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Covington v. State

United States District Court, M.D. North Carolina

December 1, 2017

SANDRA LITTLE COVINGTON, et al., Plaintiffs,
v.
THE STATE OF NORTH CAROLINA, et al., Defendants. Population Deviation Percent Deviation District 2011 Plan 2017 Plan Rec. Plan chg in abs dev 2011 from chg in abs dev from 2017 2011 Plan 2017 Plan Rec. Plan chg in abs dev from 2011 chg in abs dev from 2017 District 2011 Plan 2017 Plan Rec. Plan chg from 2011 chg from 2017

          SPECIAL MASTER'S RECOMMENDED PLAN AND REPORT

          Nathaniel Persily Special Master.

         On November 1, 2017, the United States District Court for the Middle District of North Carolina sitting as a three-judge panel comprised of the Honorable James A. Wynn, Judge of the United States Court of Appeals for the Fourth Circuit, the Honorable Thomas D. Schroeder, Chief Judge for the Middle District of North Carolina, and the Honorable Catherine C. Eagles, United States District Judge for the Middle District of North Carolina, (hereinafter “the Court”) appointed me as Special Master in the above captioned case. Appointment Order, Nov. 1, 2017, ECF No. 206 (hereinafter the “Order”). The Order directed the Special Master, by December 1, 2017, “to submit a report and proposed plans to remedy the unconstitutional racial gerrymander” of various districts in the 2011 Enacted Senate and House districting plans for the North Carolina General Assembly. Id. at 5. Herein provided is the Plan and Report called for in the Court's Order.

         Exhibit 1 presents statewide and selected county maps of the Special Master's Recommended Plan, along with analogous maps from the Enacted 2011 and 2017 Plans for comparison. Exhibit 2 presents population deviations for all districts in the Special Master's Recommended Plan, the Enacted 2011 Plan, and the Enacted 2017 Plan. Exhibit 3 presents Reock and Polsby-Popper compactness statistics for all districts in the Special Master's Recommended Plan, the Enacted 2011 Plan, and the Enacted 2017 Plan. Exhibit 4 presents a report on splits of county and municipality boundaries for all districts in the Special Master's Recommended Plan, the Enacted 2011 Plan, and the Enacted 2017 Plan. Exhibit 5 presents a report on splits of 2010 Voter Tabulation Districts (hereinafter “precincts”), as provided by the U.S. Census Bureau, for all districts in the Special Master's Recommended Plan, the Enacted 2011 Plan, and the Enacted 2017 Plan. Exhibit 6 provides a breakdown of the districts by Voting Age Population for Census-designated racial and ethnic groups for all districts in the Special Master's Recommended Plan, the Enacted 2011 Plan, and the Enacted 2017 Plan. Exhibit 7 provides statewide and county maps for the Special Master's Draft Plan, as well as associated statistical reports. Exhibit 8 includes the briefs and maps filed by Plaintiffs in response to the Special Master's Draft Plan. Exhibit 9 includes briefs provided by the Legislative Defendants in response to the Special Master's Draft Plan. Exhibit 10 provides color maps of alternatives to the Recommended Senate and House Plans for Guilford County. Exhibit 11 provides a list of the incumbents assigned to each district in the Special Master's Recommended House and Senate Plans. Exhibit 12 provides the Plaintiffs' Proposed House and Senate Plans. Exhibit 13 provides the Court's November 1st Order Appointing the Special Master. In addition to the above, the Court, the parties, and the North Carolina General Assembly have been provided with 2010 Census block equivalency files and shapefiles for the Special Master's Draft Plan, the Special Master's Recommended Plan, and alternate plans, as well as a “stat pack” with computer generated reports describing features of the Recommended Plan in detail.

         Background

         On August 11, 2016, the Court struck down twenty-eight districts in the State House of Representatives and Senate plans enacted in 2011 by the North Carolina General Assembly (hereinafter Enacted 2011 Plans). Covington v. North Carolina, 316 F.R.D. 117, 176 (M.D. N.C. 2016), aff'd in relevant part, 137 S.Ct. 2211 (2017) (mem.). The Court ruled those districts unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. In particular, the Court found that those districts were drawn with race as their predominant purpose in violation of Shaw v. Reno, 509 U.S. 630 (1993), and its progeny, and that neither section 2 nor section 5 of the Voting Rights Act of 1965 justified doing so. 316 F.R.D. at 167-77.

         Following the 2016 election and additional proceedings in both the District Court and the United States Supreme Court, the North Carolina General Assembly passed a remedial redistricting plan on August 31, 2017 (hereinafter the Enacted 2017 Plan), approximately one year after the Court's decision striking down the Enacted 2011 Plan. On September 15, 2017, Plaintiffs filed objections to three Senate districts and nine House districts. Plaintiffs contended that Enacted 2017 Senate Districts 28 and 21 and Enacted 2017 House Districts 21 and 57 continued to violate the Equal Protection Clause in that, even in their revised configurations, race continued to be the predominant factor in their construction. They also alleged that certain districts violated the North Carolina State Constitution. They claimed that Enacted 2017 House Districts 36, 37, 40, 41, and 105 were redrawn in violation of the provision of the state constitution that prohibits redistricting more than once per decade. See N.C. Const. art. II, §§ 3(4), 5(4). Because those districts did not adjoin the districts ruled unconstitutional racial gerrymanders, the Plaintiffs argued, redrawing those districts was not necessary to address the constitutional infirmities identified in the Court's decision. They also argued that Enacted 2017 House Districts 10 and 83 violated the state constitution's Whole County Provision, N.C. Const. art. II, §§ 3(3), 5(3), because the General Assembly could have drawn a plan in which those districts traversed fewer counties or in which fewer counties were split by certain districts. Finally, the Plaintiffs claimed that Enacted 2017 Senate District 41 was noncompact to the point of violating the Whole County Provision. After Legislative Defendants filed their response, the Court held a hearing on those objections on October 12, 2017.

         On November 1, 2017, the Court issued the Order appointing a Special Master and raising concerns as to the legality of the Enacted 2017 Plan. In particular, the Court expressed “serious concerns that 2017 Enacted Senate Districts 21 and 28 and 2017 Enacted House Districts 21 and 57 fail to remedy the identified constitutional violation” from the Enacted 2011 Plan. The Order explained:

Among other concerns, some or all of the proposed remedial districts preserve the core shape of the unconstitutional version of the district, divide counties and municipalities along racial lines, and are less compact than their benchmark version. In some cases, the General Assembly's use of incumbency and political data in drawing its proposed remedial districts embedded, incorporated, and perpetuated the impermissible use of race that rendered unconstitutional the 2011 districts. The 2017 Enacted Districts do not appear to cure the constitutional violations found as to 2011 Enacted House Districts 21 and 57 and Senate Districts 21 and 28.

         Order at 1-2. In other words, the Court emphasized that, despite the 2017 revisions, the constitutional infirmity identified in some of the 2011 districts remains. The district boundaries may have moved somewhat, but according to the Court, some districts continue to violate, in critical respects, the Constitution's prohibition against unjustified and excessive use of race in the design of districts.

         For House districts in Wake and Mecklenburg Counties, the Court expressed a different set of concerns related to the Enacted 2017 Plan's violation of the North Carolina State Constitution. As described above with respect to the Plaintiffs' objections to the 2017 Plan, several of the districts in those counties did not need to be redrawn in order to remedy the constitutional infirmity as to racial predominance in the Enacted 2011 House Districts 33, 38, 99, 102, and 107. Because the North Carolina Constitution prohibits redistricting more than once a decade, the Court observed that any lines redrawn in 2017 must be justified by a need to correct some legal infirmity (e.g., unconstitutional racial gerrymandering) in the plan adopted following the decennial census. As the Court has concluded, “[u]nless required by Court order, the General Assembly was prohibited by the North Carolina Constitution from redrawing these districts. N.C. Const. art. II §§ 3(4), 5(4).” Order at 2. As is shown in the Special Master's Recommended Plan, it was, indeed, possible to reconfigure the districts deemed unconstitutional while retaining the Enacted 2011 districts that did not adjoin them.

         The Charge to the Special Master

         The Court determined that appointment of a Special Master was necessary because of the “fast approaching filing period for the 2018 election cycle and the specialized expertise necessary to draw district maps.” Order at 4. The Court confronted a problem familiar to redistricting cases. The tightness of the election schedule and especially the impending candidate-filing deadline often makes it extremely challenging, within the necessary time period, to perform all the tasks necessary to have a plan in place. It requires the Court to evaluate a state's plan, to issue an opinion explaining the legal infirmities therein, to appoint a Special Master (after the parties have had an opportunity to object), to have that Special Master draw a remedial plan (often with input from the parties), to have a hearing and entertain objections to the Special Master's Plan, to make any warranted changes to the Special Master's Plan, and then to adopt the Plan as the Court's plan. Allowing the Special Master to begin his work once the Court has made its initial determination that a remedial plan will be necessary is one way to ensure that the Court's plan will be ready in time for candidates to know in which districts they will need to file to run for office. Of course, in the end, regardless of the sequencing of the tasks above, the Court will only adopt a plan if it determines, after hearing from the parties, that the plan remedies the legal infirmity the Court has identified in the state's plan.

         With these time pressures in mind, the Court issued an order on November 1, 2017, appointing a Special Master and defining his responsibilities. The Court ordered the Special Master to develop, by December 1, 2017, redistricting plans that addressed the infirmities of the Enacted 2017 Plans for the North Carolina General Assembly, as identified in the order and reflected in the Court's earlier opinion in Covington, 316 F.R.D. 117. Order at 5. The Order laid out specific criteria that would guide production of the Special Master's Plan, as well as a procedure for developing the plan. See Order at 9-10 (detailing principles of the plan and other aspects of the process, such as a bar on ex parte communication, permission for hiring assistants and using state resources, and authorization for a release on a draft plan to garner feedback).

         In particular, the Court ordered that “[i]n drawing remedial districts, the Special Master shall”:

a. Redraw district lines for the Subject Districts and any other districts within the applicable 2017 county grouping necessary to cure the unconstitutional racial gerrymanders. As to House District 57, the redrawn lines shall also ensure that the unconstitutional racial gerrymanders in 2011 Enacted House Districts 58 and 60 are cured. As to 2011 Enacted House Districts 33, 38, 99, 102, and 107, no 2011 Enacted House Districts which do not adjoin those districts shall be redrawn unless it is necessary to do so to meet the mandatory requirements set forth in Paragraphs 2(b) through 2(e) of this Order, and if the Special Master concludes that it is necessary to adjust the lines of a non-adjoining district, the Special Master shall include in his report an explanation as to why such adjustment is necessary.
b. Use the 2010 Federal Decennial Census Data;
c. Draw contiguous districts with a population as close as possible to 79, 462 persons for the House Districts and 190, 710 persons for the Senate Districts, though a variance up to 5% is permitted and authorized if it would not conflict with the primary obligations to ensure that remedial districts remedy the constitutional violations and otherwise comply with state and federal law, would enhance compliance with state policy as set forth in subsection (f) below, and would not require redrawing lines for an additional district.
d. Adhere to the county groupings used by the General Assembly in the 2017 Enacted Senate and House Plans;
e. Subject to any requirements imposed by the United States Constitution or federal law, comply with North Carolina constitutional requirements including, without limitation, the Whole County Provision as interpreted by the North Carolina Supreme Court.
f. Make reasonable efforts to adhere to the following state policy objectives, so long as adherence to those policy objectives does not conflict with the primary obligations of ensuring that remedial districts remedy the constitutional violations and otherwise comply with state and federal law:
i. Split fewer precincts than the 2011 Enacted Districts;
ii. Draw districts that are more compact than the 2011 Enacted Districts, using as a guide the minimum Reock (“dispersion”) and Polsby-Popper (“perimeter”) scores . . .; and
iii. Consider municipal boundaries and precinct lines.
g. After redrawing the districts, in view of the policy decision by the General Assembly that efforts to avoid pairing incumbents are in the interest of North Carolina voters, the Special Master may adjust district lines to avoid pairing any incumbents who have not publicly announced their intention not to run in 2018, but only to the extent that such adjustment of district lines does not interfere with remedying the constitutional violations and otherwise complying with federal and state law. Additionally, the Special Master shall treat preventing the pairing of incumbents as “a distinctly subordinate consideration” to the other traditional redistricting policy objectives followed by the State. . . .
h. Except as authorized in Paragraph 2(g), the Special Master shall not consider incumbency or election results in drawing the districts. . . .
i. The Special Master may consider data identifying the race of individuals or voters to the extent necessary to ensure that his plan cures the unconstitutional racial gerrymanders and otherwise complies with federal law.

         Order at 5-7 (internal citations omitted).

         The Court further specified what should be contained in the Special Master's Report accompanying the Plan:

a. At least one recommended redistricting plan for each Subject District;
b. For each county or county grouping encompassing a Subject District, a color map showing the recommended remedial plan;
c. For each Subject District, an analysis (i) explaining the proposed remedial plan and the recommendation of that plan over the 2017 Enacted Districts or the Plaintiffs' proposed districts; (ii) covering any matters required elsewhere in this Order; and (iii) discussing any criteria, issues, or questions which the Special Master believes may arise or which will otherwise aid the Court;
d. A comparison of the Special Master's districts with the related 2011 and 2017 Enacted Districts as to population deviations; compactness; county, municipal, and precinct splits; incumbency pairing; Black Voting Age Population; and any other relevant criteria; and
e. A “stat pack” for the recommended plans.

         Order at 12-13.

         Creation of the Special Master's Plan

         The one-month deadline for constructing the Recommended Plan required that preliminary work begin immediately following the Appointment Order on November 1. Among other tasks, the preliminary work included becoming familiar with the earlier decisions of the Court, with the filings of the parties to that point, and with the 2011 and 2017 redistricting plans for the North Carolina General Assembly. In addition, drawing the Draft Plan required the purchase of certain software (Maptitude for Redistricting by Caliper Corporation) and hardware.

         Given the intense partisan concerns that always surround processes of this sort and the critical importance of nonpartisanship to the legitimacy of the Special Master's work, the Special Master's Plan needed to be compliant with the applicable law, transparent in its following of the Court's Order, and based on the articulated state redistricting principles. Experience in several similar redistricting disputes counseled in favor of gathering much-needed feedback from the parties in the formulation of the plan. Therefore, any draft redistricting plan would need to be submitted to the parties with enough time for them to raise objections and make suggestions. In particular, because the issues surrounding incumbency present knotty problems for any nonpartisan plan of this sort, the Draft Plan would ignore incumbent residence and then be altered following advice from the parties on how to “unpair incumbents” - that is, to the extent possible, to ensure that one and only one incumbent seeking reelection was placed in any given district. This principle was one explicitly called for by the Court's Order, based on the state's articulated goal in its redistricting plan under review. Because the parties are in a better position to know which incumbents plan to run for reelection[1] and whether a proposed redistricting plan might change their electoral calculations, it is necessary to get some input from the parties throughout the process to make sure that any such “unpairing” was something that the incumbents themselves desired. However, per the Court's Order, the Recommended Plan would honor any request by the parties to unpair incumbents, so long as it did not violate the other criteria in the Order.

         That strategy and those goals led to the creation of the Special Master's Draft Plan. With respect to the 2017 Enacted Districts for which the Court raised concerns as to racial predominance, the Draft Plan provided a limited remedy, constructed of compact districts made of whole precincts that respected political subdivision lines, specifically the boundaries of Census Designated Places (“CDPs”), which usually refer to city boundaries. Of course, sometimes these criteria were in tension with each other - for example, when a city is, itself, noncompact and noncontiguous, as is frequently the case in North Carolina, or when precinct boundaries cross municipal boundaries. Nevertheless, these factors comprise the kind of nonpartisan redistricting principles typical of court-drawn plans. Although any change in district lines will have partisan, electoral, or incumbency-related effects, a redistricting plan adhering to these principles is less open to the charge of partisan manipulation than one based on more amorphous criteria as to how communities “ought” to be represented.

         Construction of the Draft Plan could only proceed, however, after analysis and rejection of the Plaintiffs' proposed remedial plans. In its Order, the Court expressed its “concern[] that among, other things, some of the districts proposed by Plaintiffs may be the result of impermissible political considerations.” Order at 2. The Legislative Defendants, moreover, characterized the Plaintiffs' remedial plan as motivated by partisan concerns. See Legislative Defendants' Response to Plaintiffs' Objections at 2, ECF No. 192 (“Plaintiffs' proposed house and senate districts target numerous Republican members of the legislature . . ., the only reason for which appears to be to punish those members for being Republican.”); id. at 47 (“the Covington plans . . . were motivated primarily by political considerations”). Of course, political considerations admittedly played a role in the Enacted 2011 and 2017 Plans, as they do in most redistricting plans.

         The Special Master's Plan, however, could not be drawn on a similarly political basis. First, the Court prohibited the Special Master from considering election results in drawing districts, and permitted consideration of incumbency only to the limited degree of unpairing incumbents after drawing the plan. Order at 7-8. Second, Supreme Court precedent makes clear that courts lack “political authoritativeness” and must act “in a manner free from any taint of arbitrariness and discrimination” in drawing remedial plans. Wise v. Lipscomb, 437 U.S. 535, 541 (1978) (quoting Connor v. Finch, 431 U.S. 408, 417 (1977)). A nonpartisan approach to redistricting is absolutely critical to bolstering the legitimacy of the Special Master's Plan. Third, the Court tasked the Special Master with remedying a legal problem, not with addressing political unfairness. The Special Master's Plan must be evaluated on the basis of its correction of the state and federal constitutional problems for which the Court has ordered a remedial plan. It shall make revisions only to the extent necessary to remedy the legal infirmity in the legislature's plan. See Perry v. Perez, 565 U.S. 388, 394 (2012).

         Given those considerations and the specific criteria for the Special Master's Plans called for in the Court Order, the Plaintiffs' proposed plans could not be adopted as the Special Master's Plan. To be clear, the Plaintiffs' proposals complied with applicable law. The plans were composed of equipopulous districts that complied with one person, one vote, and at least on the face of them, they did not appear to use race as the predominant factor in their creation. However, even leaving the allegation of partisanship aside, the Plaintiffs' plans fell short according to the Court's criteria and redrew more districts than were necessary to remedy the legal violation. In any event, the Special Master's Recommended Plan does a better job in complying with such criteria.

         The Plaintiffs submitted two sets of plans as part of this litigation. What they describe in their briefing as “the Plaintiffs' Plans, ” are presented as Exhibit 12. However, they also included alternative plans for some districts (so-called “Cromartie Demonstrative Maps”) provided by their expert witness William R. Gilkeson, Jr. See Plaintiffs' Objections to Defendants' Remedial Districts and Memorandum of Law, at 2-23, ECF No. 187-7. Neither warranted adoption as the Special Master's Plan.

         First, the Plaintiffs' Plans redrew more districts than necessary to remedy the constitutional violations. Their Proposed House and Senate Plans for Guilford County redrew all of the districts there, despite the fact that they challenged only one district in each plan (Enacted 2017 House District 57 and Enacted 2017 Senate District 28), which were the only Guilford districts for which the Court expressed constitutional concerns.[2] They also completely reorganized the districts in Wayne, Sampson, and Johnston Counties to deal with the constitutional objection to Enacted 2017 House District 21. Likewise, the plans for Wake and Mecklenburg Counties, while reinstating the Enacted 2011 districts deemed unnecessarily redrawn to cure the Equal Protection violations there, redrew several districts that did not need to be redrawn to harmonize the 2017 and 2011 districts.

         Second, in some areas the Plaintiffs' Plans did a poor job of respecting municipal lines. This was especially the case in Guilford County, once again, wherein a single district (Plaintiffs' House District 57) was located within Greensboro, with all of the remaining districts in the County extending from outside Greensboro to pick up slices of the city. The Cromartie Demonstrative Map for those districts fared better, but even it placed two districts largely within Greensboro, whereas a third (as demonstrated in the Special Master's Draft and Recommended Plans) is possible. The remaining districts in that alternative plan, therefore, extended from outside Greensboro to take in significant portions of Greensboro.

         Finally, several of the Plaintiffs' proposed districts were noncompact. This was especially the case in their proposed House districts for Wayne, Sampson, and Johnston Counties. Plaintiffs' House District 76 followed the border of Johnston County with Nash, Wilson, and Wayne Counties, but it then snaked south to follow Wayne County's border with Sampson, Duplin and Lenoir. Plaintiffs' District 28 occupied most of southern Johnston County but entered Sampson County with a fishhook-style intrusion. Similarly, Plaintiffs' Senate Plan for Guilford County, while attempting to place two districts that straddle Greensboro, contained one district (Plaintiffs' District 28) which spanned nearly the entire midsection of the county, but also needlessly traveled southwest to split the CDP of High Point. As a result, Plaintiffs' Senate Districts 24 and 29 filled in the “leftover” territory in northern and southern Guilford County in a decidedly noncompact fashion.

         For these reasons, along with the general warning issued by the Court to avoid adopting a plan tainted by political considerations, the Special Master declined to adopt the Plaintiffs' Plan and set out to craft the Draft Plan and eventually, the Recommended Plan. The remainder of this Report explains why the Special Master's Recommended Plans solve the constitutional problems the Court identified in the 2017 Enacted Plans, and are superior according to the criteria the Court laid down in its order.

         Release of the Special Master's Draft Plan and Order

         The Special Master's Draft Plan and Order were released on November 13, 2017, to give the parties an opportunity to propose revisions and, in particular, to make suggestions as to how to unpair incumbents. See Exhibit 7. The Draft Plan also included an order to the parties to submit objections and revisions by November 17, 2017. Reply briefs were to be submitted by November 21, 2017, at which time the parties were “encouraged to identify which proposed changes of the plaintiffs and defendants, if any, were jointly supported by the parties.” Id. at 19. The parties were also ordered to supply by November 14, 2017, in electronic form, a geographic layer . . . that includes the location of the residences of all current incumbents in the North Carolina General Assembly.” Id. The Legislative Defendants did so on November 14.

         The parties filed their responses to the Special Master's Draft Plan on November 17, 2017. See Exhibits 8 and 9. The Plaintiffs offered several suggestions related to unpairing certain incumbents. In particular, they proposed revisions (two scenarios, in fact) that would unpair two incumbents in Draft Plan House District 59, by moving Draft Plan District 58 south to pick up the residence of Representative Amos Quick. They also proposed several changes to the Draft Plan's districts in Wake County. They proposed restoring a split precinct in House District 40 that was split in the 2011 Plan. They also proposed revisions that would unpair incumbents placed together into Draft Plan House District 49. In particular, Plaintiffs proposed moving the boundaries of Draft Plan House District 34 so that it would capture the residence of Representative Grier Martin. Although the Special Master's Draft Plan paired incumbents in other districts, as well, the Plaintiffs did not propose changes to any other districts.

         The Legislative Defendants took a different approach in their response to the Special Master's Draft Plan. See Legislative Defendants' Response to Special Master's Draft Report, Nov. 17, 2017, ECF No. 215. They did not propose changes to any specific districts. Indeed, they argued it was “inappropriate for the Court to authorize the special master to ask legislative defendants to comment on, or propose revisions of, districts drawn by the special master when the legislative defendants do not themselves speak for the entire General Assembly.” Id. at 5. Instead, the Defendants reiterated their earlier objections to the appointment of the Special Master, argued that the Court and Special Master were without jurisdiction or authority to craft a remedial plan, and maintained that the Court's Order misinterpreted the North Carolina State Constitution. As mentioned above, the Legislative Defendants also argued that the Special Master's Draft Plan “improperly engaged in racial sorting” by adopting racial targets for the redrawn districts. However, the Legislative Defendants did not offer any suggestions as to how to unpair incumbents or how to redraw individual districts, except insofar as they urged the adoption of the 2017 Plan.

         On November 21, 2017, the parties filed reply briefs addressing the proposed revisions to the Special Master's Draft Plan. Because the Legislative Defendants had objected to any revisions to the Enacted 2017 Districts and suggested none of their own, the Plaintiffs limited their reply to legal arguments as to the requirements of the North Carolina Constitution and the precedent regarding race-based redistricting. See Plaintiffs' Response to Legislative Defendants' November 17, 2017 Filing, November 21, 2017, ECF No. 217. The Legislative Defendants, in their reply, objected en masse to all of the changes proposed by the Plaintiffs. Legislative Defendants' Response to Plaintiffs' Proposed Modifications to Special Master's Draft Plan, Nov. 21, 2017, ECF No. 218. They reiterated their position as to racial targeting in the Special Master's Draft Plan, and raised new concerns as to split precincts in House District 21, respect for municipal lines in Greensboro and Fayetteville, and the noncompactness of certain Guilford County districts. They also alleged that the Plaintiffs' proposed revisions only attempted to unpair Democrats, and as such, should not be honored by the Special Master in revising the Draft Plan. The Legislative Defendants, however, did not offer any suggestions as to how other incumbents might be unpaired, let alone concrete suggestions as to how the Draft Plan should be revised. In their view, the Special Master should advocate for the General Assembly and urge the Court to adopt the 2017 Enacted Plan.

         As explained in greater detail in the descriptions of the individual districts, feedback from the parties led to several changes to the Special Master's Draft House Plan. In response to the Legislative Defendants' concern as to split precincts in Draft House District 21, the Special Master's Recommended House Plan repairs all of the split precincts but one (located in the Sampson County portion of the district), which is equal to the number of split precincts in the Enacted 2017 version of the district. The Recommended House Plan also responds to the Plaintiffs' concerns as to the incumbent pairing in the Wake County districts. Based on criticism from the Legislative Defendants and suggestions from the Plaintiffs, the Recommended Plan modified the Guilford County House districts from the Draft Plan. As a result of these modifications, the districts in the Recommended House Plan are more compact, do not pair any incumbents, and disturb fewer districts from the 2017 Enacted Plan. No changes were made to the Draft Senate Plan to produce the Recommended Senate Plan.

         Overview of the Special Master's Recommended Plan

         The Court's Order mandated that the Special Master's Final Plan and Report contain an evaluation of the recommended districts and a comparison with the Enacted 2011 and 2017 Plans. Specifically, the Order requested “a comparison of the Special Master's Districts with the related 2011 and 2017 Enacted Districts as to population deviations; compactness; county, municipal and precinct splits; incumbency pairing; Black Voting Age Population; and any other relevant criteria.” Order at 12-13. A detailed description of each district follows, but a few general points as to the redrawn districts can provide some context. Tables displaying data on the redrawn Senate Districts 21 and 28 and House Districts 21 and 57 are included within the text here, adjoining districts are further described in the detailed descriptions of the districts, and full statistics for all districts are included as attached Exhibits.

         First, all of the districts in the Special Master's Plan comply with the law. The Court identified several areas of federal and state law in its order. The Special Master's plan must comply with the equal population requirement (“one person, one vote”) of the Fourteenth Amendment to the United States Constitution. It also must avoid running afoul of that same Amendment's prohibition against unjustified racial predominance in districting, which was the central constitutional flaw the Court identified in the Enacted 2011 Districts. Finally, the Special Master's Plan must comply with the requirements of the North Carolina Constitution, including the Whole County Provision referenced above.[3]

         The Special Master's Recommended Plan complies with one person, one vote. The Court directed that the Special Master's Plan be comprised of “contiguous districts with a population as close as possible to 79, 462 persons for the House Districts and 190, 710 persons for the Senate Districts, though a variance up to 5% is permitted and authorized” to comply with the other criteria in the Order. Order at 6. All of the districts in the Special Master's Recommended Plan comply with one person, one vote, in that their total population according to the 2010 Census was within five percent of the “ideal” population for each district. See Table A below and Exhibit 2. In some areas, as with the House Districts in Wayne and Sampson Counties, this proved quite difficult (as is revealed in both the Enacted 2017 Plan and the Special Master's Recommended Plan). The district deviations there necessarily equal five percent because the Whole County Provision of the State Constitution requires working within a county grouping to achieve equipopulous districts, if possible. For example, if a county's population totals 210% of the ideal district population, then two districts, each exactly 105% of an ideal population district, must be drawn. The deviations in the districts of the Special Master's Recommended Plan do not materially differ from those in the 2011 or 2017 Plans, as all comply with one person, one vote.

         Table A. Comparison of Population Deviations from Ideal Size Among Selected Districts[4]

Population Deviation
Percent Deviation
District
2011 Plan
2017 Plan
Rec. Plan
chg in abs dev 2011 from
chg in abs dev from 2017
2011 Plan
2017 Plan
Rec. Plan
chg in abs dev from 2011
chg in abs dev from 2017
Senate 21
-7, 508
-6, 394
-7, 196
-312
-3.9%
-3.4%
-3.8%
-0.1%
.4%
Senate 28
8, 729
6, 428
7, 404
-1, 325
4.6%
3.4%
3.9%
-0.7%
.5%
House 21
3, 558
3, 972
3, 969
-3
4.5%
5.0%
5.0%
.5%
0.0%
House 57
-118
3, 293
3, 841
, 723
-0.1%
4.1%
4.8%
.7%
.7%

         Second, the Special Master's Recommended Plan complies with the constitutional prohibition on the predominant use of race in the construction of districts. See Ala. Legis. Black Caucus v. Alabama, 135 S.Ct. 1257, 1267 (2015). As is evident from the maps and accompanying statistics, the Recommended Plan is guided by traditional districting principles, such as compactness, contiguity, and respect for precinct and municipal boundaries. Unlike several districts in the 2011 and 2017 Enacted Plans, districts in the Special Master's Recommended Plan do not track precincts based on their racial composition, nor (contrary to the Legislative Defendants' assertions) do they set out to hit some preordained racial target. The fact that the districts happen to reduce the Black Voting Age Population (BVAP) in the redrawn districts, while increasing it in adjoining districts, is to be expected whenever a plan replaces racial predominance with other redistricting principles. See Table B below and Exhibit 6. The Special Master's Recommended Plan addresses the constitutional infirmity in the underlying districts by redrawing them irrespective of the race of the inhabitants the districts would then capture. That practice is abundantly clear from the district boundaries, which track municipal lines wherever possible.

         Traditional districting principles, such as compactness and respect for political subdivision lines, are the touchstones against which courts often measure racial predominance. Although racial predominance, like any other motivation, can be proven by way of direct or circumstantial evidence, violation of traditional districting principles, such as compactness, can “be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines.” Miller v. Johnson, 515 U.S. 900, 913 (1995); see also Covington, 316 F.R.D. at 129 (“In general, [a Shaw claim] requires proof that ‘the legislature subordinated traditional race-neutral districting principles, including . . . compactness, contiguity, and respect for political subdivisions . . . to racial considerations.'”) (quoting Miller, 515 U.S. at 916). As such, a remedial plan grounded on these traditional districting principles will be less likely to replicate - even inadvertently - any racial predominance in the underlying plan.

         Indeed, for this very reason, the Special Master's Plan is inoculated against the kind of attack that the Legislative Defendants seek to lodge with respect to racial predominance. In their briefs addressing the Special Master's Draft Plan, the Legislative Defendants argue that “[t]he special master has improperly engaged in racial sorting to create districts with a mechanical target of black voting age population between 39% and 43.6%.” Legislative Defendants' Response to Special Master's Draft Report, at 15, ECF No. 215. They maintain that by frankly stating that the Special Master's Draft Plan removed “any residuum of racial predominance that may have been expressed in the 2017 configuration of the district” the Special Master must have carefully constructed the remedial districts to hit race-based targets.[5] Id. at 18.

         That claim is false, and the maps themselves belie that interpretation.[6] The Special Master's Plan removes the racial predominance of the Enacted 2017 Districts by replacing the constitutionally tainted districts with others that adhere to explicitly race-neutral criteria. To be sure, the Court authorized the Special Master to consider racial data in the construction of the plans “to the extent necessary to ensure that his plan cures the unconstitutional racial gerrymanders.” Order at 8-9. However, as is clear from the Special Master's Draft Plan, the remedial districts were drawn not with any racial target in mind, but in order to maximize compactness, preserve precinct boundaries, and respect political subdivision lines.

         This approach grew directly from the Court's Order. The Court expressed concerns with the Enacted 2017 Districts, in that “some or all of the proposed remedial districts preserve the core shape of the unconstitutional version of the district, divide counties and municipalities along racial lines, and are less compact than their benchmark version.” Order at 2. To address those identified legal problems, the Special Master's Draft Plan does not preserve the core shape of the unconstitutional version of the district, avoids dividing counties and municipalities, and attempts to enhance compactness. Hitting some arbitrary racial target was not a goal of the Special Master's Plan. Rather, the Special Master sought to create remedial districts that, without question, extirpated the unconstitutional racial predominance from the 2011 Districts that the Court has identified as reemerging in the Enacted 2017 Plan.

         Table B. Comparison of Black Voting Age Population (BVAP) % Among Selected Districts

District
2011 Plan
2017 Plan
Rec. Plan
chg from 2011
chg from 2017
Senate 21
51.5%
47.5%
42.1%
-9.4%
-5.4%
Senate 28
56.5%
50.5%
43.6%
-12.9%
-6.9%
House 21
51.9%
42.3%
39.0%
-12.9%
-3.3%
House 57
50.7%
60.8%
38.4%
-12.3%
-22.4%

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