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Covington v. State

United States District Court, M.D. North Carolina

September 19, 2017

SANDRA LITTLE COVINGTON, et al., Plaintiffs,
THE STATE OF NORTH CAROLINA, et al., Defendants.

          Circuit Judge James A. Wynn, Jr., wrote the opinion, in which District Judge Thomas D. Schroeder and District Judge Catherine C. Eagles joined.



         Over two years ago, in May 2015, thirty-one registered North Carolina voters (collectively, “Plaintiffs”) filed this action alleging that the North Carolina General Assembly unjustifiably, and therefore unconstitutionally, relied on race to draw dozens of state legislative district lines. Following a five-day trial, during which the Court received testimony from two dozen witnesses and reviewed more than 400 exhibits, Plaintiffs prevailed on their claim that the challenged districting plans violated their rights under the Equal Protection Clause of the Fourteenth Amendment. Covington v. North Carolina (Covington I), 316 F.R.D. 117 (M.D. N.C. 2016). That determination has since been summarily affirmed, without dissent, by the Supreme Court of the United States. North Carolina v. Covington, 137 S.Ct. 2211 (2017) (mem.).

         Now, nearly a year after this Court held the challenged legislative districts unconstitutional and almost six years after those districts were initially put in place-during which time North Carolina has conducted three primary and three general elections using racially discriminatory districting plans-Plaintiffs ask this Court to truncate the terms of legislators serving in districts that must be redrawn and order a special election to fill those seats with representatives elected under constitutional districting plans.

         We conclude that the widespread, serious, and longstanding nature of the constitutional violation-among the largest racial gerrymanders ever encountered by a federal court-counsels in favor of granting Plaintiffs' request. Likewise, any intrusion on state sovereignty associated with ordering the requested elections is more than justified by the severity and scope of that violation and its adverse impact on North Carolina voters' right to choose- and hold accountable-their representatives, especially since the legislature took no action toward remedying the constitutional violation for many weeks after affirmance of this Court's order, and the Legislative Defendants have otherwise acted in ways that indicate they are more interested in delay than they are in correcting this serious constitutional violation.

         Notwithstanding these weighty considerations favoring a special election, we nonetheless conclude such an election would not be in the interest of Plaintiffs and the people of North Carolina. The compressed and overlapping schedule such an election would entail is likely to confuse voters, raise barriers to participation, and depress turnout, and therefore would not offer the vigorously contested election needed to return to the people of North Carolina their sovereignty. Accordingly, we deny Plaintiffs' request.

         We recognize that legislatures elected under the unconstitutional districting plans have governed the people of North Carolina for more than four years and will continue to do so for more than two years after this Court held that the districting plans amount to unconstitutional racial gerrymanders. But at this juncture, with only a few months before the start of the next election cycle, we are left with little choice but to conclude that a special election would not be in the interest of Plaintiffs nor the people of North Carolina.

         I. Factual and Procedural Background

         In early 2011, the North Carolina General Assembly set about to conduct statewide redistricting to reflect new population and demographic data following the most recent decennial census. See N.C. Const. art. II, §§ 3, 5. As the appointed chairs of the redistricting committees in their respective chambers, Senator Robert Rucho and Representative David Lewis together led efforts to craft and approve legislative districting maps for use in both state and federal elections in North Carolina. Covington I, 316 F.R.D. at 126. To that end, Representative Lewis and Senator Rucho engaged the assistance of an outside expert, Dr. Thomas Hofeller, who translated the legislators' policy objectives into proposed districting maps. Id. Apart from Representative Lewis and Senator Rucho, no other legislators had a substantive role in drawing the proposed maps. Id.

         Upon receiving the relevant census data, and without input from either redistricting committee, Hofeller began drawing proposed maps in the spring of 2011. Id. at 126-27. Under instruction from Senator Rucho and Representative Lewis, Hofeller first searched for geographically compact minority population centers and, where possible, drew district lines around those population centers to construct majority-minority districts. Id. at 127. Although the preferred candidates of African-American voters were consistently successful in districts that were not majority-minority during recent election cycles prior to the enactment of the 2011 districting plans, Id. at 126, Senator Rucho and Representative Lewis maintained (incorrectly) that Section 2 of the Voting Rights Act of 1965 necessitated creation of the new majority-minority districts in their proposed maps, Id. at 127.

         As a result of this approach-which elevated race over other widely recognized legitimate districting factors such as contiguity and compactness-the number of majority-African-American districts in the resulting state House map increased from nine to thirty-two. Id. at 126, 134, 137. Similarly, the number of majority-African-American districts in the state Senate map increased from zero to nine. Id. at 126.

         Senator Rucho and Representative Lewis publicly released the state House and Senate districting plans on July 12, 2011. Id. at 127. The state Senate and House considered and adopted, with minor modifications, the proposed maps on July 27 and 28, 2011, respectively. Id. Also on July 28, 2011, the General Assembly adopted a revised congressional districting plan, which Hofeller produced at the direction of Senator Rucho and Representative Lewis. Harris v. McCrory, 159 F.Supp.3d 600, 608 (M.D. N.C. 2016), aff'd sub nom. Cooper v. Harris, 137 S.Ct. 1455 (2017). Again reflecting the legislators' stated desire to ensure compliance with the Voting Rights Act, the 2011 congressional districting map adopted by the General Assembly increased the number of majority-minority districts from zero to two. Id. at 608.

         In sum, within three weeks and with minimal alteration, the General Assembly considered and adopted districting plans that significantly increased the number of majority-minority districts in maps that would be used to conduct state and federal elections in North Carolina from 2012 onward.

         Soon after the General Assembly approved the maps, two groups of North Carolina voters filed actions in state and federal court alleging that numerous legislative districts approved by the General Assembly were unconstitutional racial gerrymanders, in violation of the North Carolina and United States Constitutions. See Harris, 159 F.Supp.3d 600; Dickson v. Rucho, 766 S.E.2d 238 ( N.C. 2014), vacated, 135 S.Ct. 1843 (2015) (mem.). A separate panel of this Court concluded that the two majority-minority districts included in the state's congressional districting plan violated the Equal Protection Clause. Harris, 159 F.Supp.3d at 627. The Supreme Court-by written opinion-subsequently agreed that the majority-minority districts included in the 2011 congressional districting plan constituted racial gerrymanders in violation of the Equal Protection Clause. See Cooper, 137 S.Ct. 1455.

         By contrast, the Supreme Court of North Carolina held that both the federal and state districting plans satisfied all “state and federal constitutional and statutory requirements.” Dickson, 766 S.E.2d at 260. In April 2015, the Supreme Court of the United States unanimously vacated the state court's ruling without opinion and remanded the case for reconsideration of the federal constitutional and statutory questions presented. Dickson, 135 S.Ct. 1843. On remand, the Supreme Court of North Carolina again concluded that the state and federal districting plans complied with federal law. That decision was again unanimously vacated by the Supreme Court of the United States in May 2017, Dickson v. Rucho, 781 S.E.2d 404, 410-11 ( N.C. 2015), vacated, 137 S.Ct. 2186 (2017) (mem.), and was reheard before the Supreme Court of North Carolina on August 28, 2017.

         In the meantime, while litigation regarding the state's congressional districting plan proceeded, Plaintiffs initiated this action in May 2015. Covington I, 316 F.R.D. at 128. Echoing the earlier state-court action, Plaintiffs alleged that the 2011 state legislative districting plans constituted racial gerrymanders and thus violated their rights under the Fourteenth Amendment of the U.S. Constitution. First Am. Compl. at 2, ECF No. 11. To remedy this alleged constitutional violation, Plaintiffs sought an injunction barring further use of the 2011 maps and requiring the General Assembly to adopt constitutionally adequate plans for use in any future elections. Id. at 92-93. Plaintiffs named as Defendants: (1) the State of North Carolina; (2) Senator Rucho, Representative Lewis, President Pro Tempore of the North Carolina Senate Philip E. Berger, and Speaker of the North Carolina House of Representatives Timothy K. Moore (collectively, the “Legislative Defendants”); and (3) the North Carolina State Board of Elections, as well as each of the five members of that body (collectively, the “Board Defendants”).[1]

         In October 2015, Plaintiffs moved for a preliminary injunction barring the use of the challenged maps in the March 2016 statewide primary elections. Pls.' Mot. Prelim. Inj., ECF No. 23. In considering that motion, this Court noted-and Plaintiffs conceded-that the requested injunction, which Plaintiffs sought less than a week before the candidate filing deadline, would have delayed the impending 2016 election cycle by months. Order Den. Pls.' Mot. Prelim. Inj. (Nov. 25, 2015) at 10, ECF No. 39. With a trial on Plaintiffs' constitutional claims scheduled to begin in April 2016, this Court held that the balance of equities weighed against the requested injunction and, without opining on the merits of Plaintiffs' constitutional claims, denied the motion. Id.

         A week-long trial followed, during which the parties presented testimony from many of the Plaintiffs; Senator Rucho and Representative Lewis, as well as other state legislators involved in the adoption of the challenged maps; and numerous expert witnesses, including Hofeller and Plaintiffs' own redistricting experts. On August 11, 2016, this Court unanimously concluded that Defendants unjustifiably relied on race in drawing twenty-eight majority-minority districts in the 2011 state legislative districting plans, in violation of Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment. Covington I, 316 F.R.D. at 176. In reaching this conclusion, this Court rejected Defendants' claim that, based on the evidence considered by the General Assembly, the Voting Rights Act required construction of the new majority-minority districts. Id.

         Having determined that the existing maps violate the Constitution, this Court turned to consideration of an appropriate remedy. Id. at 176-77. Although acknowledging that the existing districting scheme had already caused “substantial stigmatic and representational injuries” to Plaintiffs, this Court declined to order injunctive relief prior to the impending November 2016 general election. Id. With the 2016 primary elections already held under the challenged maps and Election Day less than three months away, this Court “regrettably conclude[d]” that immediate injunctive relief was impractical. Id. at 177. Nonetheless, recognizing Plaintiffs' entitlement to “swift injunctive relief, ” this Court barred the State of North Carolina from conducting any further elections using the unconstitutional maps and ordered the General Assembly to draw and enact, during its next legislative session, new state House and Senate districting plans for use in future elections. Id. at 177.

         After reluctantly allowing a third general election to proceed under an unconstitutional districting scheme, this Court issued a final remedial order on November 29, 2016. Covington v. North Carolina (Covington II), No. 1:15-CV-399, 2016 WL 7667298 (M.D. N.C. Nov. 29, 2016), vacated, 137 S.Ct. 1624 (2017) (per curiam). This Court ordered the General Assembly to adopt new districting plans by March 15, 2017, and required the State to hold special primary and general elections using constitutionally adequate maps no later than “late August or early September” and “early November, ” respectively. Id. at *2-3. The General Assembly made no effort to draw and submit constitutional redistricting plans in advance of the March 15, 2017 deadline. Rather, Defendants sought and obtained a stay of the remedial order pending review of the merits of Plaintiffs' constitutional claims in the Supreme Court of the United States. North Carolina v. Covington, 137 S.Ct. 808 (2017) (mem.).

         On June 5, 2017, the Supreme Court summarily affirmed this Court's judgment that the existing House and Senate districting plans violated Plaintiffs' rights under the Fourteenth Amendment. Covington, 137 S.Ct. 2211. Although affirming this Court's determination on the merits of Plaintiffs' constitutional claims, the Supreme Court vacated the Court's final remedial order. Covington, 137 S.Ct. 1624. Emphasizing that “[r]elief in redistricting cases is ‘fashioned in the light of well-known principles of equity, '” Id. at 1625 (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964)), the Supreme Court explained that district courts must therefore “undertake an ‘equitable weighing process' to select a fitting remedy for” constitutional violations, Id. (quoting NAACP v. Hampton Cty. Election Comm'n, 470 U.S. 166, 183 n.36 (1985)). The Supreme Court further underscored that determining whether to order a special election, in particular, requires a “careful case-specific analysis”-an analysis that, according to the Supreme Court, this Court's remedial order performed in only a “cursory fashion.” Id. at 1626.

         Acknowledging that it had not previously provided guidance to district courts regarding “whether or when a special election may be a proper remedy for a racial gerrymander, ” the Supreme Court then identified a nonexclusive list of “obvious considerations” to guide the consideration of that question. Id. at 1625-26. Specifically, the Court explained that courts deciding whether to order special elections to redress existing racial gerrymanders should consider: (1) “the severity and nature of the particular constitutional violation”; (2) “the need to act with proper judicial restraint when intruding on state sovereignty”; and (3) “the extent of the likely disruption to the ordinary processes of governance if early elections are imposed.” Id. at 1626. The Supreme Court remanded the case to permit this Court to fashion an appropriate remedy in light of these and any other relevant considerations. Id.

         Representing that they would not seek rehearing, Plaintiffs filed a motion with the Supreme Court requesting that the Court issue its mandate immediately, so as to allow this Court to begin the process of fashioning a remedy as quickly as possible. Appellees' Appl. Issuance Mandate Forthwith, North Carolina v. Covington, 137 S.Ct. 1624 (2017) (per curiam) (No. 16-1023). The Supreme Court subsequently denied Plaintiffs' motion to issue its mandate immediately. North Carolina v. Covington, 137 S.Ct. 2262 (2017) (mem.).

         After obtaining jurisdiction on June 30, 2017, this Court moved swiftly to receive briefing on and consider motions filed by Plaintiffs (1) to set deadlines for the drawing of remedial districting plans and (2) for an expedited evidentiary hearing regarding both the timeline for drawing such remedial plans and the need for a special election. On July 27, 2017, this Court held an evidentiary hearing on these issues, during which the parties introduced evidence, adduced testimony from several witnesses, and presented arguments.

         In their briefing and arguments before this Court, the parties agreed that this Court's ruling rendered invalid much of the existing state House and Senate districting maps. Leg. Defs.' Pos. Stat. at 8, ECF No. 161; Pls.' Suppl. Br. on Remedies at 2, ECF. No. 173. In particular, although this Court's order focused on the boundaries of the twenty-eight majority-minority districts, the parties agree that the inevitable effect of any remedial plan on the lines of districts adjoining the twenty-eight districts- coupled with the North Carolina Constitution's requirement that district lines not traverse county lines, unless such a traversal is required by federal law, see Stephenson v. Bartlett, 562 S.E.2d 377, 396-98 ( N.C. 2002)-means that the well over half of the state House and Senate districts must be redrawn. But Plaintiffs and Legislative Defendants remain sharply divided as to when the districts should be redrawn and whether a special election is necessary to fully remedy the violation this Court identified in August 2016.[2]

         On the one hand, Plaintiffs ask this Court to order the State to draw and enact constitutionally adequate districting plans in time to conduct special elections using those remedial plans in March 2018. Pls.' Suppl. Br. on Remedies, ECF No. 173. Under Plaintiffs' proposed schedule, the State would have until August 11, 2017, to draw remedial districting maps. Pls.' Suppl. Br. on Remedies, Ex. 1, ECF No. 173-1. A special primary election would follow on Tuesday, December 5, 2017, and a special general election would then be held on March 6, 2018. Id.

         By contrast, Legislative Defendants maintain that a special election is not warranted because “[t]he constitutional violation, at a minimum, is certainly ‘subject to rational disagreement'” and a special election would cause severe disruption and work a substantial intrusion on state sovereignty. Leg. Defs.' Pos. Stat. at 8, 14, 20 (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 572 (1969)). In lieu of the requested special election, Legislative Defendants proposed a schedule requiring the General Assembly to enact remedial districting plans by November 15, 2017, with revised plans then implemented for the first time during the regularly scheduled 2018 election cycle. Leg. Defs.' Pos. Stat. at 30-31.

         In an order issued on July 31, 2017, this Court declined to adopt Legislative Defendants' proposed schedule and, instead, ordered that the General Assembly enact remedial maps no later than September 1, 2017. Covington v. North Carolina (Covington III), ___ F.Supp.3d.___, 2017 WL 3254098, at *3 (M.D. N.C. 2017). The order further set forth that this Court would extend this deadline to September 15, 2017, provided that the General Assembly made certain showings regarding the public nature of its redistricting process. Id.

         In the same order, this Court denied Plaintiffs' request for a special election, advising that this opinion would follow. Id. at *2. As explained below, we conclude that, although the nature of the longstanding constitutional violation in this case is severe and infringes significantly on the rights of North Carolinians, ordering a special election at this ...

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