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City of Greensboro v. Guilford County Board of Elections

United States District Court, M.D. North Carolina

April 3, 2017

CITY OF GREENSBORO, et al., Plaintiffs,


          Catherine C. Eagles, District Judge.

         The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires that the votes of all citizens have equal weight. A state violates this rule, known as the one-person, one-vote principle, when it places voters into electoral districts of materially different population size for no legitimate reason. Even small deviations from equally populated districts violate the Equal Protection Clause if those deviations are driven by illegitimate factors.

         The Fourth Circuit recently held that a districting plan with a population deviation under ten percent violated the Equal Protection Clause because the unequal districts were created in an attempt to guarantee electoral success to one political party.[1] As in that case, the evidence here establishes that the North Carolina General Assembly drew Greensboro City Council districts with materially unequal populations in an attempt to maximize success for Republican candidates. Neither the State nor any legislative leaders defended this law in court or disputed the plaintiffs' evidence, and the primary legislative sponsor refused to testify. Consistent with the holding in RWCA, the Court finds and concludes that the General Assembly's 2015 City Council redistricting plan violates the Equal Protection Clause and must be permanently enjoined.


         Since 1983, the Greensboro City Council has been composed of nine members. Three council members and the mayor are elected at-large in citywide elections and five council members are elected from single-member districts.[3] The City Council last redrew its districts in 2011, after the 2010 census.[4] After the 2011 redistricting, the population in each district was almost equal, with only a 3.86 percent maximum population deviation[5]in the plan as a whole; the largest district was only 2.34 percent above the ideal population size and the smallest district was only 1.53 percent below ideal population size.[6]

         In 2015, the North Carolina General Assembly passed a bill (“the Act”) that changed the City Council from this three-at-large, five-district council to an eight-district council and drew district lines for the new districts.[7] According to the General Assembly's numbers, the smallest of these new districts was 3.68 percent below the ideal population, the largest district was 4.57 percent above ideal, and the maximum population deviation in the new plan was 8.24 percent.[8] This Act prohibited changes to the city's government by the City Council; it also prohibited changes by citizen referendums and initiatives, which were otherwise available by statute to municipal citizens statewide.[9] The Act also made other changes to the government of the City of Greensboro and the City of Trinity that are not at issue in this lawsuit.[10]

         Almost immediately, several individual citizens of Greensboro filed suit, challenging both the population deviations between the new districts and the ban on citizen-initiated referendums and initiatives.[11] The City of Greensboro joined in the latter claim, and the Court issued a preliminary injunction blocking implementation of the Act.[12] In September 2015, as part of a “technical corrections” bill, the General Assembly amended the Act to allow changes to Greensboro's government by the City Council and by citizen initiatives and referendums after the 2020 census.[13] This amendment did not change the Act's district map.[14] Under the injunction, the 2015 municipal elections took place under the pre-existing City Council format.[15] The individual plaintiffs later added a racial gerrymandering challenge to one of the new districts.[16]

         No one has substantively defended the constitutionality of the Act, directly or indirectly. A group of citizens who initially intervened, alleging that the Act was constitutional, decided to withdraw after concluding that any defense would be “futile.”[17]The Attorney General decided not to participate on behalf of the State, [18] and legislative leaders who had the statutory right to intervene did not seek to do so.[19] The primary legislative sponsor of the Act invoked legislative privilege and refused to testify.[20]

         The State of North Carolina, the Governor, and legislative leaders in their official capacities have not defended the Act, and they appear to have immunity from suit under the Eleventh Amendment to the Constitution.[21] The only defendant is the Guilford County Board of Elections, the entity responsible for conducting elections for the City of Greensboro.

         The Board of Elections acknowledges that it is a necessary party to this litigation because of its responsibility for Greensboro elections.[22] However, it had nothing to do with passing the Act and possesses no evidence about the redistricting process. It believes that its duty is to fairly and impartially administer whatever election laws validly apply, not to determine whether those laws are constitutional or to advocate on behalf of the State.[23] The Board of Elections has offered no evidence or legal authority in support of the Act.


         The plaintiffs contend that the General Assembly drew the lines for the eight City Council districts in an attempt to guarantee a partisan advantage for Republicans.[24]Specifically, they contend that the legislature packed Democratic-leaning voters into overpopulated districts and created underpopulated districts that lean Republican. The credible evidence is uncontroverted that this is indeed what happened.

         A. Legal Principles

         “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.'”[25] It is easy to see how this principle is violated when relatively small round numbers are used: If the District A representative is elected by 100 voters and the District B representative is elected by 1, 000 voters, it is obvious that each of the voters in District A have significantly more power and that the votes of each District A and District B voter are not equal. Although one-person, one-vote cases typically involve larger total populations and smaller relative differences in populations than in this example, the principle is the same. This kind of “unequal apportionment” of voters violates the Equal Protection Clause.[26] Districts that make votes “worth more in one district than in another would run counter to our fundamental ideas of democratic government.”[27]

         The requirement that each vote have equal weight applies to all levels of elected government, from the United States Congress to county commissioners and school boards.[28] The principle applies no matter the size of the population being divided into districts.

         It is difficult to draw districts that are exactly equal in population, and courts have recognized that “mathematical exactness or precision is hardly a workable constitutional requirement.”[29] Nonetheless, the Constitution requires that governments “make an honest and good faith effort” to create state and local legislative districts “as close to equal population ‘as is practicable.'”[30] District size may deviate from the ideal population based on “legitimate considerations.”[31] Those legitimate considerations are “numerous and malleable, ”[32] but they at least include compactness, contiguity, and respect for political subdivisions.[33]

         While a district plan with a maximum population deviation under ten percent will not, by itself, establish an equal protection violation, [34] neither will such a plan get an automatic stamp of constitutional approval. Instead, the plaintiffs can prove an equal protection violation by showing that it is more probable than not that the deviation “reflects the predominance of illegitimate reapportionment factors” rather than legitimate redistricting considerations.[35]

         B. Greensboro's Districts and Voting Patterns

         The General Assembly's numbers show that when a city the size of Greensboro- approximately 269, 000 people[36]-is divided into eight City Council districts, the ideal population for each district is 33, 631 people.[37] Under the 2015 Redistricting Act, the eight districts range in population from 32, 395 (District 2) to 35, 167 (District 6).[38] Thus District 2 is 3.68 percent below the ideal population and District 6 is 4.57 percent above ideal, while the plan as a whole has a maximum population deviation of 8.24 percent.[39]

         These deviations are significantly larger than the deviations in the pre-existing five-district plan. The maximum population deviation of that 2011 plan was only 3.86 percent.[40]

         In the General Assembly, Republicans held a majority in both the House and the Senate when the Act was passed.[41] According to the information before the legislature in 2015, 56 percent of Greensboro's voters are registered as Democrat, 23 percent as Republican, 21 percent as unaffiliated, and less than 1 percent as Libertarian.[42] In the last statewide election for which results were available to the legislature in 2015, the 2010 U.S. Senate race, Greensboro voters favored the Democratic candidate by sixteen percentage points.[43]

         Greensboro's City Council elections are non-partisan and would remain so under the 2015 Redistricting Act; while there is crossover voting, the partisan registration of council members is well-known.[44] Since 1999, the number of City Council members registered as Republicans has varied from zero to six; registered Republicans have usually, but not always, been in the minority.[45] At the time the 2015 Redistricting Act passed, all three at-large council members and the mayor were registered Democrats, four of the five district council members were registered Democrats, and one district council member was a registered Republican.[46]

         For the eight individual districts drawn by the General Assembly in the 2015 Redistricting Act, the population deviations and partisan leanings are as follows, [47] with all figures in percentages:

District Deviation Democrat[48] Republican

         1 .37 80.9 17.5

         2 -3.68 76.2 22.4

         3 -3.03 47.4 50.5

         4 .87 86.9 11.9

         5 -0.09 48.1 50.0

         6 .57 68.5 29.4

         7 -3.56 37.8 60.0

         8 -1.46 38.3 59.4

         Under the 2015 Redistricting Act, four of the eight districts lean Republican: two by a small percentage and two by over twenty percentage points.[49] Approximately eighty-six percent of all Republican voters are in underpopulated districts.[50]

         C. Analysis

         If the maximum deviation of a district plan is less than ten percent, the plaintiffs must show that it is more probable than not that the deviations in the plan “‘reflect[] the predominance of illegitimate reapportionment factors rather than' legitimate considerations.”[51] Here, the maximum population deviation of the 2015 plan was 8.24 percent.[52] All of the credible evidence establishes that the deviations occurred as the result of an intentional attempt to guarantee Republicans a partisan advantage in City Council elections. Moreover, this evidence is uncontroverted.

         First, credible evidence based on computer simulations by Dr. Jowei Chen establishes that it is highly unlikely for a Greensboro redistricting process to result in four Republican-leaning districts absent an intentional effort to draw lines giving Republicans an advantage.[53] Specifically, these simulations show that when a plan is drawn with a maximum deviation of four percent or less, only two or three out of eight districts lean Republican.[54] When the maximum deviation is allowed to increase to between eight and ten percent, simulations occasionally create plans with four districts leaning Republican, but even then most simulations result in only two or three Republican-leaning districts.[55]

         Second, all four of the Republican-leaning districts in the 2015 Redistricting Act were underpopulated, two to a significant degree.[56] By comparison, only one Democrat-leaning district was underpopulated, and all of the overpopulated districts leaned Democratic.[57] In a neutral redistricting plan, voters of either party are equally likely to be placed in an underpopulated or overpopulated district.[58] Yet under the 2015 Redistricting Act, 86 percent of all Republican voters[59] were in districts that are underpopulated while only 57 percent of Democratic voters were in an underpopulated district.[60]

         Credible evidence based on computer simulations run by Dr. Chen again establishes that this was “very, very unlikely” to happen by chance, [61] and that this “partisan skew” resulted from an intent “to significantly favor” Republican voters.[62]Plaintiffs' expert Anthony Fairfax also identified this pattern of overpopulation in Democratic-leaning districts and underpopulation in Republican-leaning districts.[63]

         Third, six of the seven incumbent Democratic council members' residences were assigned into districts with another incumbent Democrat.[64] Due to this “double- bunking, ” at least three Democratic incumbents would necessarily lose their seats in the next election. One of those incumbents assigned to new District 3, Nancy Hoffman, lives in a precinct that, aside from a small area around her residence, was assigned to District 7; her residence was essentially carved out of District 7 and placed in District 3.[65] As a result of this split-precinct carve-out, District 7 had no incumbent while District 3 had two incumbents.[66] Carving out Councilmember Hoffman's residence did not reduce population disparities because both Districts 3 and 7 are significantly underpopulated.[67]The sole Democrat who was not double-bunked, Councilmember Marikay Abuzuaiter, was assigned to a district that strongly leans Republican.[68] The sole Republican, Councilmember Tony Wilkins, was not double-bunked and was placed in a district that leans Republican.[69] This evidence shows that the legislature intended to unseat half the incumbents registered in one political party and corroborates partisan motivation in the drawing of district lines.[70]

         Fourth, the 2015 districts split more precincts[71] than would be expected from a partisan-neutral plan. Dr. Chen credibly testified that “the vast majority” of neutral plans resulting from his simulations had five or fewer split precincts, and that “very often” there were no split precincts.[72] The 2015 Redistricting Act split eight precincts.[73] The purpose of one of those splits was, obviously, to double-bunk two Democratic incumbents.[74]

         Fifth, the legislative path of the 2015 Redistricting Act departed from normal legislative procedures.[75] In North Carolina, “local bills, ” such as municipal redistricting bills, are generally only brought forth at the request of the municipality or collectively by the local delegation.[76] The Greensboro changes originally appeared in a local bill, Senate Bill 36, [77] which the City of Greensboro and many in the Greensboro legislative delegation opposed.[78] Before introducing SB 36, which would have changed the City Council to a seven-district system, the Act's primary sponsor, Republican Senator Trudy Wade, did not discuss the details of her bill or share maps showing the new districts with other Greensboro legislators or with any members of the City Council.[79] After passing in the Senate, SB 36 stalled in the House, [80] so Senator Wade asked the Senate Redistricting Committee to add the Greensboro changes to House Bill 263, a bill about the City of Trinity that had already passed the House, and the Committee complied.[81] Before amending HB 263, she again gave no notice to other legislators from Greensboro or members of the City Council.[82] The amended HB 263, with the Greensboro changes, then passed the Senate.[83]

         When the Senate's amended bill with the Greensboro changes was brought back to the House, the House did not then concur.[84] Irregularities continued when four out of five House members appointed to the conference committee supported the bill with the Greensboro City Council changes, in contravention of House rules requiring a majority of conference committee members to have “generally supported the House position.”[85] The conference bill eventually presented to the House and Senate differed from the original bill, as it drew eight new districts rather than seven.[86] Despite this significant difference, the maps showing the lines for the eight new districts were made available to the rest of the legislators and the public only 24 hours before the bill was called for a vote.[87] There is even evidence that the conference bill presented to the House was not the bill that conference committee members approved.[88]

         Finally, this new eight-district bill was initially rejected by the House, [89] and it only passed after a closed caucus by the Republicans resulted in several Republicans changing their votes.[90] The Senate then also adopted the conference committee bill, enacting it into law.[91]

         D. Stated Justifications for the Act Do Not Explain the Deviations

         There is no direct evidence before the Court about the criteria or process used to draw either the seven- or eight-district plans.[92] Senator Wade, the primary sponsor of the Act, refused to testify and invoked her legislative privilege, [93] and the legislative history does not contain any explanation from any legislator about the criteria used to draw the districts. Indeed, the legislative history does not provide even indirect evidence of how the district lines were drawn. For example, when Senator Wade was asked during a floor debate to explain the large population deviations in the plan, she said, “I don't believe I can answer, ” and blamed “the professional staff” and unnamed “House members.”[94]Representative Pat Hurley, the House member who sponsored HB 263 and allowed the Greensboro changes to be added to her pre-existing Trinity bill, said “I don't really know” why the population deviations were so large or why so many precincts were split.[95]

         During the legislative process, supporters of SB 36 and HB 263 offered a number of reasons the proposed changes were good ideas. These justifications fall into several categories: (1) smaller districts are better;[96] (2) the City Council needs geographic diversity;[97] (3) the public supports the Act;[98] (4) the Act will provide fairer minority representation;[99] and (5) the Act aligns Greensboro's system of government with that of other cities.[100] These justifications were consistent, whether legislators were referring to the original seven-district plan or the final eight-district plan.[101]

         These reasons explain a move from at-large council members to a district-only system[102] but they do not speak to why the General Assembly drew these specific boundaries for the new districts. There is no evidence that meeting these goals required a maximum population deviation over eight percent, required putting 86 percent of Republicans in underpopulated districts, or required any particular line to be drawn in any particular place. None of these justifications rebut or undermine the plaintiffs' evidence that the deviations were motivated by illegitimate partisanship.[103]

         In an early floor debate, Senator Wade also made passing mention of compliance with the Voting Rights Act.[104] Voting Rights Act compliance may well have been a legitimate redistricting criteria at the time, [105] but no party has made any argument or offered any evidence that VRA compliance required unequal district populations.[106]There is no credible evidence that the deviations predominantly reflected efforts to achieve compliance with the federal Voting Rights Act.

         E. Legitimate Criteria Do Not Explain the Population Disparity

         No credible evidence before the Court indicates that legitimate redistricting criteria predominated when the lines were drawn for the eight new districts. In fact, the evidence shows that these legitimate considerations did not predominate.

         Legitimate criteria include compactness, contiguity, and the integrity of political subdivisions.[107] Fairness or “balance” between political parties[108] and protection of incumbents have also been recognized in some circumstances as legitimate criteria.[109]

         Nothing in the legislative history indicates that the deviations were required to achieve compact districts. To the contrary, every one of Dr. Chen's simulations was at least as compact as the Act's districts, as measured by the Reock test, and his algorithm produced scores of district plans with population deviations under four percent.[110]

         For reasons unspecified in the legislative history, the Act increased the number of split precincts to eight, [111] yet eight districts could have been created with significantly fewer precinct splits if the district plan had been partisan-neutral.[112] The Act also split Councilmember Hoffman's precinct to double-bunk incumbent Democratic council members.[113] Instead of protecting incumbents, the Act targeted Democratic incumbents by pitting them against each other.[114]

         Finally, the legislative history does not support that district lines were drawn based on the legitimate factor of competitive balance among political parties, [115] alternately known as political fairness. No legislator mentioned political fairness or competitive balance as a reason for drawing the lines in a particular way. Moreover, political fairness refers to representation that “reflect[s] the relative strength of the parties.”[116] There is no evidence that half of Greensboro's voters typically vote Republican and indeed, the evidence is otherwise.[117] As Dr. Chen testified, “four Republican districts is an outcome that never occurs” in simulations with low population deviations.[118] The move to an all-district system may have enhanced political fairness by doing away with at-large council seats, but the lines drawn by the Act undermine this goal by disproportionately inflating the weight of votes cast by Republican-leaning voters and decreasing the weight of votes cast by Democratic-leaning voters.

         The legislative history does not explain the reasons behind the deviations or offer any legitimate reason for them.[119] The available evidence supports the conclusion that the Act largely ignored legitimate redistricting criteria along the way to achieving a partisan goal.

         F. Conclusion

         The evidence in this case is quite similar to the evidence in Raleigh Wake Citizens Association v. Wake County Board of Elections.[120] In both cases, the North Carolina legislature redrew districts for a local government entity using a plan with a maximum population deviation between eight and ten percent.[121] In both cases, the legislature redistricted the local entities through a “truncated” legislative process without soliciting input from the affected parties or the local delegations.[122] In both cases, there was a pattern of overpopulation in Democratic-leaning districts and underpopulation in Republican-leaning districts.[123] In both cases, credible computer simulation evidence showed that the partisan benefits from the redistricting were “completely outside the range of outcomes that are possible under a nonpartisan districting process that creates equally populated districts” and follows traditional criteria.[124] In both cases, the General Assembly did not come to court to defend its redistricting.[125]

         This is not a case where it is difficult to discern legislative motivation.[126] As in RWCA, all of the credible evidence points in one direction: a “skewed, unequal redistricting” intentionally designed to create a partisan advantage by increasing the weight of votes of Republican-leaning voters and decreasing the weight of votes of Democratic-leaning voters.[127] This evidence is unchallenged and uncontroverted. On this record, as in RWCA, the evidence compels a decision for the plaintiffs: The districting plan in the Act violates the equal protection rights of the plaintiffs and all Greensboro voters.


         Plaintiffs also sought judgment on the pleadings for their claim that the Act unconstitutionally prohibits Greensboro citizens from bringing referendums or initiatives to change their form of government by singling out Greensboro, alone among municipalities in the state.[128] As set forth in a more detailed order entered today at Doc. 135, the Court grants summary judgment on that claim and finds that the prohibition on referendums and initiatives by Greensboro citizens violates the Equal Protection Clause because that prohibition intentionally treats Greensboro voters differently and lacks any legitimate governmental purpose.


         The appropriate remedy for a law that violates the one-person, one-vote principle is an injunction against elections conducted under the Act's unconstitutional redistricting.[129] The Court will therefore enjoin the Guilford County Board of Elections from conducting any elections under the eight-district plan established by Section Two of the Act[130] and direct that future elections shall use the pre-existing statutory and city charter system with five single-member districts and three at-large members, [131] unless and until that system or those district lines are lawfully changed.[132] The Court will also enjoin enforcement of the part of Section Two of the Act that prohibits Greensboro citizens from bringing referendums and initiatives to alter the form of their municipal government, for reasons set forth in a separate order.[133]

         The plaintiffs contend that all provisions of Section Two of the Act should be enjoined.[134] The Court concludes that the provisions of Section Two are not severable from each other and that plaintiffs' request should be granted.

         Under North Carolina law, “where the various clauses of a statute are so interrelated and mutually dependent that one clause cannot be enforced without reference to another, the statute must stand or fall as a whole.”[135] If, however, the parts of a statute are independent, or separable, “the invalid part may be rejected and the valid part may stand, provided it is complete in itself and capable of enforcement.”[136]

         The Act is divided into two main sections. HB 263 had earlier passed the House as a bill to modify the municipal government of the City of Trinity.[137] That earlier part of the bill was preserved in Section One of the Act, which reduces the size of the Trinity's City Council and shortens the terms of Trinity council members.[138] Section Two of the bill, titled “City of Greensboro Elections, ” makes changes to Greensboro's municipal government and municipal elections[139] and applies only to Greensboro.[140] The plaintiffs have not challenged the constitutionality of any portion of Section One or any of ...

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