United States District Court, M.D. North Carolina
Circuit Judge James A. Wynn, Jr., wrote the opinion, in which
District Judge Thomas D. Schroeder and District Judge
Catherine C. Eagles joined.
A. WYNN, JR., CIRCUIT JUDGE.
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.).
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
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
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.
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
Factual and Procedural Background
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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)
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.
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
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.
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.
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
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 ...