which conclusively

demonstrate or disprove the existence of an unconstitutional partisan gerrymander.”

Id. ¶ 163 Rather, the Court observed that

-12-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

as the trial court’s findings of fact indicate[d], there are
multiple reliable ways of demonstrating the existence of an
unconstitutional partisan gerrymander. In particular,
mean-median difference analysis; efficiency gap analysis;
close-votes, close-seats analysis; and partisan symmetry
analysis may be useful in assessing whether the mapmaker
adhered to traditional neutral districting criteria and
whether a meaningful partisan skew necessarily results
from North Carolina’s unique political geography. If some
combination of these metrics demonstrates there is a
significant likelihood that the districting plan will give the
voters of all political parties substantially equal
opportunity to translate votes into seats across the plan,
then the plan is presumptively constitutional.

Id. While the Court identified “a mean-median difference of 1% or less” and an

efficiency gap of 7% or less as potential “threshold[s] [for] a presumption of

constitutionality . . . absent other evidence,” we emphasized that ultimately “[w]hat

matters here, as in the one-person, one-vote context, is that each voter’s vote carries

roughly the same weight when drawing a redistricting plan that translates votes into

seats in a legislative body.” Id. ¶¶ 166, 167, 169.

¶ 21 The Court then held that “[o]nce a plaintiff shows that a map infringes on their

fundamental right to equal voting power . . . or that it imposes a burden on that right

based on their views[,] . . . the map is subject to strict scrutiny and is presumptively

unconstitutional.” Id. ¶ 170. At that point, the government must demonstrate that

the plan is nevertheless necessary to promote a compelling governmental interest. Id.

¶ 22 The Court then applied this constitutional standard to the 2021 Maps. Id. ¶¶

178–213. Based on the trial court’s extensive factual findings, the Court determined

-13-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

that all three of the 2021 Maps constituted partisan gerrymanders in violation of the

North Carolina Constitution’s Declaration of Rights. Id. Because Legislative

Defendants failed to show that the 2021 Maps were nevertheless narrowly tailored to

a compelling governmental interest, the Court concluded that each of the plans failed

strict scrutiny. Id. ¶¶ 195 (Congressional Map), 205 (State House Map), 213 (State

Senate Map).

¶ 23 Finally, the Court addressed the General Assembly’s compliance with

Stephenson requirements regarding racially polarized voting. Id. ¶¶ 214–16. The

Court concluded that compliance with article I, sections 3 and 5, and article II,

sections 3 and 5 of our Constitution “requires the General Assembly to conduct

racially polarized voting analysis within their decennial redistricting process in order

to assess whether any steps must be taken to avoid the dilution of minority voting

strength.” Id. ¶ 216.

¶ 24 In compliance with N.C.G.S. § 120-2.4(a), the Court then remanded the case to

the trial court “to oversee the redrawing of the maps by the General Assembly or, if

necessary, by the court.” Id. ¶ 223. In so doing, the Court ordered that “the General

Assembly shall now have the opportunity to submit new congressional and state

legislative districting plans that satisfy all provisions of the North Carolina

Constitution.” Id. The Court concluded by noting its “sincere hope . . . that these new

maps ensure that the channeling of ‘political power’ from the people to their

-14-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

representatives in government through elections . . . is done on equal terms so that

ours is a ‘government of right’ that ‘originates from the people’ and speaks with their

voice.” Id.

B. Remedial Phase: Remedial Plans and Trial Court’s Remedial Order

¶ 25 Thus began the remedial phase of this case. On 16 February 2022, the trial

court issued an order appointing three former North Carolina jurists—Justice Robert

F. Orr (ret.), Justice Robert H. Edmunds Jr. (ret.), and Judge Thomas W. Ross (ret.)—

to serve as Special Masters.5 The Special Masters’ task was twofold. First, they

assisted the trial court in reviewing the parties’ proposed remedial plans via a written

report. Second, they were to assist the trial court in developing an alternative,

constitutionally compliant remedial plan in the event that the General Assembly’s

proposed remedial plan fell short.

¶ 26 To assist in these tasks, the Special Masters were authorized to hire advisors

(Special Masters’ Advisors). They hired Dr. Bernard Grofman, Dr. Tyler Jarvis, Dr.

Eric McGhee, and Dr. Samuel Wang.

¶ 27 On 18 February 2022, Legislative Defendants timely submitted their Remedial

Plans to the trial court. These included the Remedial Congressional Plan (RCP),

Remedial House Plan (RHP), and Remedial Senate Plan (RSP).

5 We take a moment of privilege to express the Court’s gratitude to the Special Masters
for their diligent service to the state in this case.

-15-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 28 On 21 February 2022, Legislative Defendants filed a motion to disqualify two

of the Special Masters’ Advisors, Dr. Wang and Dr. Jarvis, because they had engaged

in prohibited ex parte communications with Plaintiffs’ experts.

¶ 29 On 21 February 2022, Plaintiffs timely submitted their comments and

objections to Legislative Defendants’ Remedial Plans. NCLCV Plaintiffs objected to

the RCP and RSP. NCLCV Plaintiffs did not specifically object to the RHP, but

instead requested that the trial court conduct its own analysis of the RHP. Harper

Plaintiffs objected to the RCP and RSP but did not object to the RHP. Plaintiff

Common Cause generally objected to all three Remedial Plans, and specifically

contended that House District 10 of the RHP and Senate District 4 of the RSP must

be redrawn.

¶ 30 Thereafter, the Special Masters’ Advisors submitted their analysis of each of

the proposed remedial plans. Because this analysis served as the foundational

evidence for the Special Masters’ and trial court’s subsequent findings of fact, we

briefly summarize this evidence here.

¶ 31 RCP Analysis. Dr. Grofman determined that the RCP “creates a distribution

of voting strength across districts that is very lopsidedly Republican.” He determined

that “[b]ecause they all point in the same direction, the political effects statistical

indicators of partisan gerrymandering strongly suggest the conclusion that this

congressional map should be viewed as a pro-Republican gerrymander.” He

-16-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

determined that the RCP yielded an efficiency gap of 6.37% but noted that that this

was “not . . . proof that there is no vote dilution” because, based on other measures,

“legislative map drawers have apparently sought to draw a congressional map that

just narrowly pass[es] a supposed threshold test for partisan gerrymandering.”

¶ 32 Dr. McGhee determined that the RCP yielded an efficiency gap of 6.4%, a

mean-median difference of 1.1%, a partisan asymmetry of 4.9%, and a declination

metric of 0.14, all favoring Republicans. He noted that “[t]he values with incumbency

factored in all lean more Republican . . . , and this incumbency effect is greater than

it was in the [2021] enacted plan.” Relatively, he noted that while the RCP shows

improvement from the 2021 enacted plan on several measures of partisan symmetry,

it is “clearly worse” than the remedial congressional plans proposed by Plaintiffs.

¶ 33 Dr. Wang determined that the RCP yields an average efficiency gap of 6.8%

and an average mean-median difference of 1.2%, both favoring Republicans. He

determined that in nine out of ten sample elections, “Republicans won more seats

than the Democrats with the same vote share.” “Averaging across all 10 elections, the

advantage was 1.7 more seats for Republicans, or 12% of the 14-seat Congressional

delegation.”

¶ 34 Finally, Dr. Jarvis determined that the RCP “consistently favors Republicans”

across all applicable measures. He determined that the RCP yields an efficiency gap

of 8.8%, a mean-median difference of 0.9%, a partisan bias of 5.2%, and a declination

-17-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

metric of 11.6%, all favoring Republicans.

¶ 35 RHP Analysis. Dr. Grofman determined that although the RHP “creates a

distribution of voting strength across districts that is very lopsidedly Republican,” it

“is genuinely far more competitive than either of the other two legislatively proposed

maps.” He observed that under the RHP, “unlike the other maps, the Democrats do

not have to win all of the competitive seats to win a majority in the House. Moreover,

unlike the [RCP and RSP], . . . the competitive seats [in the RHP] are substantially

Democrat in directionality.” He further noted that

quit[e] important in judging the constitutionality of this
map in the full context are the facts that: (a) the Harper
plaintiffs have not chosen to offer an alternative [RHP] but
are apparently content to see the legislative map
implemented by the Court, (b) the map was passed by a
clear bipartisan consensus in the legislature, including
members of the legislature who belong to particular
minority communities, and (c) that while it still is further
from being non-dilutive than the NCLCV [RHP]
alternative, it is far closer to Plaintiffs’ map than it is to
the rejected [2021] enacted NC House map.

He determined that while the RHP’s efficiency gap “remains in a pro-Republican

direction,” it is “at the low level of 2.72[%].”In considering “the totality of the

circumstances . . . and recognizing that this map is still not ideal (nor need it be),” he

concluded that the RHP “simply lacks the same clear indicia of egregious bias found

in the previously rejected maps and still found . . . in the [RCP] and [RSP].”

¶ 36 Dr. McGhee likewise determined that the RHP “still favors Republicans when

-18-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

all seats are open, but substantially less [than the 2021 congressional map].” He

determined that the RHP yields an efficiency gap of 3.0%, a mean-median difference

of 1.4%, a partisan asymmetry of 2.9%, and a declination metric of 0.16, all favoring

Republicans. Dr. McGhee concluded that the RHP “still favors Republicans: the party

would likely hold about 64 of 120 seats with half the vote, and it would take the

Democrats somewhere close to 52% of the vote to bring that number down to 60.”

Relatively, he determined that the RHP “is very similar to” NCLCV Plaintiffs’

proposed remedial house map on metrics of partisan symmetry, that it “do[es] a

reasonably good job of respecting traditional geographic principles,” and that it

reflects “very similar compactness” as Plaintiffs’ proposed remedial House map. He

concluded that the RHP’s partisan symmetry is “closer [to NCLCV’s proposed

remedial plan] than was the case for either the [RSP] or the [RCP],” noting that the

NCLCV Plaintiffs’ plan is only “a little better.” He concluded that this “relatively

marginal improvement hints that it may be difficult to do better while still abiding

by other constraints.”

¶ 37 Dr. Wang determined that the RHP favors Republicans in all six metrics

evaluated: seat partisan asymmetry, mean-median difference, partisan bias, lopsided

wins, declination angle, and efficiency gap. Specifically, he determined that the RHP

yielded an efficiency gap of 3.1%, a mean-median difference of 0.9%, a partisan

asymmetry of 7.2 seats, and a declination angle of 4.5 degrees.

-19-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 38 Finally, Dr. Jarvis determined that the RHP “appear[s] to be mostly typical in

terms of the number of seats won.” He determined that the RHP yields an efficiency

gap of 2.7%, a mean-median difference of 1.5%, an average partisan bias of 2.7%, and

a declination metric of 5.7%.

¶ 39 RSP Analysis. Dr. Grofman determined that the RSP “creates a distribution

of voting strength across districts that is very lopsidedly Republican.” He determined

the RSP’s vote bias indicates “a substantial pro-Republican bias” in which a statewide

majority of Republican voters would be able to win a majority of the seats while “only

a win by considerably more than 50% of the statewide vote can yield the Democrats

a majority of the seats.” He determined that “[b]ecause they all point in the same

direction, the political effects statistical indicators of partisan gerrymandering argue

for the conclusion that th[e] [RSP] should be viewed as a pro-Republican

gerrymander.” He concluded that “the dilutive effects of th[e] RSP] . . . are still . . .

quite substantial.”

¶ 40 Dr. McGhee determined that the RSP “still favors Republicans when all seats

are open.” He concluded that the RSP yields an efficiency gap of 4.8%, a mean-median

difference of 2.2%, a partisan asymmetry of 4.8%, and a declination metric of 0.20, all

favoring Republicans. He observed that “[t]he [efficiency gap] value now clearly falls

below the commonly identified threshold of 7%, though the [mean-median difference]

value falls well above the 1% number cited by Legislative Defendants.” He

-20-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

determined that “[a]ll the metric values for both the open seat and incumbency

scenarios are more than 50% likely to favor Republicans throughout the decade.” He

concluded that

the [mean-median difference] and [partisan symmetry]
metrics, which are more relevant for a state legislative plan
because they connect directly to control of the chamber,
suggest that in a tied election Republicans would still hold
27 or 28 [of 50 total] seats, and that Democrats would need
to win as much as 53 percent of the vote to claim 25 seats.
The odds are about three to one that Republicans would
maintain this advantage throughout the decade.

Relatively, Dr. McGhee observed that the Republican advantage within Plaintiffs’

proposed RSP “is often less than half the size of the same advantage in the Legislative

Defendants’ [RSP].” “This suggests that there is nothing foreordained about the

advantages in the Legislative Defendants’ plan.”

¶ 41 Dr. Wang determined that the RSP favors Republicans in all six metrics

evaluated: seat partisan asymmetry, mean-median difference, partisan bias, lopsided

wins, declination angle, and efficiency gap. Specifically, he determined that the RSP

yields an efficiency gap of 2.2%, a mean-median difference of 0.8%, and an average

partisan asymmetry of 2.1 seats, all favoring Republicans.

¶ 42 Finally, Dr. Jarvis determined that analysis of the RSP reveals that it “is often

a significant outlier in favor of the Republicans.” He determined that the RSP yields

an efficiency gap of 4.0%, a mean-median difference of 1.4%, an average partisan bias

of 4.0%, and a declination metric of 7.0%.

-21-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 43 Based upon this evidence, the Special Masters submitted their report to the

trial court on 23 February 2022 (Special Masters’ Report). As an initial matter, the

Special Masters addressed Legislative Defendants’ motion to disqualify Drs. Wang

and Jarvis. While the Special Masters “acknowledge[d] the technical breach of th[e]

[c]ourt’s mandate that no ex parte communication occur between parties and non-

parties,” they “respectfully recommend[ed] that the [c]ourt deny the motion.” Denial

was proper, the Special Masters contended, because: (1) the communications were not

made in bad faith; (2) the communications were solely for the purpose of proceeding

as quickly as possible; (3) the information sought was all publicly available; and (4)

the analysis provided by Drs. Wang and Jarvis, though helpful, was not

determinative in any of the Special Masters’ recommendations.

¶ 44 Next, the Special Masters recommended that the trial court approve the RHP

and RSP but reject the RCP.

¶ 45 Regarding the RHP, the Special Masters’ Report stated as follows:

The advisors as well as the experts of the parties (“experts”)
all found the efficiency gap of the proposed [RHP] to be less
than 7%. The majority of the advisors and experts found
the mean-median difference of the proposed [RHP] to be
less than 1%. In addition to these facts, the Special Masters
considered the findings of the advisors on the partisan
symmetry analysis, the declination metrics, and their
opinions on partisan bias and evidence of partisan
gerrymandering. Considering all of this information as
well as the totality of the circumstances, the Special
Masters conclude under the metrics identified by the North
Carolina Supreme Court that the proposed [RHP] meets

-22-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

the test of presumptive constitutionality. Further the
Special Masters did not find substantial evidence to
overcome the presumption of constitutionality and
recommend to the trial court that it give appropriate
deference to the General Assembly and uphold the
constitutionality of the [RHP].

¶ 46 Similarly, regarding the RSP, the Special Masters’ Report stated as follows:

All of advisors and experts found the efficiency gap of the
proposed [RSP] to be less than 7%. The majority of the
advisors and experts found the mean-median difference of
the proposed [RSP] to be less than 1%. In addition to these
facts, the Special Masters considered the findings of the
advisors on the partisan symmetry analysis, the
declination metrics, and their opinions on partisan bias
and evidence of partisan gerrymandering. Considering all
of this information as well as the totality of the
circumstances, the Special Masters conclude under the
metrics identified by the North Carolina Supreme Court
[that] the [RSP] meets the test of presumptive
constitutionality. Further the Special Masters did not find
substantial evidence to overcome the presumption of
constitutionality and recommend to the trial court that it
give appropriate deference to the General Assembly and
uphold the constitutionality of the [RSP].

¶ 47 Regarding the RCP, however, the Special Masters’ Report stated as follows:

Unlike the proposed [RHP] and [RSP], there is substantial
evidence from the findings of the advisors that the
proposed congressional plan has an efficiency gap above 7%
and a mean-median difference of greater than 1%. The
Special Masters considered this evidence along with the
advisors’ findings on the partisan symmetry analysis and
the declination metrics. There is disagreement among the
parties as to whether the proposed [RCP] meets the
presumptively constitutional thresholds suggested by the
Supreme Court. The Special Masters, considering the
reports of their advisors and the experts of the parties

-23-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

while giving appropriate deference to the General
Assembly, are of the opinion that the proposed [RCP] fails
to meet the threshold of constitutionality and recommend
that the [t]rial [c]ourt reject the proposed [RCP] as being
unconstitutional.

¶ 48 As instructed, the Special Masters therefore submitted to the trial court “a

modified version of the proposed [RCP] submitted by Legislative Defendants.”

(Modified RCP). The Report stated that “[i]t is [the Special Masters’] opinion that the

[Modified RCP] satisfies the requirements of the Supreme Court.” Specifically, the

Special Masters noted that because

the Constitution of North Carolina provides that the
General Assembly has the responsibility of redistricting,
[they] focused on the [RCP] submitted by the Legislative
Defendants. On that basis, the Special Masters worked
solely with [Advisor] Dr. Bernard Grofman and his
assistant to amend the Legislative Defendants’ plan to
enhance its consistency with the opinion of the Supreme
Court of North Carolina, the Constitutions of the United
States and of North Carolina, and the expressed will of the
General Assembly.

The Special Masters then determined that

the [M]odified [RCP] recommended for adoption to the
[t]rial [c]ourt achieves the partisan fairness and
“substantially equal voting power” required by the
Supreme Court of North Carolina without diluting votes
under the Voting Rights Act while maintaining the number
of county splits, retaining equal populations, compactness,
and contiguity, as well as respecting municipal boundaries.
Dr. Grofman’s analysis of the [M]odified [RCP]
recommended by the Special Masters indicates that the
plan has an efficiency gap of 0.63%, a mean-median
difference of 0.69%, seat bias of 0.28%, and vote bias of

-24-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

0.10%. According to Dr. Grofman, “this is the most non-
dilutive plan in partisan terms of any map that has been
submitted to the [c]ourt.”

Accordingly, the Special Masters recommend[ed] to the
[t]rial [c]ourt that it order the State of North Carolina to
utilize the [M]odified [RCP] prepared by the Special
Masters in the 2022 Congressional election.

¶ 49 On 23 February 2022, the trial court issued its subsequent remedial order. In

alignment with the recommendations of the Special Masters, the trial court approved

Legislative Defendants’ RHP and RSP but rejected their RCP and implemented the

Special Masters’ Modified RCP.

¶ 50 First, the trial court summarized the General Assembly’s remedial process.

The trial court noted that in addition to the traditional neutral redistricting criteria

considered in the creation of the 2021 Maps, the General Assembly intentionally used

partisan election data in the creation of the Remedial Plans in compliance with this

Court’s remedial order. The trial court further noted that “[t]he General Assembly

conducted an abbreviated racially polarized voting (“RPV”) analysis to determine

whether racially polarized voting is legally sufficient in any area of the state such

that Section 2 of the Voting Rights Act requires the drawing of a district to avoid

diluting the voting strength of African American voters during the remedial process.”

The trial court subsequently found “that the General Assembly satisfied the directive

in the Supreme Court Remedial Order to determine whether the drawing of a district

in an area of the state is required to comply with Section 2 of the Voting Rights Act.”

-25-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 51 The trial court then summarized the Special Masters’ Report. The trial court

found that while “[t]he Special Masters’ findings demonstrate that the [RHP] and

[RSP] meet the requirements of the Supreme Court’s Remedial Order and full

opinion[,] . . . [t]he Special Masters’ findings demonstrate that the [RCP] does not

meet [those] requirements.” The trial court then “adopt[ed] in full the findings of the

Special Masters.”

¶ 52 The trial court went on to review each of Legislative Defendants’ Remedial

Plans. First, the court assessed the RCP. The trial court observed that the RCP

passed both chambers of the General Assembly by a strict party-line vote, with

Republicans voting for and Democrats voting against. Assessing the partisanship of

the RCP, the trial court observed that “[t]he Supreme Court Remedial Order stated

that a combination of different methods could be used to evaluate the partisan

fairness of a districting plan; of those methods, the General Assembly used the ‘mean-

median’ test and the ‘efficiency gap’ test to analyze the partisan fairness of the

Remedial Plans.” The trial court then found, based upon “the analysis performed by

the Special Masters and their advisors, that the [RCP] is not satisfactorily within the

statistical ranges set forth in the Supreme Court’s full opinion. See Harper v. Hall,

2022-NCSC-17, ¶ 166 (mean-median difference of 1% or less) and ¶ 167 (efficiency

gap less than 7%).” The trial court further determined “that the partisan skew in the

[RCP] is not explained by the political geography of North Carolina.”

-26-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 53 Second, the trial court addressed the RSP. The court noted that the plan passed

both chambers of the General Assembly by a strict party-line vote, with Republicans

voting for and Democrats voting against. The court subsequently found, based upon

“the analysis performed by the Special Masters and their advisors, that the [RSP] is

satisfactorily within the statistical ranges set forth in the Supreme Court’s full

opinion. See Harper v. Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1% or

less) and ¶ 167 (efficiency gap less than 7%).” The court found that “to the extent

there remains a partisan skew in the [RSP], that partisan skew is explained by the

political geography of North Carolina.” The court determined that “the measures

taken by the General Assembly for the purposes of incumbency protection in the

[RSP] are consistent with the equal voting power requirements of the North Carolina

Constitution” and that “the General Assembly did not subordinate traditional neutral

districting criteria to partisan criteria or considerations in the [RSP].”

¶ 54 Third, the trial court addressed the RHP. The court noted that six amendments

to the plan were offered by Democratic Representatives and passed, and the RHP

then proceeded to pass the House by a vote of 115-5 and pass the Senate by a vote of

41-3. The court observed that “[t]he ‘aye’ votes in the House and Senate were by

members of both political parties[,]” while “[t]he ‘no’ votes in the House and Senate

were solely by members of the Democratic Party.” Regarding the RHP’s use of

partisanship, the court found, based upon and confirmed by “the analysis performed

-27-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

by the Special Masters and their advisors, that the [RHP] [is] satisfactorily within

the statistical ranges set forth in the Supreme Court’s full opinion. See Harper v.

Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1% or less) and ¶ 167

(efficiency gap less than 7%).” The court found that “to the extent there remains a

partisan skew in the [RHP], that partisan skew is explained by the political

geography of North Carolina.” The court determined that “the measures taken by the

General Assembly for the purposes of incumbency protection in the [RHP] are

consistent with the equal voting power requirements of the North Carolina

Constitution” and that “the General Assembly did not subordinate traditional neutral

districting criteria to partisan criteria or considerations in the [RHP].”

¶ 55 Next, the trial court considered the proposed alternative remedial plans.

Because the court was “satisfied with the [RHP] and [RSP], [it] did not need to

consider an alternative plan” for those maps. In accordance with N.C.G.S. § 120-

2.4(a1), the trial court ordered the use of the Special Masters’ “interim districting

plan for the 2022 North Carolina Congressional election that differs from the [RCP]

to the extent necessary to remedy the defects identified by the [c]ourt.” The trial court

determined that the Modified RCP “was developed in an appropriate fashion, is

consistent with N.C.G.S. § 120-2.4(a1), and is consistent with the North Carolina

Constitution and the Supreme Court’s full opinion.” (Footnote omitted).

¶ 56 Based on these factual findings, the trial court then reached its legal

-28-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

conclusions. First, the trial court noted this Court’s ruling in Harper that “there are

multiple reliable ways of demonstrating the existence of an unconstitutional partisan

gerrymander” and that “[i]f some combination of these metrics demonstrates there is

a significant likelihood that the districting plan will give the voters of all political

parties substantially equal opportunity to translate votes into seats across the plan,

then the plan is presumptively constitutional.” Harper, ¶ 163.

¶ 57 The trial court then specified its legal conclusions regarding the Remedial

Plans. The trial court concluded that the RSP and RHP “satisf[y] the Supreme Court’s

standards” and therefore concluded that the RHP and RSP “are presumptively

constitutional.” The trial court concluded that “no evidence presented to the [c]ourt is

sufficient to overcome this presumption for the [RSP] and [RHP], and those plans are

therefore constitutional and will be approved.

¶ 58 However, the trial court “conclude[d] that the [RCP] does not satisfy the

Supreme Court’s standards.” Accordingly, the court concluded that the RCP “is not

presumptively constitutional and is therefore subject to strict scrutiny.” The court

concluded that “[t]he General Assembly has failed to demonstrate that [the RCP] is

narrowly tailored to a compelling governmental interest, and . . . therefore . . .

conclude[d] that the [RCP] is unconstitutional.”

¶ 59 Accordingly, the trial court was required to adopt a new, constitutionally

compliant congressional plan. “Given that the ultimate authority and directive is

-29-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

given to the Legislature to draw redistricting maps,” the trial court declined to adopt

Plaintiffs’ proposed plans. Instead, it concluded “that the appropriate remedy is to

modify the [RCP] to bring it into compliance with the Supreme Court’s order. See

N.C.G.S. § 120-2.4(a1).” The trial court concluded that the Modified RCP “as proposed

by the Special Masters satisfies the Supreme Court’s standards and should be

adopted . . . for the 2022 North Carolina Congressional elections.”

¶ 60 Based on these factual findings and legal conclusions, the trial court then

ordered the following:

1. The [RSP] and [RHP] . . . are hereby APPROVED by the
[c]ourt.

2. The [RCP] . . . is hereby NOT APPROVED by the
[c]ourt.

3. The [Modified RCP] as recommended by the Special
Masters is hereby ADOPTED by the [c]ourt and
approved for the 2022 North Carolina Congressional
elections.

¶ 61 On 23 February 2022, contemporaneously with its remedial order, the trial

court issued an order denying Legislative Defendants’ motion to disqualify Drs. Wang

and Jarvis “for the reasons expressed in the Special Masters’ Report.”

C. Present Appeal

¶ 62 Following the trial court’s remedial order, all parties appealed to this Court.

Harper Plaintiffs and NCLCV Plaintiffs appealed the trial court’s acceptance of the

RSP. Plaintiff Common Cause appealed the trial court’s acceptance of both the RSP

-30-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

and RHP and the trial court’s determination that the General Assembly satisfied

racially polarized voting requirements. Legislative Defendants appealed the trial

court’s rejection of the RCP. We briefly summarize each party’s arguments in turn.

¶ 63 First, Harper Plaintiffs and NCLCV Plaintiffs argue that the trial court erred

in approving the RSP. They argue that the evidence shows that the RSP constitutes

a partisan gerrymander that violates the Harper standard by creating stark partisan

asymmetry; that is, by failing to give voters of all parties substantially equal

opportunity to translate votes into seats. They contend that under Harper, individual

statistical metrics can inform but not replace the determination as to whether a map

complies with this foundational principle. They assert that the trial court erroneously

used two statistical measures (mean-median difference and efficiency gap) as a

substitute for constitutional compliance, and therefore that its approval of the RSP

must be rejected. Specifically, they contend that two of the trial court’s factual

findings—those finding that the RSP falls within certain statistical ranges and that

any remaining partisan skew can be explained by political geography—lack

competent evidence, and indeed are contrary to the evidence. Approving the trial

court’s approach, they warn, would greenlight partisan gerrymandering and

gamesmanship by allowing the General Assembly to create maps that meet certain

metrics but nevertheless still create stark partisan asymmetry. Finally, they argue

that after rejecting the RSP, this Court should ensure that lawful maps endure by

-31-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

ordering that a new remedial map be adopted not just for this year, but until the next

redistricting cycle following the 2030 census. This result is required, they assert,

based on the prohibition against mid-decade redistricting within article II, sections 3

and 5 of the North Carolina Constitution.6

¶ 64 Second, Plaintiff Common Cause argues that the trial court failed to evaluate

whether the RHP and RSP comport with all constitutional requirements by failing to

fully consider evidence of racially polarized voting. They contend that the RHP and

RSP dilute the voting strength of Black voters and destroy functioning crossover

districts in violation of equal protection principles.7 Separately, they argue that both

the RHP and RSP must be struck down as unconstitutional partisan gerrymanders

in violation of the Harper standard. They assert that the RHP and RSP deny

substantially equal voting power, that the trial court’s attribution of the plans’

partisan bias to political geography is legally and factually erroneous, and that the

plans therefore must receive and necessarily fail strict scrutiny. Accordingly, they

argue that this Court should ensure constitutional compliance by adopting Common

Cause’s proposed remedial maps.

6 In response, Legislative Defendants argue that the trial court’s approval of the RHP
and RSP should be affirmed and that this Court lacks the authority to adopt an alternative
remedial plan.
7 In response, Legislative Defendants argue that the General Assembly properly

performed RPV analysis, which showed that majority-minority districts are not required to
comply with Section 2 of the Voting Rights Act.

-32-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 65 Third, Legislative Defendants argue that the trial court erred in rejecting the

RCP and adopting the Modified RCP. They contend that the trial court failed to give

the RCP proper deference accorded to legislative enactments, and that the Special

Masters’ findings regarding the RCP were clearly erroneous. Further, Legislative

Defendants argue that the trial court abused its discretion in denying Legislative

Defendants’ motion to disqualify Special Masters’ Advisors Drs. Wang and Jarvis.

Accordingly, they assert that this Court should reverse the trial court’s approval of

the Modified RCP and its denial of their motion to disqualify.8

¶ 66 On 13 July 2022, Legislative Defendants filed with this Court a motion to

dismiss “the entirety of their portion of” this appeal. Therein, Legislative Defendants

asserted that dismissal of their own previous appeal was appropriate because the

Modified RCP “ordered by the trial court is only applicable to the 2022 election, and

that map will apply to the 2022 election regardless of the outcome of the appeal in

this Court.” In response, Harper Plaintiffs and NCLCV Plaintiffs opposed Legislative

Defendants’ motion to dismiss, arguing that the motion constitutes “a transparent

effort to prevent this Court from addressing important questions—questions that

Legislative Defendants have erroneously told the U.S. Supreme Court are

unresolved—about the meaning of North Carolina statutes that authorize North

8 In response, Plaintiffs argue that the trial court properly rejected the RCP and
denied Legislative Defendants’ motion to disqualify.

-33-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Carolina courts to conduct state constitutional review of congressional-districting

plans, including [N.C.G.S.] §§ 1-267.1(a), 120-2.3, and 120-2.4.”

¶ 67 This case came before this Court for oral argument again on 4 October 2022.

II. Analysis

¶ 68 Now, this Court must review the alignment of the trial court’s remedial order

with the foundational principles established in Harper. “When the trial court

conducts a trial without a jury, the trial court’s findings of fact have the force and

effect of a jury verdict and are conclusive on appeal if there is competent evidence to

support them . . . .” Stephenson v. Bartlett, 357 N.C. 301, 309 (2003) (cleaned up). If

this Court determines “that the findings of fact are supported by the evidence, we

must then determine whether those findings of fact support the conclusions of law.”

Id. This Court reviews a trial court’s conclusions of law de novo. Sykes v. Health

Network Sols., Inc., 372 N.C. 326, 332 (2019). After consideration, we affirm the trial

court’s rejection of the RCP, affirm the trial court’s approval of the RHP, and reverse

the trial court’s approval of the RHP. Before reaching these determinations, we must

address Legislative Defendants’ motion to dismiss this appeal, which we deny.

Finally, we must also address Plaintiff Common Cause’s equal protection arguments,

which we reject.

A. Legislative Defendants’ Motion to Dismiss Appeal

-34-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 69 As an initial matter, we must address Legislative Defendants’ motion to

dismiss their own appeal. Because this motion was raised for the first time in this

Court, we review it within our own discretion. After consideration, we deny

Legislative Defendants’ motion.

¶ 70 In essence, Legislative Defendants contend that their appeal should be

dismissed because its outcome will have limited impact. That is, regardless of

whether this Court affirms or reverses the portion of the trial court’s order rejecting

of the RCP and adopting the Modified RCP, the Modified RCP has already been used

in the November 2022 elections and will ostensibly be replaced before future

elections. Harper Plaintiffs and NCLCV Plaintiffs, by contrast, contend that

Legislative Defendants’ motion seeks to “have it both ways” by “arguing about the

meaning of North Carolina law to the U.S. Supreme Court while simultaneously

withdrawing any attempts to have this Court address their misinterpretation of state

statutes and the state constitution.”

¶ 71 Lacking a crystal ball with which to divine Legislative Defendants’ purpose,

we turn to context. While Legislative Defendants’ motion correctly notes that “2022

is the only election to which the [Modified RCP] will apply,” that has been true since

the trial court issued its remedial order adopting the Modified RCP on 23 February

2022. Since then, Legislative Defendants not only appealed the trial court’s ruling

regarding the RCP, but have continued to move their appeal forward through motions

-35-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

practice throughout the spring and into the summer.

¶ 72 On 30 June 2022, however, the Supreme Court of the United States granted

Legislative Defendants’ petition for certiorari in Moore v. Harper. cert. granted, 142

S. Ct. 2901 (2022). There, the Court will consider whether the federal Constitution’s

Elections Clause prohibits state courts from resolving state constitutional challenges

to a state legislature’s congressional redistricting plans. Within their petition,

Legislative Defendants rebut Plaintiffs’ claim that certain state statutes expressly

authorize state courts to review challenges to congressional redistricting plans for

compliance with the state Constitution. On 8 July 2022, Plaintiffs each filed a notice

with this Court noting this development. Legislative Defendants filed their motion to

dismiss their own appeal in this Court three business days later.

¶ 73 This chronology is impossible to ignore, and indicates that Legislative

Defendants sought to dismiss their own appeal in order to avoid a ruling by this Court

that might affect their arguments before the Supreme Court of the United States. In

any event, this issue is of great significance to the jurisprudence of our state and is

squarely and properly before this Court through the trial court’s remedial order and

Legislative Defendants’ subsequent appeal. Accordingly, we deny Legislative

Defendants’ motion to dismiss.

B. Harper’s Constitutional Standard

-36-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 74 Next, before reviewing the Remedial Plans, we take this opportunity to clarify

and reaffirm the constitutional standard recognized by this Court in Harper v. Hall,

380 N.C. 317, 2022-NCSC-17.

¶ 75 Constitutional compliance is not grounded in narrow statistical measures, but

in broad fundamental rights. Therefore, a trial court reviewing the constitutionality

of a challenged proposed districting plan must assess whether that plan upholds the

fundamental right of the people to vote on equal terms and to substantially equal

voting power. Harper, ¶ 7. This fundamental right “encompasses the opportunity to

aggregate one’s vote with likeminded citizens to elect a governing majority of elected

officials who reflect those citizens’ views.” Id. ¶ 160. Put differently, it requires that

“voters of all political parties [have] substantially equal opportunity to translate votes

into seats.” Id. ¶ 163.

When, on the basis of partisanship, the General Assembly
enacts a districting plan that diminishes or dilutes a voter’s
opportunity to aggregate with likeminded voters to elect a
governing majority―that is, when a districting plan
systematically makes it harder for individuals because of
their party affiliation to elect a governing majority than
individuals in a favored party of equal size―the General
Assembly deprives on the basis of partisan affiliation a
voter of his or her right to equal voting power.

Id. ¶ 160.

¶ 76 Although Harper mentions several potential datapoints that may be used in

assessing the constitutionality of a proposed districting plan, those measures are not

-37-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

substitutes for the ultimate constitutional standard noted above. See id. ¶¶ 165–69.

That is, a trial court may not simply find that a districting plan meets certain factual,

statistical measures and therefore dispositively, legally conclude based on those

measures alone that the plan is constitutionally compliant. Constitutional compliance

has no magic number. Rather, the trial court may consider certain datapoints within

its wider consideration of the ultimate legal conclusion: whether the plan upholds the

fundamental right of the people to vote on equal terms and to substantially equal

voting power.

¶ 77 This is for good reason. As both Plaintiffs and Legislative Defendants

recognize, individual datapoints are vulnerable to manipulation and are not

independently dispositive of whether a map gives all voters a substantially equal

opportunity to translate votes into seats. Rather, it is only when these metrics and

record evidence align to “demonstrate[ ] [that] there is a significant likelihood that

the districting plan will give the voters of all political parties substantially equal

opportunity to translate votes into seats across the plan” that a challenged plan may

again be considered presumptively constitutional. Id. ¶ 163.

¶ 78 Contrary to the claims of the dissent, applying this standard, though of course

imperfect, is not impossible. There are many possible redistricting maps that could

uphold the fundamental right of all voters to vote on equal terms, just as there are

many possible factors that a trial court may consider in assessing the ultimate

-38-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

constitutionality of those maps. This is because our constitution speaks in broad

foundational principles, not narrow statistical calculations. As in other realms, the

absence of any one dispositive mathematical metric in redistricting does not absolve

the judiciary of its constitutional duty to interpret and protect the constitutional

rights of the citizens of our state. See Corum, 330 N.C. at 783 (“It is the state judiciary

that has the responsibility to protect the state constitutional rights of the citizens . .

. .”). Indeed, the very history of this case itself reveals that the judiciary, though not

always in perfect agreement, may meaningfully engage with these principles toward

the shared goal of ensuring the preservation of constitutional rights and the

maintenance of our sacred system of democratic governance.

¶ 79 Here, the trial court appears to have leaned very heavily upon its factual

findings regarding two datapoints, mean-median difference and efficiency gap, in

reaching its ultimate legal conclusion that the RHP and RSP “satisfy the Supreme

Court’s standards.”9 However, the trial court also expressly adopted into its factual

findings the findings within the Special Masters’ Report. That Report, in turn,

considered within its determination not just these two datapoints, but also “the

findings of the advisors on the partisan symmetry analysis, the declination metrics, .

. . their opinions on partisan bias and evidence of partisan gerrymandering[,]” and

To be clear, the ultimate standard for constitutional compliance originates from the
9

fundamental rights enshrined in the Constitution itself, not from this Court.

-39-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

“the totality of the circumstances.” Further, the trial court acknowledged the broader

constitutional standard at least in passing in its factual findings regarding

incumbency protection and traditional neutral districting criteria, which noted “the

equal voting power requirements of the North Carolina Constitution.” In so doing,

the remedial order indicates that the trial court functionally considered how the

evidence presented supported or undermined the compliance of the plans with the

broader constitutional standard, rather than using two datapoints as substitutes for

constitutional compliance.10 However, we encourage future trial courts considering

the constitutionality of districting plans to specify how the evidence does or does not

support the plan’s alignment with the broader constitutional standard of upholding

the fundamental right to vote on equal terms and avoiding partisan asymmetry, not

merely where its falls within certain statistical ranges.

C. Remedial Congressional Plan

¶ 80 With the proper constitutional standard clarified, we must now review the trial

court’s legal conclusions regarding the constitutionality of the RCP, RHP, and RSP

in alignment with that standard. We review conclusions of law de novo to determine

whether they are supported by findings of fact. Stephenson, 357 N.C. at 309; Sykes,

372 N.C. at 332. Factual findings are conclusive on appeal if they are supported by

10 The trial court’s brevity here must also be considered within the context of its
extremely compressed schedule on remand.

-40-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

competent evidence. Stephenson, 357 N.C. at 309. We first address the trial court’s

rejection of Legislative Defendants’ RCP. After consideration, we affirm.

¶ 81 In Conclusion of Law 7, the trial court “conclude[d] that the [RCP] does not

satisfy the Supreme Court’s standards” for constitutional compliance. The trial court

subsequently concluded that “the [RCP] is not presumptively constitutional and is

therefore subject to strict scrutiny.” The court ultimately concluded that because

“[t]he General Assembly has failed to demonstrate that the[ ] [RCP] is narrowly

tailored to a compelling governmental interest, . . . [it] is unconstitutional.”

¶ 82 These conclusions of law are supported by Findings of Fact 28 through 35.

Therein, the trial court found that the RCP was passed on a strict party-line vote,

that the RCP “is not satisfactorily within the statistical ranges set forth” in Harper,

and that “the partisan skew in the [RCP] is not explained by the political geography

of North Carolina.” Further, the Special Masters’ Report, as expressly adopted in full

into the trial court’s remedial order, found that “there is substantial evidence from

the findings of the advisors that the [RCP] has an efficiency gap above 7% and a

mean-median difference of greater than 1%.” After consideration of this evidence

“along with the advisors’ findings on the partisan symmetry analysis and the

declination metrics,” the Special Masters stated their “opinion that the [RCP] fails to

meet the threshold of constitutionality.” They therefore “recommend[ed] that the

[t]rial [c]ourt reject the [RCP] as being unconstitutional.”

-41-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

¶ 83 These factual findings are supported by competent evidence in the record.

Specifically, none of the Special Masters’ Advisors determined that the RCP yielded

both an efficiency gap below 7% and a mean-median difference below 1%. Beyond

these two measures, the Advisors determined that the RCP reflects stark and durable

partisan asymmetry, as illustrated by their observations that Republicans would

consistently win more seats than Democrats with the same share of votes across a

variety of electoral conditions. More broadly, the Advisors determined that the RCP

“consistently favors Republicans” across all applicable measures, “creates a

distribution of voting strength across districts that is very lopsidedly Republican,”

and “should be viewed as a pro-Republican gerrymander.” Finally, the Advisors

determined that the RCP created far worse partisan asymmetry than possible

alternatives.11

¶ 84 Collectively, this evidence amply supports the trial court’s factual findings that

the RCP does not satisfy constitutional standards. Those factual findings, in turn,

adequately support the trial court’s subsequent conclusion of law that the RCP must

be assessed under, and fails, strict scrutiny. Accordingly, we affirm the trial court

11 Of course, because there are any number of potential maps that could satisfy
constitutional standards, the existence of an alternative plan with greater partisan
symmetry does not dispositively prove the unconstitutionality of a less symmetrical plan.
However, as with any other piece of evidence, the existence or absence of an alternative plan
with significantly greater partisan symmetry—especially one that still honors traditional
neutral districting criteria—may serve as one datapoint within the trial court’s broader
constitutional determination.

-42-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

order’s rejection of the RCP.

¶ 85 Next, we must address the trial court’s subsequent remedy: the adoption of the

Modified RCP. In Conclusion of Law 8, the trial court stated that “[g]iven the ultimate

authority and directive is given to the Legislature to draw redistricting maps, we

conclude that the appropriate remedy is to modify the Legislative [RCP] to bring it

into compliance with the Supreme Court’s order. See N.C.G.S. § 120-2.4(a1).”

Subsequently, the court concluded that “[t]he [Modified RCP] as proposed by the

Special Masters satisfies the Supreme Court’s standards and should be adopted by

th[e] [c]ourt for the 2022 North Carolina Congressional elections.”

¶ 86 As an initial matter, the trial court is correct: N.C.G.S. § 120-2.4(a1) states, in

pertinent part, that “[i]n the event the General Assembly does not act to remedy [a

previously] identified defect[ ] to its [redistricting] plan within th[e] [required] period

of time, the court may impose an interim districting plan.” N.C.G.S. § 120-2.4(a1)

(2021). The statute further clarifies that this interim plan “may differ from the

districting plan enacted by the General Assembly only to the extent necessary to

remedy any defects identified by the court.” Id. In alignment with its broader

statutory framework including N.C.G.S. § 1-267.1 (entitled “Three-judge panel for

actions challenging plans apportioning or redistricting State legislative or

congressional districts; claims challenging the facial validity of an act of the General

Assembly”) and N.C.G.S. § 120-2.3 (entitled “Contents of judgments invalidating

-43-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

apportionment or redistricting acts), N.C.G.S. § 120-2.4 expressly authorizes judicial

review of legislative redistricting plans for state constitutional compliance and

judicial adoption of modified remedial plans in the event that the General Assembly

fails to remedy constitutional defects within its own proposed plans. Accordingly, the

trial court properly complied with N.C.G.S. § 120-2.4(a1) in adopting the Modified

RCP.

¶ 87 Further, the trial court’s conclusion of law that the Modified RCP satisfies the

constitutional standard is supported by its findings of fact. These factual findings

determined that the Modified RCP “was developed in an appropriate fashion, is

consistent with N.C.G.S. § 120-2.4(a1), and is consistent with the North Carolina

Constitution and the Supreme Court’s full opinion.” (Footnote omitted). The Special

Masters’ Report, as expressly adopted in full into the trial court’s remedial order,

likewise found that the Modified RCP “satisfies the requirements of the Supreme

Court” and “achieves the partisan fairness and ‘substantially equal voting power’

required by the Supreme Court of North Carolina.”

¶ 88 These findings of fact are supported by competent evidence. The evidence

indicates that the Modified RCP “has an efficiency gap of 0.63%, a mean-median

difference of 0.69%, seat bias of 0.28%, and vote bias of 0.10%.” According to Dr.

Grofman, “this is the most non-dilutive plan in partisan terms of any map that has

been submitted to the [c]ourt.” Finally, the evidence indicates that the Modified RCP

-44-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

achieves this level of partisan symmetry while still complying with traditional

neutral districting criteria such as “maintaining the number of county splits,

retaining equal population, compactness, and contiguity, as well as respecting

municipal boundaries.”

¶ 89 Collectively, this evidence amply supports the trial court’s factual findings that

the Modified RCP was developed in an appropriate fashion, is consistent with

N.C.G.S. § 120-2.4(a1), and meets constitutional standards. Those factual findings,

in turn, adequately support the trial court’s subsequent conclusion of law that

adopting the Modified RCP is legally and constitutionally appropriate remedy.

Accordingly, we affirm the trial court order’s adoption of the Modified RCP.

D. Remedial House Plan

¶ 90 Second, we address the trial court’s approval of Legislative Defendants’

Remedial House Plan (RHP). After consideration, we affirm.

¶ 91 In Conclusion of Law 4, the trial court “conclude[d] that the [RHP] satisfies the

Supreme Court’s standards” for constitutional compliance. It subsequently concluded

that “the [RHP is] presumptively constitutional” and that because “no evidence

presented to the [c]ourt is sufficient to overcome this presumption[,] . . . th[e] [RHP

is] therefore constitutional and will be approved.”

¶ 92 These conclusions of law are supported by Findings of Fact 51 through 63, none

of which have been specifically challenged as unsupported by evidence. Therein, the

-45-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

trial court found that the RHP was “amended by six amendments offered by

Democratic Representatives” and ultimately passed the House and Senate with

sweeping bipartisan approval. The trial court found, “based upon and confirmed by

the analysis of the Special Masters and their advisors, that the [RHP is] satisfactorily

within the statistical ranges set forth in the Supreme Court’s full opinion.” The court

found that “to the extent there remains a partisan skew in the [RHP], that partisan

skew is explained by the political geography of North Carolina.” Regarding the

General Assembly’s consideration of incumbency protection, the trial court found that

“the measures taken by the General Assembly for the purposes of incumbency

protection in the [RHP] were applied evenhandedly” and “are consistent with the

equal voting power requirements of the North Carolina Constitution.” The trial court

found “that the General Assembly did not subordinate traditional neutral districting

criteria to partisan criteria or considerations in the [RHP].” Further, the Special

Masters’ Report, as expressly adopted in full into the trial court’s remedial order,

found that “[t]he advisors as well as the experts of the parties . . . all found the

efficiency gap of the [RHP] to be less than 7%” and “[t]he majority of the advisors and

experts found the mean-median difference of the [RHP] to be less than 1%.” The

Special Masters determined, based on these facts and “the findings of the advisors on

the partisan symmetry analysis, the declination metrics, and their opinions on

partisan bias and evidence of partisan gerrymandering,” that “the [RHP] meets the

-46-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

test of presumptive constitutionality.”

¶ 93 Moreover, these factual findings are supported by competent evidence. The

Special Masters’ Advisors determined that the RHP yields an average efficiency gap

of about 2.88%, an average mean-median difference of about 1.27%, a partisan

asymmetry of 2.9%, and a declination metric of 0.16. Although the RHP shows some

Republican bias, the Advisors determined that the RHP “is genuinely far more

competitive than either of the other two legislatively proposed maps” and “simply

lacks the same clear indicia of egregious bias found in the previously rejected maps

and still found . . . in the [RCP] and [RSP].” Dr. Jarvis determined that the RHP

“appear[s] to be mostly typical in terms of the number of seats won,” and Dr. McGhee

observed that the RHP’s similarity to the NCLCV proposed plan “hints that it may

be difficult to do better while still abiding by other constraints.” Contextually, the

Advisors observed that neither the Harper Plaintiffs nor the NCLCV Plaintiffs

challenged the RHP on appeal, and that the RHP “was passed by a clear bipartisan

consensus in the legislature.”

¶ 94 Collectively, this evidence supports the trial court’s factual findings that the

RHP meets constitutional standards. Those factual findings, in turn, adequately

support the trial court’s subsequent conclusion of law that the RHP is constitutional

and should be approved. Accordingly, we affirm the trial court’s order approving the

RHP. In accordance with article II section 5(4) of our Constitution, the RHP is now

-47-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

“established” under law and therefore “shall remain unaltered until the return of

another decennial census of population taken by order of Congress.”

E. Remedial Senate Plan

¶ 95 Third, we address the trial court’s approval of Legislative Defendants’

Remedial Senate Plan (RSP). After consideration, we reverse.

¶ 96 In Conclusion of Law 3, the trial court “conclude[d] that the [RSP] satisfies the

Supreme Court’s standards.” It subsequently concluded that “the [RSP is]

presumptively constitutional,” and that because “no evidence presented to the [c]ourt

is sufficient to overcome this presumption[,] . . . th[e] [RSP is] therefore constitutional

and will be approved.”

¶ 97 These conclusions of law are based on Findings of Fact 36 through 50, but,

unlike for the RHP, are not supported by all of those findings. For instance, Finding

of Fact 36 found that the RSP kept many of the same county groupings as the

unconstitutional 2021 Senate plan. Finding of Fact 38 found that the RSP passed

both chambers of the General Assembly on strict party-line votes. Finding of Fact 39

found that suggested Senate plans drawn by Democrats were rejected and only “the

plan proposed by the Republican Redistricting and Election Committee members was

then put to a vote by the Senate Committee and advanced to the full chamber.”

Though far from dispositive, these contextual factual findings undermine, rather

than support, the trial court’s subsequent conclusion that the RSP meets

-48-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

constitutional standards of partisan symmetry. These contrary factual findings, in

part, distinguish the trial court’s analysis of the RSP from its analysis of the RHP,

¶ 98 Other findings of fact regarding the RSP, though supportive of the trial court’s

legal conclusions, are expressly challenged by Plaintiffs and, we conclude, are

unsupported by competent evidence.12 For instance, Finding of Fact 42 found that

“based upon the analysis performed by the Special Masters and their advisors, . . .

the [RSP] is satisfactorily within the statistical ranges set forth in the Supreme

Court’s full opinion.” Finding of Fact 43 found “that to the extent there remains a

partisan skew in the [RSP], that partisan skew is explained by the political geography

of North Carolina.” These two findings constitute the keystone of the trial court’s

factual support for its legal conclusion that the RSP is constitutionally compliant, but

neither are supported by competent evidence.

¶ 99 First, Finding of Fact 42 is not supported by competent evidence. Far from

supporting the constitutionality of the RSP, the analysis performed by the Special

Masters and their Advisors strongly indicates that the RSP reflects “a substantial

pro-Republican bias” that “should be viewed as a pro-Republican gerrymander” and

constitutes “a significant outlier in favor of the Republicans.” Statistically, all but one

Advisor, Dr. Wang, determined that the RSP yields a mean-median difference of over

12 Because these factual findings are expressly challenged as lacking competent
evidence, they require a more careful review than findings or conclusions that are more
generally rebutted or wholly unmentioned.

-49-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

1%, and the average of all four advisors’ mean-median difference calculation is also

above 1%. Even Dr. Wang concluded that the RSP indicates notable partisan bias in

all six metrics evaluated. And because the Special Masters expressly noted that Dr.

Wang’s analysis “was not determinative of any recommendations made by the Special

Masters to the court,” it is clear that this finding of fact cannot rest on his single

calculation alone. Further, the evidence indicates the RSP’s durable partisan

asymmetry is such that “in a tied election Republicans would still hold 27 or 28 seats,

and that Democrats would need to win as much as 53 percent of the vote to claim 25

seats.”

¶ 100 Finding of Fact 43 is likewise unsupported by competent evidence. There, the

trial court found “that to the extent there remains a partisan skew in the [RSP], that

partisan skew is explained by the political geography of North Carolina.” As an initial

matter, this finding is an incomplete statement of the requirement established in

Harper, which stated that a court may use statistical measures in assessing “whether

a meaningful partisan skew necessarily results from North Carolina’s unique political

geography.” Harper, ¶ 163 (emphasis added). In any event, the evidence shows the

opposite. The Advisors specifically determined that alternative remedial Senate

plans often reflect “less than half the size of the [partisan] advantage in the

Legislative Defendants’ [RSP],” indicating “that there is nothing foreordained about

the advantages in the Legislative Defendants’ plan.” This evidence likewise

-50-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

distinguishes the RSP from the RHP, which was found to reflect very similar partisan

symmetry as alternative plans, thus “hint[ing] that it may be difficult to do better

while still abiding by [traditional] constraints.” Indeed, when alternative plans reflect

substantially less partisan asymmetry while adhering equally or better to traditional

neutral redistricting criteria, it indicates that the more asymmetrical plan is

necessarily not explained by political geography.

¶ 101 To be clear, none of these datapoints are individually dispositive.

Cumulatively, though, they directly and significantly undermine, rather than

support, the trial court’s factual findings that the RSP satisfies constitutional

standards. Given this lack of competent evidentiary support, these challenged

findings of fact must be rejected as support for their subsequent legal conclusions.

¶ 102 Without these keystone factual findings, the trial court’s subsequent

conclusions of law crumble. That is, without any findings that the RSP satisfies

constitutional standards, the trial court’s conclusion affirming the RSP’s

constitutionality is wholly unsupported and likewise fails. Accordingly, we reverse

the trial court’s approval of the RSP.

¶ 103 Given this reversal, this Court must now implement a remedy. Under N.C.G.S.

§ 120-2.4(a1), when “the General Assembly does not act to remedy any identified

defects” to a remedial districting plan, “the court may impose an interim districting

plan . . . that . . . differ[s] from the districting plan enacted by the General Assembly

-51-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

only to the extent necessary to remedy any defects identified by the court.” In

accordance with this express statutory authorization and the Court’s constitutional

authority to remedy the violation of fundamental rights, see Corum, 330 N.C. at 783,

we remand this case to the trial court to oversee the creation of a Modified RSP. This

plan must modify Legislative Defendants’ RSP only to the extent necessary to achieve

constitutional compliance by ensuring that individuals “of all political parties are

given substantially equal opportunity to translate votes into seats across the plan.”

Harper, ¶ 163. Upon its review, if the trial court concludes that the proposed Modified

RSP meets this constitutional standard, then we instruct the trial court to adopt the

Modified RSP.

F. Legislative Defendants’ Motion to Disqualify Special Masters’ Advisors

¶ 104 Next, we must address Legislative Defendants’ contention that the trial court

abused its discretion in denying Legislative Defendants’ motion to disqualify two of

the Special Masters’ Advisors. This Court reviews a trial court’s discretionary ruling

for an abuse of that discretion. Davis v. Davis, 360 N.C. 518, 523 (2006). “A trial court

may be reversed for abuse of discretion only upon a showing that its actions are

‘manifestly unsupported by reason.’ ” Id. (quoting Clark v. Clark, 301 N.C. 123, 129

(1980)). We hold that the trial court did not abuse its discretion in denying Legislative

Defendants’ motion to disqualify for three reasons.

¶ 105 First, while “the analysis provided by Drs. Wang and Jarvis was helpful . . . ,

-52-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

it was not determinative of any recommendations made by the Special Masters to the

[c]ourt.” Second, the ex parte communications between the Advisors and Plaintiffs’

experts “do not appear to have been made in bad faith” and “were solely for the

purpose of proceeding as quickly as possible within the abbreviated time frame

allotted for the remedial process.” Third, all of the information sought by the Advisors

“was publicly available . . . at the time of the communications questioned.”

Accordingly, the trial court’s denial of Legislative Defendants’ motion to disqualify

was amply supported by reason. We therefore affirm the trial court’s denial of

Legislative Defendants’ motion.

G. Equal Protection Challenge

¶ 106 Finally, we must address Plaintiff Common Cause’s equal protection

arguments. Specifically, Common Cause contends that RHP District 10 and RSP

District 4 violate state equal protection requirements by failing to protect against

vote dilution for Black voters and due to the intentional destruction of functioning

crossover districts for Black voters. In response, Legislative Defendants assert the

General Assembly satisfactorily performed a racially polarized voting analysis which

showed that majority-minority districts are not required for Voting Rights Act (VRA)

compliance, and that the General Assembly lacked good reason to conclude that

drawing remedial districts without reference to race was required to protect from

VRA Section 2 liability. Because this Court has already reversed the trial court’s

-53-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

constitutional approval of the RSP, we focus primarily on Plaintiff Common Cause’s

RHP challenge. After consideration, we reject Plaintiff Common Cause’s claim.

¶ 107 In Harper, this Court held “that under Stephenson, the General Assembly was

required to conduct a racially polarized voting analysis prior to drawing district

lines.” Harper, ¶ 214. We further noted that this responsibility “arises from our state

constitution and decisions of this Court, including primarily Stephenson, and not from

the VRA itself, or for that matter from any federal law.” Id.

¶ 108 Here, the trial court concluded that the RHP satisfied constitutional

standards, which include principles of equal protection. This conclusion of law, as it

relates to equal protection principles, was supported by Findings of Fact 16 and 17.

Therein, the trial court found that “[t]he General Assembly conducted an abbreviated

racially polarized voting (“RPV”) analysis to determine whether racially polarized

voting is legally sufficient in any area of the state such that Section 2 of the [VRA]

requires the drawing of a district to avoid diluting the voting strength of African

American voters during the remedial process.” The trial court found that “Legislative

Defendants’ expert Dr. Jeffery B. Lewis ran an analysis and concluded that all three

Remedial Plans provide African Americans with proportional opportunity to elect

their candidates of choice.” Accordingly, the trial court determined “that the General

Assembly satisfied the directive in the Supreme Court Remedial Order to determine

whether the drawing of a district in an area of the state is required to comply with

-54-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Section 2 of the [VRA].”

¶ 109 The evidence on this issue, though limited, supports the trial court’s limited

findings of fact and conclusion of law. Specifically, the record reflects that the General

Assembly conducted RPV analysis during its remedial process in compliance with

this Court’s order and opinion in Harper, and that this analysis concluded that the

RHP met threshold requirements of providing Black voters with proportional

opportunity to elect candidates of their choice. Although Plaintiff Common Cause

notes contrary evidence indicating decreases in Black voting age population

percentages within the two challenged districts under the RHP and RSP, this

evidence does not lead to a conclusion that the trial court’s findings are unsupported

by competent evidence. Further, because the federal authorities cited by Plaintiff

Common Cause do not require the General Assembly to create functioning crossover

districts based on this data under state equal protection principles, this Court is not

in a position to consider Plaintiff’s requested remedy within an exclusively state law

claim in state court. Accordingly, we affirm the trial court’s approval of the RHP on

equal protection principles.

III. Conclusion

¶ 110 Our Constitution’s Declaration of Rights vests in the people of this state the

fundamental right to vote on equal terms. N.C. Const. art. I, §§ 1 (equality and rights

of persons), 2 (sovereignty of the people), 10 (free elections), 12 (freedom of assembly),

-55-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

14 (freedom of speech), 19 (equal protection of the laws); see Harper, ¶ 158–59

(summarizing these principles and rights). In exercising its redistricting authority,

the General Assembly is required to respect and uphold this fundamental right. Id. ¶

160. Therefore, when the General Assembly enacts a districting plan that

systematically makes it harder for certain voters to elect a governing majority based

on partisan affiliation, that plan “is subject to strict scrutiny and is unconstitutional

unless the General Assembly can demonstrate that the plan is narrowly tailored to

advance a compelling governmental interest.” Id. ¶ 161 (cleaned up). While individual

datapoints about a districting plan may be helpful toward assessing constitutional

compliance, they are not substitutes for constitutional compliance. Ultimately, a

districting plan must comply with the broader constitutional standard of upholding

the right to vote on equal terms and to substantially equal voting power. Id. ¶ 160.

¶ 111 Here, the trial court properly determined that Legislative Defendants’

Remedial Congressional Plan fell short of that standard. In accordance with N.C.G.S.

§ 120-2.4(a1), it then properly adopted a Modified RCP. Therefore, we affirm the trial

court’s rejection of the RCP and adoption of the Modified RCP.

¶ 112 Next, the trial court properly determined that Legislative Defendants’

Remedial House Plan met constitutional standards. We therefore affirm the trial

court’s approval of the RHP for use through the next decennial redistricting cycle.

¶ 113 However, the trial court erred in its determination that Legislative

-56-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Defendants’ Remedial Senate Plan met constitutional standards. Specifically, the

trial court’s legal conclusion that the RSP is constitutionally compliant is

unsupported by findings of fact that are supported by competent evidence. Rather,

the evidence strongly indicates that the RSP creates stark partisan asymmetry in

violation of the fundamental right to vote on equal terms. We therefore reverse the

trial court’s approval of the RSP.

¶ 114 In accordance N.C.G.S. § 120-2.4(a1), we now remand this case to the trial

court to oversee the creation of a Modified RSP that modifies Legislative Defendants’

RSP only to the extent necessary to achieve constitutional compliance. After

assessing the Modified RSP for constitutional compliance, we instruct the trial court,

in accordance with N.C.G.S. § 120-2.4(a1), to adopt this Modified RSP.

¶ 115 If our state is to realize its foundational ideals of equality and popular

sovereignty, it must first “ensure that the channeling of ‘political power’ from the

people to their representatives in government through elections, the central

democratic process envisioned by our constitutional system, is done on equal terms.”

Harper, ¶ 223. Only then will ours truly be “a ‘government of right’ that ‘originates

from the people’ and speaks with their voice.” Id. As expressed in Harper, it remains

the sincere hope of this Court that our state’s leaders will exercise their constitutional

authority—in redistricting and all other realms—in a manner that upholds these

fundamental rights and principles. Id. Until then, it remains the solemn

-57-
 HARPER V. HALL

2022-NCSC-121

Opinion of the Court

constitutional duty of this Court and our state judiciary to stand in the breach.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

-58-
 Chief Justice NEWBY dissenting.

¶ 116 To which branch of government does our constitution place the role of

redistricting? The constitution expressly gives that responsibility to the legislative

branch; even the majority so concedes. While paying lip service to this express grant

of authority, the majority retains for itself the ultimate redistricting responsibility.

As previously warned in the initial dissent in this case,

[t]he majority replaces established principles with
ambiguity, basically saying that judges alone know which
redistricting plan will be constitutional and accepted by
this Court based on analysis by political scientists. This
approach ensures that the majority now has and
indefinitely retains the redistricting authority, thereby
enforcing its policy preferences.

Harper v. Hall (Harper I), 380 N.C. 317, 2022-NCSC-17, ¶ 229 (Newby, C.J.,

dissenting).

¶ 117 Today this prediction is fulfilled. In Harper I the majority effectively amended

the state constitution to establish a redistricting commission composed of judges and

political science experts. When, however, this commission, using the majority’s

redistricting criteria, reached an outcome with which the majority disagrees, the

majority freely reweighs the evidence and substitutes its own fact-finding for that of

the three-judge panel. Again, as predicted, “[t]he four members of this Court alone

will approve a redistricting plan which meets their test of constitutionality.” Id.

¶ 309.
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 118 On remand, despite very challenging deadlines established by the majority,

the General Assembly redrew its redistricting maps, this time using the guidelines

discussed by this Court in Harper I. The General Assembly made the policy decision

to use various approved, constitutionally compliant procedures. It chose appropriate

county groupings, utilized the most widely accepted redistricting software available,

Maptitude, and adopted for its use the twelve statewide races suggested by one of

plaintiffs’ experts. It made the policy decision to rely on the two, extensively peer-

reviewed, political science tests suggested by the majority. The majority said that if

a redistricting plan met these tests, it would be “presumptively constitutional.” Id.

¶¶ 166−67 (majority opinion). All of the General Assembly’s remedial plans met these

tests according to the Maptitude software.

¶ 119 The three-judge panel, its Special Masters, and their advisors did not give any

deference to the General Assembly’s policy choices listed above. Each advisor used

his own preferred software and set of elections to analyze the remedial plans.

Nevertheless, the Special Masters recommended, and the three-judge panel

concluded, that the remedial House plan (RHP) and the remedial Senate plan (RSP)

complied with the majority’s criteria from Harper I. The three-judge panel, however,

summarily rejected the remedial Congressional plan (RCP), as recommended by the

Special Masters, and judicially adopted a plan created by the Special Masters in

consultation with their advisors.

-2-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 120 Now the majority agrees with the three-judge panel’s acceptance of the RHP

and its rejection of the RCP. The majority, however, holds unconstitutional beyond a

reasonable doubt the RSP. While accepting the three-judge panel’s findings of fact for

the RHP, the majority wrongly reweighs the evidence, determines credibility, and

substitutes its own judgment for that of the three-judge panel in order to strike down

the RSP.

¶ 121 Despite the majority’s judicial amendments to our constitution to create an

active role for itself in redistricting, our case law directs that the General Assembly’s

policy determinations in enacting laws are entitled to a presumption of

constitutionality. See State ex rel. McCrory v. Berger, 368 N.C. 633, 639, 781 S.E.2d

248, 252 (2016). Showing that a policy decision is unconstitutional requires proof

beyond any reasonable doubt. See, e.g., Jenkins v. State Bd. of Elections, 180 N.C.

169, 172, 104 S.E. 346, 348 (1920). In compliance with the majority’s directive, the

General Assembly chose Maptitude, a set of twelve statewide elections, and two

political science tests, Mean-Median Difference and Efficiency Gap, which were

specifically approved in Harper I.

¶ 122 No one has challenged the General Assembly’s policy choices as

unconstitutional. According to Maptitude, all three remedial maps satisfied the

Mean-Median Difference and Efficiency Gap criteria, thus meeting the majority’s own

test for presumptive constitutionality—this test being in addition to the

-3-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

long-standing requirement that we treat all acts of the General Assembly as

constitutional.

¶ 123 Neither the majority nor the three-judge panel gave any deference to these

policy choices. Instead, they disrespect another branch of government by treating the

General Assembly as just another participant in their redistricting process. While the

three-judge panel correctly upheld the RHP and the RSP, it wrongly rejected the RCP.

The majority now wrongly rejects the RSP and upholds the three-judge panel’s

rejection of the RCP. The majority has effectively overturned its own decision in

Harper I. There it said that if the Remedial Plans met specified thresholds for certain

political science-based tests, the plans would be “presumptively constitutional.”

Harper I, 2022-NCSC-17, ¶¶ 166−67. Now, reversing course, it says none of these test

scores can entitle a proposed redistricting plan to a presumption of constitutionality.

It appears the majority seeks to apply strict scrutiny to all of Legislative defendants’

Remedial Plans.

¶ 124 By its actions today, the majority confirms the dangers of judicial usurpation

of the legislative redistricting role. By intentionally stating vague standards, it

ensures that four members of this Court alone understand what redistricting plan is

constitutionally compliant. Apparently, the General Assembly, the three Special

Masters (each a former jurist), and the three-judge panel were unable to discern the

-4-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

constitutional “standard” set out in Harper I. Only the four justices here know what

meets their standard.

¶ 125 When the constitution expressly assigns a task to a particular branch of

government, the constitution prohibits the judicial branch from intruding into that

task. Such intrusion violates separation of powers; the issue is nonjusticiable.

Similarly, a matter is nonjusticiable if there is “a lack of judicially discoverable and

manageable standards for resolving it.” Id. ¶ 237 (Newby, C.J., dissenting) (quoting

Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710 (1962)). While the presence of

either factor makes a matter nonjusticiable, both are present here.1

¶ 126 As previously stated,

[t]he majority ignores [the Supreme Court’s] warnings,
fails to articulate a manageable standard, and seems
content to have the discretion to determine when a
redistricting plan is constitutional. This approach is
radically inconsistent with our historic standard of review,
which employs a presumption that acts of the General
Assembly are constitutional, requiring identification of an
express constitutional provision and a showing of a
violation of that provision beyond a reasonable doubt.

The Supreme Court cautioned that embroiling
courts in cases involving partisan gerrymandering claims

1 The majority wrongly states that the presence of both factors is required to render
an issue nonjusticiable. Harper I, 2022-NCSC-17, ¶ 112 (majority opinion) (“This Court has
recognized two criteria of political questions: (1) where there is ‘a textually demonstrable
constitutional commitment of the issue’ to the ‘sole discretion’ of a ‘coordinate political
department[,]’ and (2) those questions that can be resolved only by making ‘policy choices
and value determinations.’ ” (first alteration in original) (emphasis added) (quoting Bacon v.
Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001))).

-5-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

by applying an “expansive standard” would amount to an
“unprecedented intervention in the American political
process.”

Id. ¶¶ 310−11 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2498 (2019)). Sadly,

the majority continues to do just that. I respectfully dissent.

I. Factual and Procedural History

A. Initial Litigation

¶ 127 As required by both our state constitution and the Federal Constitution, the

General Assembly, following the 2020 census, enacted redistricting plans for the

North Carolina Senate and House of Representatives and for the North Carolina

districts for the United States House of Representatives on 4 November 2021 (2021

Plans). North Carolina League of Conservation Voters (NCLCV) plaintiffs and

Harper plaintiffs each challenged the legality of these plans, arguing they

“establish[ed] severe partisan gerrymanders” and “engag[ed] in racial vote dilution”

in violation of the Free Elections Clause, the Equal Protection Clause, the Freedom

of Speech and Assembly Clauses, and the Whole County Provisions of the North

Carolina Constitution. See N.C. Const. art. I, §§ 10, 19, 12, 14; id. art. II, §§ 3(3), 5(3).

Both groups of plaintiffs also sought a preliminary injunction to enjoin use of the 2021

Plans.

¶ 128 The NCLCV and Harper actions were consolidated and assigned to a

three-judge panel of the Superior Court in Wake County. On 3 December 2021, the

-6-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

three-judge panel denied both NCLCV plaintiffs’ and Harper plaintiffs’ motions for

preliminary injunction. NCLCV plaintiffs and Harper plaintiffs filed a notice of

appeal with the North Carolina Court of Appeals.

¶ 129 The Court of Appeals denied NCLCV plaintiffs’ and Harper plaintiffs’ request

for a temporary stay. NCLCV plaintiffs and Harper plaintiffs then filed several items

with this Court, including two petitions for discretionary review prior to

determination by the Court of Appeals, a motion to suspend appellate rules to

expedite a decision, and a motion to suspend appellate rules and expedite schedule.

On 8 December 2021, this Court allowed NCLCV plaintiffs’ and Harper plaintiffs’

petitions for discretionary review, granted a preliminary injunction, and temporarily

stayed the candidate filing period for the 2022 election cycle “until such time as a

final judgment on the merits of [NCLCV and Harper] plaintiffs’ claims, including any

appeals, is entered and [a] remedy, if any is required, has been ordered.” In the same

order, this Court also directed the three-judge panel to hold proceedings on “the

merits of plaintiffs’ claims and to provide a written ruling on or before . . . January

11, 2022.”

¶ 130 Subsequently, Common Cause moved to intervene in the consolidated

proceedings as a plaintiff on 13 December 2021. The three-judge panel granted

Common Cause’s motion to intervene, and on 16 December 2021, Common Cause

filed its complaint alleging the 2021 Plans violated the Equal Protection Clause, the

-7-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

Free Elections Clause, and the Freedom of Speech and Freedom of Assembly Clauses

of the North Carolina Constitution. Hereinafter, NCLCV plaintiffs, Harper plaintiffs,

and Common Cause are collectively referred to as “plaintiffs.”

¶ 131 Legislative defendants filed their Answers on 17 December 2021. Thereafter,

the parties engaged in an “expedited two-and-a-half-week” discovery period, during

which the three-judge panel ruled on ten discovery-related motions and the parties

collectively designated ten expert witnesses and submitted accompanying reports.

Altogether, the parties collectively submitted over 1000 pages of reports and

materials to the three-judge panel. After the discovery period closed on 31 December

2021, the three-judge panel commenced a three-and-one-half day trial on 3 January

2022 during which it received approximately 1000 exhibits into evidence and

testimony from numerous fact and expert witnesses.

¶ 132 On 11 January 2022, the three-judge panel entered a judgment concluding that

plaintiffs’ partisan gerrymandering claims presented nonjusticiable, political

questions because redistricting “is one of the purest political questions which the

legislature alone is allowed to answer.” Additionally, the three-judge panel concluded

that the 2021 Plans did not violate North Carolina’s Declaration of Rights because

“[t]he objective constitutional constraints that the people of North Carolina have

imposed on legislative redistricting are found in Article II, Sections 3 and 5 of the

-8-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

1971 Constitution and not the Free Elections, Equal Protection, Freedom of Speech

or Freedom of Assembly Clauses found in Article I of the 1971 Constitution.”

¶ 133 Pursuant to this Court’s 8 December 2021 order certifying the case for review

prior to determination by the Court of Appeals, all plaintiffs filed notices of appeal to

this Court from the three-judge panel’s judgment. The case was argued before this

Court on 2 February 2022. On 4 February 2022, in a four-to-three decision, this Court

entered an Order (Remedial Order) adopting the findings of fact from the three-judge

panel’s judgment but concluding that the 2021 Plans were “unconstitutional beyond

a reasonable doubt under the free elections clause, the equal protection clause, the

free speech clause, and the freedom of assembly clause of the North Carolina

Constitution.” The Remedial Order reversed and remanded the matter to the

three-judge panel for remedial proceedings and noted that a full opinion would follow.

Three justices filed a dissent to the Remedial Order.

B. Harper I

¶ 134 Ten days later, the four-justice majority issued its full opinion. See Harper I,

380 N.C. 317, 2022-NCSC-17. The majority opinion first held that “partisan

gerrymandering claims are justiciable in North Carolina courts under the . . . [North

Carolina] Declaration of Rights” because there are “several manageable standards

for evaluating the extent to which districting plans dilute votes on the basis of

partisan affiliation.” Id. ¶ 174. Specifically, the majority determined that various

-9-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

political science metrics could serve as a sufficient standard. See id. ¶¶ 163, 166–67.

It indicated that a 1% or less Mean-Median Difference score and a 7% or less

Efficiency Gap score could indicate a redistricting map is “presumptively

constitutional.” See id. ¶¶ 166–67. The majority, however, refused to state a precise

standard, ultimately leaving that review to themselves. Id. ¶ 163 (“We do not believe

it prudent or necessary to, at this time, identify an exhaustive set of metrics or precise

mathematical thresholds which conclusively demonstrate or disprove the existence of

an unconstitutional partisan gerrymander.”).

¶ 135 Next, the majority held that “[p]artisan gerrymandering of legislative and

congressional districts violates the free elections clause, the equal protection clause,

the free speech clause, and the freedom of assembly clause” of the North Carolina

Constitution. Id. ¶ 160. Specifically, the majority reasoned that these provisions

reflect “the principle of political equality,” id. ¶ 158, which in turn requires that “the

channeling of ‘political power’ from the people to their representatives in government

through the democratic processes . . . must be done on equal terms,” id. Accordingly,

the majority concluded that to comport with these provisions in the Declaration of

Rights, the General Assembly “must not diminish or dilute on the basis of partisan

affiliation any individual’s vote” because “[t]he fundamental right to vote includes the

right to enjoy ‘substantially equal voting power and substantially equal legislative

-10-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

representation.’ ” Id. ¶ 160 (quoting Stephenson v. Bartlett (Stephenson I), 355 N.C.

354, 382, 562 S.E.2d 377, 396 (2002)).

¶ 136 The majority determined that because “[t]he right to vote on equal terms is a

fundamental right in this state,” strict scrutiny must apply once a party demonstrates

that a redistricting plan “infringes upon his or her fundamental right to substantially

equal voting power” based on partisan affiliation. Id. ¶ 181. To trigger strict scrutiny,

the majority held that a party must demonstrate that a redistricting plan “makes it

systematically more difficult for a voter to aggregate his or her vote with other

likeminded voters.” Id. ¶ 180. A party may make this demonstration using a variety

of political science-based metrics and tests such as:

median-mean difference analysis; efficiency gap analysis;
close-votes-close[-]seats analysis[;] partisan symmetry
analysis; comparing the number of representatives that a
group of voters of one partisan affiliation can plausibly
elect with the number of representatives that a group of
voters of the same size of another partisan affiliation can
plausibly elect; and comparing the relative chances of
groups of voters of equal size who support each party of
electing a supermajority or majority of representatives
under various possible electoral conditions. Evidence that
traditional neutral redistricting criteria were subordinated
to considerations of partisan advantage may be
particularly salient in demonstrating an infringement of
this right.

Id. Once a party makes this initial demonstration, the challenged redistricting plan

“is unconstitutional [unless] the State can[ ] establish that it is narrowly tailored to

advance a compelling governmental interest.” Id. ¶ 181 (quoting Stephenson I, 355

-11-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

N.C. at 377, 562 S.E.2d at 393). The majority opined that “compliance with traditional

neutral districting principles, including those enumerated in [the Whole County

Provisions] of the North Carolina Constitution,” might constitute a compelling

governmental interest that would overcome strict scrutiny, but “[p]artisan

advantage” is not. Id.

¶ 137 The majority then applied these principles to the three-judge panel’s factual

findings and determined that the evidence at trial demonstrated that all of the 2021

Plans were partisan gerrymanders. Id. ¶ 178. The majority then applied strict

scrutiny to each map and concluded that the 2021 Plans were not “carefully calibrated

toward advancing some compelling neutral priority.” Id. ¶¶ 195, 213; see id. ¶ 205.

To the contrary, the majority concluded that each map “prioritized considerations of

partisan advantage above traditional neutral districting principles,” and therefore,

“must be rejected.” Id. ¶ 213; see id. ¶¶ 195, 205.

¶ 138 The majority concluded its Harper I opinion by reversing and remanding the

case to the three-judge panel and instructing the three-judge panel to “oversee the

redrawing of the maps by the General Assembly, or, if necessary, by the court.” Id. ¶

223. The three dissenting justices determined plaintiffs’ claims were non-justiciable.

The dissent noted that our state constitution expressly assigns the redistricting

responsibility to the General Assembly and that the majority failed to identify a

-12-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

judicially discernable, manageable standard by which to adjudicate the partisan

gerrymandering claims at issue. See id. ¶¶ 237−67 (Newby, C.J., dissenting).

C. Remand

1. Three-Judge Panel’s Initial Orders

¶ 139 This Court’s 4 February 2022 Remedial Order required an expedited process

with abbreviated deadlines. The majority ordered the General Assembly to submit

new congressional and state legislative districting plans “that satisfy all provisions

of the North Carolina Constitution” by 18 February 2022. The Remedial Order also

permitted plaintiffs to submit proposed remedial districting plans by the same

deadline. The majority permitted all parties to file and submit comments on any of

the submitted plans by 21 February 2022. The Remedial Order mandated that the

three-judge panel “approve or adopt compliant congressional and state legislative

districting plans no later than noon on 23 February 2022.” Any party could file an

emergency application for stay pending appeal by 5:00 P.M. on that same day.

¶ 140 On 8 February 2022, the three-judge panel entered an order requiring that

each party who submitted a proposed remedial plan must also submit a

corresponding explanation of the “data and other considerations” used in creating the

plan. Specifically, each party had to explain whether “traditional neutral districting

criteria” were used, whether incumbency was considered, whether any partisan skew

-13-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

“necessarily result[ed] from North Carolina’s unique political geography,” and any

political science metrics utilized.

¶ 141 In the same 8 February 2022 order, the three-judge panel also informed the

parties of its intent to appoint Special Masters to assist the panel in reviewing the

parties’ proposed remedial plans and, if needed, in developing alternative remedial

plans. The order permitted each party to submit to the three-judge panel suggested

individuals to serve as a Special Master. Each of the parties submitted their

suggestions, but the three-judge panel instead appointed three individuals of its own

choosing—former jurists Robert F. Orr, Robert H. Edmunds, Jr., and Thomas W.

Ross—in a 16 February 2022 order (Appointment Order).

¶ 142 The Appointment Order authorized the Special Masters to hire assistants

“reasonably necessary to facilitate their work.” The Special Masters hired four

advisors to assist in evaluating the Remedial Plans: Dr. Bernard Grofman, Dr. Tyler

Jarvis, Dr. Eric McGhee, and Dr. Samuel Wang. Notably, two of the advisors—Dr.

Grofman and Dr. Jarvis—were recommended by NCLCV plaintiffs as potential

Special Masters, and at least one of the advisors—Dr. Wang—filed a brief in support

of plaintiff Common Cause in previous litigation surrounding redistricting in North

Carolina. See Brief of Amici Curiae Professors Wesley Pegden, Jonathan Rodden, and

Samuel S.-H. Wang in Support of Appellees 2, Rucho v. Common Cause, 139 S. Ct.

-14-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

2484 (No. 05-1631). None of the advisors were recommended by Legislative

defendants.

2. General Assembly’s Remedial Process

¶ 143 The General Assembly enacted new congressional and legislative plans

(Remedial Plans) on 17 February 2022 and timely submitted them to the three-judge

panel on 18 February 2022. Per the three-judge panel’s 8 February 2022 and 16

February 2022 orders, the General Assembly also submitted a detailed memorandum

describing the data and process used to create the Remedial Plans.

¶ 144 The General Assembly understood Harper I as requiring it “to intentionally

create more Democratic districts in the [Remedial Plans].” To achieve this task, the

General Assembly started with a blank slate and followed the same process to create

each map. Each redistricting committee kept the county groupings used for the 2021

Plans as base maps. Accordingly, any single district county groupings from each of

the 2021 Plans were carried over to the Remedial Plans; otherwise, each map was

entirely new.

¶ 145 Next, each redistricting committee “dr[e]w new districts and ma[d]e

adjustments tailored to legitimate criteria.” The General Assembly made the policy

decision to utilize Caliper’s Maptitude redistricting software, a “widely accepted

districting program,” to draw and analyze the Remedial Plans. The General Assembly

chose Maptitude, as opposed to another redistricting software, because it is “widely

-15-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

accepted” in the field of redistricting and is “used by a supermajority of the state

legislatures, political parties, and public interest groups.” Overview: Maptitude for

Redistricting Software, https://www.caliper.com/mtredist.htm (last visited Dec. 7,

2022).

¶ 146 Although expressly prohibited by its previous redistricting criteria, the

General Assembly “used partisan election data as directed by the Supreme Court’s

Remedial Order” to achieve its goal of “intentionally creat[ing] more Democratic

districts.” The General Assembly made the policy decision to utilize partisan data

from the set of elections that plaintiffs’ expert, Dr. Mattingly, used to analyze the

[2021 Plans]. This set of elections included: Lieutenant Governor 2016, President

2016, Commissioner of Agriculture 2020, Treasurer 2020, Lieutenant Governor 2020,

U.S. Senate 2020, Commissioner of Labor 2020, President 2020, Attorney General

2020, Auditor 2020, Secretary of State 2020, and Governor 2020 (Mattingly Election

Set). Non-partisan, central staff “loaded [the] partisan election data into Maptitude

to view the projected effect on partisanship that resulted from changes to district

lines.”

¶ 147 After Maptitude produced initial House, Senate, and congressional maps, the

General Assembly analyzed the partisan fairness of each map using two political

science metrics—the Mean-Median Difference and the Efficiency Gap. The General

Assembly chose these two metrics because “they have been peer-reviewed in

-16-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

numerous articles by numerous scholars[ ] and because there is some (but not

uniform) agreement among scholars regarding thresholds for measuring

partisanship.” For each of these metrics, the General Assembly selected threshold

scores that, if achieved, would indicate that the relevant map contained an acceptable

level of partisan fairness under Harper I.

¶ 148 The General Assembly selected threshold scores based on general agreement

among political scientists:

[I]t is widely considered by academics that a mean-median
as close to zero as possible, but under [1%] is
“presumptively constitutional.” See Harper v. Hall, 2022
NCSC-17 ¶166. On the efficiency gap, scholars including
NCLCV’s Dr. Duchin have opined that anything below [8%]
is presumptively legal while Dr. Jackman, used as an
expert in Gill v. Whitford, and Common Cause v. Rucho,
opined that anything below [7%] was constitutional.

The General Assembly also selected these threshold scores because the Harper I

majority opined that they could indicate a presumptively constitutional level of

partisanship:

[U]sing the actual mean-median difference measure, from
1972 to 2016 the average mean-median difference in North
Carolina’s congressional redistricting plans was 1%.
Common Cause [v. Rucho], 318 F. Supp. 3d [777,] 893
[(M.D.N.C. 2018)]. That measure instead could be a
threshold standard such that any plan with a
mean-median difference of 1% or less when analyzed using
a representative sample of past elections is presumptively
constitutional.

-17-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

With regard to the efficiency gap measure, courts
have found “that an efficiency gap above 7% in any
districting plan’s first election year will continue to favor
that party for the life of the plan.” Whitford v. Gill, 218 F.
Supp. 3d 837, 905 (W.D. Wis. 2016) rev’d on other grounds,
138 S. Ct. 1916 (2018). It is entirely workable to consider
the seven percent efficiency gap threshold as a
presumption of constitutionality, such that absent other
evidence, any plan falling within that limit is
presumptively constitutional.

Harper I, 2022-NCSC-17, ¶¶ 166–67 (majority opinion).

¶ 149 After making the policy choices of the political science metrics and threshold

scores to be used, the General Assembly then adjusted each of the Remedial Plans

until their Mean-Median Difference and Efficiency Gap scores were at or below the

selected thresholds. After the adjustments were complete, Maptitude scored each of

the Remedial Plans as follows:

RHP RSP RCP

Mean-Median 0.7% 0.65% 0.61%

Efficiency 0.84%2 3.97% 5.29%
Gap

¶ 150 Along with prioritizing the creation of more “purportedly Democratic leaning

districts” and ensuring the Remedial Plans scored well on the selected metrics, the

2 Legislative defendants were “unable to find a legislative plan passed anywhere else
in the country with a lower efficiency gap” than the RHP. Thus, it would be unfair to use this
Efficiency Gap score as a required standard.

-18-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

General Assembly also focused on the “neutral and traditional redistricting criteria”

used in creating the 2021 Plans unless those criteria conflicted with Harper I.

¶ 151 After drawing their respective plans, each chambers presented their plans to

the relevant redistricting committee. The General Assembly enacted the Remedial

Plans on 17 February 2022 and submitted them to the three-judge panel on 18

February 2022.

¶ 152 After the General Assembly submitted the enacted Remedial Plans to the

three-judge panel, plaintiffs submitted comments and objections. Significantly, none

of the parties questioned the General Assembly’s policy decision to utilize Maptitude

or to use the Mattingly Election Set. The Special Masters also submitted a report on

the Remedial Plans primarily based on four reports submitted by the advisors.

Notably, in crafting their reports, none of the advisors used the General Assembly’s

chosen program, Maptitude, nor did they use the General Assembly’s chosen

Mattingly Election Set. Further, none of the advisors worked together in analyzing

the Remedial Plans, nor did they submit a singular report. Instead, each advisor used

his own preferred approach and summarized that approach in his own report.3 The

Special Masters’ Report found that the RHP and RSP met the requirements of Harper

I but that the RCP did not. Because the Special Masters concluded that the RCP was

3 Despite the majority’s numerous implications that the advisors filed a singular
report, this is untrue. Each advisor used an individual approach and supplied his own
individual analysis.

-19-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

unconstitutional, they developed and submitted an alternative plan (Modified

Congressional Plan), in consultation with one of the advisors, Dr. Bernard Grofman,

for the three-judge panel to consider.4

¶ 153 In reviewing the Remedial Plans, the three-judge panel “adopt[ed] in full the

findings of the Special Masters,” and, like the Special Masters, concluded that the

4 One could legitimately question the objectivity of this court-appointed, de facto
“redistricting commission” when one of the Special Masters publicly participated in
advertisements for a Democratic candidate in a statewide senatorial campaign and for a
Democratic congressional candidate in a district he created during this remedial process. See
Jim Stirling, Former Justice Bob Orr Puts His Thumb on the Scale for Congressional
Democrats, John Locke Foundation (Nov. 7, 2022), https://www.johnlocke.org/former-justice-
bob-orr-puts-his-thumb-on-the-scale-for-congressional-democrats/. Given this Special
Master’s direct participation in current elections involving a district he helped fashion, one
wonders if the three-judge panel can allow his continued involvement.
Furthermore, one of the advisors to the Special Masters—Dr. Wang—came under
investigation earlier this year for allegedly manipulating data in favor of Democrats in his
role as a redistricting expert in another state. See Princeton redistricting expert who analyzed
N.C. voting maps faces university investigation, WRAL News (April 28, 2022, 6:02 PM),
https://www.wral.com/princeton-redistricting-expert-who-analyzed-nc-voting-maps-faces-
university-investigation/20256616/.
Is the judicial creation of this “redistricting commission,” which favors the political
alignment of the majority of this Court, consistent with the fact that our constitution assigns
the duty of redistricting to the General Assembly, which the people elected in 2020 using
court-approved maps?
The majority upholds the three-judge panel’s denial of Legislative defendants’ motion
to disqualify two of the Special Masters’ advisors for improper ex parte communications with
some of plaintiffs’ experts. The motion, however, should have been allowed. The role of
advisor—a purportedly neutral subject matter expert—to the three Special Masters is vital
to a proper, unbiased evaluation of the legislative redistricting plans. The Special Masters,
three-judge panel, and the majority, in reweighing the evidence, place great weight on the
opinions of each of the advisors. If the challenged advisors had been judges who engaged in
similar ex parte communications, they would have been removed from the case and possibly
faced sanctions. If this de facto “redistricting commission” is to supervise the remedial
redistricting process, it must be above reproach. The motion to disqualify Drs. Wang and
Jarvis should have been granted.

-20-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

RHP and RSP complied with the requirements of Harper I, but that the RCP was “not

presumptively constitutional,” was “subject to strict scrutiny,” and was not “narrowly

tailored to a compelling governmental interest.” Accordingly, the three-judge panel

concluded the RCP was unconstitutional. To support its holding, the three-judge

panel relied primarily on the “analysis performed by the Special Masters and their

advisors,” and its conclusion that the RHP and RSP scored below the relevant

thresholds for the Mean-Median Difference and Efficiency Gap metrics, but the RCP

did not. The three-judge panel did not point to any other evidence regarding the

purported level of partisan bias in the Remedial Plans.

¶ 154 Finally, because the three-judge panel rejected the General Assembly’s RCP,

it adopted the Modified Congressional Plan recommended by the Special Masters. All

parties appealed.5

5Legislative defendants have moved to dismiss their appeal of the court-generated
Modified Congressional Plan, recognizing that, by statute, it will not be reused now that the
recent 2022 election cycle has concluded. This Court invariably allows parties to craft their
own appeals. The majority, however, believing a dismissal could hinder its own, self-
appointed redistricting authority, denies Legislative defendant’s motion. In doing so, the
majority effectively punishes Legislative defendants for successfully seeking review by the
Supreme Court of the United States of the role of state courts in congressional redistricting
under the Federal Constitution. See Moore v. Harper, cert. granted, 1425 S. Ct. 2901 (2022).

-21-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

II. Standards of Review

A. Presumption of Constitutionality

¶ 155 In reviewing an act of the General Assembly, this Court is guided by a specific

and binding standard of review—the presumption of constitutionality. See generally

State ex rel. McCrory, 368 N.C. at 639, 781 S.E.2d at 252. The presumption of

constitutionality has been well established for over 150 years. See, e.g., Holton v. Bd.

of Comm’rs, 93 N.C. 430, 435 (1885). This standard sets a high bar which only the

highest quantum of proof—proof beyond a reasonable doubt—will overcome, and the

party challenging a statute bears the burden of establishing its unconstitutionality.

Jenkins, 180 N.C. at 172, 104 S.E. at 348 (“The party who undertakes to pronounce a

law unconstitutional takes upon himself the burden of proving beyond any reasonable

doubt that it is so.”).

¶ 156 The presumption of constitutionality is not merely a standard of review; it is a

function of the fundamental separation-of-powers principle found in Article I, Section

6 of our constitution: “The legislative, executive, and supreme judicial powers of the

State government shall be forever separate and distinct from each other.”

Unquestionably, the separation-of-powers principle

is the rock upon which rests the fabric of our government.
Indeed, the whole theory of constitutional government in
this State and in the United States is characterized by the
care with which the separation of the departments has
been preserved, and by a marked jealousy of encroachment
by one upon another.

-22-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

Person v. Bd. of State Tax Comm’rs, 184 N.C. 499, 502, 115 S.E. 336, 339 (1922).

¶ 157 The separation-of-powers clause is located within the Declaration of Rights in

Article I, which is an expressive yet nonexhaustive list of protections afforded to

citizens against governmental intrusion, along with “the ideological premises that

underlie the structure of government.” John V. Orth & Paul Martin Newby, The

North Carolina State Constitution 46 (2d ed. 2013) [hereinafter State Constitution].

Placement of the separation-of-powers clause in the Declaration of Rights suggests

that keeping each branch within its described spheres protects the people by limiting

overall governmental power. The clause does not establish the various powers but

simply states the powers of the branches are “separate and distinct.” N.C. Const. art.

I, § 6. Subsequent constitutional provisions develop the nature of those powers. State

Constitution 46 (“Basic principles, such as popular sovereignty and separation of

powers, are first set out in general terms, to be given specific application in later

articles.”).

¶ 158 Because “a constitution cannot violate itself,” Leandro v. State, 346 N.C. 336,

352, 488 S.E.2d 249, 258 (1997), a branch’s exercise of its express, constitutional

authority by definition comports with the separation-of-powers principle.

Accordingly, a violation of separation of powers only occurs when one branch of

government exercises, or prevents the exercise of, a power reserved for another

branch of government. State ex rel. McCrory, 368 N.C. at 650, 781 S.E.2d at 259

-23-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

(Newby, J., concurring in part and dissenting in part). Understanding the prescribed

powers of each branch is the basis for stability, accountability, and cooperation within

state government. See State v. Emery, 224 N.C. 581, 584, 587−88, 31 S.E.2d 858, 861,

863−64 (1944).

¶ 159 The legislative power is vested in the General Assembly because “all people

are present there in the persons of their representatives,” State Constitution 95, and,

therefore, the people act through the General Assembly, see Baker v. Martin, 330 N.C.

331, 336−37, 410 S.E.2d 887, 890 (1991). Pursuant to the text of the constitution, the

General Assembly primarily exercises the people’s political power though statutory

enactments. See N.C. Const. art. II, §§ 22−23.

¶ 160 Relevant here, the General Assembly enacts redistricting plans through

statute. In fact, both the Federal Constitution and the North Carolina Constitution

expressly assign redistricting authority to the legislature. U.S. Const. art. I, § 4, cl.

1; N.C. Const. art. II, §§ 3, 5. Our state constitution also provides explicit limitations

on the General Assembly’s redistricting authority. N.C. Const. art. II. §§ 3, 5

(providing that each state Senator and state Representative must represent an equal

number of people, each senate and representative district must consist of a

contiguous territory, and senate and representative districts may not unduly divide

counties).

-24-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 161 The common law provided, and now the General Statutes provide, a limited

role for the courts in reviewing the General Assembly’s redistricting plans. See

N.C.G.S. § 120-2.3 to -2.4 (2021). The General Assembly enacted these statutory

provisions in 2003 to limit and codify the common law process by which courts had

been reviewing redistricting plans for some time. See An Act to Establish House

Districts, Establish Senatorial Districts, and Make Changes to the Election Laws and

to Other Laws Related to Redistricting, S.L. 2003-434, §§ 7−9, 2003 N.C. Sess. Laws

(1st Extra Sess. 2003) 1313, 1415−16; Stephenson I, 355 N.C. at 385, 562 S.E.2d at

398. In fact, the General Assembly enacted these statutory provisions limiting the

judicial branch’s role in response to this Court’s involvement in the redistricting

process in 2001. See Stephenson v. Bartlett (Stephenson III), 358 N.C. 219, 221−22,

595 S.E.2d 112, 114−15 (2004). No doubt these limiting provisions, N.C.G.S. § 120-2.3

to -2.4; N.C.G.S. § 1-267.1 (2021), are in keeping with our federal and state

constitutional provisions, U.S. Const. art. I, § 4, cl. 1; N.C. Const. art. II, §§ 3, 5.

¶ 162 Section 1-267.1 requires that a three-judge panel hear challenges to

redistricting plans. N.C.G.S. § 1-267.1. Specifically, under N.C.G.S. § 120-2.3, courts

review challenges regarding whether a redistricting plan is “unconstitutional or

otherwise invalid.” N.C.G.S. § 120-2.3. If a court finds a redistricting plan is

unconstitutional, it must give the General Assembly an opportunity to remedy the

identified defects by enacting a new redistricting plan. N.C.G.S. § 120-2.4(a). By

-25-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

statute, a court may not impose a remedial redistricting plan of its own unless “the

General Assembly does not act to remedy” those defects. N.C.G.S. § 120-2.4(a1). Even

then, a court-imposed redistricting plan may only differ from the General Assembly’s

enacted plan “to the extent necessary to remedy” the defects identified by the court

and will only be used for the next general election. Id. After the next general election,

the General Assembly will replace the court-imposed map with a new, legislatively

enacted map. This limited role of judicial review comports with the principle of

separation of powers because it respects that redistricting “is a legislative

responsibility.” Stephenson III, 358 N.C. at 230, 595 S.E.2d at 119 (“Not only do these

statutes allow the General Assembly to exercise its proper responsibilities, they

decrease the risk that the courts will encroach upon the responsibilities of the

legislative branch.”).6

¶ 163 Without question, the legislative and policymaking powers belong to the

General Assembly. Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004).

Because the people have granted the legislative power, including the specific power

6 In its remand instructions, the majority instructs the “[three-judge panel] to oversee”
the redrawing of new senatorial districts. Harper v. Hall (Harper II), 2022-NCSC-121, ¶ 114.
Pursuant to N.C.G.S. § 120-2.4(a), however, the General Assembly elected in November 2022
must have the first opportunity to redraw the RSP. See Pender County v. Bartlett, 361 N.C.
491, 509, 649 S.E.2d 364, 376 (2007) (striking a remedial legislative plan and remanding it
to the General Assembly to redraw it for a second time, noting that “[r]edistricting is a
legislative responsibility, [and] N.C.G.S. §§ 120-2.3 and 120-2.4 give the General Assembly a
first, limited opportunity to correct the plans that the courts have determined are flawed.”
(second alteration in original) (quoting Stephenson III, 358 N.C. at 230, 595 S.E.2d 119)).

-26-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

of redistricting, exclusively to the General Assembly, see N.C. Const. art. II, §§ 1, 3,

5, the judicial branch should exercise its power to declare statutes unconstitutional

with “great reluctance,” Bayard v. Singleton, 1 N.C. (Mart.) 5, 6 (1787), “recognizing

that when it strikes down an act of the General Assembly, [it] is preventing an act of

the people themselves,” State ex rel. McCrory, 368 N.C. at 650, 781 S.E.2d at 259

(citing Baker, 330 N.C. at 336−37, 410 S.E.2d at 890).

¶ 164 The presumption of constitutionality, therefore, is a limiting tool of judicial

review that helps the judicial branch avoid encroaching on the General Assembly’s

legislative authority. Where a statute is susceptible to two interpretations, one that

is constitutional and one that is not, courts must adopt the former. Wayne Cnty.

Citizens Ass’n v. Wayne Cnty. Bd. of Comm’rs, 328 N.C. 24, 29, 399 S.E.2d 311, 315

(1991). Courts will not declare a statute void unless that “conclusion is so clear that

no reasonable doubt can arise, or the statute cannot be upheld on any reasonable

ground.” Id. (citing Poor Richard’s, Inc. v. Stone, 322 N.C. 61, 63, 366 S.E.2d 697, 698

(1988)). Presuming that a statutory enactment is constitutional and resolving every

doubt in favor of the statute ensures that the Court will not inadvertently prevent a

lawful exercise of legislative power.

¶ 165 This exercise of judicial restraint is especially necessary to counterbalance the

power of judicial review because our constitution does not enable the other branches

to check our exercise of the judicial power to strike down statutes:

-27-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

The power of declaring laws unconstitutional should
always be exercised with extreme caution, and every doubt
resolved in favor of the statute. As has been well said, these
rules are founded on the best of reasons, because, while the
supreme judicial power may interfere to prevent a
legislative, and other departments, from exceeding their
powers, no tribunal has yet been devised to check the
encroachments of the judicial power itself.

Jenkins, 180 N.C. at 170, 104 S.E.2d. at 347. Applying the presumption of

constitutionality and adhering to its separation-of-powers principles, courts should

presume that the General Assembly’s policy decisions, made while acting pursuant

to its legislative authority, are constitutional.

¶ 166 In this case, the General Assembly made various policy decisions during each

step of the remedial map-drawing process, such as the decision to use Maptitude or

to obtain partisan election data from the Mattingly Election Set. Accordingly, the

three-judge panel should have started from the presumption that these policymaking

decisions were constitutional. Then it should have reviewed the evidence to determine

if, beyond a reasonable doubt, one or more of those policy decisions was arbitrary,

flawed, or unreasonable so as to render at least one of the Remedial Plans

unconstitutional. For example, such evidence might show that Maptitude is a

defective software that vastly undercalculated the Remedial Plans’ Mean-Median

Difference and Efficiency Gap scores or that the Mattingly Election Set contained

flawed data. If the evidence supported a determination that these policy decisions

were constitutionally flawed beyond a reasonable doubt, only then could the

-28-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

three-judge panel have declared the affected map or maps constitutionally invalid. If

the evidence did not demonstrate this sort of constitutional defect, however, it would

be insufficient to overcome the presumption, and the three-judge panel would have

been required to uphold the Remedial Plans. Accordingly, we consider whether the

three-judge panel’s “findings of fact and conclusions of law were appropriate and

adequate” in approving the RSP and RHP and rejecting the RCP. Stephenson v.

Bartlett (Stephenson II), 357 N.C. 301, 309, 582 S.E.2d 247, 252 (2003).

B. Findings of Fact and Conclusions of Law
¶ 167 In cases such as this one, in which the trial court presides over a trial without

a jury, this Court’s role of review is very limited. See Bailey v. State, 348 N.C. 130,

146, 500 S.E.2d 54, 63 (1998). In reviewing a trial court’s findings of fact, “we are

‘strictly limited to determining whether the trial judge’s underlying findings of fact

are supported by competent evidence.’ ” State v. Williams, 362 N.C. 628, 632, 669

S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,

619 (1982)). If the trial court’s findings of fact are supported by competent evidence,

the findings “have the force and effect of a jury verdict and are conclusive on appeal

if there is competent evidence to support them.” Stephenson II, 357 N.C. at 309, 582

S.E.2d at 252 (quoting Bailey, 348 N.C. at 146, 500 S.E.2d at 63). Such findings are

binding on appeal even if the “evidence is conflicting,” Williams, 362 N.C. at 632, 669

S.E.2d at 294 (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)),

-29-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

and “could be viewed as supporting a different finding,” Stephenson II, 357 N.C. at

309, 582 S.E.2d at 252 (quoting Bailey, 348 N.C. at 146, 500 S.E.2d at 63); see also

Biggs v. Lassiter, 220 N.C. 761, 770, 18 S.E.2d 419, 424 (1942) (noting that a trial

court’s findings of fact are binding on appeal “unless there is no sufficient evidence to

support them, or error has been committed in receiving or rejecting testimony upon

which they are based, or some other question of law is raised with respect to said

findings”). Where contradictory evidence exists, “the trial judge is in the best position

to ‘resolve the conflict.’ ” Williams, 362 N.C. at 632, 669 S.E.2d at 294 (quoting Smith,

278 N.C. at 41, 178 S.E.2d at 601). Likewise, the trial court determines the amount

of weight given to various pieces of evidence. In re I.K., 377 N.C. 417, 2021-NCSC-60,

¶ 25 (“It is the trial court’s responsibility to pass upon the credibility of the witnesses

and the weight to be given their testimony . . . .” (quoting In re G.G.M., 377 N.C. 29,

2021-NCSC-25, ¶ 18)).

¶ 168 If we conclude that competent evidence supports the trial court’s findings of

fact, “we must then determine whether those findings of fact support the conclusions

of law.” Stephenson II, 357 N.C. at 309, 582 S.E.2d at 252. We review a trial court’s

conclusions of law de novo. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878

(2011).

III. Analysis

-30-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 169 Here the majority upholds the three-judge panel’s approval of the RHP but

finds unconstitutional the RSP. It affirms the three-judge panel’s conclusion that the

RCP was unconstitutional and upholds the Modified Congressional Plan redrawn by

the Special Masters. To reach these holdings, the majority briefly mentions the

appropriate standards of review but then, when necessary, circumvents those

standards to reach its desired results. The majority fails to apply the presumption of

constitutionality in a manner consistent with our precedent and the textual allocation

of power between the branches of government. Likewise, the majority fails to

consistently limit itself to considering whether the three-judge panel’s underlying

findings of fact are supported by competent evidence. Instead, the majority freely

reweighs and distorts evidence that is essentially the same to support two conflicting

results—affirmation of the RHP but reversal of the RSP. The majority strips the

three-judge panel of its responsibility to assess credibility and distribute weight to

the evidence and freely substitutes its own judgment regarding weight and

credibility.

¶ 170 The three-judge panel relied heavily on each map’s Mean-Median Difference

and Efficiency Gap scores in forming its findings of fact and reaching its ultimate

conclusions of law. It focused on these metrics because in Harper I the majority

identified threshold scores for these metrics that it said could serve as safe harbors

of constitutionality. See Harper I, 2022-NCSC-17, ¶¶ 166–67. Here there is competent

-31-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

evidence to support the three-judge panel’s findings of fact that both the RHP and the

RSP satisfy those thresholds. Nevertheless, the majority insists that the three-judge

panel correctly approved the RHP but somehow incorrectly approved the RSP. The

only explanation is that the majority has shaped its analysis to ensure a

predetermined outcome.

¶ 171 Additionally, the majority affirms the three-judge panel’s erroneous rejection

of the RCP. The three-judge panel failed to give the RCP the correct presumption of

constitutionality because it did not defer to the General Assembly’s policy choices to

use Maptitude and the Mattingly Election Set. It then adopted the Special Masters’

summary rejection of the RCP and accepted the Special Masters’ Modified

Congressional Map.

¶ 172 The dissent in Harper I forecasted the incongruent results the majority reaches

today. The majority’s result confirms that there is no discernable, manageable

standard by which to adjudicate partisan gerrymandering claims. See id. ¶ 241

(Newby, C.J., dissenting). Even though the majority insists that the General

Assembly’s Remedial Plans must pass the Harper I tests to be entitled to the

presumption of constitutionality, see id. ¶ 163 (majority opinion), it now changes the

tests. Further, this analysis flips the presumption of constitutionality on its head and

permits the majority to select pieces of data from four, court-appointed political

scientists and evidence presented by plaintiffs to uphold the redistricting plans it

-32-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

finds politically favorable and reject those that it does not. As discussed in the dissent

in Harper I, the majority disingenuously commandeered this heightened standard

approach from Stephenson I, 355 N.C. at 383−84, 562 S.E.2d at 396−97. See id. ¶¶

258−59 (Newby, C.J., dissenting). In Stephenson I, however, this Court overcame the

presumption of constitutionality by applying clear standards derived from the text of

the constitution itself, rather than the ever-changing, nebulous “standards” of the

majority’s results-oriented approach.

A. Remedial House Plan
¶ 173 On remand, the General Assembly made the policy decision to use Maptitude

along with partisan election data from its chosen Mattingly Election Set to draw and

adjust the Remedial Plans until each fell within the Mean-Median Difference and

Efficiency Gap thresholds identified by this Court in Harper I. The General Assembly

chose to use the Mean-Median Difference and Efficiency Gap scores, as opposed to

other tests, because these metrics have been peer-reviewed extensively and because

scholars generally agree on the appropriate thresholds for measuring partisanship

with these metrics. As measured by Maptitude, the RHP satisfied these threshold

standards:

RHP

Mean-Median 0.7%

Efficiency 0.84%
Gap

-33-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 174 In its order, the three-judge panel relied primarily on the reports of its Special

Masters in making its findings of fact. Specifically, the Special Masters reviewed the

“submissions from all of the parties as well as the reports of the advisors” and

materials from the parties’ “experts.” In all, this evidence included twelve

submissions and briefs from the parties, seven reports and affidavits from the parties’

experts, and four reports from the Special Masters’ advisors, totaling 716 pages. The

Special Masters also considered the “findings of the advisors on the partisan

symmetry analysis, the declination metrics, and their opinions on partisan bias and

evidence of partisan gerrymandering.” The advisors’ evidence was extensive and

diverse and included an array of partisan fairness metrics, differing counts of

“competitive” seats, measures of compactness, and graphic comparisons to ensemble

maps. Of note, each advisor submitted a separate report. They did not submit a single

collective report as indicated by the majority. “Considering all of this information as

well as the totality of circumstances,” the Special Masters concluded that the RHP

“meets the test of presumptive constitutionality . . . under the metrics identified by

the North Carolina Supreme Court.”

¶ 175 In turn, the three-judge panel “adopt[ed] in full the findings of the Special

Masters” and reviewed “all remedial and alternative plans . . . as well as additional

documents, materials, and information pertaining to the submitted plans” in making

“additional specific findings” on the Remedial Plans. First, the three-judge panel

-34-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

summarized the General Assembly’s process for drawing and analyzing all the

Remedial Plans and found that it was constitutionally compliant:

13. The General Assembly’s Remedial Criteria
governing the remedial map drawing process were those
neutral and traditional redistricting criteria adopted by the
Joint Redistricting Committees on August 12,
2021 . . . unless the criteria conflicted with the Supreme
Court Remedial Order and full opinion.

14. Although expressly forbidden by the
previously-used August 2021 Criteria, the General
Assembly as part of its Remedial Criteria intentionally
used partisan election data as directed by the Supreme
Court’s Remedial Order. The General Assembly did so by
loading such data into Maptitude, the map drawing
software utilized by the General Assembly in creating
districting plans . . . .

15. The Court finds that the General Assembly’s
use of partisan data in this manner comported with the
Supreme Court Remedial Order.

The three-judge panel then addressed the RHP specifically, finding that it contained

“key differences” that rendered it more competitive than the 2021 House Plan, that

the General Assembly appropriately balanced incumbency protection with

“traditional neutral districting criteria,” that the RHP was “satisfactorily within the

statistical ranges set forth in [Harper I],” and that any “partisan skew” remaining in

the RHP was “explained by the political geography of North Carolina.”

¶ 176 Based on these findings, the three-judge panel concluded that the RHP

“satisfies th[is] [ ] Court’s standards” in Harper I, and that none of the evidence

-35-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

presented was “sufficient to overcome th[e] presumption” that the RHP was

constitutional. Accordingly, the three-judge panel approved the RHP.

¶ 177 The majority upholds the RHP by finding that competent evidence supports

the relevant findings of fact which in turn support the conclusion that the RHP is

constitutional. This result is correct, but the majority reaches it for the wrong

reasons. In concluding that the relevant findings of fact are supported by competent

evidence, the majority looks only to the evidence submitted by the Special Masters’

advisors and does not even mention Legislative defendants’ data or chosen remedial

process. For example, the majority notes that “[t]he Special Masters’ [a]dvisors

determined that the RHP yields an average [E]fficiency [G]ap of about 2.88%, [and]

an average [M]ean-[M]edian [D]ifference of about 1.27%,”7 but does not acknowledge

that Legislative defendants calculated an Efficiency Gap of 0.84% and a

Mean-Median Difference of 0.70% using Maptitude and the Mattingly Election Set.

Harper II, 2022-NCSC-121, ¶ 93.

¶ 178 The majority’s approach is inappropriate because, as already noted, the proper

starting point when reviewing an act of the General Assembly is to exercise the

7 Nowhere in Harper I does the majority mention using averages of Mean-Median
Difference and Efficiency Gap scores to assess a map’s partisan fairness. By definition, to
determine an average requires giving equal weight to each score. Nevertheless, the majority
now relies on these average scores in upholding the RHP, despite the fact that its calculation
of the RHP’s average Mean-Median Difference is significantly outside its stated parameter
of 1% or less.

-36-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

presumption that the General Assembly’s policy choices are constitutional. This

Court should presume the General Assembly’s policy choices, such as the use of

Maptitude or the Mattingly Election Set, were constitutional and only review the

advisors’ reports to see whether they rebut the presumption beyond a reasonable

doubt. The majority does the opposite, however.

¶ 179 No one alleged the General Assembly’s policy decisions—such as, which

redistricting software and which partisan election data to use—were

unconstitutional. There was no evidence to that effect in the record. Thus, by looking

exclusively to the advisors’ evidence and ignoring entirely Legislative defendants’

evidence, the majority’s analysis defers to the advisors’ methods and reports and uses

them to build a case that the RHP is constitutional.

¶ 180 The majority’s approach is erroneous because it adopts the advisors’ policy

determinations—that is, their selected analyses—as the redistricting standard. Such

an approach reverses the presumption of constitutionality because it no longer

requires the evidence to demonstrate that the General Assembly’s plan fails to meet

an objective standard of constitutionality. Instead, it requires the General Assembly

to show that some group of unspecified political scientists agree that its policy

determinations meet constitutional muster. This backwards approach permits the

majority to weigh the various redistricting approaches from the individual advisors

as it sees fit, rather than deferring to the General Assembly’s selected redistricting

-37-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

approach. As a result, the majority can select the evidence that supports its preferred

outcome and reject the evidence that does not.

¶ 181 With the RHP, the majority happened to reach the correct result without giving

proper deference to the legislative branch’s policy choices. Following this same

approach, however, enables the majority to reach a contradictory result with the RSP.

A comparison of the majority’s treatment of the RSP with its treatment of the RHP

demonstrates the inherent flaws in the majority’s approach.

B. Remedial Senate Plan
¶ 182 Despite the three-judge panel’s upholding of the RHP, as recommended by the

Special Masters, the majority declines to give the RSP a presumption of

constitutionality, applies strict scrutiny, and determines that it is unconstitutional

beyond a reasonable doubt. The majority arrives at this conclusion despite the fact

that the evidence regarding the RSP and the RHP is very similar. Considered

together, the majority’s holdings regarding the RSP and the RHP make clear that it

is simply reweighing and, at times, mischaracterizing the evidence in order to reach

its preferred outcome.

¶ 183 On remand, the General Assembly made the exact same policy choices and

followed the exact same redrawing process for the RSP as it did for the RHP. It

utilized Maptitude and the partisan election data from the Mattingly Election Set to

draw and adjust the RSP until the RSP fell within the Mean-Median Difference and

-38-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

Efficiency Gap thresholds identified by this Court in Harper I. Just like the RHP, the

RSP, as measured by Maptitude, satisfied the Harper I threshold standards:

RSP

Mean-Median 0.65%

Efficiency 3.97%
Gap

¶ 184 Likewise, the Special Masters considered very similar evidence in assessing

the RSP as they did in assessing the RHP. Notably, from their weighing of this

evidence the Special Masters made almost identical findings regarding the RHP and

the RSP:

I. Proposed Remedial House Plan

The advisors as well as the experts of the parties (“experts”)
all found the efficiency gap of the proposed [RHP] to be less
than 7%. The majority of the advisors and experts found
the mean-median difference of the proposed [RHP] to be
less than 1%. In addition to these facts, the Special Masters
considered the findings of the advisors on the partisan
symmetry analysis, the declination metrics, and their
opinions on partisan bias and evidence of partisan
gerrymandering. Considering all of this information as
well as the totality of circumstances, the Special Masters
conclude under the metrics identified by the North
Carolina Supreme Court that the proposed [RHP] meets
the test of presumptive constitutionality. Further the
Special Masters did not find substantial evidence to
overcome the presumption of constitutionality and
recommend to the [three-judge panel] that it give
appropriate deference to the General Assembly and uphold
the constitutionality of the [RHP].

-39-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

II. Proposed Remedial Senate Plan

All of the advisors and experts found the efficiency gap of
the proposed [RSP] to be less than 7%. The majority of the
advisors and experts found the mean-median difference of
the proposed [RSP] to be less than 1%. In addition to these
facts, the Special Masters considered the findings of the
advisors on the partisan symmetry analysis, the
declination metrics, and their opinions on partisan bias
and evidence of partisan gerrymandering. Considering all
of this information as well as the totality of circumstances,
the Special Masters conclude under the metrics identified
by the North Carolina Supreme Court [that] the [RSP]
meets the test of presumptive constitutionality. Further
the Special Masters did not find substantial evidence to
overcome the presumption of constitutionality and
recommend to the [three-judge panel] that it give
appropriate deference to the General Assembly and uphold
the constitutionality of the [RSP].

¶ 185 In turn, the three-judge panel adopted these findings “in full” and found that

they demonstrated that the RHP and RSP “meet the requirements of [Harper I].” The

panel also made “additional specific findings” regarding each plan. Similar to the

Special Masters’ findings, the three-judge panel’s specific findings regarding the RSP

and RHP were nearly identical:

36. In determining the base map for the State
Senate Districts, the Senate also started from scratch. The
Senate altered two county groupings and adopted
groupings for Senate Districts 1 and 2 that were preferred
by Common Cause Plaintiffs. The remaining county
groupings remained the same. As a result, the 13
wholly-contained single district county groupings in the
[RSP] were kept from the [2021 Senate] Plan.

....

-40-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

39. The process for the development of the
Remedial Senate Plan began with separate maps being
drawn by the Senate Democratic Caucus and the
Republican Redistricting and Election Committee
members, respectively. The plans were then exchanged
and discussed; however, after the two groups could not
come to a resolution, the plan proposed by the Republican
Redistricting and Election Committee members was then
put to a vote by the Senate Committee and advanced to the
full chamber.

40. The [RSP] includes ten districts that were
within ten points in the 2020 presidential race.

41. The [RSP] reflects key differences from the
2021 [ ] Senate Plan in the projected partisan makeup of
districts in certain county groupings.

a. In the Cumberland-Moore County
grouping, Senate District 21 is now more
competitive.

b. In the Iredell-Mecklenburg County
grouping, one district is more competitive.

c. In New Hanover County, the districts
were made more competitive, resulting in
a Senate District 7 that leans Democratic.

d. In Wake County, Senate Districts 17 and
18 are more Democratic leaning.

42. The Court finds, based upon the analysis
performed by the Special Masters and their advisors, that
the [RSP] is satisfactorily within the statistical ranges set
forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶ 166 ([M]ean-[M]edian [D]ifference
of 1% or less) and ¶ 167 ([E]fficiency [G]ap less than 7%).

-41-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

43. The Court finds that to the extent there
remains a partisan skew in the [RSP], that partisan skew
is explained by the political geography of North Carolina.

....

51. In determining the base map for the State
House Districts, the House started from scratch after
keeping only the 14 districts that were the product of single
district county groupings.

....

54. The [RHP] reflects key differences from the
2021 [ ] House Plan in the projected partisan makeup of
districts in certain county groupings.

a. Buncombe County, which consisted of 1
Republican and 2 Democratic districts in
the [2021 House] Plan, consists of 3
Democratic districts in the [RHP].

b. Pitt County, which consisted of 1
Republican and 1 Democratic district in
the [2021 House] Plan, consists of 2
Democratic districts in the [RHP].

c. Guilford County now consists of 6
Democratic leaning districts.

d. Cumberland County now consists of 3
Democratic districts and 1 competitive
district.

e. Mecklenburg and Wake Counties now
consist of 13 Democratic leaning districts
each.

f. New Hanover, Cabarrus, and Robeson
Counties now contain an additional

-42-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

competitive district each.

55. The Court finds, based upon and confirmed by
the analysis of the Special Masters and their advisors, that
the [RHP] [is] satisfactorily within the statistical ranges
set forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶166 ([M]ean-[M]edian [D]ifference
of 1% or less) and ¶167 ([E]fficiency [G]ap less than 7%).

56. The Court finds that to the extent there
remains a partisan skew in the [RHP], that partisan skew
is explained by the political geography of North Carolina.

¶ 186 The evidence underlying the three-judge panel’s findings of fact regarding the

RHP’s and RSP’s Mean-Median and Efficiency Gap scores was also characteristically

the same. Both sets of findings were based on “the analysis of the Special Masters

and their advisors”:

Remedial Senate Plan

Grofman McGhee Wang Jarvis Mattingly Barber Maptitude
6 election Planscore 2016- 16 new General
composite 2020 Election Assembly’s
Composite Mattingly
Election
Set
Mean- 0.77% 2.2% 0.8% 1.4% 1.3% 0.65% 0.63%
Median
Diff.

Efficiency 4.24% 4.8% 2.2% 4.0% 4.07% 3.97% 3.98%
Gap

Remedial House Plan

-43-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

Grofman McGhee Wang Jarvis Mattingly Barber Maptitude
6 election Planscore 2016- 16 new General
composite 2020 Election Assembly’s
Composite Mattingly
Election
Set
Mean- 0.89% 1.4% 0.9% 1.5% 1.45% 0.7% 0.71%
Median
Diff.

Efficiency 2.72% 3.0% 3.1% 2.7% 3.23% 0.84% 0.84%
Gap

For both plans, at least four advisors and experts calculated a Mean-Median

Difference score of less than 1%, and all of the advisors and experts calculated an

Efficiency Gap score of less than 7%.8

¶ 187 Given the similarities between both the three-judge panel’s findings of fact

regarding each plan and the evidence supporting those findings of fact, it is clear

there was evidence supporting the panel’s conclusion that both plans “meet th[is] [ ]

Court’s standards and requirements” from Harper I, particularly when the

three-judge panel was required to presume that the General Assembly’s selected

approach of using Maptitude, pulling partisan election data from the Mattingly

Election Set, and relying on the resulting Mean-Median Difference and Efficiency

8The appropriate standard of review is whether any evidence supports the three-judge
panel’s findings of fact. Here there is clearly ample evidence in the record to support the
three-judge panel’s findings of fact that the RHP and the RSP were “satisfactorily within the
statistical ranges set forth in [Harper I].”

-44-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

Gap scores was constitutional. As a result, the majority’s decision to overturn the

RSP but uphold the RHP when each is supported by comparable evidence is

inconsistent and can only be explained by the majority’s desire to reach a particular

outcome. To accomplish this outcome, the majority reweighs and defers exclusively

to select portions of the evidence that the Special Masters and three-judge panel in

fulfilling its duty as the fact-finder apparently chose to discount.

¶ 188 The majority says one of the “keystones” of the three-judge panel’s decision is

its erroneous views of the statistical data. For example, the majority notes that “all

but one [a]dvisor” concluded that the RSP scored above the 1% Mean-Median

Difference threshold but ignores the fact that all the advisors found that the RSP

scored below the 7% Efficiency Gap threshold. Harper II, 2022-NCSC-121, ¶ 99. The

majority’s statement that “all but one [a]dvisor” calculated a Mean-Median Difference

above 1% for the RSP is not only selective, but inaccurate. Half of the advisors, not

one, calculated the RSP’s Mean-Median Difference score as less than 1%. This

inaccuracy illustrates why appellate courts must refrain from reweighing evidence

and instead must defer to the trial court’s assessment of the record. See In re I.K.,

2021-NCSC-60, ¶ 25 (“It is the trial court’s responsibility to pass upon the credibility

of the witnesses and the weight to be given their testimony and the reasonable

inferences to be drawn therefrom. Because the trial court is uniquely situated to make

-45-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

this credibility determination appellate courts may not reweigh the underlying

evidence presented at trial.”).9

¶ 189 Nevertheless, according to the majority, this evidence undermines the three-

judge panel’s finding that the RSP met the statistical thresholds identified in Harper

I. The same number of advisors, however, found that the RHP scored above the 1%

Mean-Median Difference threshold as well. Inexplicably, the majority concludes that

this fact weighs against the three-judge panel’s findings of fact regarding the RSP

but supports its findings of fact regarding the RHP.

¶ 190 In upholding the RHP, the majority states that collectively “[t]he [ ] [a]dvisors

determined that the RHP yields an average [E]fficiency [G]ap of about 2.88%, [and]

an average [M]ean-[M]edian [D]ifference of about 1.27%.” Harper II, 2022-NCSC-121,

¶ 93. The advisors’ average scores for the RSP are very close to those for the RHP.

For the RSP, the average of the advisors’ Efficiency Gap scores is 3.81% and the

average of their Mean-Median Difference scores is 1.29%. The average Mean-Median

Difference scores for the two plans are within two-one-hundredths of a percentage

point of each other. Why does 1.27% weigh in favor of the RHP’s constitutionality but

1.29% weighs against the RSP’s constitutionality? If there is something critical about

that difference, the majority does not explain it.

9 To the extent the majority questions the work of the three-judge panel and its
assessment of the evidence, the correct resolution is to remand for clarification, not for an
appellate court to reweigh evidence and find its own facts.

-46-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 191 The majority’s use of average scores is also problematic for another reason. The

advisors did not calculate the average of their Mean-Median Difference and Efficiency

Gap scores. Instead, each advisor individually calculated a set of scores using his

chosen redistricting software and set of elections, and then each advisor submitted

his set of scores to the three-judge panel. The majority, on its own, calculates these

average scores, giving each equal weight, and then relies on this new data to support

its conclusion that the RHP is constitutional and the RSP is unconstitutional. The

majority does this even though it never mentioned using averages of Mean-Median

Difference and Efficiency Gap scores to assess a map’s partisan fairness in Harper I.

¶ 192 In calculating its own average scores, the majority essentially reweighs the

evidence to give equal weight and credibility to each of the advisors’ calculations. It

gives equal weight to these four sets of scores despite claiming to discount the

analyses of the two advisors who engaged in forbidden ex parte communications.10

The three-judge panel, however, should weigh the evidence, determine credibility,

and find facts because it “is in the best position” to do so. Williams, 362 N.C. at 632,

669 S.E.2d at 294 (quoting Smith, 278 N.C. at 41, 178 S.E.2d at 601). In its order, the

three-judge panel did not specify the weight that it gave to each of the advisors’ scores,

though it did incorporate the Special Masters’ finding that “the analysis provided by

Drs. Wang and Jarvis was helpful” but “not determinative” of any particular finding

10 See generally footnote 4.

-47-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

of fact. Accordingly, in averaging the advisors’ scores and assigning each of their

scores equal weight, the majority reweighs the evidence and attaches creditability to

evidence that the three-judge panel and Special Masters might have discounted. The

majority usurps the three-judge panel’s role as fact-finder by replacing the three-

judge panel’s assessment of the advisors’ credibility with its own.11

¶ 193 Similarly, the majority rejects the three-judge panel’s finding of fact that any

“partisan skew” remaining in the RSP is “explained by the political geography of

North Carolina.” Harper II, 2022-NCSC-121, ¶ 100. The majority rejects this finding,

claiming that it “is an incomplete statement of the requirement established in Harper

[I].” Id. The three-judge panel, however, made the exact same finding of fact

regarding the RHP: “The [trial] [c]ourt finds that to the extent there remains a

partisan skew in the [RHP], that partisan skew is explained by the political

11 As already noted, the majority here freely disregards the appropriate standard of
review and reweighs the evidence only when necessary to reach its preferred outcome.
However, in another case also filed today, the same majority insists that it must defer to a
trial court’s findings of fact when supported by competent evidence:

many of defendants’ arguments in this case ask this Court to
rewrite the trial court’s findings of fact. But when the trial court
conducts a trial without a jury, “the trial court’s findings of fact
have the force and effect of a jury verdict and are conclusive on
appeal if there is competent evidence to support them, even [if]
the evidence could be viewed as supporting a different findings.”

Holmes v. Moore, 2022-NCSC-122, ¶ 83 (quoting In re Skinner, 370 N.C. 126, 139, 804 S.E.2d
449, 458 (2017)). Thus, it is clear that the majority understands the appropriate standard of
review, but simply ignores it at will to reach its favored outcome.

-48-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

geography of North Carolina.” The majority, however, does not reject this identical

finding of fact as an “incomplete statement” of its criteria from Harper I. Instead, the

majority accepts this finding as “supported by competent evidence.” Id. ¶ 93. How can

this finding of fact support the conclusion that the RHP is constitutional, but weigh

against the conclusion that the RSP is constitutional?12

¶ 194 Finally, in addition to the various errors contained in the majority’s analysis

listed above, the majority also gravely mischaracterizes the evidence from below.

Most notably, the majority repeatedly cites from one of the advisors’ reports but

describes that cited data or opinion as if it were the collective conclusion of all four

advisors. For example, the majority states the “[t]he [a]dvisors specifically

determined that alternative remedial Senate plans often reflect ‘less than half the

size of the [partisan] advantage in the Legislative [d]efendants’ [RSP].’ ” Harper II,

2022-NCSC-121, ¶ 100 (second and fourth alteration in original). This quote,

12 Notably, the three-judge panel’s finding regarding political geography was born out
in the November 2022 election. While various political science tests may seek to assess the
political geography of the state, nothing is more accurate in revealing the political geography
than our most recent election. Six statewide Republican judicial candidates won their seats
by at least 5%, each carrying at least eighty-one counties. See North Carolina State Board of
Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=JUD&contest=0 (last
visited Dec. 8, 2022). Similarly, aggregating votes across the state, the Republican state
senatorial candidates received 59% of the total vote share, while Republican state House
candidates received over 57%. See North Carolina State Board of Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=NCS&contest=0 (last
visited Dec. 8, 2022); see North Carolina State Board of Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=NCH&contest=0 (last
visited Dec. 8, 2022).

-49-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

however, is contained in only one of the advisors’ reports; it is not, at least as far as

the record reflects, the conclusion of all four advisors. Nevertheless, the majority

describes this opinion as if it were reached by the advisors collectively.

¶ 195 The majority mischaracterizes various portions of evidence in this way

throughout its opinion, essentially implying that the four advisors collectively

assessed the Remedial Plans and generally agreed on every aspect of their analysis.

This depiction is simply inaccurate. Each advisor individually analyzed the Remedial

Plans using his own preferred metrics, election data, and calculation methods, and

each reached different individual conclusions. Accordingly, the majority’s rendering

of the advisors’ reports as a shared analysis is misleading.

¶ 196 Regardless of the various flaws in the majority’s analysis, the appropriate

standard of review in this case required the three-judge panel to assume that the

General Assembly’s methods and scores were valid and accurate unless the evidence

demonstrates otherwise beyond a reasonable doubt. The General Assembly, one

expert, and two of the four advisors agreed that the RSP scored below the 1%

threshold for Mean-Median Difference, and the General Assembly, one expert, and

all four advisors agreed that the RSP scored below the 7% threshold for Efficiency

Gap. This evidence is more than competent to support the three-judge panel’s finding

that the RSP is “satisfactorily within the statistical ranges set forth in” Harper I, and

it was the duty of the three-judge panel to weigh this evidence. As a result, it does

-50-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

not matter that some of the advisors and experts calculated scores above the

thresholds.

¶ 197 The majority is bound by the three-judge panel’s findings of fact if they are

supported by competent evidence, even when there is a conflict, Williams, 362 N.C.

at 632, 669 S.E.2d at 294, and the three-judge panel could have made “a different

finding,” Stephenson II, 357 N.C. at 309, 582 S.E.2d at 252. The majority fails to

employ the correct standard of review by seeking evidence that contradicts the three-

judge panel’s findings of fact, rather than looking for evidence that supports those

findings. The majority is required to presume the General Assembly acted

constitutionally absent evidence showing, beyond a reasonable doubt, that it did not.

C. Remedial Congressional Plan
¶ 198 The General Assembly drew and scored the RCP using the exact same

approach as it followed for the RHP and RSP. As with the other two maps, Maptitude

measured the RCP’s Mean-Median Difference and Efficiency Gap scores within the

majority’s thresholds:

RCP
Mean-Median 0.61%
Difference
Efficiency Gap 5.29%

¶ 199 In reviewing the RCP, the three-judge panel and the Special Masters once

again seemed to take the same approach. They examined the same extensive evidence

-51-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

from the “submissions from all of the parties as well as the reports of the advisors”

and materials from the parties’ “experts.” From this evidence, the Special Masters

found that “there is substantial evidence from the findings of the advisors that the

[RCP] has an [E]fficiency [G]ap above 7% and a [M]ean-[M]edian [D]ifference of

greater than 1%,” and that “[t]here is disagreement among the parties as to whether

the proposed [RCP] meets the presumptively constitutional thresholds suggested by

th[is] [ ] Court.” However, the scores do not support this finding:

Remedial Congressional Plan

Grofman McGhee Wang Wang Jarvis Mattingly Barber Maptitude
6 election Planscore 2016- 10 16 new General
composite 2020 Election Election Assembly’s
Composite Mattingly
Election
Set
Mean- 0.66% 1.1% 0.7% 1.2% 0.9% 1.01% 0.61% 0.61%
Median
Diff.

Efficiency 6.37% 6.4% 7.4% 6.8% 8.8% 7.31% 5.29% 5.3%
Gap

¶ 200 Once again, the Special Masters also considered “the advisors’ findings on the

partisan symmetry analysis and the declination metrics.” The advisors completed the

same diverse array of partisan fairness metrics, counts of “competitive” seats and

-52-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

compactness, and graphic comparisons to ensemble maps for the RCP as they did for

the other two plans. Considering all of this evidence, the Special Masters concluded

that the RCP “fails to meet the threshold of constitutionality” set forth in Harper I

and recommended that the three-judge panel reject the RCP.

¶ 201 Given their recommendation, the Special Masters created and submitted the

Modified Congressional Plan that, in their opinion, satisfied the standards from

Harper I. In creating the Modified Congressional Plan, the Special Masters “focused”

on the RCP and “worked solely” with one of the advisors, Dr. Bernard Grofman, and

his assistant to amend it. Dr. Grofman created three maps for the Special Masters’

consideration. The Special Masters selected one of Dr. Grofman’s maps and then

“modified” it “to improve the [E]fficiency [G]ap and [M]ean-[M]edian [D]ifference

scores” using Dave’s Redistricting App.13

¶ 202 The three-judge panel adopted the Special Masters’ findings in full, and

proceeded to make its own, additional findings regarding the RCP. First, as with the

RHP and RSP, the three-judge panel approved of the General Assembly’s remedial

process for drawing the RCP. Then the three-judge panel noted that the RCP

13 Not only is the composition of this de facto redistricting commission suspect, see
generally footnote 4, but the actual 2022 election results reflect the Democratic bias in the
Modified Congressional Plan. Democrats had 47% of the statewide aggregate congressional
votes but won one-half of the seats. See North Carolina State Board of Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=FED&contest=0 (last
visited Dec. 8, 2022).

-53-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

contained “key differences from the 2021 Congressional Plan” that made it more

competitive, including the fact that “[f]our congressional districts are some of the

most politically competitive in the country.” Next, the three-judge panel looked to the

RCP’s Mean-Median Difference and Efficiency Gap scores and found, “based upon the

analysis performed by the Special Masters and their advisors, that the [RCP] is not

satisfactorily within the statistical ranges set forth in [Harper I].” Finally, the three-

judge panel found “that the partisan skew in the [RCP] is not explained by the

political geography of North Carolina.” As a result, the three-judge panel found that

“[t]he Special Masters’ findings demonstrate that the [RCP] does not meet the

requirements of th[is] [ ] Court’s Remedial Order and full opinion” in Harper I.

¶ 203 The three-judge panel then turned to the Special Masters’ Modified

Congressional Plan. The three-judge panel found that the Special Masters’ plan “was

developed in an appropriate fashion, is consistent with N.C.G.S. § 120-2.4(a1), and is

consistent with the North Carolina Constitution and th[is] [ ] Court’s [Harper I]

opinion.”

¶ 204 Based on these findings, the three-judge panel concluded that the RCP “does

not satisfy th[is] [ ] Court’s standards” from Harper I and therefore, was “not

presumptively constitutional.” Accordingly, the three-judge panel concluded that the

RCP was subject to strict scrutiny. Applying strict scrutiny, the three-judge panel

concluded that “[t]he General Assembly has failed to demonstrate that their [RCP] is

-54-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

narrowly tailored to a compelling governmental interest,” and thus, concluded that

the RCP was unconstitutional. As a result, the three-judge panel concluded that the

Special Masters’ Modified Congressional Plan should be adopted instead.

¶ 205 Although the three-judge panel weighed the same volume and variety of

evidence in reviewing the RCP as it did with the RSP and RHP, this evidence was not

competent to support its findings of fact that the RCP “does not meet the

requirements of [Harper I]” or its conclusions of law that the RCP was

unconstitutional. The evidence is not competent to support a rejection of the RCP

because, under the presumption of constitutionality, the standard of proof for

declaring an act of the General Assembly unconstitutional is significantly higher than

that for accepting that an act of the General Assembly is constitutional. To support

the three-judge panel’s findings of fact regarding the RCP, competent evidence would

have to rebut the presumption that the General Assembly acted constitutionally

beyond a reasonable doubt.

¶ 206 Overall, the three-judge panel only made two specific findings of fact that

support its conclusion of law that the RCP was unconstitutional:

34. The Court finds, based upon the analysis
performed by the Special Masters and their advisors, that
the [RCP] is not satisfactorily within the statistical ranges
set forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1%
or less) and ¶ 167 (efficiency gap less than 7%).

-55-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

35. The Court finds that the partisan skew in the
[RCP] is not explained by the political geography of North
Carolina.

The only other findings of fact that were specific to the RCP were (1) that the General

Assembly’s remedial process and use of partisan data “comported with” this Court’s

Remedial Order, and (2) that the RCP contained “key differences” that made four of

its districts “some of the most politically competitive in the country.” Neither of these

findings supports a conclusion that the RCP is unconstitutional. Accordingly, the

three-judge panel’s rejection of the RCP appears to be based primarily, if not solely,

on its finding that the plan did not meet the Mean-Median Difference and Efficiency

Gap thresholds. In turn, the three-judge panel based this finding of fact “upon the

analysis performed by the Special Masters and their advisors.”

¶ 207 The Maptitude software used by the General Assembly, however, produced

results which found that the RCP’s Mean-Median Difference and Efficiency Gap

scores were within the thresholds identified by this Court in Harper I, and the three-

judge panel approved of the General Assembly’s method for calculating those scores.

The three-judge panel’s order contains no finding that identifies the RCP’s actual

Mean-Median Difference and Efficiency Gap scores. Nor does it identify any

purported flaw in the General Assembly’s metrics or process that rendered its scores

inaccurate as compared with those calculated by the advisors. The order summarily

found that “based upon the analysis performed by the Special Masters and their

-56-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

advisors,” the scores for the General Assembly’s RCP were too high. However, as

shown, the scores were consistent with those for the RHP and RSP, which were

upheld by the three-judge panel. In fact the RCP’s average Mean-Median Difference

score is 0.88% and its average Efficiency Gap score is 6.91%. Both are clearly within

the “presumptively constitutional” ranges identified by the majority in Harper I.

¶ 208 Accordingly, it appears that the three-judge panel, instead of presuming that

the General Assembly acted constitutionally in drawing, adjusting, and scoring the

RCP, deferred to the reports of the Special Masters and the advisors. Again, such a

backwards approach ignores the presumption of constitutionality altogether and

defeats its purpose entirely. Even taken together, these reports do not overcome the

presumption of constitutionality’s high bar. None of the advisors even addressed the

General Assembly’s remedial process or metrics, let alone demonstrated that the

legislature’s decisionmaking was arbitrary, unreasonable, or otherwise

constitutionally flawed. Why were Maptitude’s Mean-Median Difference and

Efficiency Gap scores sufficient for the RHP and the RSP, but not for the RCP?

¶ 209 Additionally, while the advisors and the experts each calculated slightly

different scores, this is not surprising because each utilized different redistricting

software, partisan election data, and calculation methods. For example, each of the

advisors used different redistricting software from the others, and none chose to use

Maptitude, as had the General Assembly. Dr. Grofman used Dave’s Redistricting App

-57-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

to calculate the RCP’s Mean-Median Difference and Efficiency Gap scores, and Dr.

McGhee used a web-based redistricting software called PlanScore. It is not clear from

Dr. Grofman’s or Dr. McGhee’s reports how these technologies calculate the relevant

metrics or whether they do so differently than Maptitude.

¶ 210 Likewise, each of the advisors used different sets of elections as their source of

partisan data to measure the RCP. Once again, none chose the same set of elections

as each other or as the General Assembly. Dr. Jarvis, for example, pulled partisan

election data from eleven statewide elections. Nine of these matched the General

Assembly’s Mattingly Election Set, but two did not. Dr. Grofman used “major

statewide races [in] 2016−2020,” but did not specify how many election contests or

which ones. Dr. Wang used a set of ten statewide elections to create his own sets of

hypothetical partisan election data. Dr. Wang varied the vote totals in each of these

elections “above and below an average [vote total]” in order to “evaluat[e] a range of

future [vote total] scenarios that may arise in the coming decade.” Dr. Wang also

created a composite of vote totals by averaging together three data points: (1) the

average two-party vote share of the 2016 and 2020 presidential elections; (2) the

average two-party vote share of the 2016 and 2020 United States Senate elections;

and (3) the average two-party vote share of the 2020 elections for Governor and

Attorney General. None of the advisors stated why they preferred their selected set

-58-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

of elections or hypothetical elections or purported to explain why their selection

should be substituted for the General Assembly’s.

¶ 211 Additionally, Dr. McGhee took a very “different approach” to calculating the

Mean-Median Difference and Efficiency Gap scores. Instead of analyzing which

party’s candidate would win in a proposed new district by using data from prior

election contests, Dr. McGhee used PlanScore to “predict” potential partisan

outcomes in the future. Dr. McGhee did not explain which elections PlanScore applied

to predict future election results, nor did he explain the criteria used by PlanScore to

make such predictions. Dr. McGhee also calculated two sets of Mean-Median

Difference and Efficiency Gap scores. He calculated one set from a simulated election

that assumed that no incumbents ran for reelection and another set from a simulated

election that assumed that all incumbents ran for reelection in the proposed district

containing their residence.

¶ 212 Accordingly, none of the advisors used the same software or followed the same

methods as the General Assembly, which explains the variance among the calculated

scores. Once again, we should defer to the General Assembly’s policy choices, such as

its decision to use Maptitude and the Mattingly Election Set over the policy choices

of others. It does not matter that the advisors chose to use different software, election

results, or calculation methods if that evidence does not demonstrate that the General

Assembly’s alternative choices were constitutionally flawed.

-59-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 213 These varying results prove that the process of drawing a redistricting map

involves and requires a multitude of policy choices. At each step of the process, the

General Assembly could have chosen to do something different. The General

Assembly could have chosen Dave’s Redistricting App or another redistricting

software instead of Maptitude. Alternatively, the General Assembly might have

chosen a different set of elections to supply its partisan election data. It could have

pulled data from five previous elections, instead of twelve. Or, it could have used only

presidential elections, instead of a variety of statewide contests.

¶ 214 But the General Assembly did not make any of these decisions. The mere

existence of other possible redistricting methods does not raise a suspicion, let alone

demonstrate beyond a reasonable doubt, that the General Assembly’s selected

approach was constitutionally inadequate in any way. If “every doubt” is to be

“resolved in favor of” an act of the General Assembly, Jenkins, 180 N.C. at 170, 104

S.E. at 347, then the three-judge panel should have deferred to the General

Assembly’s policy choices and its chosen redistricting method when presented with

nothing more than an array of alternative calculation methods and scores from

court-appointed political scientists. Accordingly, the three-judge panel erred in

rejecting the RCP, and this Court should reverse that portion of its order.

¶ 215 Nevertheless, the majority, like the three-judge panel, defers to the report of

the Special Masters and ignores the presumption of constitutionality entirely. The

-60-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

majority flips the presumption of constitutionality on its head by deferring to the

policy choices of four court-appointed political scientists to invalidate the policy

choices of the people’s chosen representatives. For example, in affirming the

three-judge panel’s rejection of the RCP, the majority notes that none of the advisors

found that the RCP “yielded both an [E]fficiency [G]ap below 7% and a

[M]ean-[M]edian [D]ifference below 1%.” Harper II, 2022-NCSC-121, ¶ 83. The

majority does not recognize, however, that the General Assembly’s Maptitude

software measured the RCP’s Efficiency Gap as 5.29% and its Mean-Median

Difference as 0.61%, both well below the thresholds identified by this Court in Harper

I. The majority simply defers to the advisors’ findings on the RCP’s Mean-Median

Difference and Efficiency Gap scores without explaining how the advisors’ analysis

shows that the General Assembly’s calculation of these scores was constitutionally

flawed. Nor does the majority create its own averages for the RCP as it did the RHP

and RSP. If it had it would see that both scores for the RCP are within the

“presumptively constitutional” ranges identified in Harper I. The RCP has an average

Mean-Median Difference of 0.88% and an average Efficiency Gap of 6.91%.

¶ 216 In doing so, the majority usurps the role of the General Assembly—the

policymaking branch of government—by replacing the General Assembly’s

discretionary redistricting decisions with its own preferred redistricting approaches.

More broadly, however, the majority eliminates the presumption of constitutionality

-61-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

entirely and inserts the judiciary squarely into future policy decisions that rightfully

belong to the General Assembly. Under the majority’s analytical framework, it

appears that any act of the General Assembly may be declared unconstitutional so

long as there is at least one scientist, scholar, specialist, or expert willing to opine

that the statute fails under at least one political science-based metric. As a result, the

majority has wrenched political power from the people and vested it entirely in its

own hands.

¶ 217 This Court’s decision from more than a century ago in Jenkins v. State Board

of Elections, 180 N.C. 169, 104 S.E. 346 (1920), illustrates the significance of the

separation-of-powers principles and the strength of the presumption of

constitutionality. In that case the General Assembly exercised its legislative

authority to amend the State’s election laws to allow absentee voting. Specifically,

the General Assembly enacted the Absentee Voters Law, which permitted any

registered voter who was “absent from the county in which” he was registered, id. at

172, 104 S.E. at 348, to vote using mail-in ballot forms provided by the State Board

of Elections, Compl. 7, Jenkins, 180 N.C. 169 (No. 260). J.J. Jenkins, who was running

for the Office of State Treasurer, Pl.’s Br. 1, Jenkins, 180 N.C. 169 (No. 260), filed suit

challenging the Absentee Voters Law as a violation of Article VI of the state

constitution and sought to enjoin the State Board of Elections from implementing the

statute in the 1920 general election, id. at 7, 8.

-62-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

¶ 218 The plaintiff primarily argued that the Absentee Voters Law conflicted with

Article VI, Section 2 of the North Carolina Constitution. See id. at 2−29. At the time,

Article VI, Section 2 of the North Carolina Constitution required that, to qualify to

vote in a particular county or district, a person must have “resided . . . in the precinct,

ward or other election district, in which he offers [to] vote, four months next preceding

the election.” N.C. Const. of 1868, art. VI, § 2. The plaintiff contended that this

provision not only required voters to reside in their respective county or district for

the requisite period of time but also prohibited voters from submitting a ballot unless

they were physically present in their county or district of residence. See Pl.’s Br. at

11−13.

¶ 219 Before this Court, the plaintiff made several arguments to support this

contention. For example, he argued that the verb “offer” in Article VI, Section 2

referred to a voter’s act of submitting a ballot, not the local board of elections’ act of

accepting and counting a ballot. Id. at 13. Accordingly, the act of submitting the ballot

had to occur in the voter’s county of residence and could not be completed by mailing

a ballot from another location. Id. The plaintiff also analogized the phrase “offers to

vote” to an offer to form a contract, which is “complete the moment [it] passes out of

the hands of the [offeree].” Id. at 14. Thus, like a contract offer, the plaintiff argued

that a voter’s “offer[ ] to vote” was complete the moment he submitted it for

acceptance by his local board of elections. Id. at 17. Thus, according to the plaintiff,

-63-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

the voter could only submit his ballot by hand in the county in which he resided. Id.

Lastly, the plaintiff also compared Article VI, Section 2 to similar provisions in other

state constitutions that were held to prohibit absentee voting laws. Id. at 18−19.

Accordingly, the plaintiff concluded that the Absentee Voters Law violated Article VI,

Section 2 by permitting voters to “offer to vote” from locations outside their county or

district of residence.

¶ 220 In answering this question, this Court first explained that the well-settled

presumption of constitutionality applied. Jenkins, 180 N.C. at 170, 104 S.E. at 347

(“No rule of construction is better settled, both upon principle and authority, than

that legislative enactments are presumed to be constitutional until the contrary is

shown. It is only when they plainly conflict with some provision of the [c]onstitution

that they should be declared void.”). The Court then noted that the plaintiff raised a

compelling argument that Article VI, Section 2 required a voter to “offer[ ] to vote”

while physically present in his county or district of residence. Id. at 172, 104 S.E. at

348. The Court admitted that, as a result, there was some doubt regarding the

constitutionality of the Absentee Voters Law. Id. (“[W]e must admit that the question

is perplexing and involved in doubt.”). Regardless, the Court determined that raising

a compelling argument of unconstitutionality was insufficient to overcome the

presumption of constitutionality’s high bar. Id. at 172−73, 104 S.E. at 348.

-64-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

Accordingly, this Court concluded that it was, therefore, required to uphold the

statute:

[W]e think the language of the [c]onstitution is susceptible
of a fair interpretation which will sustain the statute, in
which case it is our duty to uphold it and give to the law
the benefit of the doubt. The party who undertakes to
pronounce a law unconstitutional takes upon himself the
burden of proving beyond any reasonable doubt that it is
so. Nothing should have the effect of avoiding a statute
duly enacted but a direct collision between its provisions
and the [c]onstitution. That collision is not so clear as to
justify us in setting aside a statute, which is the law in a
majority of the States of the Union, and, so far as we can
find, has not been contested in recent years.

Id.

¶ 221 Thus, the presumption of constitutionality imposes a high bar to surmount and

can only be overcome if it is clear beyond a reasonable doubt that the relevant

enactment directly conflicts with an express provision of the constitution. See Baker,

330 N.C. at 334−37, 410 S.E.2d at 889−90. As applied to this case, plaintiffs have not

shown that the General Assembly’s Remedial Plans, presumed constitutional, violate

the constitution beyond a reasonable doubt.

IV. Political Question

¶ 222 The dissenting opinion in Harper I explained in great detail that partisan

gerrymandering claims present nonjusticiable political questions because the North

Carolina Constitution textually assigns the issue of redistricting to the legislature

and because there is no judicially discernible, manageable standard by which courts

-65-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

may adjudicate such claims. See Harper I, 2022-NCSC-17, ¶¶ 237−67 (Newby, C.J.,

dissenting). The exact justiciability pitfalls forecasted by the dissenting opinion in

Harper I permeated the proceedings on remand, and they are present again in the

majority’s decision today. Accordingly, revisiting the political question analysis from

Harper I is warranted.

¶ 223 “The Supreme Court of the United States has explained that ‘as essentially a

function of the separation of powers,’ courts must refuse to review issues that are

better suited for the political branches.” Id. ¶ 237 (quoting Baker, 369 U.S. at 217, 82

S. Ct. at 710). Such matters are nonjusticiable, political questions. One characteristic

of a political question is the absence of a standard that is judicially discoverable and

manageable. Id.

¶ 224 As explained in the dissent in Harper I, the Supreme Court of the United

States recently provided detailed guidance regarding the nonjusticiability of partisan

gerrymandering claims in Rucho v. Common Cause, 139 S. Ct. 2484 (2019). See

Harper I, 2022-NCSC-17, ¶¶ 238–45. In Rucho the Supreme Court determined that

claims of excessive partisanship—brought by a group of Maryland and North

Carolina voters regarding their states’ congressional maps—were nonjusticiable. 139

S. Ct. at 2491.

¶ 225 The Court first noted that “[p]artisan gerrymandering claims have proved far

more difficult to adjudicate” than other types of redistricting issues because “while it

-66-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage

in racial discrimination in districting, ‘a jurisdiction may engage in constitutional

political gerrymandering.’ ” Id. at 2497 (quoting Hunt v. Cromartie, 526 U.S. 541, 551,

119 S. Ct. 1545, 1551 (1999)). Because some level of partisan gerrymandering is

constitutional, “[t]he ‘central problem’ ” with such claims is “ ‘determining when

political gerrymandering has gone too far,’ ” id. (quoting Vieth v. Jubelirer, 541 U.S.

267, 296, 124 S. Ct. 1769, 1787 (2004) (plurality opinion)), and “providing a standard

for deciding how much partisan dominance is too much,” id. (quoting League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 420, 126 S. Ct. 2594, 2611 (2006) (opinion

of Kennedy, J.). Because of this inherent difficulty, the Supreme Court stressed that

if there exists a standard for resolving such claims, it “must be grounded in a ‘limited

and precise rationale,’ be ‘clear, manageable, and politically neutral,’ ” id. at 2498

(quoting Vieth, 541 U.S. at 306−08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the

judgment)), and “reliably differentiate unconstitutional from ‘constitutional political

gerrymandering,’ ” id. at 2499 (quoting Cromartie, 526 U.S. at 551, 119 S. Ct. at

1551).

¶ 226 The Supreme Court then examined whether it could find such a standard in

the Federal Constitution. The Court explained that partisan gerrymandering claims

are effectively requests for courts to allocate political power to achieve proportional

representation, something the Federal Constitution does not require. Id. (“Our cases,

-67-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

however, clearly foreclose any claim that the Constitution requires proportional

representation . . . .” (quoting Davis v. Bandemer, 478 U.S. 109, 130, 106 S. Ct. 2797,

2809 (1986) (plurality opinion))). Accordingly, partisan gerrymandering claims do not

seek to redress a violation of any particular constitutional provision; rather, such

claims “ask the courts to make their own political judgment about how much

representation particular political parties deserve—based on the votes of their

supporters” and “to apportion political power as a matter of fairness.” Id. (first

emphasis added). This judgment call is not the kind of “clear, manageable, and

politically neutral” standard required for justiciable issues. Id. at 2498 (quoting Vieth,

541 U.S. at 306−08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the judgment)); see

also id. at 291, 124 S. Ct. at 1784 (plurality opinion) (“ ‘Fairness’ does not seem to us

a judicially manageable standard. . . . Some criterion more solid and more

demonstrably met than that seems to us necessary to enable the state legislatures to

discern the limits of their districting discretion, to meaningfully constrain the

discretion of the courts, and to win public acceptance for the courts’ intrusion into a

process that is the very foundation of democratic decisionmaking.”).

¶ 227 The Court also concluded that, unlike one-person, one-vote claims, the Federal

Constitution was devoid of any objective, mathematical metric for measuring

“political fairness”: “[T]he one-person, one-vote rule is relatively easy to administer

as a matter of math. The same cannot be said of partisan gerrymandering claims,

-68-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

because the Constitution supplies no objective measure for assessing whether a

districting map treats a political party fairly.” Rucho, 139 S. Ct. at 2501.

¶ 228 Finding no appropriate standard in the Federal Constitution, the Supreme

Court then turned to the political science-based tests proposed by the Rucho

plaintiffs. Id. at 2503−04. These tests proved insufficient as well:

The appellees assure us that “the persistence of a
party’s advantage may be shown through sensitivity
testing: probing how a plan would perform under other
plausible electoral conditions.” Experience proves that
accurately predicting electoral outcomes is not so simple,
either because the plans are based on flawed assumptions
about voter preferences and behavior or because
demographics and priorities change over time. . . .

Even the most sophisticated districting maps cannot
reliably account for some of the reasons voters prefer one
candidate over another, or why their preferences may
change. Voters elect individual candidates in individual
districts, and their selections depend on the issues that
matter to them, the quality of the candidates, the tone of
the candidates’ campaigns, the performance of an
incumbent, national events or local issues that drive voter
turnout, and other considerations. Many voters split their
tickets. Others never register with a political party, and
vote for candidates from both major parties at different
points during their lifetimes. For all of those reasons,
asking judges to predict how a particular districting map
will perform in future elections risks basing constitutional
holdings on unstable ground outside judicial expertise.

Id. (citations omitted). In conclusion, the Supreme Court held that partisan

gerrymandering claims are nonjusticiable because there is “no plausible grant of

-69-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

authority in the Constitution, and no legal standards to limit and direct their

decisions.” Id. at 2507.

¶ 229 Today’s decision further illustrates the wisdom of that Court’s observations.

According to the majority, the General Assembly and six jurists were unable to

understand and apply the criteria set forth by the majority in Harper I. If, as the

majority insists, the “test” from Harper I “provide[s] a clear standard” so that the

General Assembly can “reliably” identify and avoid political gerrymandering, Harper

I, 2022-NCSC-17, ¶ 310 (quoting Rucho, 139 S. Ct. at 2499), then why did the General

Assembly, the three-judge panel, and the Special Masters all fail to discern and apply

that standard on remand? The fact that they could not properly understand and apply

the criteria discussed in Harper I is prima facie evidence that the majority’s standard

is unworkable. The majority even concedes that its standard from Harper I is

“imperfect” and “vulnerable to manipulation,” Harper II, 2022-NCSC-121, ¶¶ 78, 77,

yet it continues to insist its standard must be applied.

¶ 230 Additionally, the majority’s holding today renders the applicable “standard”

going forward even less manageable than the standard it iterated in Harper I. In

Harper I the majority suggested “possible bright-line standards” from “political

science literature.” Harper I, 2022-NCSC-17, ¶ 165 (majority opinion). It specifically

opined that “any plan with a [M]ean-[M]edian [D]ifference of 1% or less when

analyzed using a representative sample of past elections is presumptively

-70-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

constitutional.” Id. ¶ 166. Similarly, it concluded that a “seven percent [E]fficiency

[G]ap threshold” was presumptively constitutional. Id. ¶ 167. Now the majority backs

away from any possible bright-line standard and basically removes any presumption

by stating that even these threshold scores that it identified cannot reliably identify

a constitutional redistricting plan:

Constitutional compliance has no magic number. Rather,
the trial court may consider certain datapoints within its
wider consideration of the ultimate legal conclusion:
whether the plan upholds the fundamental right of the
people to vote on equal terms and to substantially equal
voting power.

Harper II, 2022-NCSC-121, ¶ 76. How the General Assembly, constitutionally tasked

with the redistricting responsibility, or a three-judge panel can recognize whether a

redistricting plan meets this criteria, however, the majority does not say.

V. Conclusion

¶ 231 When is a legislative redistricting plan constitutional? Only four justices on

this Court know, and they refuse to say why the plans at issue today are

unconstitutional. Why are they reluctant to say?

¶ 232 Ambiguity leads to redistricting by the judiciary, which appears to be the goal.

Legislative defendants’ redistricting decisions and their Remedial Plans are entitled

to our historic deference. The majority gives the General Assembly none.

¶ 233 The majority admits its standard is “imperfect,” Harper II, 2022-NCSC-121, ¶

78, but argues it can be applied by a three-judge panel. Absent from its discussion is

-71-
 HARPER V. HALL

2022-NCSC-121

Newby, C.J., dissenting

the branch that is constitutionally assigned redistricting responsibilities—the

legislative branch. The majority ignores the primary role of the General Assembly in

seeking to interpret and apply the vague “standard” it discusses.

¶ 234 Properly analyzed under the correct standard of review, all three of the

General Assembly’s Remedial Plans should be approved. The RCP and the RSP meet

the criteria of presumptive constitutionality set forth in Harper I. Most telling, the

majority strikes down the RSP when the three Special Masters and the three-judge

panel all agreed that it was constitutionally compliant under Harper I. Apparently,

six jurists and the General Assembly were unable to discern and apply the correct

constitutional test or recognize a constitutional redistricting plan. Once again, only

four justices know what redistricting plan will meet their view of constitutionality. I

respectfully dissent.

Justices BERGER and BARRINGER join in this dissenting opinion.

-72-