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Common Cause v. Rucho

United States District Court, M.D. North Carolina

January 9, 2018

COMMON CAUSE, et al., Plaintiffs,
ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants. LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, et al., Plaintiffs,
ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants.

          Circuit Judge Wynn wrote the majority opinion in which Senior District Judge Britt concurred. District Judge Osteen, Jr., wrote a separate opinion concurring in part and dissenting in part.

          Before WYNN, Circuit Judge, and OSTEEN, JR., District Judge, and BRITT, Senior District Judge.


          WYNN, Circuit Judge.

         In these consolidated cases, two groups of Plaintiffs allege that North Carolina's 2016 Congressional Redistricting Plan (the “2016 Plan”) constitutes a partisan gerrymander in violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Sections 2 and 4 of the Constitution. Legislative Defendants[1] do not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. Nor could they. The Republican-controlled North Carolina General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on “political data”-past election results specifying whether, and to what extent, particular voting districts had favored Republican or Democratic candidates, and therefore were likely to do so in the future-to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the state's congressional districts. Ex. 1007.

         Legislative Defendants also do not argue-and have never argued-that the 2016 Plan's intentional disfavoring of supporters of non-Republican candidates advances any democratic, constitutional, or public interest. Nor could they. Neither the Supreme Court nor any lower court has recognized any such interest furthered by partisan gerrymandering-“the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S.Ct. 2652, 2658 (2015). And, as further detailed below, partisan gerrymandering runs contrary to numerous fundamental democratic principles and individual rights enshrined in the Constitution.

         Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he “think[s] electing Republicans is better than electing Democrats.” Ex. 1016, at 34:21-23. But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S.Ct. at 2677 (internal quotation marks omitted).

         Accordingly, and as further explained below, we conclude that Plaintiffs prevail on all of their constitutional claims.[2]



         Over the last 30 years, North Carolina voters repeatedly have asked state and federal courts to pass judgment on the constitutionality of the congressional districting plans drawn by their state legislators. The first such challenge involved a redistricting plan adopted by the North Carolina General Assembly after the 1990 census, which increased the size of North Carolina's congressional delegation from 11 to 12 members. See Shaw v. Reno (Shaw I), 509 U.S. 630, 633-34 (1993). When the General Assembly set out to redraw the state's congressional districts to incorporate the new seat, the Department of Justice, pursuant to its “max-black” policy, pushed for the creation of a second majority-black district to augment, it maintained, the representation of the state's African-American voters in Congress. Id. at 635. In response, the General Assembly prepared a revised district map that included the majority-black First and Twelfth Districts (the “1992 Plan”). Id.

         Several dozen North Carolina voters, most of whom were Republican, challenged the 1992 Plan as a partisan gerrymander, in violation of the Equal Protection Clause, the First Amendment, and Article I, Section 2 of the United States Constitution. Pope v. Blue, 809 F.Supp. 392, 394-95, 397-98 (W.D. N.C. 1992), aff'd 506 U.S. 801 (1992). A divided three-judge panel dismissed the action, holding that the plaintiffs failed to adequately allege that the redistricting plan had a legally cognizable “discriminatory effect” on any “identifiable [political] group, ” under the standard set forth in the Supreme Court's decision in Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality op.). Pope, 809 F.Supp. at 397.

         Separately, a group of North Carolina voters challenged the 1992 Plan as a racial gerrymander, in violation of the Equal Protection Clause. Shaw I, 509 U.S. at 636-37. After several years of litigation, the Supreme Court held that the General Assembly's use of race as the predominant factor in drawing the second majority-black district in the 1992 Plan violated the Equal Protection Clause, and enjoined the use of that district in future elections. Shaw v. Hunt (Shaw II), 517 U.S. 899, 905-18 (1996). In 1997, a politically divided General Assembly enacted a remedial plan expected to elect six Republican and six Democratic Representatives, rendering each party's share of the state's congressional delegation proportional to its share of the statewide vote in the most recent congressional election. Cromartie v. Hunt, 133 F.Supp.2d 407, 412-13 (E.D. N.C. 2000), rev'd sub nom. Easley v. Cromartie, 532 U.S. 234 (2001); id. at 423-24 (Thornburg, J., dissenting). In 2001, after several more years of litigation, the Supreme Court approved that remedial plan. See Easley, 532 U.S. 234 (holding that three-judge panel's finding that race constituted the predominant motivation in redrawing remedial districts was not supported by substantial evidence).

         Just as litigation regarding the 1992 Plan came to an end, the results of the 2000 census entitled North Carolina to another seat in Congress, and the General Assembly again set out to redraw the state's congressional districts to include the additional seat. The resulting plan, which was adopted in 2001 (the “2001 Plan”), was used in each of the State's congressional elections between 2001 and 2010. In all but one of these elections, the party receiving more statewide votes for their candidates for the House of Representatives also won a majority of the seats in North Carolina's congressional delegation (the only exception being the 2010 election, in which Republicans won 54 percent of votes statewide but only 6 of the 13 seats). Exs. 1021-25. Although the 2001 Plan did not include any majority-black districts, black voters in the First and Twelfth Districts were consistently successful in electing their preferred candidates. Harris v. McCrory, 159 F.Supp.3d 600, 606-07 (M.D. N.C. 2016), aff'd sub nom. Cooper v. Harris, 137 S.Ct. 1455 (2017). Unlike the 1992 Plan, the 2001 Plan did not generate significant federal litigation. Id. at 607.


         In 2010, for the first time in more than a century, North Carolina voters elected Republican majorities in both the North Carolina Senate and the North Carolina House of Representatives, giving Republicans exclusive control over the decennial congressional redistricting process.[3] See Id. at 607. The House of Representatives and Senate each established redistricting committees, which were jointly responsible for preparing a proposed congressional redistricting plan. Id. Representative David Lewis, in his capacity as the senior chair of the House Redistricting Committee, and Senator Robert Rucho, in his capacity as senior chair of the Senate Redistricting Committee, were responsible for developing the proposed redistricting plan. Id.

         Through private counsel, the committees engaged Dr. Thomas Hofeller, who had previously worked as the redistricting coordinator for the Republican National Committee, to draw the new congressional districting plan. Id. Concurrent with his work on the 2011 North Carolina congressional redistricting plan, Dr. Hofeller also served on a “redistricting team” established as part of the Republican State Leadership Committee's (“RSLC”) Redistricting Majority Project, commonly referred to as “REDMAP.” Ex. 2015, at ¶ 13. According to RSLC, REDMAP sought to elect Republican candidates to state legislatures so that Republicans would control such legislatures' redistricting efforts and thereby “solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade.” Id. at ¶ 10. With regard to North Carolina, in particular, REDMAP sought to “[s]trengthen Republican redistricting power by flipping [state legislative] chambers from Democrat to Republican control.” Ex. 2020.

         Representative Lewis and Senator Rucho, both of whom are Republican, orally instructed Dr. Hofeller regarding the criteria he should follow in drawing the new districting plan. Dep. of Thomas B. Hofeller (“Hofeller Dep.”) 20:7-19, Jan. 24, 2017, ECF Nos. 101-34, 110-1. According to Dr. Hofeller, Representative Lewis and Senator Rucho's “primar[y] goal” in drawing the new districts was “to create as many districts as possible in which GOP candidates would be able to successfully compete for office.” Id. at 123:1-7.

         In accordance with Representative Lewis and Senator Rucho's instructions, Dr. Hofeller testified that he sought “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.” Id. at 127:19-22. In order to minimize the electoral opportunities of Democratic candidates, Dr. Hofeller used the results of past statewide elections to predict whether a particular precinct or portion of a precinct was likely to vote for a Republican or Democratic congressional candidate in future elections. See Id. at 132:22-134:13, 159:20-160:12. According to Dr. Hofeller, “past voting behavior, ” as reflected in “past election results, ” is “the best predictor of future election success.” Ex. 2037. Past election data have become “the industry standard” for predicting the partisan performance of a districting plan, he explained, because “as more and more voters . . . register non-partisan or independent, ” party registration data have decreased in predictive value. Id.

         Using past election data to “draw maps that were more favorable to Republican candidates, ” Dr. Hofeller moved district lines “to weaken Democratic strength in Districts 7, 8, and 11 . . . by concentrating Democratic voting strength in Districts 1, 4, and 12.” Ex. 2043, at 33-34; see also Hofeller Dep. 116:19-117:25 (“The General Assembly's goal [in 2011] was to increase Republican voting strength in New Districts 2, 3, 6, 7, and 13. This could only be accomplished by placing all the strong Democratic [census voting districts (“VTDs”)] in either New Districts 1 or 4.”). Dr. Hofeller conceded that, by doing so, the 2011 Plan “diminished . . . [t]he[] opportunity to elect a Democratic candidate in the districts in which [he] increased Republican voting strength.” Hofeller Dep. 128:17-21.

         Believing (incorrectly) that Section 2 of the Voting Rights Act required the creation of majority-black districts “where possible, ” Representative Lewis and Senator Rucho also directed Dr. Hofeller to re-establish two majority-black districts in the state. Harris, 159 F.Supp.3d at 608. This goal worked hand-in-hand with the General Assembly's partisan objective because, as Legislative Defendants acknowledge, “race and politics are highly correlated.” Ex. 2043, at ¶ 120. Thus, Dr. Hofeller drew the map to further concentrate black voters, who are more likely to vote for Democratic candidates, into the state's First and Twelfth Congressional districts, where Dr. Hofeller already was planning to concentrate Democratic voting strength. Harris, 159 F.Supp.3d at 607-09. As a result, the proportion of black voters in those districts increased from 47.76 percent to 52.65 percent and from 43.77 percent to 50.66 percent, respectively. Id. The General Assembly enacted the 2011 Plan on July 28, 2011. Id. at 608.

         North Carolina conducted two congressional elections using the 2011 Plan. In 2012, Republican candidates received a minority of the statewide vote (49%), Ex. 3023, but won a supermajority of the congressional seats (9 of 13), Ex. 1020. In 2014, Republican candidates received 54 percent of the statewide vote, and won 10 of the 13 congressional seats. Ex. 1019.

         Meanwhile, voters living in the two majority-black districts challenged the 2011 Plan in both state and federal court, alleging that lines for the two districts constituted unconstitutional racial gerrymanders. Harris, 159 F.Supp.3d at 609-10. The North Carolina Supreme Court twice ruled that the 2011 Plan did not violate the state or federal constitution. Dickson v. Rucho, 781 S.E.2d 404, 410-11 ( N.C. 2015), vacated, 137 S.Ct. 2186 (2017) (mem.); Dickson v. Rucho, 766 S.E.2d 238 ( N.C. 2014), vacated, 135 S.Ct. 1843 (2015) (mem.). However, on February 5, 2016, a three-judge panel presiding in the U.S. District Court for the Middle District of North Carolina struck down the districts as unconstitutional racial gerrymanders and enjoined their use in future elections. Harris, 159 F.Supp.3d at 627.

         With both chambers of the North Carolina General Assembly still controlled by Republicans, Representative Lewis and Senator Rucho again took charge of drawing the remedial districting plan. On February 6, 2016, Representative Lewis decided to again engage Dr. Hofeller to draw the remedial plan. Dep. of Rep. David Lewis (“Lewis Dep.”) 44:2-4, Jan. 26, 2017, ECF Nos. 101-33, 108-3, 110-3, 110-4; see also Ex. 4061. Soon thereafter, Representative Lewis spoke with Dr. Hofeller over the phone regarding the drawing of the new plan. Lewis Dep. 44:12-24; Ex. 4061. Even before he spoke with Representative Lewis, Dr. Hofeller had begun working on a remedial plan using redistricting software and data on his personal computer. Hofeller Dep. 130:2-9.

         On February 9, 2016, Representative Lewis and Senator Rucho met with Dr. Hofeller at his home and provided him with oral instructions regarding the criteria he should follow in drawing the remedial plan. Ex. 4061; Lewis Dep. 48:19-49:7; Dep. of Sen. Robert Rucho (“Rucho Dep.”) 170:13-170:17, Jan. 25, 2017, ECF Nos. 101-32, 110-5. Once again, Representative Lewis and Senator Rucho did not reduce their instructions to Dr. Hofeller to writing. Lewis. Dep. 60:1-13. In addition to directing Dr. Hofeller to remedy the racial gerrymander, Representative Lewis and Senator Rucho again directed Dr. Hofeller to use political data-precinct-level election results from all statewide elections, excluding presidential elections, dating back to January 1, 2008-in drawing the remedial plan. Ex. 2043, at ¶ 38; Lewis Dep. 162:24-163:7; Hofeller Dep. 100:3-102:5, 180:10-16. Representative Lewis and Senator Rucho further instructed Dr. Hofeller that he should use that political data to draw a map that would maintain the existing partisan makeup of the state's congressional delegation, which, as elected under the racially gerrymandered plan, included 10 Republicans and 3 Democrats. Ex. 2043, at ¶ 38; Lewis Dep. 162:24-163:7; Hofeller Dep. 175:19-23, 178:14-20, 188:19-190:2.

         With these instructions, Dr. Hofeller continued to prepare draft redistricting plans on his personal computer. To achieve Representative Lewis and Senator Rucho's partisan objectives-and in accordance with his belief that “past voting data” serve as the best predictor of future election results-Dr. Hofeller drew the draft plans using an aggregate variable he created to predict partisan performance. For each census block, the variable compared the sum of the votes cast for Republican candidates in seven statewide races occurring between 2008 and 2014 with the sum of the average total number of votes cast for Democratic and Republican candidates in those same races. Exs. 1017, 2002, 2039, 2043 at ¶¶ 18, 47, 49, 50; Dep. of Thomas Hofeller, vol. II (“Hofeller Dep. II”) 262:21-24, Feb. 10, 2017, ECF No. 110-2. Dr. Hofeller testified that he used the averaged results from the seven elections so as “to get a pretty good cross section of what the past vote had been, ” Hofeller Dep. 212:16-213:9, and “[t]o give [him] an indication of the two-party partisan characteristics of VTDs, ” Hofeller Dep. II 267:5-6. Dr. Hofeller explained that “he had drawn numerous plans in the state of North Carolina over decades, ” and in his “experience[, ] . . . the underlying political nature of the precincts in the state does not change no matter what race you use to analyze it.” Ex. 2045, at 525:6- 10; Hofeller Dep. at 149:5-18. “So once a precinct is found to be a strong Democratic precinct, it's probably going to act as a strong Democratic precinct in every subsequent election. The same would be true for Republican precincts.” Ex. 2045, at 525:14-17; see also Hofeller Dep. II at 274:9-12 (“[I]ndividual VTDs tend to carry . . . the same characteristics through a string of elections.”).

         When he drew district lines, Dr. Hofeller displayed his partisanship variable on his computer screen by color-coding counties, VTDs, or precincts to reflect their partisan performance. Ex. 5116, at ¶ 8, fig.1; Hofeller Dep. 103:5-105:24; Hofeller Dep. II 267:18-278:4. Dr. Hofeller would use the partisanship variable to assign a VTD “to one congressional district or another, ” Hofeller Dep. 106:23-107:1, 132:14-20, and “as a partial guide” in deciding whether and where to split VTDs or counties, id. at 203:4-5; Hofeller Dep. II at 267:10-17. In assigning a county, VTD, or precinct to a particular district, Dr. Hofeller also sought to preserve the “core” constituency of the districts in the 2011 Plan. Ex. 5001, at ¶ 31. Using his partisanship variable-and in accordance with his effort to preserve the “cores” of the districts in the 2011 Plan-Dr. Hofeller drew, for example, the Fourth and Twelfth Districts to be “predominantly Democratic, ” as those districts had been under the 2011 Plan. Hofeller Dep. 192:7-12. After drawing a draft plan, Dr. Hofeller also would use his seven-election variable to assess the partisan performance of the plan on a district-by-district basis and as a whole. Id. at 247:18-23; Hofeller Dep. II 283:15-19, 284:20-285:4. Dr. Hofeller then would convey his assessment of the partisan performance of each district to Representative Lewis. Hofeller Dep. II 290:17-25.

         The following day, February 10, 2016, Dr. Hofeller met with Representative Lewis and Senator Rucho and showed them several draft redistricting plans. Rucho Dep. 31:16-31:18, 37:7-37:8. “Nearly every time” he reviewed Dr. Hofeller's draft maps, Representative Lewis assessed the plans' partisan performance using the results from North Carolina's 2014 Senate race between Senator Thom Tillis and former Senator Kay Hagan. Lewis Dep. 63:9-64:17. Representative Lewis visited Dr. Hofeller's house several more times over the next few days to review additional draft remedial plans. On either February 12 or February 13, Dr. Hofeller presented the near-final 2016 Plan to Representative Lewis, which Representative Lewis found acceptable. Id. at 77:7-20.

         On February 12, 2016, the leadership of the North Carolina General Assembly appointed Representative Lewis and Senator Rucho as co-chairs of a newly formed Joint Select Committee on Congressional Redistricting (the “Committee”), comprised of 25 Republican and 12 Democratic legislators, to draw the remedial district plan. Ex. 2009. On February 15, 2016, the co-Chairs held a public hearing on the redistricting effort. Ex. 1004. Dr. Hofeller did not attend the public hearing. Rucho Dep. 55:4-6. The Committee also solicited written comments regarding the redistricting efforts on its website. Id. at 55:10-23. Dr. Hofeller was not apprised of any of the comments made at the public hearing or in the written submissions. Id. at 55:4-56:13. Because Dr. Hofeller finished drawing the 2016 Plan before the public hearing and the opening of the window for members of the public to submit written comments, Hofeller Dep. 177:9-21, the 2016 Plan did not reflect any public input.

         On February 16, 2016-after Dr. Hofeller, at Representative Lewis and Senator Rucho's direction, had completed drawing the remedial maps, id.; Ex. 5001, at ¶ 33-the Committee met for the first time. At that meeting, Representative Lewis and Senator Rucho proposed the following criteria to govern the drawing of the remedial districts:

Equal Population: The Committee will use the 2010 federal decennial census data as the sole basis of population for the establishment of districts in the 2016 Contingent Congressional Plan. The number of persons in each congressional district shall be as nearly as equal as practicable, as determined under the most recent federal decennial census.
Contiguity: Congressional districts shall be comprised of contiguous territory. Contiguity by water is sufficient.
Political Data: The only data other than population data to be used to construct congressional districts shall be election results in statewide contests since January 1, 2008, not including the last two presidential contests. Data identifying the race of individuals or voters shall not be used in the construction or consideration of districts in the 2016 Contingent Congressional Plan. Voting districts (“VTDs”) should be split only when necessary to comply with the zero deviation population requirements set forth above in order to ensure the integrity of political data.
Partisan Advantage: The partisan makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the current partisan makeup of North Carolina's congressional delegation.
Twelfth District: The current General Assembly inherited the configuration of the Twelfth District from past General Assemblies. This configuration was retained because the district had already been heavily litigated over the past two decades and ultimately approved by the courts. The Harris court has criticized the shape of the Twelfth District citing its “serpentine” nature. In light of this, the Committee shall construct districts in the 2016 Contingent Congressional Plan that eliminate the current configuration of the Twelfth District.
Compactness: In light of the Harris court's criticism of the compactness of the First and Twelfth Districts, the Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan that improve the compactness of the current districts and keep more counties and VTDs whole as compared to the current enacted plan. Division of counties shall only be made for reasons of equalizing population, consideration of incumbency and political impact. Reasonable efforts shall be made not to divide a county into more than two districts.
Incumbency: Candidates for Congress are not required by law to reside in a district they seek to represent. However, reasonable efforts shall be made to ensure that incumbent members of Congress are not paired with another incumbent in one of the new districts constructed in the 2016 Contingent Congressional Plan.

Ex. 1007. No other criteria were discussed by the Committee or in legislative debate on the 2016 Plan.

         Representative Lewis explained the relationship between the “Political Data” and “Partisan Advantage” criteria as follows: the Partisan Advantage criterion “contemplate[s] looking at the political data . . . and as you draw the lines, if you're trying to give a partisan advantage, you would want to draw lines so that more of the whole VTDs voted for the Republican on the ballot than they did the Democrat.” Ex. 1005, at 57:10-16. And he further explained that “to the extent [we] are going to use political data in drawing this map, it is to gain partisan advantage.” Id. at 54. Representative Lewis “acknowledge[d] freely that this would be a political gerrymander, ” which he maintained was “not against the law.” Id. at 48:4-6.

         Democratic state Senator Floyd McKissick, Jr., objected to the “Partisan Advantage” criterion, stating that “ingrain[ing]” the 10-3 advantage in favor of Republicans was not “fair, reasonable, [or] balanced” because, as recently as 2012, Democratic congressional candidates had received more votes on a statewide basis than Republican candidates. Id. at 49:16-50:5, 50:14-22. In response, Representative Lewis said that he “propose[d] that [the Committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats.” Id. at 50:7-10. Democratic Committee members also expressed concern that the Partisan Advantage criterion would “bake in partisan advantage that was achieved through the use of unconstitutional maps.” Id. at 62:1-3. In response, Representative Lewis again reiterated that “the goal” of the criterion “is to elect 10 Republicans and 3 Democrats.” Id. at 62:18-19.

         That same day, Committee members adopted, on a bipartisan basis, the Equal Population, Contiguity, Twelfth District, and Incumbency criteria. Id. at 14:16-18:3, 21:9-24:18, 91:17-94:17, 95:15-98:20. The remaining two criteria-Political Data and Partisan Advantage-were adopted on party-line votes. Id. at 43:21-47:5, 67:2-69:23. Additionally, the Committee authorized the chairmen to engage a consultant to assist the Committee's Republican leadership in drawing the remedial plan. Ex. 2003.

         Also on February 16, 2016, after receiving authorization to hire a redistricting consultant, Representative Lewis and Senator Rucho sent Dr. Hofeller an engagement letter, which Dr. Hofeller signed that same day. Ex. 2003. Upon his engagement, Dr. Hofeller downloaded the 2016 Plan, which he had completed several days earlier, from his personal computer onto a legislative computer. Lewis Dep. 138:6-8; Ex. 1009, at 45:7-45:11; Ex. 1014, at 21:10-21:24; Ex. 4061. Democratic Committee members were not allowed to consult with Dr. Hofeller nor were they allowed access to the state computer systems to which he downloaded the 2016 Plan. Ex. 1011, at 36:9-20; Ex. 1014, at 44:23-45:15; Ex. 2008. According to Representative Lewis, Senator Rucho, and Dr. Hofeller, the 2016 Plan adhered to the Committee's Partisan Advantage and Political Data criteria. Ex. 1014, at 36:25-37:6; Ex. 1016, at 37:3-7; Hofeller Dep. 129:14-15.

         The following day, Representative Lewis and Senator Rucho presented the 2016 Plan to the Committee. Ex. 1008. As part of the presentation, Representative Lewis provided Committee members with spreadsheets showing the partisan performance of the proposed districts in twenty previous statewide elections. Ex. 1017. Representative Lewis stated that he and Senator Rucho believed that the 2016 Plan “will produce an opportunity to elect ten Republican members of Congress, ” but it was “a weaker map than the [2011 Plan]” from the perspective of Partisan Advantage. Ex. 1008, at 12:3-7. The Committee approved the 2016 Plan by party-line vote. Id. at 67:10-72:8.

         On February 19, 2016, the North Carolina House of Representatives debated the 2016 Plan. During that debate, Representative Lewis further explained the rationale behind the Partisan Advantage criterion, stating: “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Ex. 1016, at 34:21-23. Following that debate, the North Carolina Senate and North Carolina House of Representatives approved the 2016 Plan, with one slight modification, [4] on February 18 and February 19, respectively, in both cases by party-line votes. Ex. 1011, at 110:13-22; Ex. 1016, at 81:6-16.

         The 2016 Plan splits 13 counties and 12 precincts. Ex. 5023. Under several statistical measures of compactness, the districts created by the 2016 Plan are, on average, more compact than the districts created by the 2011 Plan. Ex. 5048. The 2016 Plan paired 2 of the 13 incumbents elected under the unconstitutional 2011 Plan. Ex. 2012, at 15-19. Ten of the thirteen districts in the 2016 Plan retained at least 50 percent of their constituency under the 2011 Plan. Ex. 5001, tbl.1.

         The Harris plaintiffs filed objections to the Plan with the three-judge court presiding over the racial gerrymandering case. Harris v. McCrory, No. 1:13-cv-949, 2016 WL 3129213, at *1 (M.D. N.C. June 2, 2016). Among those objections, the Harris plaintiffs asked the court to reject the 2016 Plan as an unconstitutional partisan gerrymander. Id. at *2. Noting that the Supreme Court had not agreed to a standard for adjudicating partisan gerrymandering claims and that the “plaintiffs ha[d] not provided the Court with a ‘suitable standard'” for evaluating such claims, the court rejected the partisan gerrymandering objection “as presented.” Id. at *3 (quoting Ariz. State Leg., 135 S.Ct. at 2658). The court twice made clear, however, that its “denial of plaintiffs' objections does not constitute or imply an endorsement of, or foreclose any additional challenges to, the [2016 Plan].” Id. at *1, *3 (emphasis added).

         In November 2016, North Carolina conducted congressional elections using the 2016 Plan. In accordance with the objective of the Partisan Advantage criterion, Republican candidates prevailed in 10 of the 13 (76.92%) congressional districts established by the 2016 Plan. Ex. 1018. Republican candidates received 53.22 percent of the statewide vote. Ex. 3022.


         On August 5, 2016, Common Cause, the North Carolina Democratic Party, and fourteen North Carolina voters[5] (collectively, “Common Cause Plaintiffs”), filed a complaint alleging that the 2016 Plan constituted a partisan gerrymander. Compl., Common Cause v. Rucho, No. 1:16-cv-1026, Aug. 5, 2016, ECF No. 1. The League of Women Voters of North Carolina (the “League”) and twelve North Carolina voters[6](collectively, “League Plaintiffs, ” and together with Common Cause Plaintiffs, “Plaintiffs”) filed their partisan gerrymandering action on September 22, 2016. Compl., League of Women Voters of N.C. v. Rucho, No. 1:16-cv-1164, Sept. 22, 2016, ECF No. 1. Both parties named as defendants Legislative Defendants; A. Grant Whitney, Jr., in his official capacity as Chairman of the North Carolina State Board of Elections (the “Board of Elections”); the Board of Elections; and the State of North Carolina (collectively, with Chairman Whitney and the Board of Elections, “State Defendants, ” and with Legislative Defendants, “Defendants”).

         In their operative complaints, both Common Cause Plaintiffs and League Plaintiffs allege that the 2016 Plan violates the Equal Protection Clause, by intentionally diluting the electoral strength of individuals who previously opposed, or were likely to oppose, Republican candidates, and the First Amendment, by intentionally burdening and retaliating against supporters of non-Republican candidates on the basis of their political beliefs and association. First Am. Compl. for Decl. J. and Inj. Relief (“Common Cause Compl.”) ¶¶ 25-45, Common Cause v. Rucho, No. 16-cv-1026, Sept. 7, 2016, ECF No. 12; Am. Compl. (“League Compl.”) ¶¶ 69-83, League of Women Voters of N.C. v. Rucho, No. 16-cv-1164, Feb. 10, 2017, ECF No. 41. Common Clause Plaintiffs further allege that the 2016 Plan violates Article I, Section 2 of the United States Constitution, which provides that members of the House of Representatives will be chosen “by the People of the several States, ” by usurping the right of “the People” to select their preferred candidates for Congress, and Article I, Section 4, by exceeding the States' delegated authority to determine “the Times, Places and Manner of holding Elections” for members of Congress. Common Cause Compl. ¶¶ 46-54.

         On February 7, 2017, this Court consolidated the two actions for purposes of discovery and trial. Order, Feb. 7, 2017, ECF No. 41. Three days later, League Plaintiffs amended their complaint to reflect the results of the 2016 congressional election conducted under the 2016 Plan and empirical analyses of those results.

         On February 21, 2017, Defendants moved to dismiss both complaints under Federal Rule of Civil Procedure 12(b)(6), principally asserting that (1) Pope v. Blue, 809 F.Supp. 392 (W.D. N.C. 1992), which the Supreme Court summarily affirmed, 113 S.Ct. 30 (1992), required dismissal of Plaintiffs' actions, and (2) the Supreme Court's splintered opinions regarding the justiciability of-and, to the extent such claims are justiciable, the legal framework for-partisan gerrymandering claims foreclosed Plaintiffs' claims. Mot. to Dismiss for Failure to State a Claim, Feb. 21, 2017, ECF No. 45. In a memorandum opinion and order entered March 3, 2017, this Court denied Defendants' motions to dismiss. Common Cause v. Rucho, 240 F.Supp.3d 376 (M.D. N.C. 2017); Order, March 3, 2017, ECF No. 51.

         Beginning on October 16, 2017, this Court held a four-day trial, during which the Common Cause Plaintiffs, League Plaintiffs, and Legislative Defendants introduced evidence and presented testimony from their expert witnesses. Although counsel for the State Defendants attended trial, they did not participate and took no position as to how this Court should resolve the case.

         In post-trial briefing, League Plaintiffs set forth a single, three-part test for determining whether a state congressional redistricting plan violates the First and Fourteenth Amendments. Under their proposed test, a plaintiff alleging that a state redistricting body engaged in unconstitutional partisan gerrymandering bears the burden of proving: (1) that the redistricting body enacted the challenged plan with the intent of discriminating against voters who support candidates of a disfavored party and (2) that the challenged plan had a “large and durable” discriminatory effect on such voters. League of Women Voters Pls.' Post-Trial Br. (“League Br.”) 3, Nov. 6, 2017, ECF No. 113. If the plaintiff makes such a showing, then the burden shifts to the governmental defendant to provide (3) a legitimate, non-partisan justification for the plan's discriminatory effect. Id.

         League Plaintiffs point to the Political Advantage and Partisan Advantage criteria and the chairmen's official explanations of those criteria as evidence of the General Assembly's intent to discriminate against voters who support Democratic candidates. Id. at 7-8. To establish the plan's discriminatory effect, League Plaintiffs introduced expert analyses of the 2016 Plan's alleged “partisan asymmetry” to establish that the plan makes it substantially more difficult for voters who favor Democratic candidates to translate their votes into representation, and that this substantial difficulty is likely to persist throughout the life of the 2016 Plan. Id. at 12-16. Finally, League Plaintiffs assert that Legislative Defendants have failed to provide any evidence of a legitimate justification for the 2016 Plan's alleged partisan asymmetry, such as the state's political geography or other legitimate redistricting goals. Id. at 21-24.

         By contrast, Common Cause Plaintiffs advance distinct legal frameworks for their First Amendment, Equal Protection, and Article I claims. Regarding the First Amendment, Common Cause Plaintiffs assert that the 2016 Plan's disfavoring of voters who previously opposed Republican candidates or associated with non-Republican candidates or parties amounts to viewpoint discrimination and passes constitutional muster only if narrowly tailored to serve a compelling state interest. Common Cause Pls.' Post-Trial Br. (“Common Cause Br.”) 5-8, Nov. 6, 2017, ECF No. 116. According to Common Cause Plaintiffs, the General Assembly's use of individuals' past voting history to assign such individuals to congressional districts with the purpose of advantaging Republican candidates on a statewide basis constitutes evidence of viewpoint discrimination. Id. at 7-15. Common Clause Plaintiffs further contend that Legislative Defendants have provided no compelling interest justifying such viewpoint discrimination. Id. at 9.

         Turning to the Equal Protection Clause, Common Cause Plaintiffs suggest that the level of scrutiny to which a court must subject a redistricting plan turns on the degree to which the redistricting body intended to pursue partisan advantage. Id. at 15-17. According to Common Cause Plaintiffs, the General Assembly predominantly pursued partisan advantage in drawing the 2016 Plan, and therefore this Court should apply strict scrutiny, upholding the plan only if Legislative Defendants show that the plan was narrowly tailored to advance a compelling state interest. Id. As proof of the General Assembly's predominant intent to burden voters who support non-Republican candidates, Common Cause Plaintiffs point to the Political Data and Partisan Advantage criteria, the chairmen's explanations of the purpose behind those criteria, and expert analyses showing that the 2016 Plan is an “extreme statistical outlier” with regard to its pro-Republican tilt relative to thousands of other simulated districting plans conforming to non-partisan districting principles. Id. at 17. Common Cause Plaintiffs further argue that, even if this Court finds that the General Assembly did not draw the 2016 Plan with a predominantly partisan motive, the plan nonetheless fails to pass constitutional muster under intermediate or rational basis scrutiny. Id. at 18-19.

         Finally, Common Cause Plaintiffs allege that the 2016 Plan exceeds the General Assembly's delegated authority under Article I, Section 4-commonly referred to as the “Elections Clause”-because it amounts to an unconstitutional effort “‘to dictate electoral outcomes'” and “‘to favor . . . a class of candidates.'” Id. at 20-21 (quoting Cook v. Gralike, 531 U.S. 510, 523-24 (2001)). And Common Clause Plaintiffs further assert that the 2016 Plan violates Article I, Section 2 because it gives voters who favor Republican candidates “a greater voice in choosing a Congressman” than voters who favor candidates put forward by other parties. Id. at 22-23 (quoting Wesberry v. Sanders, 376 U.S. 1, 13-14 (1964)).

         In response, Legislative Defendants first argue that both sets of Plaintiffs lack Article III standing to assert any of their claims. Legislative Defs.' Post-Trial Br. (“Leg. Defs.' Br.”) 12, Nov. 6, 2017, ECF No. 115. Legislative Defendants next contend that, even if Plaintiffs have standing, neither set of Plaintiffs has offered a judicially manageable standard under any constitutional provision for evaluating a partisan gerrymandering claim, and, therefore, that Plaintiffs' actions must be dismissed as raising nonjusticiable political questions. Id. at 9. To that end, Legislative Defendants criticize Plaintiffs' expert statistical analyses, in particular, on grounds that such analyses are “a smorgasbord of alleged ‘social science' theories” that fail to answer what Legislative Defendants see as the fundamental question in partisan gerrymandering cases: “how much politics is too much politics in redistricting?” Id. at 2, 9-11. As to the merits, Legislative Defendants assert that the 2016 Plan was not a “partisan gerrymander”-as they define that term-because, among other reasons, (1) the General Assembly did not try to “maximize” the number of Republican seats, and (2) the districts created by the 2016 Plan conform to a number of traditional redistricting principles such as compactness, contiguity, and adherence to county lines. Id. at 3, 7-8.

         For the reasons that follow, we reject Legislative Defendants' standing and justiciability arguments. We further conclude that the 2016 Plan violates the Equal Protection Clause because the General Assembly enacted the plan with the intent of discriminating against voters who favored non-Republican candidates, the plan has had and likely will continue to have that effect, and no legitimate state interest justifies the 2016 Plan's discriminatory partisan effect. We also conclude that the 2016 Plan violates the First Amendment by unjustifiably discriminating against voters based on their previous political expression and affiliation. Finally, we hold that the 2016 Plan violates Article I by exceeding the scope of the General Assembly's delegated authority to enact congressional election regulations and interfering with the right of “the People” to choose their Representatives.


         Before addressing the merits of Plaintiffs' claims, we first address Legislative Defendants' threshold standing and justiciability arguments. As detailed below, we conclude that Plaintiffs have standing to raise statewide and district-by-district partisan gerrymandering challenges to the 2016 Plan. We further conclude that Plaintiffs' partisan gerrymandering claims are not barred by the political question doctrine, either in theory or as proven.


         Article III's “case” or “controversy” requirement demands that a plaintiff demonstrate standing-that the plaintiff has “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). To establish standing, a plaintiff first must demonstrate “an ‘injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not conjectural or hypothetical.'” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations and some internal quotation marks omitted). “Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.'” Id. (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). “Third, it must be ‘likely, ' as opposed to merely ‘speculative, ' that the injury will be ‘redressed by a favorable decision.'” Id. at 561 (quoting Simon, 426 U.S. at 41-42). Plaintiffs bear the burden of establishing standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006).

         Plaintiffs comprise individual North Carolina voters; two non-profit organizations concerned with promoting open, honest, and accountable government and fostering education and engagement in elections; and the North Carolina Democratic Party. These individuals and entities assert a variety of injury types: vote dilution; elected representatives who, with victory all-but assured, are less willing to engage in democratic dialogue and meaningfully consider contrary viewpoints; statewide chilling of association and discourse through decreased democratic participation, fundraising, and candidate recruitment; increased statewide costs for voter education and candidate recruitment; and a statewide congressional delegation that fails to adequately reflect the interests of all North Carolina voters. League Plaintiffs-who reside in most, but not all, of the state's thirteen congressional districts-assert that these alleged injuries allow them to lodge a statewide challenge under the Equal Protection Clause and First Amendment. Common Cause Plaintiffs-who reside in all thirteen congressional districts-claim that they have standing to assert both statewide and district-by-district challenges to the 2016 Plan under the Equal Protection Clause, the First Amendment, and Article I.

         Legislative Defendants do not dispute that, to the extent Plaintiffs suffered an injury-in-fact, the injury was caused by the 2016 Plan. Nor do they dispute that Plaintiffs' claimed injuries are redressable by a favorable decision of this Court. Instead, Legislative Defendants argue that all Plaintiffs lack standing for three reasons: (1) a plaintiff may not rely on statewide standing to challenge an entire congressional redistricting plan as a partisan gerrymander; (2) individual Plaintiffs lack standing to lodge both statewide and district-by-district challenges because they have not suffered constitutionally cognizable injuries-in-fact; and (3) organizational Plaintiffs lack standing because no individual member has standing and no organizational Plaintiff suffered a concrete harm attributable to the 2016 Plan. We reject each argument.


         Two strands of Supreme Court precedent dealing with standing in gerrymandering cases under the Equal Protection Clause potentially bear on whether a partisan gerrymandering plaintiff has standing to raise a statewide challenge to a congressional redistricting plan. In racial gerrymandering cases, a plaintiff lacks standing to challenge a districting plan on a statewide basis. Ala. Leg. Black Caucus, 135 S.Ct. at 1265. The Supreme Court explained that only those voters who “live[] in the district attacked”-as opposed to voters “who live[] elsewhere in the State”-“normally [have] standing to pursue a racial gerrymandering claim” because “the harms that underlie a racial gerrymandering claim . . . are personal.” Id. “They include being personally subjected to a racial classification, as well as being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group.” Id. (internal citation, quotation marks, and alterations omitted). A racial gerrymander, therefore, “reinforces the perception that members of the same racial group-regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw I, 509 U.S. at 647. Such harms “threaten[] to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” United States v. Hays, 515 U.S. 737, 744 (1995). Put differently, the harm associated with a racial gerrymander is that the state redistricting body drew district lines that “embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts-their very worth as citizens-according to a criterion barred to the Government by history and the Constitution.” Miller v. Johnson, 515 U.S. 900, 912 (1995) (quoting Metro Broad., Inc. v. F.C.C., 497 U.S. 547, 604 (1990) (O'Connor, J., dissenting)).

         By contrast, in one-person, one-vote cases-in which a plaintiff in an overpopulated district alleges that she is injured because the districting plan dilutes her vote relative to voters in underpopulated districts-the plaintiff may challenge the districting plan on a statewide basis.[7] See, e.g., Wesberry, 376 U.S. at 7 (permitting voters in a single overpopulated district to raise one-person, one-vote challenge to districting plan as a whole); Gray v. Sanders, 372 U.S. 368, 370, 375 (1963) (holding that plaintiff, “who [wa]s qualified to vote in primary and general elections in Fulton County, Georgia, ” had standing to lodge statewide challenge to Georgia's “county unit system as a basis for counting votes in a Democratic primary for the nomination of a United States Senator and statewide officers”); Baker, 369 U.S. at 187, 205-07 (holding that plaintiffs, who lived in five Tennessee counties, had standing to challenge districting plan's “apportioning [of] the members of the General Assembly among the State's 95 counties” because “voters who allege facts showing disadvantage to themselves as individuals have standing to sue”). Like racial gerrymandering cases, the Supreme Court's approach to standing in one-person, one-vote cases reflects the type of harms associated with malapportionment. The injury in a malapportionment case is “a gross disproportion of representation to voting population.” Baker, 369 U.S. at 207. “[T]his classification disfavors the voters in [overpopulated districts], placing them in a position of constitutionally unjustified inequality vis-à-vis voters in irrationally favored [districts].” Id. at 207-08. Put differently, in a one-person, one-vote case, a plaintiff who resides in an overpopulated district suffers an injury because her vote is diluted relative to other voters in the jurisdiction. Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“[A]n individual's right to vote . . . is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living [i]n other parts . . . .”). Importantly, in the context of one-person, one-vote challenges to a congressional districting plan, like the 2016 Plan, the Supreme Court has found that malapportionment causes structural harms, as well as individual harms, by contravening the legislative structure and republican principles put in place by the Framers. Wesberry, 376 U.S. at 15-18.

         Legislative Defendants assert that this Court should follow the Supreme Court's racial gerrymandering cases and deny Plaintiffs statewide standing for two reasons: (1) partisan gerrymandering cases involve the “same representational harms” as racial gerrymandering cases, and (2) “race-based claims allege a more serious violation of the Constitution than do partisan-based claims.” Leg. Defs.' Proposed Findings of Fact and Conclusion of Law (“Leg. Defs.' FOF”) 112-13, Nov. 6, 2017, ECF No. 114. As to the first argument, we agree that some of the injuries flowing from partisan gerrymandering are analogous to the injuries attributable to a racial gerrymander. For example, a plaintiff subject to an invidious partisan gerrymander is harmed by “being represented by a legislator who believes his primary obligation is to represent only the members of a particular . . . group.” Ala. Leg. Black Caucus, 135 S.Ct. at 1265 (internal quotation marks omitted). But the injuries attributable to partisan gerrymanders also meaningfully differ from those associated with racial gerrymanders. For instance, partisan gerrymandering plaintiffs do not suffer the same stigmatic and dignitary harms as those suffered by racial gerrymandering plaintiffs. And partisan gerrymandering plaintiffs endure the same dilutionary harms that permit voters residing in overpopulated districts to lodge statewide challenges in one-person, one-vote cases. See Davis v. Bandemer, 478 U.S. 109, 114, 132-33, 143 (1986) (plurality op.) (treating partisan gerrymandering as a form of “unconstitutional vote dilution”); id. at 173 (Powell, J., concurring in part and dissenting in part) (same). Additionally, like one-person, one-vote challenges to congressional districting plans, partisan gerrymanders of congressional districts produce structural harms as well as personal harms. See infra Parts II.B.1, V.

         As to the relative severity of racial and partisan gerrymandering claims, the Fourteenth Amendment no doubt prohibits unjustified reliance on race in districting. Shaw I, 509 U.S. at 657. But both the Constitution and statutes enacted by Congress permit state redistricting bodies to consider race in certain circumstances. For example, Section 2(b) of the Voting Rights Act, enacted pursuant to Congress's authority to enforce the Fifteenth Amendment, requires states to ensure that members of a protected class do not have “less opportunity than other members of the electorate to . . . elect representatives of their choice.” 52 U.S.C. § 10301(b); see also Voinovich v. Quilter, 507 U.S. 146, 154 (1993). To that end, a state may rely on race in drawing district lines when it has “good reasons to think that it would transgress the [Voting Rights] Act if it did not draw race-based district lines.” Cooper, 137 S.Ct. at 1464 (internal quotation marks omitted). Even when the Voting Rights Act does not compel states to take into account race in drawing district lines, the Supreme Court has recognized that states have an important “interest in eradicating the effects of past discrimination, ” including through their redistricting plans. Shaw I, 509 U.S. at 656. Accordingly, state legislatures involved in the “delicate task” of redistricting, see Miller, 515 U.S. at 905, can-and, in certain circumstances, should-consider the impact of a redistricting plan on minority groups, including groups of voters previously subject to race-based discrimination. And in appropriate circumstances, states may rely on race-conscious redistricting to advance the interests of members of minority groups subject to past discrimination.

         Whereas both Congress and the Supreme Court have recognized that the consideration of race in redistricting can advance constitutionally cognizable interests, Legislative Defendants offer no argument or authority, nor have we found any, identifying any legitimate state interest, let alone a constitutionally cognizable state interest, served by partisan gerrymandering-“the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Leg., 135 S.Ct. at 2658. Because race-conscious redistricting, in appropriate circumstances, can advance legitimate governmental objectives, and because partisan gerrymandering does not serve any such objective, we reject Legislative Defendants' assertion “that race-based claims allege a more serious violation of the Constitution than do partisan-based claims.” Leg. Defs.' FOF 113-14.

         Given the differences between partisan gerrymandering and racial gerrymandering claims-and the similarities between the harms associated with partisan gerrymandering and malapportionment, particularly in the case of congressional districts-we conclude that the Supreme Court's approach to standing in one-person, one-vote cases should guide the standing inquiry in partisan gerrymandering cases.[8] Under that approach, we find that both groups of Plaintiffs, some of whom reside in districts in which their votes have been diluted, have standing to challenge the 2016 Plan as a whole. Accord Whitford v. Gill, 218 F.Supp.3d 837, 927-28 (W.D. Wis. 2016) (three-judge panel) (concluding that partisan gerrymandering plaintiffs, who resided in a small minority of the districts established by a redistricting plan, had standing to challenge the redistricting plan as a whole), appeal docketed, 137 S.Ct. 2289 (2017).

         The injuries associated with Plaintiffs' First Amendment and Article I claims also support statewide standing. Partisan gerrymandering implicates the “the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment). Among other types of “burden[s]” on First Amendment rights, partisan gerrymandering “purposely dilut[es] the weight of certain citizens' votes to make it more difficult for them to achieve electoral success because of the political views they have expressed through their voting histories and party affiliations.” Shapiro v. McManus, 203 F.Supp.3d 579, 595 (D. Md. 2016) (three-judge panel). To that end, the First Amendment injury associated with partisan gerrymandering echoes the harms attributable to malapportionment. See Id. (explaining that “while a State can dilute the value of a citizen's vote by placing him in an overpopulated district, a State can also dilute the value of his vote by placing him in a particular district because he will be outnumbered by those who have affiliated with a rival political party. In each case, the weight of the viewpoint communicated by his vote is ‘debased'” (quoting Bd. of Estimate of City of N.Y. v. Morris, 489 U.S. 688, 693-94 (1989)). Partisan gerrymandering also implicates additional, non-district-specific First Amendment harms, such as infringing on the right to associate with likeminded voters to fund, attract, and elect candidates of choice. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (explaining that “[w]e have repeatedly held that freedom of association is protected by the First Amendment, ” including “the right of individuals to associate for the advancement of political beliefs”). Because the First Amendment harms attributable to partisan gerrymandering are analogous to one-person, one-vote claims and are not district-specific, we conclude that partisan gerrymandering claims under the First Amendment need not be asserted on a district-by-district basis.

         The injuries underlying Common Cause Plaintiffs' Article I claims-which allege that the 2016 Plan exceeds the General Assembly's authority under the Elections Clause and usurps the power of “the People” to elect their representatives-also do not stop at a single district's lines. Rather, like the malapportionment of congressional districts, these injuries reflect structural violations amenable to statewide standing. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808-09 (1995) (“The Convention debates make clear that the Framers' overriding concern was the potential for States' abuse of the power to set the ‘Times, Places and Manner' of elections.”); id. at 809 (“As Hamilton later noted: ‘Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy.”). Indeed, malapportionment challenges to congressional districting plans, which permit statewide standing, are governed by Article I, Section 2, one of two Article I provisions under which Common Cause Plaintiffs seek relief. See Wesberry, 376 U.S. at 7-8.

         Our conclusion that Plaintiffs may rely on statewide standing in pursuing their partisan gerrymandering claims also finds support in the facts and circumstances surrounding the General Assembly's drawing and enactment of the 2016 Plan. As reflected in the later-adopted Partisan Advantage criterion, Representative Lewis and Senator Rucho instructed Dr. Hofeller to draw a plan that would elect ten Republicans and three Democrats. Ex. 2043, at ¶ 38; Lewis Dep. 162:24-163:7; Hofeller Dep. 175:19-23, 178:14-20, 188:19-190:2. Representative Lewis further testified that he sought to draw a plan that elected as many Republican candidates as feasible. Ex. 1005, at 50:7-10. To achieve that statewide goal, the 2016 Plan sacrificed a number of district-specific objectives, such as preventing the pairing of all incumbents elected under the 2011 Plan, respecting the lines of political subdivisions, and further improving on the compactness of the districts in the 2011 Plan. See Ex. 2012, at 15-19; infra Part III.A.2.b. Accordingly, in drawing the 2016 Plan, the General Assembly sought to achieve a statewide partisan effect. In such circumstances, we find it appropriate to view the 2016 Plan as inflicting a statewide partisan injury.[9]


         Legislative Defendants next argue that Plaintiffs, at least one of whom resides in each of the thirteen districts created by the 2016 Plan, have not suffered the injuries-in-fact necessary to assert either statewide or district-by-district challenges to the plan. In particular, Legislative Defendants maintain that none of the Plaintiffs have suffered an injury-in-fact because: (1) certain Plaintiffs conceded they were able to elect the representative of their choice and (2) certain other Plaintiffs reside in districts that since 2002 have elected only a single political party's candidates.[10] We disagree.

         To begin, the 2016 Plan diluted the votes of those Plaintiffs who supported non-Republican candidates and reside in the ten districts that the General Assembly drew to elect Republican candidates. That dilution constitutes a legally cognizable injury-in-fact. See Whitford, 218 F.Supp.3d at 927 (finding evidence that “the electoral influence of plaintiffs and other Democratic voters statewide has been unfairly and disproportionately reduced” by partisan gerrymander proved the plaintiffs' injury-in-fact).

         Other Plaintiffs in the groups identified by Legislative Defendants testified to legally cognizable non-dilutionary injuries. For example, Plaintiffs in both groups testified to decreased ability to mobilize their party's base, to attract volunteers, and to recruit strong candidates. See, e.g., Dep. of Elizabeth Evans (“Evans Dep.”) 16:1-12, April 7, 2017, ECF No. 101-7; Dep. of John West Gresham (“Gresham Dep.”) 38:5-18, March 24, 2017, ECF No. 101-25; Dep. of Melzer Aaron Morgan, Jr. (“Morgan Dep.”) 22:16-19, 23:20-25, April 7, 2017, ECF No. 101-16; Palmer Dep. 27:19-23, 50:10-23; Dep. of Gunther Peck (“Peck Dep.”) 27:8-24, 34:6-20, March 22, 2017, ECF No. 101-3; Dep. of Cheryl Taft (“C. Taft Dep.”) 17:6-11, March 30, 2017, ECF No. 101-11; Dep. of Aaron J. Sarver (“Sarver Dep.”) 26:9-27:23, 34:8-15, 37:24-39:4, April 10, 2017, ECF No. 101-23; Dep. of Russell Grady Walker, Jr. (“Walker Dep.”) 29:17-30:8, April 7, 2017, ECF No. 101-27. Plaintiffs who live in districts that have consistently elected candidates from the same party also testified to voters feeling frozen out of the democratic process because “their vote never counts, ” which in turn affects voter mobilization and educational opportunities and the ability to attract strong candidates. See, e.g., Dep. of Elliott J. Feldman (“Feldman Dep.”) 27:8-22, March 24, 2017, ECF No. 101-20; Dep. of William Halsey Freeman (“Freeman Dep.”) 17:17-18:10, April 7, 2017, ECF No. 101-14; Fox Dep. 29:21-30:7, 51:18-52:9; Morgan Dep. 23:2-8; Dep. of John J. Quinn, III (“Quinn Dep.”) 38:1-39:5, April 10, 2017, ECF No. 101-22; C. Taft Dep. 17:6-11. The Supreme Court has recognized that these types of harms constitute cognizable injuries. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 792 (1983) (finding that plaintiff was injured by election law that made “[v]olunteers . . . more difficult to recruit and retain, media publicity and campaign contributions . . . more difficult to secure, and voters . . . less interested in the campaign”).

         In sum, Plaintiffs' dilutionary and non-dilutionary injuries are sufficient to ensure the sharply adversarial presentation of issues the standing doctrine contemplates. Indeed, if partisan gerrymandering “does produce a legally cognizable injury, the[se] [Plaintiffs] are among those who have sustained it. They are asserting ‘a plain, direct and adequate interest in maintaining the effectiveness of their votes.'” Baker, 369 U.S. at 208 (quoting Coleman v. Miller, 307 U.S. 433, 438 (1939)).


         Finally, Legislative Defendants argue that all of the organizational Plaintiffs lack standing. Specifically, Legislative Defendants assert that no organizational Plaintiff can rely on its members for standing nor has any organizational Plaintiff suffered injury in its own right sufficient to confer standing. However, our analysis above forecloses Legislative Defendants' arguments that individual members of the Plaintiff organizations lack standing.[11] See supra Part II.A.2. And even if Plaintiff organizations could not rely on their members' injuries to establish standing, the Plaintiff organizations each have suffered additional costs and burdens due to the 2016 Plan sufficient to establish Article III standing.

         The League, for example, seeks to educate voters regarding a fair and evenhanded democracy, which includes redistricting. Klenz Dep. 30:22-32:9. The 2016 Plan has required the League to increase those educational efforts and therefore forced the League to incur additional costs. Id. at 33:7-20, 59:7-60:25, 80:1-81:7. Common Cause engages in similar efforts, which in turn have required increased expenditures due to the 2016 Plan. 30(B)(6) Dep. of Common Cause by Bob Phillips (“Common Cause Dep.”) 64:13-25, 66:10-22, 74:6-75:15, 149:17-150:19, April 14, 2017, ECF Nos. 101-29, 110-6. Finally, the North Carolina Democratic Party testified that the 2016 Plan has made it more difficult for the party to raise resources and to recruit candidates. See Goodwin Dep. 97:18-98:9. Taken together, these specific and direct harms to each organizational Plaintiff-stemming from the 2016 Plan and which would abate if this Court invalidated the 2016 Plan-are independently sufficient to confer standing on the Plaintiff organizations. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (“[T]here can be no question that the organization has suffered injury in fact. . . . [C]oncrete and demonstrable injury to the organization's activities-with the consequent drain on the organization's resources-constitutes far more than simply a setback to the organization's abstract social interests.”); Warth v. Seldin, 422 U.S. 490, 511 (1975) (“There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.”).

         * * * * *

         In conclusion, we find that both the individual and organizational Plaintiffs have suffered injuries-in-fact attributable to the 2016 Plan, and, based on those injuries, Plaintiffs have standing to challenge the 2016 Plan as a whole. Even absent statewide standing, because Plaintiffs reside in each of the state's thirteen districts and have all suffered injuries-in-fact, Plaintiffs, as a group, have standing to lodge district-by-district challenges to the entire 2016 Plan.


         Next, Legislative Defendants argue that although partisan gerrymandering claims are justiciable “in theory, ” Plaintiffs' specific partisan gerrymandering claims should be dismissed because, as alleged and proven, they raise nonjusticiable political questions. Leg. Defs.' FOF 93. The political question doctrine dates to Justice Marshall's opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and rests on the principle that certain disputes are not appropriate for or amenable to resolution by the courts because they raise questions constitutionally reserved to the political branches, id. at 170 (“Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”).

         The political question doctrine has played a central role in apportionment cases. The Supreme Court set forth its current test for determining whether a claim raises a political question in a case dealing with the justiciability of one-person, one-vote claims. See Baker v. Carr, 369 U.S. 186 (1962). Prior to Baker, in Colegrove v. Green, 328 U.S. 549 (1946), several Justices took the position that certain apportionment challenges raised political questions because the Constitution expressly delegated authority over apportionment to the States, subject to the supervision of Congress, thereby leaving no place for judicial review.[12] Id. at 553-55.

         Baker confronted a one-person, one-vote challenge under the Equal Protection Clause to a state legislative districting plan. The Court concluded such claims were justiciable, and distinguished Colegrove on grounds that Colegrove involved a challenge under the Guaranty Clause, Article IV, Section 4, which the Court had previously held was not “the source of a constitutional standard for invalidating state action.” 369 U.S. at 209-10, 223 (citing Taylor v. Beckham, 178 U.S. 548 (1900)). In concluding that one- person, one-vote apportionment claims are justiciable, Baker held that an issue poses a political question if there is:

A textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. Applying this test, the Court concluded one-person, one-vote claims were justiciable under the Fourteenth Amendment because they involved a determination of “the consistency of state action with the Federal Constitution”-a question constitutionally assigned to the Judiciary. Id. at 226. The Court further emphasized that the resolution of the question was “judicially manageable” because “[j]udicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.” Id. The Court subsequently extended Baker's justiciability holding to one-person, one-vote challenges to congressional districts under Article I, Section 2. See Wesberry, 376 U.S. at 5-6.


         In Davis v. Bandemer, 478 U.S. 109 (1986), the Supreme Court applied the Baker framework to partisan gerrymandering claims, holding that such claims do not raise nonjusticiable political questions, see Id. at 123 (plurality op.); id. at 161-65 (Powell, J., concurring in part and dissenting in part). Writing for the Court, Justice White emphasized that the Court had previously concluded that one-person, one-vote and racial gerrymandering claims were justiciable, thereby establishing that apportionment claims implicating “issue[s] of representation” are justiciable. Id. at 124 (plurality op.). Justice White further stated that there was no reason to believe that the “standards . . . for adjudicating this political gerrymandering claim are less manageable than the standards that have been developed for racial gerrymandering claims.” Id. at 125. Although the Court recognized the justiciability of partisan gerrymandering claims under the Equal Protection Clause, a majority could not agree as to the substantive standard for proving such claims. Compare Id. at 127-37, with Id. at 161-62 (Powell, J., concurring in part and dissenting in part).

         The Court revisited the justiciability of partisan gerrymandering claims in Vieth v. Jubelirer, 541 U.S. 267 (2004). Conceding “the incompatibility of severe partisan gerrymanders with democratic principles, ” id. at 292 (plurality op.), a four-justice plurality nonetheless took the position that no judicially manageable standard exists to adjudicate partisan gerrymandering claims and therefore would have reversed Bandemer's holding of justiciability, id. at 281. Justice Kennedy agreed with the plurality that the Vieth plaintiffs had failed to put forward a legally cognizable standard for evaluating partisan gerrymandering claims, therefore warranting dismissal of the action for failure to allege “a valid claim on which relief may be granted.” Id. at 306, 313 (Kennedy, J., concurring in the judgment). But Justice Kennedy rejected the plurality's conclusion that partisan gerrymandering claims are categorically nonjusticiable. See id. at 309-10. And the remaining four Justices agreed with Justice Kennedy's refusal to reverse Bandemer's justiciability holding. Id. at 317 (Stevens, J., dissenting) (“[F]ive Members of the Court . . . share the view that, even if these appellants are not entitled to prevail, it would be contrary to precedent and profoundly unwise to foreclose all judicial review of similar claims that might be advanced in the future.”). Two years later, the Supreme Court again refused to revisit Bandemer's holding that partisan gerrymandering claims are justiciable. League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 414 (2006).

         Accordingly, under controlling Supreme Court precedent, a challenge to an alleged partisan gerrymander presents a justiciable case or controversy. See Common Cause, 240 F.Supp.3d at 387. For good reason.

         As the Supreme Court recently held, “‘[p]artisan gerrymanders . . . [are incompatible] with democratic principles.'” Ariz. State Leg., 135 S.Ct. at 2658 (quoting Vieth, 541 U.S. at 292 (plurality op.)). That statement accords with the unanimous conclusion of the Justices in Vieth. See 541 U.S. at 292 (plurality op.) (recognizing “the incompatibility of severe partisan gerrymanders with democratic principles”); id. at 312, 316-17 (Kennedy, J., concurring) (“If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles, ' we would surely conclude the Constitution had been violated.”); id. at 326 (Stevens, J., dissenting) (“State action that discriminates against a political minority for the sole and unadorned purpose of maximizing the power of the majority plainly violates the decisionmaker's duty to remain impartial”); id. at 345 (Souter, J., dissenting) (“[T]he increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.”); id. at 360 (Breyer, J., dissenting) (holding that redistricting plan violates Constitution if it amounts to an “unjustified use of political factors to entrench a minority in power”).

         On its most fundamental level, partisan gerrymandering violates “the core principle of republican government . . . that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S.Ct. at 2677 (internal quotation marks omitted); see also Powell v. McCormack, 395 U.S. 486, 540-41 (1969) (“[T]he true principle of a republic is, that the people should choose whom they please to govern them.” (quoting Alexander Hamilton in 2 Debates of the Federal Constitution 257 (J. Elliott ed. 1876))). Put differently, partisan gerrymandering represents “‘an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.'” LULAC, 548 U.S. at 456 (Stevens, J., concurring in part and dissenting in part) (quoting Balderas v. Texas, Civ. Action No. 6:01CV158, App. to Juris. Statement 209a-10a (E.D. Tex. 2006)).

         Partisan gerrymandering runs contrary to both the structure of the republican form of government embodied in the Constitution and fundamental individual rights preserved by the Bill of Rights. As detailed more fully below, partisan gerrymandering of congressional districts constitutes a structural violation because it insulates Representatives from having to respond to the popular will, and instead renders them responsive to state legislatures or political factions thereof. See infra Part V. Unlike the Senate, which, at the time of the founding, represented the interests of the States, the Framers intended for the House of Representatives to be the governmental body directly responsive to “the People.” U.S. Const. art. I, § 2; see also Wesberry, 376 U.S. at 13 (explaining that “William Samuel Johnson of Connecticut had summed [the Great Compromise] up well: ‘in one branch the people, ought to be represented; in the other, the States'”). As James Madison explained, “it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the [House of Representatives] should have an immediate dependence on, and an intimate sympathy with, the people.” See The Federalist No. 52 (James Madison), at 295 (Clinton Rossiter ed., 1999) (emphasis added). On this point, both the Federalists and Anti-Federalists agreed. See, e.g., James Madison, Notes of Debates in the Federal Convention of 1787 39 (W. W. Norton & Co. 1987) (1787) (hereinafter “Debates”) (reporting that George Mason “argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the government.”); id. at 167 (reporting that James Wilson stated that he “considered the election of the first branch by the people not only as the corner Stone, but as the foundation of the fabric: and that the difference between a mediate and immediate election was immense”).

         Emphasizing that the House of Representatives was the repository of the People's power, the Framers repeatedly expressed concern about state legislatures, or political factions thereof, interposing themselves between Representatives and the People. For example, James Madison explained that “[i]t is essential” that a Republican government “derive[ its powers] from the great body of society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic.” The Federalist No. 39 (James Madison), at 209 (second emphasis added); Debates at 40 (reporting that James Wilson stated that “[a]ll interference between the general and local government should be obviated as much as possible”). The Framers expressed particular concern that State legislatures would seek to influence Congress by enacting electoral regulations that favored candidates aligned with, and responsive to, the interests of the legislatures, rather than the public at large. See Debates at 167 (reporting that Rufus King expressed concern that “the Legislatures would constantly choose men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that would be subversive of the end in view”). Surveying these and other founding-era authorities, the Supreme Court recognized that “[i]t would defeat the principle solemnly embodied in the Great Compromise . . . to hold that, within the states, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others.” Wesberry, 376 U.S. at 14. Partisan gerrymandering-drawing district lines to enhance the electoral power of voters who support a favored party and diminish the electoral power of voters who support disfavored parties-amounts to a legislative effort “to give some voters a greater voice in choosing a Congressman than others, ” id., contrary to the republican system put in place by the Framers.

         Partisan gerrymandering also runs afoul of rights that “are individual and personal in nature, ” Reynolds, 377 U.S. at 561, because it subverts the foundational constitutional principle that the State govern “impartially”-that “the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis, 478 U.S. at 166 (Powell, J., concurring in part and dissenting in part); see also infra Part III. And partisan gerrymandering infringes on core political speech and associational rights by “burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment); see also infra Part IV.

         That partisan gerrymandering encroaches on these individual rights by undermining the right to vote-the principle vehicle through which the public secures other rights and prevents government overreach-magnifies the constitutional harm. As the Supreme Court explained in Wesberry, “[o]ur Constitution leaves no room for classification of people in a way that unnecessarily abridges [the right to vote]” because “[o]ther rights, even the most basic, are illusory if the right to vote is undermined.” 376 U.S. at 17-18. To that end, the Supreme Court long has held that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

         A partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. And as James Madison warned, a legislature that is itself insulated by virtue of an invidious gerrymander can enact additional legislation to restrict voting rights and thereby further cement its unjustified control of the organs of both state and federal government.[13] See Debates at 424 (“[T]he inequality of the Representation in the Legislatures of particular States, would produce like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter.”). That is precisely what occurred in the late Eighteenth Century when Democratic legislatures used aggressive partisan gerrymanders to secure Democratic control of the House of Representatives and then, by virtue of that control, restrict earlier federal efforts to enforce the Fifteenth Amendment in the South, thereby facilitating the return of de jure and de facto segregation. See Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 94-121 (2013).

         The Constitution sharply curtails restrictions on electoral speech and the right to vote because, in our republican form of democracy, elected representatives in power have a strong incentive to enact legislation or policies that preserve their position, at the expense of public interest. As Justice Scalia explained, “[t]he first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech.” McConnell v. Fed. Election Comm'n, 540 U.S. 93, 263 (2003) (Scalia, J., concurring in part and dissenting in part). Casting a vote and associating with a political party are among the most fundamental forms of “election-time speech.” See Williams, 393 U.S. at 30 (recognizing “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively”); Reynolds, 377 U.S. at 555 (“The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”); Alexander Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 254 (1961) (“The revolutionary intent of the First Amendment is . . . to deny to [the government] authority to abridge the freedom of the electoral power of the people.”). Partisan gerrymandering is no different than legislative efforts to curtail other forms of election-time speech because in both cases “[p]oliticians have deep-seated incentives to bias translation of votes into seats.” Engstrom, supra at 192. Accordingly, because partisan gerrymandering encroaches on individuals' right to engage in “election-time speech”-including the right to vote-allegations of partisan gerrymandering “must be carefully and meticulously scrutinized” by the judiciary. Reynolds, 377 U.S. at 562.

         Because partisan gerrymandering targets voting rights, the deference to the policy judgments of the political branches animating the political question doctrine is inapplicable. In Wesberry, the defendant state asserted that claims premised on malapportionment of congressional districts raise political questions because the Elections Clause-which empowers state “Legislatures, ” subject to congressional regulation, to “prescribe[] . . . The Times, Places and Manner of holding Elections for . . . Representatives”-textually commits apportionment questions to Congress and the States. 376 U.S. at 6-7. In rejecting that argument, the Supreme Court refused to “support . . . a construction [of the Elections Clause] that would immunize state congressional apportionment laws which debase a citizen's right to vote from the power of courts to protect the constitutional rights of individuals from legislative destruction, a power recognized at least since our decision in Marbury v. Madison.” Id. “The right to vote is too important in our free society to be stripped of judicial protection by such an interpretation of Article I, ” the Court held. Id.

         Further, “a textually demonstrable constitutional commitment” of authority to a coordinate branch provides the strongest basis for treating a claim as a political question. Vieth, 541 U.S. at 278 (plurality op.) (characterizing the “textually demonstrable constitutional commitment” test as the most “importan[t] and certain[]” test for the existence of a political question). Given that the Supreme Court has recognized that the importance of the right to vote warrants not treating malapportionment claims as political questions, notwithstanding the alleged textual commitment of such claims in the Elections Clause, a purported lack of judicially manageable standards provides an even weaker basis for “stripp[ing] of judicial protection” the right to vote when a legislature seeks to destroy that right through partisan gerrymandering.[14] Wesberry, 376 U.S. at 6-7.

         Importantly, and contrary to Legislative Defendants' claims, the judiciary's refusal to treat alleged infringements on the right to vote-like claims of partisan gerrymandering-as political questions reflects an effort to advance the interests served by the political question doctrine, rather than usurp the role of the political branches. As the Supreme Court has explained, “[t]he voting rights cases, indeed, have represented the Court's efforts to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes, not the assumption of a continuing judicial review of substantive political judgments entrusted expressly to the coordinate branches of government.” Gilligan v. Morgan, 413 U.S. 1, 11 (1973). Put differently, because the judiciary jealously protects the right to vote-and thereby ensures that the People retain the means to counteract any encroachment by the political branches on substantive individual rights-the judiciary can give the political branches greater latitude to make substantive policy decisions. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 102 (1980) (explaining that by “devoting itself instead to policing the mechanisms by which [our constitutional] system seeks to ensure that our elected representatives will actually represent, ” the judiciary “recognizes the unacceptability of the claim that appointed and life-tenured judges are better reflectors of conventional values than elected representatives”).

         In sum, partisan gerrymandering infringes on a variety of individual rights and does so by targeting the right to vote-the constitutional mechanism through which the People repel legislative encroachment on their rights. The Supreme Court has long recognized that when the Constitution preserves individual rights, courts have an obligation to enforce those rights. Marbury, 5 U.S. at 166 (“[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”). We find no basis to disregard that obligation here.

         Notably, the State defendant in Reynolds made arguments against judicial oversight of state redistricting similar to those advanced by Legislative Defendants here-namely, that it is improper for courts to embroil themselves in inherently political issues and that courts lack the capability of identifying a judicially manageable standard to determine whether, and to what degree, malapportionment violates the Constitution. Rejecting each of these arguments, the Supreme Court reaffirmed the principle first recognized by Chief Justice Marshall in Marbury: “We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.” Reynolds, 377 U.S. at 566. Our oath and our office impose that same obligation here.

         Legislative Defendants nonetheless argue that, regardless of whether partisan gerrymandering claims are justiciable “in theory, ” this Court should dismiss Plaintiffs' claims as nonjusticiable because Plaintiffs have failed to put forth a “judicially manageable standard” for resolving their claims. Leg. Defs.' Br. 2, 11, 17; Leg. Defs.' FOF 93. Legislative Defendants argue that the analytical frameworks and empirical analyses advanced by Plaintiffs fail to provide a judicially manageable standard for three reasons. First, Legislative Defendants assert that Plaintiffs' legal frameworks and expert analyses fail to address, much less resolve, what Legislative Defendants see as the fundamental question bearing on the constitutionality of partisan gerrymandering: “how much politics is too much politics in redistricting”? Leg. Defs.' Br. 2, 9-11. Second, Legislative Defendants argue that the empirical analyses on which Plaintiffs rely-which Legislative Defendants characterize as “a smorgasbord of alleged ‘social science' theories”-lack any constitutional basis, and instead amount to “academically inspired proposed judicial amendments to the Constitution.” Id. at 2, 17. Finally, Legislative Defendants maintain that allowing the judiciary to strike down a redistricting plan as a partisan gerrymander would interfere with the political branches' decision, rendered pursuant to Congress's authority under the Election Clause, to require election of representatives from single-member districts. Id. at 13. We reject all three arguments.


         Legislative Defendants' assertion that any judicially manageable partisan gerrymandering framework must distinguish “reasonable” partisan gerrymandering from “too much” partisan gerrymandering rests on the premise that some degree of partisan gerrymandering-again, defined by the Supreme Court as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power, ” Ariz. State Leg., 135 S.Ct. at 2658-is permissible. To justify that premise, Legislative Defendants assert that (1) historical practice indicates that the Framers viewed some amount of partisan gerrymandering as constitutionally permissible and (2) the Supreme Court repeatedly has sanctioned at least some degree of partisan gerrymandering. Neither claim is correct.

         As to the historical pedigree of partisan gerrymanders, Legislative Defendants, like the plurality in Vieth, correctly note that partisan gerrymanders date to the colonial era. See Leg. Defs.' Br. 17; 541 U.S. at 274 (plurality op.). And without question, several notorious partisan gerrymanders were drawn soon after the Founding, including the “salamander”-shaped state legislative district attributed to Massachusetts Governor Elbridge Gerry in 1812 that gave rise to the term “gerrymander.” Vieth, 541 U.S. at 274; Engstrom, supra at 21 (“Partisan collisions over districting pervaded the early republic, and even had antecedents in the colonial legislatures”). State legislatures gerrymandered state legislative and congressional districts to favor one party or candidate at the expense of another in a variety of ways: through the manipulation of district lines; by using regional or state-wide, multi-member districts, as opposed to single-member districts; and, most commonly, by creating districts with unequal population. Engstrom, supra at 22-23.

         Neither founding-era records nor historical practice, however, supports Legislative Defendants' contention that the Framers viewed some level of partisan gerrymandering as constitutionally acceptable. Rather, “the Constitution did not contemplate the rise of political parties-indeed, it was designed to discourage their emergence-let alone the modern era's highly integrated national and state parties.” Richard H. Pildes, Foreword, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 81 (2004). Given that the Framers sought to discourage the rise of political parties, there is no basis to find, as Legislative Defendants suggest, that the Framers intended to allow elected members of a political party to draw district lines so as to undermine the electoral prospects of their opposition.

         On the contrary, founding-era records reflect a concerted effort by the Framers to forestall the enactment of election regulations that would favor one party or faction at the expense of others. This concern is most evident in the Framers' debates regarding whether, and to what extent, the federal government should be empowered to displace States' authority to administer and regulate congressional elections. On the one hand, James Madison argued that “the Legislatures of the States ought not to have the uncontrouled right of regulating the times places and manner of holding elections [as i]t was impossible to foresee all the abuses that might be made of the discretionary power.” Debates at 423. “Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed, ” Madison explained. Id. at 424 (emphasis added). Likewise, Alexander Hamilton argued that the federal government should have some supervisory authority over the States' regulation of elections because there was no reason to believe that “it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests.” The Federalist No. 61, at 342 (Alexander Hamilton) (Clinton Rossiter ed., 1999) (emphasis added).

         On the other hand, delegates who opposed federal intrusion on state regulation of elections saw such intrusion “as an avenue through which Congress might perpetuate itself in power or . . . institute unfair at-large voting methods in the states so as to favor particular interests.” Jamal Greene, Note, Judging Partisan Gerrymanders Under the Elections Clause, 114 Yale L.J. 1021, 1036 (2005) (emphasis added). Thus, although the delegates disagreed as to whether, and to what extent, to lodge authority over the regulation of congressional elections in the federal government, they were united in their view that the Constitution should be drafted to minimize the possibility that political bodies would adopt electoral regulations that favored particular parties or factions. See Note, A New Map: Partisan Gerrymandering as a Federalism Injury, 117 Harv. L. Rev. 1196, 1201 (2004). Significantly, delegates at the Constitutional Convention sought to design the Constitution so as to prevent Congress from being plagued by “what Madison called the ‘vicious representation' in Great Britain whereby ‘rotten boroughs' with few inhabitants were represented in Parliament on or almost on a par with cities of greater population.” Wesberry, 376 U.S. at 14-15.

         Notwithstanding the Framers' efforts to prevent the formation of political parties and partisan gerrymandering, the early Nineteenth Century saw the rise of political parties, and with that rise, several notable partisan gerrymanders. Engstrom supra 21-42. But the founding generation did not view such gerrymanders as constitutionally permissible. On the contrary, such gerrymanders were widely criticized as antidemocratic. For example, the newspaper cartoon that coined the term “GerryMander” described partisan redistricting as “a grievous wound on the Constitution, -it in fact subverts and changes our form of Government, which ceases to be Republican as long as an Aristocratic House of Lords under the form of a Senate tyrannizes over the People, and silences and stifles the voice of the Majority.” The Gerry-Mander, or Essex South District Formed into a Monster!, Salem Gazette, Apr. 2, 1813. Numerous other Nineteenth-Century partisan gerrymanders faced similar condemnation from politicians, the press, the judiciary, and the public. See Br. of Amici Curiae Historians in Supp. of Appellees at 23-34, Gill v. Whitford, No. 16-1161 ( S.Ct. Sept. 5, 2017).

         Even if founding-era practice did support Legislative Defendants' assertion that some degree of partisan gerrymandering was viewed as permissible-which it does not- long-standing, and even widespread, historical practice does not immunize governmental action from constitutional scrutiny. See Reynolds, 377 U.S. at 582 (holding that malapportionment of state legislative districts violates Equal Protection Clause, notwithstanding that malapportionment was widespread in Nineteenth and Twentieth Centuries). That is particularly true when, as here, the legal bases for challenging the conduct were unavailable at the time of the Founding. See Id. The Equal Protection Clause, which fundamentally altered the relationship between the States and the federal government, post-dates the founding era by decades. See Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976) (“There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States.”); Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 715 (4th Cir. 2016) (Wilkinson, J.) (“Of course, the Reconstruction Amendments . . . materially altered the division of labor [between the federal government and the States] established by the Framers for the regulation of elections.”). Likewise, the Supreme Court did not recognize the incorporation of the First Amendment against the States through the Fourteenth Amendment until 1943. See Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943). And until the Reconstruction Congress adopted Section 1983, there was no basis for a plaintiff to challenge a congressional redistricting plan as a partisan gerrymander under Article I or any other federal constitutional provision. See The Enforcement Act of 1871, 17 Stat. 13 (1871), codified as amended at 42 U.S.C. § 1983.

         Accordingly, even if some degree of partisan gerrymandering had been acceptable during the founding era, that does not mean that the ratification of the Fourteenth Amendment and the incorporation of the First Amendment against the States did not subsequently render unconstitutional the drawing of district lines to frustrate the electoral power of supporters of a disfavored party. That is precisely what the Supreme Court concluded in holding that racial gerrymandering and malapportionment violated the Constitution, notwithstanding that both practices were widespread during the Nineteenth and early Twentieth Centuries. See Reynolds, 377 U.S. at 556 n.30, 567 n.43; Gomillion v. Lightfoot, 364 U.S. 339, 345-46 (1960).

         Legislative Defendants' contention that the Supreme Court has sanctioned some degree of partisan gerrymandering-the drawing of district lines to undermine the electoral prospects of supporters of candidates of a disfavored party-fares no better. To be sure, the Supreme Court has recognized certain purposes for which a state redistricting body may take into account political data or partisan considerations in drawing district lines. For example, in appropriate circumstances, a legislature may draw district lines to avoid the pairing of incumbents. See Karcher v. Daggett, 462 U.S. 725, 740 (1983). Likewise, the Supreme Court has held that a state redistricting body does not violate the Constitution by seeking “to create a districting plan that would achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties.” Gaffney, 412 U.S. at 752. And the Supreme Court has recognized that a redistricting body may draw district lines to respect political subdivisions or maintain “communities of interest.” Abrams v. Johnson, 521 U.S. 74, 100 (1997).

         But the Supreme Court's acceptance of state legislatures' reliance on partisan considerations and political data for certain purposes does not establish that a state legislature may pursue any partisan objective, as Legislative Defendants contend. In particular, the Supreme Court has never recognized that a legislature may draw district lines for the purpose of diminishing or minimizing the voting strength of supporters of a particular party or citizens who previously voted for representatives of a particular party-the legislative action challenged here. On the contrary, the Supreme Court recently held that such efforts are “[incompatible] with democratic principles.” Ariz. State Leg., 135 S.Ct. at 2658 (alteration original); see also Reynolds, 377 U.S. at 578-79 (condemning “[i]ndiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, [as] little more than an open invitation to partisan gerrymandering” (emphasis added)). And in approving the “proportionality” gerrymander in Gaffney, the Court expressly distinguished gerrymanders that seek “to minimize or eliminate the political strength of any group or party.”[15] 412 U.S. at 754; see also Id. at 751 (“A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed to minimize or cancel out the voting strength of racial or political elements of the voting population.” (emphasis added) (internal quotation marks omitted)). Likewise, the Supreme Court did not include burdening or punishing citizens for voting for candidates from an opposing party among its list of “legitimate” redistricting factors that justify deviating from population equality in congressional districts. See Harris v. Ariz. Indep. Redistricting Comm'n, 136 S.Ct. 1301, 1306-07 (2016).

         In sum, neither historical practice nor Supreme Court precedent supports Legislative Defendants' assertion that it is sometimes permissible for a state redistricting body to draw district lines for the purpose of burdening voters who supported or are likely to support a disfavored party or candidate. Because the Constitution does not authorize state redistricting bodies to engage in such partisan gerrymandering, a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an “acceptable” level of partisan gerrymandering from “excessive” partisan gerrymandering. Vieth, 541 U.S. at 316 (Kennedy, J., concurring in the judgment) (recommending against “a standard that turns on whether partisan interests in the redistricting process were excessive” because a government body is “culpable” regardless of whether it seeks to maximize its partisan advantage or “proceeds by a more subtle effort, capturing less than all the seats in each State”). Rather, the framework must distinguish partisan gerrymandering from the results of legitimate districting objectives, including those objectives that take into account political data or permissible partisan considerations. Put differently, “[a] determination that a gerrymander violates the law must rest . . . on a conclusion that [political] classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307. As explained below, we conclude that Plaintiffs' proposed legal frameworks and supporting evidence do just that.


         Legislative Defendants next argue that the empirical analyses introduced by Plaintiffs do not offer a judicially manageable standard for adjudicating partisan gerrymandering claims, but instead are “a smorgasbord of alleged ‘social science' theories” that lack any constitutional basis. Leg. Defs.' Br. 2. As detailed more fully below, Plaintiffs offer two groups of empirical analyses to support their Equal Protection and First Amendment claims. The first group of analyses relies on thousands of computer-generated districting plans that conform to most traditional redistricting criteria, including those relied on by the General Assembly in drawing the 2016 Plan. According to Plaintiffs, when these plans are evaluated using the precinct-by-precinct results of recent North Carolina elections, the 2016 Plan is an “extreme statistical outlier” with regard to the degree to which it disfavors voters who oppose Republican candidates. See infra Parts III.A.2.b, III.B.2.c. Plaintiffs assert that these analyses prove that the General Assembly intended to burden voters who supported non-Republican candidates and that the 2016 Plan had the effect of burdening such voters. The second group of analyses assess the 2016 Plan's “partisan symmetry”-whether the plan allows supporters of the two principal parties to translate their votes into representation with equal effectiveness. See infra Part III.B.2.b. According to Plaintiffs, a variety of measures of the 2016 Plan's partisan symmetry reveal that, throughout the life of the plan, supporters of non-Republican candidates will likely have a significantly more difficult time translating their votes into representation.

         Legislative Defendants are correct that none of these empirical analyses appear in the Constitution. But Plaintiffs need not show that a particular empirical analysis or statistical measure appears in the Constitution to establish that a judicially manageable standard exists to resolve their constitutional claims. See, e.g., Brown v. Thomson, 462 U.S. 835, 842-43 (1983) (holding that “an apportionment plan with a maximum population deviation under 10% falls within th[e] category” of “minor deviations . . . from mathematical equality among state legislative districts [that] are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment, ” notwithstanding that the plain language of the Constitution references no such statistical threshold). Rather, Plaintiffs must identify cognizable constitutional standards to govern their claims, and provide credible evidence that Defendants have violated those standards. And contrary to Legislative Defendants' assertions, Plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward to support their claims, nor does this Court do so. Instead, Plaintiffs argue that these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards-that the government act impartially, not infringe the right to vote, and not burden individuals based on the exercise of their rights to political speech and association.

         The Supreme Court long has relied on statistical and social science analyses as evidence that a defendant violated a standard set forth in the Constitution or federal law. In the context of the Equal Protection Clause, in particular, the Supreme Court has relied on statistical and social science evidence as proof that a government action was motivated by discriminatory intent or had a discriminatory effect-the same purposes for which Plaintiffs seek to use such evidence here. For example, in Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court held that an ordinance providing a municipal board of supervisors with the discretion to grant or withhold its consent to use wooden buildings as laundries, although neutral on its face, was administered in a manner that discriminated on the basis of national origin, id. at 366, 374. As proof, the Court noted that the board withheld consent from 200 individuals, “all of whom happen to be Chinese subjects, ” whereas “eighty others, not Chinese subjects, [we]re permitted to carry on the same business under similar conditions.” Id. at 374.

         Likewise, in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the Supreme Court cited numerous academic studies of the psychological impact of segregation on children and youth as evidence that “[s]eparate educational facilities are inherently unequal, ” and therefore violate the Equal Protection Clause, id. at 494-95 & n.11. And the Supreme Court has recognized that “[s]tatistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination in access to service on governmental bodies.” Mayor of Phila. v. Educ. Equal. League, 415 U.S. 605, 620 (1974). The Court also embraced the use of statistical evidence to determine whether a governmental body was justified, under the Fourteenth Amendment, in using “race-based measures to ameliorate the effects of past discrimination.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 476-77 (1989) (plurality op.); see also Id. at 509 (“[E]vidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a local government's determination that broader remedial relief is justified.”).

         The Supreme Court has relied on statistical and social science evidence in cases involving voting rights and redistricting, in particular. For example, to support their racial gerrymandering claim, the plaintiffs in Gomillion alleged that the City of Tuskegee, Alabama, redrew its municipal boundaries “to remove from the city all save only four or five of its 400 Negro voters while not removing a single white voter or resident.” 364 U.S. at 341. The Court concluded that the plaintiffs alleged adequate facts to support a claim under the Equal Protection Clause, explaining that “[i]f these allegations upon a trial remain uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters.” Id. (emphasis added). More recently, the Court relied on statistical analyses to strike down as unconstitutional the coverage formula in Section 4(b) of the Voting Rights Act, citing evidence that the gap between white and black voter registration percentages had fallen substantially since Congress first adopted the coverage formula in 1965, as had the percentage of proposed voting changes facing objections from the Attorney General. Shelby Cty. v. Holder, 133 S.Ct. 2612, 2626 (2013). And of particular note, in its decision holding that the 2011 Plan constituted a racial gerrymander, the Supreme Court in part relied on an expert statistical analysis-which found that the General Assembly disproportionately moved blacks into the racially gerrymandered districts, even when controlling for party registration-as proof that the General Assembly predominantly relied on race, rather than partisan considerations, in drawing district lines. Cooper, 137 S.Ct. at 1477-78.

         Contrary to Legislative Defendants' assertion that Plaintiffs must identify a specific empirical test derived from the language of the Constitution to prove the existence of a judicially manageable standard to adjudicate their constitutional claims, in none of these cases did the Supreme Court hold that the particular statistical or social science analyses upon which it relied had-or had to have-constitutional pedigree, or that the plaintiff had to identify a specific empirical threshold, across which the relevant constitutional provision would be violated. For example, the Gomillion Court did not state that a statistical analysis revealing that the municipal boundary plan had fenced out, say, only 80 percent of blacks, as opposed to 99 percent, would be inadequate to establish a constitutional violation. Nor did the Court require that the plaintiffs identify the particular percentage of fenced-out blacks at which a boundary plan would violate the Equal Protection Clause. Likewise, the Brown Court did not point to any specific constitutional basis for its reliance on psychological research demonstrating the impact of segregation on children and youth, nor did it require the plaintiffs to identify a specific degree of adverse psychological impact necessary to support an Equal Protection claim. And the Shelby County Court did not require the states seeking invalidation of the coverage formula to identify a specific gap between white and black voter registration percentages or a specific percentage of proposed voting changes facing objections from the Attorney General at which Congress would be constitutionally barred from displacing the states' rights to administer elections. Rather, in all of the cases, the Supreme Court treated the empirical analyses as evidence of a violation of an established constitutional standard-that governmental entities must act impartially, that governmental entities must not invidiously discriminate based on race or national origin, that the federal government may not interfere in traditional areas of state authority absent a compelling justification, and that the federal government must have a legitimate reason for subjecting certain states to more intrusive scrutiny than others.

         Contrary to Legislative Defendants' assertion, therefore, courts are not foreclosed from considering statistical analyses and “‘social science' theories” as evidence of a violation of a constitutional or statutory standard. Leg. Defs.' Br. 2. But that does not mean courts must blindly accept such analyses either. On the contrary, in all cases courts play an essential gatekeeping role in ensuring that an expert analysis-including each analysis introduced by Plaintiffs and Legislative Defendants-is sufficiently reliable, in that it “is based on sufficient facts or data, ” “is the product of reliable principles and methods, ” and the principles and methods have “been reliably applied . . . to the facts of the case.” Fed.R.Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). And when, as here, the court also serves as the finder-of-fact, the court must carefully weigh empirical evidence, and discount such evidence's probative value if it fails to address the relevant question, lacks rigor, is contradicted by more reliable and compelling evidence, or is otherwise unworthy of substantial weight.

         Here, in arguing that Plaintiffs' empirical evidence fails to provide a judicially manageable standard for adjudicating their claims, Legislative Defendants identify what they see as a number of specific flaws, limitations, and weaknesses of that evidence-that the partisan asymmetry measures cannot be applied in all states, that the simulated maps fail to take into account certain criteria on which the General Assembly relied, that several of the analyses rely on hypothetical election results, to name a few. Although we ultimately find these objections either unfounded or insufficiently compelling to overcome the significant probative value of the analyses, see infra Part III, these are fair criticisms. But-as evidenced by their consistent placement of “social science” in quotation marks and their characterization of Plaintiffs' evidence as “academically inspired”-Legislative Defendants' judicial manageability argument appears to rest on a more cynical objection: that we should dismiss Plaintiffs' actions as nonjusticiable simply because much of the evidence upon which Plaintiffs' rely has its genesis in academic research and is the product of an effort by scholars to apply novel, and sometimes complex, methodological approaches to address a previously intractable problem. To the extent Legislative Defendants are in fact making such an argument, it fails as a matter of both fact and law.

         As a matter of fact, Legislative Defendants are correct that the application of Plaintiffs' empirical methods to redistricting, to date, has largely occurred in academic research. But see Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 344 (4th Cir. 2016) (relying on analysis of hundreds of computer-simulated districting plans as evidence that population deviations in municipal districting plan were attributable to illegitimate partisan purpose rather than legitimate redistricting objectives); Whitford, 218 F.Supp.3d at 890-906 (relying on predictions of vote percentages based on historical election data, a “uniform swing analysis, ” and a measure of partisan asymmetry to conclude Wisconsin legislative redistricting plan adversely affected representational rights of non-Republican voters). But the empirical methods themselves have been developed and broadly applied inside and outside of academia to address a wide variety of problems. For example, Dr. Jowei Chen, a political science professor at the University of Michigan, testified that the computational algorithms and statistical theories he used in generating simulated redistricting plans to assess the partisan performance of the 2016 Plan are used by logistics companies to optimize their distribution chains. Trial Tr. II, at 25:2-24. And other empirical methods on which Plaintiffs' expert witnesses relied are broadly used by governments, the business community, and academia in a variety of other fields ranging from national defense, to public safety, to finance, and to health care. Br. Amicus Curiae Eric S. Lander in Supp. of Appellees 23-25, Gill v. Whitford, No. 16-1161 ( S.Ct. Aug. 31, 2017).

         To hold that such widely used, and relied upon, methods cannot provide a judicially manageable standard for adjudicating Plaintiffs' partisan gerrymandering claims would be to admit that the judiciary lacks the competence-or willingness-to keep pace with the technical advances that simultaneously facilitate such invidious partisanship and provide an opportunity to remedy it. See Vieth, 541 U.S. at 312-13 (Kennedy, J., concurring in the judgment) (explaining that advances in technology in redistricting pose both a “threat”-because technology increases “the temptation to use partisan favoritism in districting”-and a “promise”-because “these new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties”). But “the Constitution forbids ‘sophisticated as well as simpleminded modes of discrimination.'” Reynolds, 377 U.S. at 563 (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939)). Accordingly, the judiciary likewise has an obligation to keep pace with technological and methodological advances so it can effectively fulfill its constitutional role to police ever-more sophisticated modes of discrimination.

         As a legal matter, the empirical analyses' sophistication and genesis in academic research also do not preclude this Court from concluding that Plaintiffs' claims are judicially manageable. To be sure, the statistical analyses and social science theories used by Plaintiffs' experts are more advanced than the bare descriptive statistics upon which the Supreme Court relied in Yick Wo, Gomillion, and Shelby County. But the Court has not hesitated to accept sophisticated or novel empirical methods as evidence. For example, in Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court endorsed the use of “extreme case analysis and bivariate ecological regression analysis, ” id. 52-53, in determining whether an electoral district exhibits “racially polarized” voting, within the meaning of Section 2 of the Voting Rights Act, id. at 61 (plurality op.). Notably, both forms of analysis derived from social science literature, as did the definition of “racially polarized” voting adopted by the Court. Id. at 53 nn.20-21. Outside of the voting context, the Supreme Court has embraced new social science theories and empirical analyses to resolve a variety of constitutional and statutory disputes. See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 881-82, 889-92 (2007) (appealing to “the theoretical literature” and a variety of economic analyses to support its decision to reverse century-old precedent treating vertical price restraints as a per se violation of the Sherman Act); Utah v. Evans, 536 U.S. 452, 465 (2002) (holding that Census Bureau's use of “hot-deck imputation” to conduct decennial census did not violate census statute or the Constitution, relying on the “technical literature” to ...

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