PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1270
RALEIGH WAKE CITIZENS ASSOCIATION; JANNET B. BARNES;
BEVERLEY S. CLARK; WILLIAM B. CLIFFORD; BRIAN FITZSIMMONS;
GREG FLYNN; DUSTIN MATTHEW INGALLS; AMY T. LEE; ERWIN
PORTMAN; SUSAN PORTMAN; JANE ROGERS; BARBARA VANDENBERGH;
JOHN G. VANDENBERGH; AMYGAYLE L. WOMBLE; PERRY WOODS,
Plaintiffs - Appellants,
v.
WAKE COUNTY BOARD OF ELECTIONS,
Defendant - Appellee,
and
CHAD BAREFOOT, in his official capacity as Senator and
primary sponsor of SB 181; PHILLIP E. BERGER, in his
official capacity as President Pro Tempore of the North
Carolina Senate; TIM MOORE, in his official capacity as
Speaker of the North Carolina House of Representatives,
Defendants.
No. 16-1271
CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L.
WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G.
DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN;
WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN; BEVERLEY
S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN CHILDREN,
d/b/a Coalition of Concerned Citizens for African-American
Children; RALEIGH WAKE CITIZENS ASSOCIATION,
Plaintiffs - Appellants,
v.
WAKE COUNTY BOARD OF ELECTIONS,
Defendant - Appellee,
and
STATE OF NORTH CAROLINA,
Defendant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:15-cv-00156-D; 5:13-cv-00607-D)
Argued: May 9, 2016 Decided: July 1, 2016
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Reversed and remanded in part and affirmed in part by published
opinion. Judge Wynn wrote the majority opinion, in which Judge
Gregory joined. Judge Motz wrote a dissenting opinion.
ARGUED: Anita Sue Earls, Allison Jean Riggs, SOUTHERN COALITION
FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants.
Charles Foster Marshall, III, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Raleigh, North Carolina, for Appellee. ON
BRIEF: George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina, for Appellants. Matthew B.
Tynan, Jessica Thaller-Moran, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Raleigh, North Carolina, for Appellee.
2
WYNN, Circuit Judge:
The right to vote is “fundamental,” and once that right “is
granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth
Amendment.” Bush v. Gore, 531 U.S. 98, 104-05 (2000) (quotation
marks and citation omitted). “It must be remembered that” the
right to vote “can be denied by a debasement or dilution of the
weight of a citizen’s vote just as effectively as by wholly
prohibiting the free exercise.” Id. (quoting Reynolds v. Sims,
377 U.S. 533, 555 (1964)).
In these consolidated cases, Plaintiffs, registered voters
and civic organizations in Wake County, North Carolina, claim
that under the two (identically drawn) redistricting laws they
challenge, some Wake County School Board and Wake County Board
of County Commissioners districts have been over-populated,
while others have been under-populated. Plaintiffs further
assert that these discrepancies result in some votes counting
more while others count less, and that the discrepancies stem
from illegitimate redistricting factors. As explained below, we
agree, hold that Plaintiffs have proven their state and federal
one person, one vote claims, and therefore reverse.
Plaintiffs also claim that one discrete district was the
product of racial gerrymandering. We hold that the district
3
court did not clearly err in rejecting that claim and thus
affirm.
I.
In the years leading up to 2013, the Wake County School
Board (“School Board”) consisted of nine members elected from
single-member districts. Those districts were subject to change
every ten years following the decennial census.
In 2010, the census showed that Wake County’s population
had grown by 43.51% over the preceding decade, causing the then-
existing districting plan to have a maximum population deviation
of 47.89%. 1 The School Board, at that time dominated by
registered Republicans, 2 redrew its districts in light of the
2010 census.
1“[C]ourts usually analyze[] apportionment plan[s] in terms
of the maximum population deviation among the districts.
Generally, to calculate maximum deviation, the court first
constructs a hypothetical ideal district by dividing the total
population of the political unit (e.g., state or county) by the
total number of representatives who serve that population.
Then, the court determines how much the actual population of
each district varies from the population of the ideal district.
This deviation is expressed as a percentage of the ideal
population. Maximum deviation is the sum of the absolute value
of the deviation of the district with the smallest population
and that of the district with the largest population.” Daly v.
Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996).
2While the School Board is nominally non-partisan, its
members are routinely registered and affiliated with the
Democratic and Republican Parties, and uncontroverted trial
testimony showed a high level of partisanship in “what’s
supposed to be a nonpartisan election.” J.A. 234; see also,
(Continued)
4
That effort led to a redistricting plan with geographically
compact districts having a maximum population deviation of 1.75%
and no district deviating from the ideal district population by
even 1%. The first election under the new districting, in Fall
2011, resulted in a School Board with a Democratic majority.
In 2013, the Republican-controlled North Carolina General
Assembly (“General Assembly”), over the objection of a majority
of the School Board and every Democratic and African-American
legislator in the General Assembly, passed a local bill, Session
Law 2013–110, making numerous changes to the School Board’s
method of selection. Among other things, Session Law 2013-110
changed the School Board’s make-up from nine single-member
districts to seven single-member districts and set less
geographically compact boundaries for this new set of districts.
The maximum population deviation among the new single-member
districts swelled to over 7%.
Additionally, Session Law 2013-110 created two “super
districts” that overlaid the single-member districts. J.A. 160.
One super district formed a donut of outer, more rural areas of
the county, while the other formed a donut hole in the inner,
e.g., J.A. 254 (noting that such local races have “become more
partisan-based” due to “block candidates,” the “political party
machine,” and “money”).
5
urban area. The maximum population deviation between the super
districts exceeded even that of the single-member districts—just
shy of 10%. Session Law 2013-110 moved elections to even-
numbered years, and limited the School Board’s ability to make
changes to its method of election until 2021.
In August 2013, thirteen individuals and two civic
organizations filed suit in the United States District Court for
the Eastern District of North Carolina, challenging the
constitutionality of the districts that Session Law 2013-110
established. The complaint alleged that the plan unevenly
weighted the votes of citizens in the county for impermissible
reasons, thereby violating the one-person, one-vote guarantees
of the federal and state constitutions. In March 2014, the
district court dismissed Plaintiffs’ suit for failure to state a
claim. Wright v. North Carolina, 975 F. Supp. 2d 539 (E.D.N.C.
2014). Plaintiffs appealed.
In April 2015, while Plaintiffs’ appeal was pending before
this Court, the General Assembly enacted Session Law 2015-4,
making the electoral system for the Wake County Board of County
Commissioners (“Board of County Commissioners”) identical to the
system it had created for the School Board with Session Law
6
2013-110. 3 With Session Law 2015-4, too, the General Assembly
forced a local bill on Wake County despite opposition from the
majority of the Board of County Commissioners, polled Wake
County voters, nearly every Democratic state legislator, and
every African-American legislator in the General Assembly.
Fourteen individuals and a civic organization filed suit shortly
thereafter, challenging the Board of County Commissioners’
redistricting plan as violating the one person, one vote
guarantees of the state and federal constitutions.
In Plaintiffs’ appeal from the district court’s March 2014
dismissal, this Court, in May 2015, held that “Plaintiffs’
allegations in support of their claim that [Session Law 2013-
110] violates the one person, one vote principle suffice to
survive a motion to dismiss for failure to state a claim.”
Wright v. North Carolina, 787 F.3d 256, 269 (4th Cir. 2015). We
therefore reinstated Plaintiffs’ complaint against the Wake
County Board of Elections.
On remand, the district court consolidated the suits
challenging Session Law 2013-110 and Session Law 2015-4 and
expedited discovery. Discovery was further limited by the state
3
Previously, members of the Board of County Commissioners
were elected at-large, subject to the requirement that one
member had to be elected from each of the county’s seven
residency districts.
7
legislators’ refusing Plaintiffs’ discovery requests, claiming
legislative privilege. 4 In December 2015, the district court
held a bench trial, in which Plaintiffs presented numerous
witnesses, including legislators, citizens, and experts, as well
as copious documentary evidence, with 481 exhibits including:
expert reports and supporting data; school assignment maps;
campaign finance reports; results data from various elections;
excerpts of legislative transcripts; and public polling results.
By contrast, Defendant, the Board of Elections that administers
elections with no stake in the “political interests of the
General Assembly,” Trial Tr. vol. I, 13:24-25, presented none of
its own. Defendant simply cross-examined Plaintiffs’ witnesses
and made legal argument.
Nevertheless, the district court ruled for Defendant.
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No.
5:13-CV-607-D, 2016 WL 1060378 (E.D.N.C. Feb. 26, 2016). The
district court discredited every single one of Plaintiffs’
witnesses, for example as “anecdotal,” id. at *28-29, and
“unhelpful,” id. at *32. It went on to hold, among other
things, that “in order to prove a prima facie case in a one
4
Pursuant to an agreement between Plaintiffs and particular
legislators, certain external communications between the
legislators and third parties—but no internal communications
amongst the legislators—were produced.
8
person one vote challenge, plaintiffs must at least negate the
most common legitimate reasons that could explain the
legislature’s action.” Id. at *22 (quotation marks and
citations omitted). The district court held that Plaintiffs
failed to meet this and the other requisite burdens. Plaintiffs
appealed.
II.
On appeal, “‘[w]e review judgments resulting from a bench
trial under a mixed standard of review: factual findings may be
reversed only if clearly erroneous, while conclusions of law are
examined de novo.’” Nat’l Fed’n of the Blind v. Lamone, 813
F.3d 494, 502 (4th Cir. 2016) (quoting Plasterers’ Local Union
No. 96 Pension Plan v. Pepper, 663 F.3d 210, 215 (4th Cir.
2011)). Findings will be deemed clearly erroneous if, for
example, “even though there is some evidence to support the
finding, the reviewing court, on review of the record, is left
with a definite and firm conviction that a mistake has been
made,” or if findings were made using “incorrect legal
standards.” Consol. Coal Co. v. Local 1643, United Mine Workers
of Am., 48 F.3d 125, 128 (4th Cir. 1995) (quotation marks and
citation omitted). “Of course, if the trial court bases its
findings upon a mistaken impression of applicable legal
principles, the reviewing court is not bound by the clearly
9
erroneous standard.” Inwood Labs., Inc. v. Ives Labs., Inc.,
456 U.S. 844, 855 n.15 (1982).
III.
With their primary argument on appeal, Plaintiffs contend
that the district court applied the wrong legal standard for
adjudicating their one person, one vote claim. For the reasons
explained below, we agree.
A.
The right to vote is “fundamental,” and once that right “is
granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth
Amendment.” Bush, 531 U.S. at 104-05 (quotation marks and
citation omitted). Indeed, allowing, through unequal
apportionment amongst districts, a vote to be “worth more in one
district than in another would . . . run counter to our
fundamental ideas of democratic government.” Reynolds, 377 U.S.
at 563 (quotation marks and citation omitted). This requirement
that all citizens’ votes be weighted equally, known as the one
person, one vote principle, applies not just to the federal
government but also to state and local governments—including
school boards and county governing bodies. Avery v. Midland
Cty., 390 U.S. 474, 480 (1968).
Courts have recognized that “[m]athematical exactness or
precision is hardly a workable constitutional requirement” and
10
thus do not require “identical numbers” in state and local
government districts. Reynolds, 377 U.S. at 577. Nevertheless,
governments must “make an honest and good faith effort” to
construct districts as close to equal population “as is
practicable.” Id. To assess what is “practicable,” the Supreme
Court has allowed some population deviation for “legitimate
considerations” such as compactness and contiguity, the
integrity of political subdivisions, and balance among political
parties. Harris v. Ariz. Indep. Redistricting Comm’n, 136 S.
Ct. 1301, 1306 (2016).
Generally, a districting plan “with a maximum population
deviation under 10% will not, by itself, support an equal
protection claim.” Wright, 787 F.3d at 264 (quotation marks
omitted and emphasis added). Rather, plaintiffs in such cases
“must show that it is more probable than not that a deviation of
less than 10% reflects the predominance of illegitimate
reapportionment factors rather than” legitimate considerations
such as compactness or the integrity of political subdivisions.
Harris, 136 S. Ct. at 1307.
In Harris, the Supreme Court’s most recent, and arguably
most lucid, pronouncement as to plaintiffs’ burdens in one
person, one vote cases below the 10% deviation threshold, the
Court unanimously noted that the plaintiffs there had claimed
that the plan’s deviations from “absolute equality of population
11
reflect . . . political efforts to help the Democratic party.”
Id. Crucially, however, the plaintiffs “failed to prove this
claim.” Id. Instead, “the record b[ore] out” that the
deviations “predominantly reflected . . . efforts to achieve
compliance with the federal Voting Rights Act, not to secure
political advantage for one party.” Id. In other words, the
plaintiffs in Harris foundered not because their one person, one
vote challenge failed as a matter of law, but because they did
not muster the evidence needed to show it to be
“more probable than not that [the] deviation of less than 10%
reflect[ed] the predominance of illegitimate reapportionment
factors.” Id.
By contrast, in Larios v. Cox, the plaintiffs succeeded in
proving their one person, one vote claims. 300 F. Supp. 2d 1320
(N.D. Ga.) (three-judge panel), aff’d, 542 U.S. 947 (2004)
(mem.). In Larios, a federal court struck down a Georgia
redistricting plan that disproportionately favored Democrats by
under-populating districts in the urban Atlanta region and the
rural south—both Democratic strongholds—while over-populating
suburban districts with Republican-leaning voters. The
redistricting created a maximum population deviation of 9.98%
and disproportionately protected Democratic incumbents. Id. at
1328–31. The Supreme Court (with only Justice Scalia
12
dissenting) affirmed the district court’s rejection of the
redistricting. Larios, 542 U.S. 947.
As the Supreme Court has explained, in Larios, “those
attacking the plan had shown that it was more probable than not
that the use of illegitimate factors significantly explained
deviations from numerical equality among districts.” Harris,
136 S. Ct. at 1310. The Supreme Court noted the “many examples
showing that population deviation as well as the shape of many
districts did not result from any attempt to create districts
that were compact or contiguous, or to keep counties whole, or
to preserve the cores of prior districts.” Id. (quotation marks
and citation omitted). The Supreme Court contrasted the Larios
plaintiffs’ successful showing with that of the failed
plaintiffs in Harris, stating “[i]t is appellants’ inability to
show that the present plan’s deviations and boundary shapes
result from the predominance of similarly illegitimate factors
that makes [Larios] inapposite here.” Id.
Looking at Larios and Harris, we conclude that, to succeed
on the merits, plaintiffs in one person, one vote cases with
population deviations below 10% must show by a preponderance of
the evidence that improper considerations predominate in
explaining the deviations. This is just such a case, and that
legal standard therefore applies.
B.
13
1.
The law in this area is challenging. In the earlier
appeal of this matter, we sought to clarify some points to ease
the burden on the district court. Nonetheless, there were
numerous instances in which the law we set out in Wright was not
adhered to. For example, in evaluating Plaintiffs’ one person,
one vote claim, the district court did not properly characterize
what Plaintiffs must show to succeed. The district court
stated, for example, that “in order to prove a prima facie case
in a one person one vote challenge, plaintiffs must at least
negate the most common legitimate reasons that could explain the
legislature’s action.” Raleigh Wake Citizens Ass’n, 2016 WL
1060378, at *22 (quotation marks and citation omitted). The
district court indicated that “any conceivable legislative
purpose is sufficient” to support the redistricting plan and
that those “attacking the rationality” thereof “have the burden
to [negate] every conceivable basis which might support it.”
Id. at 27 (alteration in original) (quotation marks and citation
omitted).
Contrary to the district court’s characterization, what
Plaintiffs must actually show to succeed with their one person,
one vote claims is that it is “more probable than not that a
deviation of less than 10% reflects the predominance of
illegitimate reapportionment factors.” Harris, 136 S. Ct. at
14
1307. This specific, deviation-focused inquiry differs markedly
from the district court’s rational-basis review of whether a
rational state policy could explain the redistricting generally.
2.
Further, in Wright, we emphasized the importance of the
Supreme Court’s affirmance of Larios for this case. Thus, we
made it clear that Larios was more than a mere summary
affirmance holding little sway. Raleigh Wake Citizens Ass’n,
2016 WL 1060378, at *18. Instead, with Wright, we set forth
precedent binding on the district courts of this Circuit making
clear that Larios constitutes persuasive authority generally, as
well as analogous authority in this concrete case. Wright, 787
F.3d at 267. The district court’s heavy emphasis on Justice
Scalia’s Larios dissent—an opinion with no precedential value—is
thus squarely at odds with Wright. See, e.g., Raleigh Wake
Citizens Ass’n, 2016 WL 1060378, at *18-19 (“According to
Justice Scalia, ‘politics as usual’ is a ‘traditional
redistricting criterion,’ and ‘a constitutional one,’” and
“‘[f]erreting out political motives in minute population
deviations seems to me more likely to encourage politically
motivated litigation than to vindicate political rights.’”).
Moreover, the district court misapplied the core principles
of Larios. The district court stated, for example, that, in
contrast to Larios, Plaintiffs here did not prove “that the
15
General Assembly disregarded all districting principles in
creating the 2013 Wake County School Board Plan, or that the
2013 Wake County School Board Plan is not rationally related to
a permissible, rational state policy of improving School Board
representation.” Raleigh Wake Citizens Ass’n, 2016 WL 1060378,
at *36. The district court thus concluded that “unlike Larios,
plaintiffs have failed to prove that the 2013 Wake County School
Board Plan resulted from a desire to favor suburban and rural
voters over urban voters.” Id.
Crucially, neither the three-judge district court in
Larios, nor the Supreme Court in affirming and later discussing
Larios, ever suggested that plaintiffs in such cases need to
show that “all districting principles” were “disregarded.” Id.
Further, neither court focused on the challenged redistricting
plans as a whole. Instead, the focus, in Larios as well as,
Harris, was whether “deviation[s] of less than 10% reflect[ed]
the predominance of illegitimate reapportionment factors.”
Harris, 136 S. Ct. at 1307 (emphasis added); Larios, 300 F.
Supp. 2d at 1338 (holding that “population deviations . . . not
supported by . . . legitimate interests . . . cannot withstand
constitutional scrutiny” (emphasis added)). In Larios, the
state legislature’s attempt to privilege rural and urban
Democrats at the expense of suburban Republicans explained the
deviations in population, not the redistricting plan generally,
16
did not constitute a legitimate apportionment factor, and was
prohibited. Larios, 300 F. Supp. 2d at 1338.
3.
Additionally, in evaluating the evidence Plaintiffs
proffered to support their one person, one vote claims, the
district court improperly discounted every single one of
Plaintiffs’ fifteen trial witnesses. For example, it
discredited all the testifying legislators because of their
“strong legislative opposition to the 2013 Wake County School
Board Plan. [The pertinent] testimony at trial fits within the
line of precedent giving no weight to statements made by
opponents of legislation.” Raleigh Wake Citizens Ass’n, 2016 WL
1060378, at *29.
The only analogous case in the purported “line of
precedent,” Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015), has
been vacated and is thus no longer good law, 815 F.3d 958 (5th
Cir. 2016) (granting rehearing en banc and vacating the panel
opinion). The other cases the district court cited—cases
dealing with statutory interpretation—stand for the unremarkable
and inapposite proposition that courts usually do not “accord
much weight to the statements of a bill’s opponents [when
interpreting the words of the bill]. The fears and doubts of
the opposition are no authoritative guide to the construction of
legislation.” Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S.
17
19, 29 (1988) (quotation marks, citation, and brackets omitted)
(holding that one passing reference to preemption in a speech by
an opponent of a law cannot properly guide the court’s
interpretation of that law); see also Schwegmann Bros. v.
Calvert Distillers Corp., 341 U.S. 384, 394 (1951) (noting that
“doubts of the opposition” do not guide “the construction of
legislation”); NLRB v. Fruit & Vegetable Packers & Warehousemen,
Local 760, 377 U.S. 58, 66 (1964) (same).
This is not a case about what a particular word in a
statute means. Rather, at the heart of this case is whether
illegitimate factors predominated the General Assembly’s
supplemental redistricting of Wake County such that illegitimate
factors explain the population deviations in the redistricting
plan. While we recognize that a trial judge generally may
consider “bias or prejudice” when “assessing witness
credibility,” United States v. Muse, 83 F.3d 672, 676-77 (4th
Cir. 1996), the district court discredited categorically the
legislators’ testimony, even regarding objective facts. Yet the
district court has cited, and we see, no controlling precedent
suggesting that their testimony should simply have been
discounted wholesale and “giv[en] no weight.” Raleigh Wake
Citizens Ass’n, 2016 WL 1060378, at *29.
Similarly, the district court completely rejected as
“materially flawed and unhelpful,” id. at *32, the analysis of
18
Plaintiffs’ expert Dr. Jowei Chen, a political science professor
from the University of Michigan. Upon closer inspection,
however, it is the district court’s own analysis of Dr. Chen’s
analysis that is materially flawed.
Dr. Chen analyzed whether the population deviations in the
seven single-member district plans and the two super districts
plans were motivated by a partisan purpose using computer
simulation programming techniques that allow him to generate
randomly a large number of alternative redistricting plans
created subject to traditional redistricting criteria. The four
traditional redistricting criteria Dr. Chen used were:
population equality; keeping municipalities intact; keeping
precincts whole; and geographic compactness. Dr. Chen’s
computer simulations are based on the logic that if a computer
randomly draws five hundred redistricting plans following
traditional redistricting criteria, and the actual enacted plans
fall completely outside the range of what the computer has
drawn, one can conclude that the traditional criteria do not
explain that enacted plan.
The computer simulations led Dr. Chen to just that
conclusion: that the “enacted districting plans create a
partisan distribution of seats falling completely outside the
range of outcomes that are possible under a non-partisan
districting process that creates equally populated districts
19
while maximizing compactness and preserving precinct and
municipal boundaries.” J.A. 768. Dr. Chen thus concluded “with
extremely high statistical certainty, beyond any sort of doubt
here” that “the only way to draw districts as extreme in
partisanship as the legislature’s B and A districts is to use
population deviations” that are high. J.A. 463. In other
words, Dr. Chen testified that he could conclude with certainty
from his simulations that the deviations at issue here are the
result of using partisanship in apportioning the districts.
In critiquing Dr. Chen’s analysis, the district court
seized on the fact that certain criteria accounted for in the
computer simulations—such as setting maximum population
deviation at 2% or less or “completely . . . ignor[ing]
partisanship,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at
*30, are required by neither state nor federal law. This
critique misses the point: The point is not that the simulated
plans are legally required, but rather that they help
demonstrate what might explain the population deviations in the
enacted plan.
The district court went on to “find[] that Dr. Chen’s
simulations simply show that ‘better’ . . . redistricting plans
were possible, but ‘better’ plans do not equate to the
unconstitutionality of the 2013 Wake County School Board Plan.”
Id. With that finding, the district court again missed the
20
point: The import of Dr. Chen’s simulations was not to produce
better plans, but rather to hold several legitimate
apportionment considerations constant so that Dr. Chen could
assess whether the population deviations in the challenged plans
could have been the product of something other than partisan
bias. He concluded “with extremely high statistical certainty,
beyond any sort of doubt here” that they could not have. J.A.
463. The district court clearly and reversibly erred in
rejecting Dr. Chen’s expert testimony. Easley v. Cromartie, 532
U.S. 234 (2001) (reversing a three-judge district court panel in
a racial gerrymandering case in which the district court clearly
erred in rejecting expert evidence).
4.
We could go on detailing the errors in the opinion below.
Suffice it to say that the legal analysis of what Plaintiffs
needed to show as well as the evaluation of the evidence
Plaintiffs proffered to make that showing are fundamentally
flawed.
C.
1.
When, as here, the district court applies the wrong
standards, we tend to remand to allow “the trier of fact to re-
examine the record” using the correct standards. Kelley v. S.
Pac. Co., 419 U.S. 318, 332 (1974). However, when “the record
21
permits only one resolution of the factual issue,” Pullman–
Standard v. Swint, 456 U.S. 273, 292 (1982), remand is
unnecessary, and we may rule based on the record before us.
Thus, for example, in the recent Class v. Towson University
opinion, this Court, based on the record before it, straight-out
reversed the district court, which had applied the incorrect
legal standard following a bench trial. 806 F.3d 236 (4th Cir.
2015). And in Cromartie, 532 U.S. 234, the Supreme Court
outright reversed a three-judge district court panel in a racial
gerrymandering case because, among other things, the district
court had clearly erred in rejecting pertinent expert evidence.
Likewise, here, we deem remand unnecessary. At trial, in
addition to copious documentary evidence, Plaintiffs presented
fifteen live witnesses—two experts, four legislators, four
county elected officials, and five plaintiffs and lay witnesses. 5
These witnesses and documents presented abundant support for
Plaintiffs’ one person, one vote claims within the nine-hour
total that the district court allowed Plaintiffs for presenting
their case.
Defendant, by contrast, offered not even one witness.
Instead, Defendant expressly disclaimed any stake in
5 The district court did not deem any of Plaintiffs’
witnesses to be untrustworthy. Raleigh Wake Citizens Ass’n,
2016 WL 1060378.
22
“representing the political interests of the General Assembly,”
Trial Tr. vol. I, 13:24-25, and essentially passed on defending
the General Assembly’s redistricting. Even the legislative
proponents of the challenged redistricting laws refused to
defend their actions, instead claiming legislative immunity.
The resulting record, discussed in more detail below,
permits only one resolution of Plaintiffs’ one person, one vote
claims: Plaintiffs have proven that it is more probable than
not that the population deviations at issue here reflect the
predominance of a illegitimate reapportionment factor, Harris,
136 S. Ct. at 13—namely an “intentional effort” to create “a
significant . . . partisan advantage,” Larios, 542 U.S. at 947-
49 (Stevens, J., concurring). In other words, Plaintiffs have
successfully made their case.
2.
First putting the challenged plans in context, the evidence
at trial showed that that Wake County’s population generally,
and the overall population deviation amongst the School Board
districts in particular, swelled significantly by the time of
the 2010 decennial census. Accordingly, the School Board
redrew its election maps. The resulting 2011 redistricting plan
reduced maximum population deviation down to 1.75%, with no
single district deviation reaching even 1% from the ideal. The
districts were “vetted” by county residents and the members of
23
the School Board, and were considered relatively compact,
contiguous, and respectful of communities of interest. J.A.
210. The Board of County Commissioners also redrew its
residency districts after the 2010 decennial census.
Despite the fact the 2011 redistricting had been shepherded
by a “Republican School Board” and that a “Republican lawyer”
had drafted the districts, J.A. 420, the 2011 elections, the
first administered under the new plan, resulted in a “shift[]
from the Republicans to the Democrats.” J.A. 200. The
Republican-controlled General Assembly then intervened with the
redistricting plans that are the subject of this action.
Uncontroverted testimony and evidence adduced at trial
showed that the legislative process relating to Session Law
2013-110 was truncated by, for example, not having “community
hearings and participation of the affected parties,” J.A. 211,
and failing to incorporate “any of the ideas that people . . .
proffered,” id., without even “discussing it amongst the [Wake
County] delegation first,” a “stark departure” from common
practice, J.A. 419. As School Board Member Bill Fletcher, a
registered Republican, put it, “nothing was discussed. There
was no opportunity to provide input, to have a debate or
discussion about different election strategies, it was simply
drafted in a bill and presented and passed with little
opportunity for rational thought.” J.A. 263.
24
3.
Moving on to the showing Plaintiffs needed to make on their
one person, one vote claims, uncontroverted evidence at trial
showed that the deviations resulting from the latter-day
redistricting more likely than not reflected the predominance of
illegitimate reapportionment factors.
Plaintiffs proffered uncontroverted evidence of an
illegitimate factor predominating in the skewed, unequal
redistricting: an attempt to guaranty Republican victory through
the intentional packing of Democratic districts. Various
witnesses testified that “the true motivation[]” for the
redistricting was to “ensure Republican control . . . at the
expense of Democrats.” J.A. 364. The “real reason” behind the
redistricting was “[t]o ensure a Republican majority . . .
despite the vote totals,” J.A. 405, a “kind of punitive and
retributive effort to punish the Democrats for winning,” J.A.
392.
Plaintiffs’ expert Anthony Fairfax analyzed the challenged
redistricting plans and reported, among other things, that
“[t]here was a marked pattern of overpopulation in Democratic-
performing districts, and underpopulation in Republican-
performing districts.” J.A. 805. And as Mr. Fairfax noted in
his testimony, “by overpopulating you obviously minimize the
25
Democratic performance in other districts, other surrounding
districts.” J.A. 305. 6
Plaintiffs’ second expert, Dr. Chen, conducted an analysis
showing that “[t]he General Assembly’s enacted districting plans
create a partisan distribution of seats falling completely
outside the range of outcomes that are possible under a non-
partisan districting process that creates equally populated
districts while maximizing compactness and preserving precinct
and municipal boundaries.” J.A. 768. In other words, as Dr.
Chen testified at trial, “the only way to achieve a districting
plan that allowed for such an extreme partisan Republican
control over four districts out of seven, the only way to create
such an extreme partisan plan was to deviate from population
equality to a great extent.” J.A. 466-67.
6
The district court discounted Mr. Fairfax’s testimony just
as it did every single one of Plaintiffs’ other witnesses. And
in the case of Mr. Fairfax, as with the others, the bases for
that discounting fall apart upon careful inspection. For
example, the district court faulted Mr. Fairfax for using
election results data, asserting that he “failed to analyze
voter registration data in Wake County.” Raleigh Wake Citizens
Ass’n, 2016 WL 1060378, at *34. Yet in focusing on election
results instead of registration data, Mr. Fairfax followed
precisely what the Supreme Court has instructed those analyzing
redistricting plans to do. See, e.g., Cromartie, 532 U.S. at
239 (noting its instruction that courts should look to “data
showing how voters actually behave, not data showing only how
those voters are registered”).
26
The legislators who hatched the redistricting plans claimed
legislative immunity. Absent from the record, therefore, is any
trial testimony confirming (or denying) a partisan motive behind
the redistricting and its deviations. 7 The record does, however,
contain several e-mails including third parties, the only
category of e-mails Plaintiffs managed to obtain, that indeed
suggest a partisan motive behind the redistricting and its
deviations. For example, the Wake County Republican Party Chair
exchanged several e-mails with, and apparently met with, key
legislators involved in the redistricting, with a focus on “how
we would take 5 of the 9 seats.” J.A. 1114.
We do not doubt that some amount of partisan politics is
par for the course in redistricting generally. For example, in
Gaffney v. Cummings, a case on which the district court relied
here, the Supreme Court upheld a redistricting plan drawn based
on partisan considerations. 412 U.S. 735 (1973). But the facts
in and consequences of Gaffney differ markedly and tellingly
7 Both the district court and Defendant make much ado of the
admissions the legislators made in Larios, noting the direct
evidence that legislators purposefully skewed district
deviations along urban, suburban, and rural divides to achieve
partisan goals. See, e.g., Appellee’s Br. at 41; Raleigh Wake
Citizens Ass’n, 2016 WL 1060378, at *18. Both Defendant and the
district court contrast those facts with this case, with its
lack of such direct evidence. But here, the lack of direct
evidence may have its roots in the legislators’ avoiding
discovery through claims of legislative immunity. Moreover,
direct evidence is simply not required.
27
from those here. In Gaffney, a state legislature had drafted a
redistricting plan following a decennial census; in doing so, it
followed a “policy of ‘political fairness.’” Id. at 738. The
plan, which exhibited less than 2% overall deviation in the
state senate and less than 8% overall deviation in the state
house, sought “proportional representation of the two major
political parties. . . . [T]he Board took into account the party
voting results in the preceding three statewide elections, and,
on that basis, created what was thought to be a proportionate
number of Republican and Democratic legislative seats.” Id.
In this case, by contrast, rather than seeking proportional
representation of the two main political parties, the evidence
shows that the challenged plans under-populated Republican-
leaning districts and over-populated Democratic-leaning
districts in order to gerrymander Republican victories. 8 In
other words, the challenged redistricting here subverts
8 The district court played up the fact that District 5 and
District 6 constitute exceptions to the rule that Democratic-
leaning districts were over-populated and Republican-leaning
districts were under-populated. Raleigh Wake Citizens Ass’n,
2016 WL 1060378, at *35. According to the district court,
“[t]his evidence belies a systematic under-population of
districts to harm incumbents . . . who are registered Democrats
who support ‘progressive’ education policies.” Id. What the
evidence actually belies is the tenuousness of the district
court’s analysis—because both District 5 and District 6 exhibit
only negligible deviations from ideal population—both less than
0.2%.
28
political fairness and proportional representation and
sublimates partisan gamesmanship. Gaffney simply cannot
reasonably be read as supporting that; if anything, it does the
opposite. Indeed, the Supreme Court suggested that partisanship
is not a legitimate reason to weight some votes more than
others, and the Gaffney Court itself underscored that
redistricting so as to “minimize” the “political strength” of a
party or group would be constitutionally “vulnerable.” Id. at
754.
Further, the Supreme Court rejected just such partisan
deviation games in Larios, 542 U.S. 947, indicating that “if a
plan contains any population deviations, a court may decide that
the deviations are caused by impermissible partisanship and
strike the plan down . . . for failure to comply with one
person, one vote.” Samuel Issacharoff & Pamela S. Karlan, Where
to Draw the Line?: Judicial Review of Political Gerrymanders,
153 U. Pa. L. Rev. 541, 567-68 (2004); see Larios, 300 F. Supp.
2d at 1338 (holding that pertinent “population deviations” were
“not the result of an effort to further any legitimate” policy
but were instead “systematically and intentionally created” to
“protect Democratic incumbents” and holding that that did not
“withstand[] Equal Protection scrutiny”).
We recognize that the Supreme Court has not yet clarified
when exactly partisan considerations cross the line from
29
legitimate to unlawful. See, e.g., Harris v. McCrory, No. 1:13-
CV-949, 2016 WL 3129213, at *2 (M.D.N.C. June 2, 2016) (citing
Larios, 542 U.S. 947, for the proposition that redistricting
plans may be challenged “when partisan considerations go ‘too
far,’” while citing Vieth v. Jubelirer, 541 U.S. 267 (2004), for
the lack of “judicially discernible and manageable standards for
adjudicating political gerrymandering claims”). Yet it is
important to bear in mind that only a plurality (i.e., not a
controlling majority) of the Supreme Court has suggested that
partisanship-based redistricting claims should be considered
nonjusticiable. 9 Id. And shortly after Vieth, a nearly
unanimous Supreme Court, including three Justices from the Vieth
plurality, affirmed Larios, in which the lower court struck down
a redistricting plan with population deviations under 10% as a
9 The district court incorrectly suggested that “[i]n Vieth,
the Supreme Court rejected as nonjusticiable a political
gerrymandering claim.” Raleigh Wake Citizens Ass’n 2016 WL
1060378, at *19, n.11. On the contrary, as we noted in Wright,
“a majority of the (Vieth) Supreme Court refused to deem
political gerrymandering claims to be per se nonjusticiable.
And the Court has since recognized as much.” 787 F.3d at 269
(citing League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 414 (2006) (“A plurality of the Court in Vieth would have
held [political gerrymandering] challenges to be nonjusticiable
political questions, but a majority declined to do so.”)).
30
blatant and unlawful attempt at partisan favoritism. Larios,
542 U.S. 947. 10
4.
Not only did the uncontested record evidence demonstrate
that illegitimate reapportionment factors predominated,
resulting in an overall deviation of barely under 10%; the
evidence also exposed the stated reasons for the redistricting
as pretextual. For example, one stated goal of the School
Board’s redistricting was to increase the alignment between
citizen’s voting districts and their assigned schools.
Uncontroverted testimony at trial indicated that the
redistricting resulted in the opposite, “mak[ing] alignment
worse.” J.A. 235. Indeed, “[j]ust a perfect downtown example
is Daniels Middle School and Broughton High School[, which] are
in the same feeder pattern, they were in the same district under
the 2011 maps . . . but they were in different districts under
the [new] map” challenged here. J.A. 424. Further, even if
10
Stated different, “barely two months [after Vieth], three
of those Justices were part of an eight-Justice majority that
affirmed the judgment in Larios, a case in which the lower court
struck down a plan [with] relatively minuscule population
deviations . . . because they reflected ‘blatantly partisan and
discriminatory’ attempts to protect Democratic incumbents while
undermining Republican-held seats. As Sister Maria says in The
Sound of Music, ‘When the Lord closes a door, somewhere He opens
a window.’” Issacharoff & Karlan, 153 U. Pa. L. Rev. at 542.
31
increased alignment were indeed a goal, it need not necessarily
have resulted in population deviations amongst the districts.
A second stated rationale for the redistricting debunked at
trial: reducing campaign costs. As trial testimony
demonstrated, “the proponents of this legislation said that they
were concerned about the cost of campaigning and that these
districts would make it cheaper to run. . . . That is either
inaccurate or deceptive, because Wake County is a media market
and if you’re going to run in any of these widespread districts
here or if you’re going to run all in the entire county you are
still going to be advertising in the Raleigh/Wake media market,
[and] it’s still expensive.” J.A. 395-96. Further, moving
down-ballot races like those for School Board members to even
years that include congressional and presidential races is
“going to dramatically increase the costs of running” in those
elections, J.A. 420, even simply for candidates “to have any
visibility in a Presidential election cycle.” J.A. 258. And,
again, nothing about this stated rationale, cost reduction,
explains the population deviation amongst the districts.
Another stated goal of the redistricting legislation—
increasing voter turnout—also has nothing to do with re-drawing
districts, much less re-drawing them unequally. The district
court noted that “Plaintiffs do not dispute the other
legislative goal of increasing voter turnout by having . . .
32
elections in even-numbered years.” Raleigh Wake Citizens Ass’n,
2016 WL 1060378, at *27 n.18. But they did not need to dispute
that goal, because it has no logical connection to, and does not
justify, re-drawing districts, much less districts with
population deviations.
A further rationale given for the redistricting: allowing
voters greater representation. Yet the redistricting of the
County Commission arguably reduced citizens’ opportunity to cast
votes for their preferred commissioners by moving away from an
all at-large system. As testified at trial, voters “had the
ability to elect all seven members . . . . As it stands with the
maps that were passed by the House and the Senate, [they] will
be able to exercise [their] vote on only two of those members,
so with every -- everything that I know about the word
representation, that’s less.” J.A. 387-88. And again, nothing
about this goal explains the population deviations of the
districts as drawn.
Moreover, alternatives were suggested that would have
achieved, even more effectively, the stated rationale of
increased representation without resulting in such great
population deviations. For example, Representative Darren
Jackson proposed an amendment to create two purely at large
districts instead of the donut and donut hole districts, while
maintaining the 2011 single-member districts. Such a plan would
33
have “accomplish[ed] both of the Republicans’ stated goals, to
give you more representation on the School Board and to make
sure that you had a School Board member who represented your
child’s school, and it accomplished both of those goals.” J.A.
354. That amendment, which would have achieved greater
representation on the School Board, was rejected—yet more
evidence that the stated rationales were pretextual and fail to
justify the population deviations in the challenged
redistricting.
The legislators pushing the redistricting also sought to
ground it in administrative ease, having the School Board and
Board of County Commissioners fall under the same plan. Again,
that goal is wholly unrelated to, and plainly fails to justify,
the deviations in population amongst the districts. Somewhat
relatedly, and certainly breathtakingly under the circumstances,
the Board of County Commissioners’ redistricting was ostensibly
intended to “avoid litigation.” Raleigh Wake Citizens Ass’n,
2016 WL 1060378, at *37. Yet the School Board redistricting was
being actively litigated and was in fact pending before this
Court at that time. The litigation rationale is thus utterly
irrational and, further, has no logical connection to the
deviations at issue.
Moving beyond the pretextual rationales, the record
evidence demonstrates that traditional, legitimate apportionment
34
factors did not predominate. On the contrary, the redistricting
resulted in: “a total of 31 [split] precincts” (as opposed to 12
split precincts under the 2011 plan), J.A. 805; bizarrely shaped
districts, including “donut[s]” and “donut munchkin[s],” J.A.
432, “crab claw[s]” and “pincer[s],” J.A. 212; and obviously
non-compact districts that make it harder, for example, for
School Board members “to have more detailed knowledge about
[their] own districts,” J.A. 280. 11 Indeed, Plaintiffs’ expert
Dr. Chen considered several traditional, legitimate
reapportionment criteria, i.e., population equality, community
and precinct boundaries, and geographical compactness, and found
that the redistricting “create[d] a partisan distribution of
seats falling completely outside the range of outcomes that are
possible under a non-partisan districting process that creates
equally populated districts while maximizing compactness and
preserving precinct and municipal boundaries.” J.A. 768.
Representative Rosa Gill also proposed an alternative
redistricting during the legislative process. Her proposal
demonstrated that it was entirely possible to meet all of the
stated rationales for the skewed redistricting—including giving
voters the opportunity to elect two school board members,
11
No party has made an argument regarding Voting Rights Act
compliance, also recognized as a legitimate apportionment
factor. We therefore do not address it.
35
providing district representation for the County Commissioners,
moving school board elections to even numbered years to increase
turnout, reducing voter confusion by using the same districts
for both the School Board and the Board of County Commissioners,
and reducing costs—while creating only miniscule deviations.
Representative Gill’s plan divided no precincts and had overall
deviations in the single-member and super districts of less than
0.5%. J.A. 795-96.
The trial court dismissed the evidence of Representative
Gill’s alternative plan because it “simply shows that ‘better’
plans can be drawn, but ‘better’ plans do not equate to
unconstitutionality.” Raleigh Wake Citizens Ass’n, 2016 WL
1060378, at *33. In fact, what the alternative plan shows is
that legitimate considerations, including the stated rationales
for the redistricting, utterly failed to explain or justify the
high levels of deviation in the enacted plans—because those
rationales could have been accomplished by a plan with virtually
no population deviations.
5.
At the end of the day, when we review the evidentiary
record, we can reach only one conclusion: that Plaintiffs, the
only parties to make their case at trial, successfully showed it
to be more probable than not that the deviations at issue here
reflect the predominance of an illegitimate reapportionment
36
factor rather than legitimate considerations. Harris, 136 S.
Ct. at 1307. We recognize that, generally, “attacks on
deviations under 10% will succeed only rarely, in unusual
cases.” Id. But after reviewing this matter closely, and for
the reasons discussed above, we are convinced that these mid-
decade, partisan redistricting plans constitute just such an
unusual case. The district court therefore committed reversible
error in granting judgment in Defendant’s favor.
6.
In addition to improper partisanship, Plaintiffs claimed
improper regional favoritism as an illegitimate factor behind
the deviations in the challenged reapportionments. Because we
have already ruled in Plaintiffs’ favor based on partisanship,
we need not reach this related but separate basis. We
nevertheless note that “[a] citizen, a qualified voter, is no
more nor no less so because he lives in the city or on the farm.
This is the clear and strong command of our Constitution’s Equal
Protection Clause.” Reynolds, 377 U.S. at 568. Therefore,
“[i]n Larios, a federal court struck down a [state] legislative
redistricting plan . . . . The plaintiffs there alleged that the
plan . . . under-populat[ed] districts in the urban Atlanta
region and the rural south-Georgia area—both Democratic
strongholds—while over-populating districts with Republican-
leaning voters.” Wright, 787 F.3d at 266-67. In Wright, we
37
left no doubt that, as in Larios, Plaintiffs here claim that “a
state legislature designed a redistricting plan with a maximum
deviation in population of just under 10%, designed to pit rural
and urban voters against one another” and that “[e]ven if Larios
does not control this case . . ., we nevertheless find it” and
its rejection of regional favoritism as a basis for deviating
from ideal population by such margins “persuasive.” Id. at 267.
Moreover, the district court held that “the General
Assembly rationally considered the communities of interest
within Wake County’s urban areas and within Wake County’s rural
and suburban areas in adopting” the challenged redistricting
plans. Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *40.
But the pertinent inquiry is not whether it was “rational” to
“consider” communities of interest in adopting the plans
generally; instead, the proper inquiry is whether the
redistricting’s deviations more likely than not reflect the
predominance of illegitimate reapportionment factors. Harris,
136 S. Ct. at 1307. The district court plainly engaged the
wrong legal standard in its analysis of this factor. But
because we rule on the basis of partisanship, we need go no
further of the regional favoritism issue.
D.
In addition to their federal constitutional one person, one
vote claim, Plaintiffs brought a similar North Carolina state
38
claim. Under the North Carolina Constitution, “[t]he right to
vote on equal terms in representative elections—a one-person,
one-vote standard—is a fundamental right.” Blankenship v.
Bartlett, 681 S.E.2d 759, 762–63 (N.C. 2009). A North Carolina
analysis of the state’s “Equal Protection Clause generally
follows the analysis of the Supreme Court of the United States
in interpreting the corresponding federal clause.” Id. at 762.
If anything, North Carolina’s one person, one vote principle
applies with even more force than its federal counterpart. See,
e.g., id. at 763 (deeming the one person, one vote principle
applicable in North Carolina’s election of superior court judges
even though “federal courts have articulated that the ‘one-
person, one-vote’ standard is inapplicable to state judicial
elections”); Stephenson v. Bartlett, 562 S.E.2d 377, 397 (N.C.
2002) (requiring legislative districts to be within plus or
minus five percent of ideal population). Accordingly, for the
same reasons that Plaintiffs succeed with their federal claim,
so, too, do they succeed with their North Carolina state one
person, one vote claim.
IV.
In addition to their one person, one vote claim, Plaintiffs
have also brought a racial gerrymandering claim regarding the
39
Board of County Commissioners’ District 4. 12 Plaintiffs contend
that race predominated in determining the boundaries, shape, and
composition of that district without narrow tailoring to serve a
compelling state interest. As explained below, the district
court did not commit clear error in rejecting this claim.
A.
To successfully challenge the constitutionality of an
electoral district under the Equal Protection Clause, a
plaintiff must “show, either through circumstantial evidence of
a district’s shape and demographics or more direct evidence
going to legislative purpose, that race was the predominant
factor motivating the legislature’s decision to place a
significant number of voters within or without a particular
district.” Ala. Legislative Black Caucus v. Alabama, 135 S. Ct.
1257, 1267 (2015) (quotation marks and citation omitted).
Such a showing requires proof that “the legislature
subordinated traditional race-neutral districting principles . .
. to racial considerations.” Miller v. Johnson, 515 U.S. 900,
916 (1995). Traditional race-neutral principles include
“compactness, contiguity, and respect for political subdivisions
or communities defined by actual shared interests,” id.,
12
Even though the corresponding School Board district is
identical, Plaintiffs in Wright made no such claim. We, like
the district court, therefore do not address that issue.
40
incumbency protection, and political advantage, Bush v. Vera,
517 U.S. 952, 964, 968 (1996). And evidence that such
traditional principles took a back seat to racial considerations
may include direct and circumstantial evidence of legislative
intent, indications that a racial percentage within a given
district was non-negotiable, bizarre or non-compact district
shapes, and district lines that cut through traditional
geographic boundaries or election precincts. See, e.g., Vera,
517 U.S. at 970-71; Miller, 515 U.S. at 917-18; Shaw v. Reno,
509 U.S. 630, 646–48 (1993).
If a plaintiff successfully shows racial predominance in
drawing the lines of a district, the court must apply “strictest
scrutiny,” Miller, 515 U.S. at 915, that is, it must determine
whether the design of the challenged district was narrowly
tailored to advance a compelling state interest—a burden the
state must bear, Shaw v. Hunt, 517 U.S. 899, 908 (1996). If the
answer to that question is no, the district must be struck as
unconstitutional.
B.
In contrast to its one person, one vote analysis, the
district court did not miscomprehend the applicable law.
Accordingly, while we were “not bound by the clearly erroneous
standard” regarding the one person, one vote findings, Inwood
Labs., 456 U.S. at 855 n.15, the same cannot be said here.
41
Here, we must affirm if “the district court’s account of the
evidence is plausible,” even if we are “convinced that we would
have decided the question of fact differently.” TFWS, Inc. v.
Franchot, 572 F.3d 186, 196 (4th Cir. 2009) (quotation marks and
citation omitted).
While we might have decided this matter differently in the
first instance, we cannot say that the district court’s account
of the evidence is not plausible; it is. For example, the
district court considered legislator comments indicating that
race was a consideration in the redistricting process, such as a
representative’s observation “that at-large electoral systems
submerge the views of various minorities, ‘whether it’s racial,
gender, political, rural, urban or whatever.’” Raleigh Wake
Citizens Ass’n, 2016 WL 1060378, at *46. While such comments
evidence the fact that race was a consideration in the
redistricting process, doing so is not unlawful. See, e.g.,
Miller, 515 U.S. at 916 (“Redistricting legislatures will, for
example, almost always be aware of racial demographics; but it
does not follow that race predominates in the redistricting
process.”). We cannot fault the district court for determining
that the comments here did not constitute direct evidence that
race predominated in the drawing of District 4, i.e., of racial
gerrymandering.
42
Further, in the racial gerrymandering context, partisan
advantage may be considered a traditional redistricting
criterion, and evidence that politics was the primary motivation
for the drawing of a district can defeat an allegation that race
predominated. See, e.g., Cromartie, 532 U.S. at 257–58; Vera,
517 U.S. at 968. The district court recognized this, noting
that the fact that District 4 is majority-minority “alone does
not mean that the General Assembly racially gerrymandered
District 4,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at
*47, and that evidence supports the district’s having been drawn
with a focus on partisanship rather than race. For example, in
evaluating the expert support for Plaintiffs’ racial
gerrymandering claim, the district court noted that the expert’s
“partisan neutral” analysis did not help answer the question of
whether politics or race led to District 4’s boundaries. Id.
Here, too, we cannot disagree.
In sum, even if we might have found otherwise in the first
instance, it was not implausible for the district court to
determine that Plaintiffs had fallen short of proving that
traditional districting criteria were subordinated to race in
the drawing of District 4. Accordingly, because the district
court’s analysis of Plaintiffs’ racial gerrymandering claim is
not clearly erroneous, we affirm on that issue.
43
V.
For the reasons discussed above, we reverse the district
court’s judgment in Defendant’s favor as to Plaintiffs’ one
person, one vote claims. We remand with instructions to enter
immediately 13 judgment for Plaintiffs, granting both declaratory
relief and a permanent injunction, as to the one person, one
vote claims. However, we affirm the district court’s judgment
for Defendant as to Plaintiffs’ racial gerrymander claim.
REVERSED AND REMANDED IN PART
AND AFFIRMED IN PART
13 We see no reason why the November 2016 elections should
proceed under the unconstitutional plans we strike down today.
44
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent from the majority’s holding that
the district court erred in rejecting Plaintiffs’ equal
protection challenge to twin presumptively constitutional
redistricting plans. Plaintiffs’ one person, one vote claim
rests on their contention that improper “partisanship” rendered
the challenged redistricting plans unconstitutional, even though
those plans have population deviations of less than 10%. 1 If
such a claim is justiciable, and it is not clear that it is, the
showing necessary to prove such a claim is extremely demanding.
The Supreme Court explained only a few weeks ago that such
challenges “will succeed only rarely, in unusual cases.” Harris
v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307
(2016). The challenge here, like that in Harris, is not that
1
In their amended complaint, Plaintiffs also alleged that
the plans impermissibly favored rural voters over urban voters.
At trial, however, they focused on assertedly improper
“partisanship” and produced scant evidence that the State sought
to advantage rural over urban voters. Plaintiffs did not even
offer evidence as to which districts they considered “urban” or
“rural.” Their experts testified that assertedly illegitimate
“partisan” motivations, not regional favoritism, predominately
motivated the challenged plans. Unsurprisingly, the district
court found that Plaintiffs “failed to prove” that either plan
“impermissibly favors suburban and rural voters over urban
voters or substantially dilutes the individual voting strength
of Wake County’s urban voters.” Raleigh Wake Citizens Ass’n v.
Wake Cty. Bd. of Elections, No. 5:15-CV-156-D, 2016 WL 1060378,
at *40 (E.D.N.C. Feb. 26, 2016). On appeal, Plaintiffs provide
no basis on which to disturb that finding.
“unusual case.” For this reason, I would affirm in its entirety
the judgment of the district court rejecting Plaintiffs’
challenges to the redistricting plans.
I.
The Equal Protection Clause requires a State to “make an
honest and good faith effort to construct [state legislative]
districts . . . as nearly of equal population as is
practicable.” Reynolds v. Sims, 377 U.S. 533, 577 (1964). But,
the Reynolds Court itself recognized that, in determining what
is “practicable,” the Constitution permits some deviations from
perfect population equality when justified by “legitimate
considerations incident to the effectuation of a rational state
policy.” Id. at 579; accord Harris, 136 S. Ct. at 1306.
In a long line of cases decided in the wake of Reynolds,
the Court has held that districts, like those at issue here,
with a “maximum population deviation under 10%” are
presumptively constitutional. See, e.g., Brown v. Thomson, 462
U.S. 835, 842 (1983); accord Harris, 136 S. Ct. at 1307 and
cases cited therein. These “minor deviations from mathematical
equality do not, by themselves, make out a prima facie case of
invidious discrimination under the Fourteenth Amendment so as to
require justification by the State.” Harris, 136 S. Ct. at 1307
46
(quoting Gaffney v. Cummings, 412 U.S. 735, 745 (1973))
(internal quotation marks omitted).
It was because of “the inherent difficulty of measuring and
comparing factors that may legitimately account for small
deviations from strict mathematical equality” that the Supreme
Court recently reiterated that “attacks on deviations under 10%
will succeed only rarely, in unusual cases.” Harris, 136 S. Ct.
at 1307. To prevail on such claims, the Harris Court held that
a challenger “must show that it is more probable than not that a
deviation of less than 10% reflects the predominance of
illegitimate reapportionment factors rather than the ‘legitimate
considerations’” that the Court had identified in previous
cases. Id.
In earlier cases the Supreme Court had identified numerous
“legitimate considerations” justifying a State’s reapportionment
plan. Among them are a State’s valid interests in: maintaining
the competitive balance among political parties, Gaffney, 412
U.S. at 752-53; accord Harris, 136 S. Ct. at 1306, avoiding
contests between incumbents as long as incumbents of one party
are not favored over those of another, Karcher v. Daggett, 462
U.S. 725, 740 (1983), and recognizing communities of interest,
Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016). Indeed, in
League of United Latin American Citizens v. Perry, the Supreme
Court characterized “avoiding the pairing of incumbents” as a
47
“‘neutral’ redistricting standard[ ]” and “maintaining
communities of interest” as a “traditional districting
principle[ ].” 548 U.S. 399, 412 (2006) (plurality opinion)
(“LULAC”); Id. at 433 (majority opinion).
Thus, notwithstanding Plaintiffs’ apparent belief, the
Court has expressly recognized that a redistricting plan can in
these ways legitimately take account of political
considerations. The Court has never suggested that doing so
constitutes reliance on an “illegitimate reapportionment
factor.” Harris, 136 S. Ct. at 1307. This approach necessarily
follows from the fact that “[p]olitics and political
considerations are inseparable from districting and
apportionment” and so “districting inevitably has and is
intended to have substantial political consequences.” Gaffney,
412 U.S. at 753.
If those attacking a redistricting plan prove that a State
has abused legitimate political considerations by systemically
over- or under-populating districts to benefit one party at the
expense another, then the challengers may be able to prevail as
they did in Larios v. Cox, 300 F. Supp. 2d 1320, 1325 (N.D.
Ga.), aff’d, 542 U.S. 947 (2004) (mem.). Plaintiffs lean
heavily on Larios. Their reliance is misplaced.
First, Plaintiffs ignore the very different factual record
developed in that case. In Larios, the challenged plan paired
48
in the same district, and thus pitted against each other, 37 of
the 74 incumbent Republicans but only 9 of the 105 incumbent
Democrats. 300 F. Supp. 2d at 1326. In Larios, Georgia
legislators admitted before the district court that they had
intentionally drawn legislative districts to favor incumbents of
one party over those of the other. Id. at 1325. Thus, in
Larios, the state legislators conceded that they had not made
the “good faith effort” to draw equal districts that Reynolds
requires. The record in this case contains no such evidence.
In addition to ignoring the very different evidentiary
record in Larios, Plaintiffs turn a blind eye to the Court’s
subsequent treatment of that case. In LULAC, the Court
explained that Larios “does not give clear guidance” in
“addressing political motivation as a justification for an
equal-protection violation.” 548 U.S. at 423 (plurality
opinion). And in Harris, the unanimous Supreme Court expressly
reserved the question of whether the sort of abusive
partisanship at issue in Larios even constitutes “an
illegitimate redistricting factor.” Harris, 136 S. Ct. at 1310. 2
2 Tellingly, the Court has never addressed the alternative
holding by the lower court in Larios invalidating the challenged
plans on the basis of regional favoritism. That alternative
holding has little precedential or persuasive value given, as
the Supreme Court has explained, “a summary affirmance is an
affirmance of the judgment only,” not the rationale of the lower
court, which “should not be understood as breaking new ground.”
(Continued)
49
Despite Plaintiffs’ protestations to the contrary, the
foundations of Larios as persuasive authority rest on shaky
ground.
Equally significantly, Plaintiffs take no notice of the
holding in Harris that, even if abusive partisanship did
constitute an illegitimate factor, those challenging the
redistricting plan before it had “not carried their burden.”
Id. This holding is particularly significant given that the
Harris plaintiffs had made a much stronger evidentiary showing
than Plaintiffs do here. For example, the Harris plaintiffs
offered direct evidence of a Republican-leaning district made
“more competitive” at the request of a Democratic redistricting
commissioner by “hyperpacking Republicans into other districts.”
Id. at 1309 (internal quotation marks omitted). The
redistricting commission in Harris had overpopulated almost all
the Republican-leaning districts in the thirty-district plan
while underpopulating almost all the Democratic-leaning
Mandel v. Bradley, 432 U.S. 173, 176 (1977). And invalidating a
redistricting plan because it allegedly favors “rural” or
“urban” voters would break new ground. The Supreme Court has
never before or after Larios suggested that considering the
urban or rural characteristics of a district is an illegitimate
apportionment factor. In fact, statements in several cases
suggest that these are the quintessential types of communities
of interest a State may consider when redistricting. See, e.g.,
Dusch v. Davis, 387 U.S. 112, 117 (1967).
50
districts. Id. at 1309-10. Even in the face of this evidence,
the district court did not find the redistricting plan
unconstitutional -- and the Supreme Court agreed. Id. at 1309.
Furthermore, in explaining its rejection of the Harris
plaintiffs’ claims, the Supreme Court distinguished Larios in
ways that apply with equal force here. The Harris Court held
that in Larios, unlike in the case before it (and unlike in the
case at hand), “the district court found that those attacking
the plan had shown” that no legitimate factors explained the
deviations in the plan. Id. at 1310 (emphasis added). The
Harris Court explained: “It is appellants’ inability to show”
that illegitimate factors predominated “that makes [Larios]
inapposite here.” Id. Thus the Court emphasized and re-
emphasized that those attacking a presumptively constitutional
redistricting plan, like Plaintiffs here, must prove that
illegitimate factors predominated.
In sum, even if abusive partisanship claims are
justiciable, and do provide the basis for a one person, one vote
claim, Plaintiffs had to prove at trial that the State relied on
this consideration in redistricting, and that this reliance took
precedence over all legitimate considerations, including
maintaining political balance among political parties, avoiding
contests between incumbents of both parties, and recognizing
communities of interest. The State, on the other hand, did not
51
need to offer any justification for its presumptively
constitutional redistricting plans. See, e.g., Harris, 136
S. Ct. at 1307.
A fair review of the factual record seems to me to
demonstrate that, as in Harris, Plaintiffs here failed to meet
their burden and so, as the Supreme Court did in Harris, we
should affirm the district court’s rejection of their challenge. 3
II.
In attempting to meet their substantial burden, Plaintiffs
principally rely on the trial testimony of their expert,
Dr. Jowei Chen. On the basis of statistical models that he had
created, Dr. Chen opined that deviations in the challenged
redistricting plans were motivated entirely by a desire to
obtain “Republican partisan control over four of the” seven
numbered districts and over one of the two lettered super-
districts. But, as the district court found, Dr. Chen’s model
3
The district court also rejected Plaintiffs’ one person,
one vote claim under the North Carolina Constitution. Because
North Carolina courts “generally follow[ ] the analysis of the
Supreme Court of the United States” when interpreting the
State’s corresponding Equal Protection Clause, I would affirm
the district court’s finding that Plaintiffs failed to carry
their burden on their state law claims for the same reasons that
apply to their federal claims. Blankenship v. Bartlett, 681
S.E.2d 759, 762 (N.C. 2009).
52
simply does not prove either conclusion. Dr. Chen’s analysis
suffers from two critical flaws.
First, in his model, Dr. Chen pegged the maximum tolerable
level of population deviation between districts at 2%. In doing
so he held the State to a standard not required by law. Of
course, a State must make a “good faith effort” to draw equal
districts. Reynolds, 377 U.S. at 577. But neutral factors may
cause population deviations well above 10% without running afoul
of the Constitution. See, e.g., Mahan v. Howell, 410 U.S. 315,
328 (1973). Moreover, Dr. Chen’s arbitrary 2% threshold seems
particularly unwarranted in light of the Supreme Court’s
repeated characterization of deviations below 10% as “minor” and
its admonition that such minor deviations do not “substantially
dilute the weight of individual votes in the larger districts so
as to deprive individuals in these districts of fair and
effective representation.” White v. Regester, 412 U.S. 755, 764
(1973).
The second fatal flaw in Dr. Chen’s analysis is his failure
to look beyond what he considered to be the only four legitimate
or “traditional” districting factors -- population equality,
intact municipal boundaries, intact precincts, and geographic
53
compactness. 4 Dr. Chen ignored the many apolitical and political
factors States may consider during redistricting (like striking
a competitive balance among political parties, avoiding contests
among incumbents, and recognizing communities of interest), even
if pursuing these goals causes minor population deviations.
This is particularly troubling because it is undisputed
that two of the legitimate districting factors Dr. Chen failed
to consider -- incumbency protection and grouping communities of
interest -- actually motivated the legislature here. The
parties stipulated to the accuracy of transcripts of the
legislative debate and those transcripts reveal that state
legislators altered the district lines in the final version of
the School Board redistricting bill to protect two incumbents --
one registered Democrat and one registered Republican. Further,
the Democratic incumbent, Christine Kushner, testified at trial
that “Ms. Prickett, who is a registered Republican, had been
placed into a Democratic leaning district,” but “was moved out
4 Plaintiffs actually concede the limited reach of
Dr. Chen’s analysis, noting that his analysis “shows that the
partisanship of the enacted districts does not happen when
traditional redistricting criteria are followed.” See
Plaintiffs’ Rep. Br. at 21 (emphasis added). Of course, as
explained above, the Supreme Court has repeatedly recognized
numerous legitimate ‘redistricting criteria’ other than those
that Dr. Chen considers “traditional.” And in LULAC, 548 U.S.
at 433, the Court expressly included “maintaining communities of
interest” among “traditional” redistricting criteria.
54
of that district and put into a Republican leaning district, and
I [Ms. Kushner] was switched out of District 2 into District 5,”
which she admitted was a “more favorable district” for her.
Accommodating the legitimate interest in protecting incumbents
of both parties had a demonstrable impact on the population
deviations across four of the seven numbered districts in the
plan. District 1 swung from 2.76% overpopulated to -0.41%
underpopulated. District 2 swelled from -4.19% underpopulated
to just -1.05% underpopulated. District 5 dipped from 0.19%
overpopulated to -1.53% underpopulated. Finally, District 6
grew from -0.14% underpopulated to 1.6% overpopulated.
Dr. Chen’s model does not in any way account for these
population deviations. As a result, Dr. Chen’s view that
nothing but improper “partisanship” could explain the population
deviations in the twin redistricting plans completely ignores
the undisputed impact that the legislative effort to protect the
two incumbents had on the plans. In light of that omission, I
cannot agree that the district court clearly erred in concluding
that Dr. Chen’s testimony did not demonstrate that the
legislature deviated from population equality only for the
predominant purpose of creating four safe Republican seats out
of seven.
Dr. Chen committed the same sort of analytic error in
considering the two lettered super-districts. One of the stated
55
purposes for the super-districts was to improve representation
for voters in rural areas. Without challenging the State’s
consideration of communities of interest generally, Plaintiffs
argue that “[t]here is no possible way that [the stated]
rationales explain why Super District A needs to be 44,117
people larger than Super District B.” Plaintiffs’ Rep. Br. at
12. According to Dr. Chen, again improper “partisanship” is the
only explanation.
And again, Dr. Chen’s model does not support this
conclusion. To be sure, the State could have overpopulated
District A, an area of the County that has historically voted
for Democratic candidates, to increase a Republican candidate’s
odds of winning in District B. But the State also could have
deviated from population equality to group more urban areas in
District A based on their shared interests. This, after all,
was the purpose for having the super-districts in the first
place, and of course it constitutes a clearly valid State
interest. See Evenwel, 136 S. Ct. at 1124. Or the State could
have had the dual motivation to accomplish both. Dr. Chen’s
model tells us nothing about how grouping together communities
of interest motivated the legislature because it a priori
excludes any consideration of that legitimate redistricting
consideration.
56
Plaintiffs’ remaining evidence also falls far short of
meeting their burden of proving that illegitimate partisan
considerations predominated here. Plaintiffs’ expert Anthony
Fairfax concluded that the legislature desired to “minimize the
Democratic performance” in certain districts by overpopulating
the “Democratic performing districts.” That opinion rests on
his view that correlation between overpopulation and Democratic
performance in the districts in and of itself demonstrates
legislative intent -- i.e., that the numbers speak for
themselves. The district court concluded that they do not.
The record here provides no basis for holding that finding
clearly erroneous. Of the four districts assertedly favorable
or competitive for Democrats, three are overpopulated. Of the
five districts assertedly favorable or competitive for
Republicans, only three are underpopulated by more than 1%. One
of these three districts, District 2, is underpopulated by just
-1.05%. Thus, the asserted correlation between population and
Democratic performance is, to say the least, minimal. This
minimal correlation limits the strength of any inference that
can be drawn. Cf. Harris, 136 S. Ct. at 1309-10 (refusing to
infer predominance of illegitimate partisanship over a thirty-
district plan where every district underpopulated by more than
1% (nine total) favored Democrats and every district
overpopulated by more than 1% (twelve total) favored
57
Republicans). At the very least, the district court did not
clearly err when it declined, as the Supreme Court did in Harris
in the face of stronger evidence, to make an inference of
unconstitutional motivation.
Plaintiffs also offered the lay testimony of members of the
state legislature who opposed the redistricting plans. I agree
with the majority that the district court erred in categorically
rejecting this testimony as irrelevant. But, despite this
error, the testimony does not move the needle far on the issue
of intent of those voting to adopt the redistricting plans
because, to a person, Plaintiffs’ lay witnesses disclaimed any
knowledge of the sponsors’ motivations. 5
In sum, faced with the heavy burden of proving that
assertedly illegitimate “partisanship” constituted the
predominant motivation for the presumptively constitutional
redistricting plans, Plaintiffs failed to offer any evidence
truly probative of legislative intent. Plaintiffs’ experts
tendered conclusions that their analyses could not support.
5More probative are emails from Wake County Republican
Chairwoman Donna Williams to Republican members of the state
legislature and School Board. Williams expressed concern that
the proposed map would not be sufficiently favorable to
Republicans to permit them to “take 5 of the 9 seats.” However,
the record does not contain requests for information or
responses from State officials or any indication that
Ms. Williams’ lobbying efforts had any effect on the
legislation.
58
Plaintiffs’ remaining evidence proved little. The district
court refused to draw Plaintiffs’ preferred inference. In doing
so, the court did not clearly err. To the contrary, given the
weakness of Plaintiffs’ case, Defendants would have had strong
grounds to appeal had the district court ruled otherwise.
I would affirm the judgment of the district court in its
entirety.
59
Raleigh Wake Citizens Assoc v. Wake County Board of Elections
Court: Court of Appeals for the Fourth Circuit
Date filed: 2016-07-01
Citations: 827 F.3d 333
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