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Covington v. State

United States District Court, M.D. North Carolina

January 19, 2018

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

          Before WYNN, Circuit Judge, and SCHROEDER, Chief District Judge, and EAGLES, District Judge.

          MEMORANDUM OPINION AND ORDER

          PER CURIAM.

         On August 11, 2016, this Court held that the North Carolina General Assembly unjustifiably relied on race to draw dozens of state Senate and House of Representatives district lines, in violation of the Equal Protection Clause of the Fourteenth Amendment. Covington v. North Carolina (Covington I), 316 F.R.D. 117 (M.D. N.C. 2016). The Supreme Court summarily affirmed, without dissent, that determination. North Carolina v. Covington, 137 S.Ct. 2211 (2017) (mem.).

         On August 31, 2017, the North Carolina General Assembly enacted Senate and House redistricting plans (the “2017 Plans”) intended to remedy the constitutional violations. Plaintiffs, thirty-one North Carolina voters, lodged objections to 12 of the 116 proposed remedial districts, arguing that those districts failed to remedy the identified racial gerrymanders or were otherwise legally unacceptable. Finding 9 of Plaintiffs' 12 objections potentially had merit, this Court appointed Dr. Nathaniel Persily of Stanford University as Special Master (the “Special Master”) to assist the Court in redrawing those 9 district configurations (the “Subject Districts”). Thereafter, the Special Master filed draft reconfigurations of the 9 districts for the parties' consideration, invited and considered comments and objections from the parties, and revised his draft plan in light of those comments and objections.

         On December 1, 2017, the Special Master submitted to the Court recommended remedial plans (the “Recommended Plans”) for the Subject Districts, as well as a report explaining his process for drawing the Recommended Plans and why the Recommended Plans remedy the identified legal problems with the Subject Districts. As further explained below, after careful consideration of the 2017 Plans, the Special Master's report, and the parties' evidence, briefing, and oral arguments, we sustain Plaintiffs' objections to the Subject Districts, approve the Special Master's Recommended Plans for reconfiguring those districts, reject Plaintiffs' challenge to one Senate district, and decline to consider Plaintiffs' remaining objections.[1]

         I.

         In early 2011, the North Carolina General Assembly set out to redraw state Senate and House districts to account for changes in population and demographic data revealed in the most recent decennial census. See N.C. Const. art. II, §§ 3, 5. As the appointed chairs of the redistricting committees in their respective chambers, Senator Robert Rucho and Representative David Lewis (collectively, the “Chairs”), both Republicans, led efforts to draw and enact legislative districting maps for use in state elections in North Carolina (the “2011 Plans”). Covington I, 316 F.R.D. at 126. To that end, Representative Lewis and Senator Rucho engaged the assistance of an outside expert, Dr. Thomas Hofeller, to draw the new Senate and House district maps. Id.

         Senator Rucho and Representative Lewis instructed Dr. Hofeller to follow three “primary” criteria in drawing the new districting plans, all of which “centered around the creation of what the Chairs called ‘VRA districts'”-geographically compact minority population centers for which there was some evidence of a history of racially polarized voting. Id. at 130. The first criterion required that Dr. Hofeller “draw all purported VRA districts to reach a 50%-plus-one [Black Voting Age Population (“BVAP”)] threshold.” Id. This instruction stemmed from Senator Rucho's and Representative Lewis's belief that the Supreme Court's plurality opinion in Bartlett v. Strickland, 556 U.S. 1 (2009), required that any district drawn to comply with the Voting Rights Act be majority-minority. Id.

         Second, Senator Rucho and Representative Lewis directed Dr. Hofeller to draw the so-called “VRA districts” first. Id. at 131. This instruction derived from the North Carolina Supreme Court's opinions in Stephenson v. Bartlett (Stephenson I), 562 S.E.2d 377 ( N.C. 2002) and Stephenson v. Bartlett (Stephenson II), 582 S.E.2d 247 ( N.C. 2003), both of which sought to harmonize federal election law with the North Carolina Constitution's so-called “Whole County Provision, ” N.C. Const. art. II, §§ 3(3), 5(3), which requires that, where possible, legislative district lines adhere to county lines, Covington, 316 F.R.D. at 131-32. According to the Chairs, the Stephenson decisions required Dr. Hofeller to identify and draw any VRA districts first. Id.

         Third, Senator Rucho and Representative Lewis instructed Dr. Hofeller to draw VRA districts “everywhere there was a minority population large enough to do so and, if possible, in rough proportion to their population in the state.” Id. at 130. This instruction again derived from the Chairs' incorrect understanding of governing law. In particular, Senator Rucho and Representative Lewis errantly believed that the Supreme Court's decision in Johnson v. De Grandy, 512 U.S. 999 (1994), held that in order to comply with Section 2 of the Voting Rights Act, the number of majority-minority districts in a state must be proportional to minority voters' share of the state's overall voting population. Covington, 316 F.R.D. at 133. Although the Chairs did not expressly instruct Dr. Hofeller to maximize the number of VRA districts, “the proportionality target functionally operated as a goal to maximize the number of majority-black districts.” Id. at 134.

         Senator Rucho and Representative Lewis further instructed Dr. Hofeller that any districting proposal had to comply with these three “primary” criteria, two of which-the 50%-plus-one target and the proportionality goal-amounted to “‘mechanical racial targets.'” Id. at 135 (quoting Ala. Legislative Black Caucus v. Alabama, 135 S.Ct. 1257, 1267 (2015)). In accordance with Senator Rucho's and Representative Lewis's instructions, Dr. Hofeller first “drew VRA ‘exemplar districts, ' which were ‘racially defined' in that they embodied nothing more than ‘concentrations of minority voters' capable of constituting a district that could satisfy the 50%-plus-one BVAP threshold.” Id. at 135 (quoting Trial Tr. vol. IV, 228:5-12 (Hofeller); Trial Tr. vol. V, 104:4-105:1 (Hofeller)). By drawing, where feasible, district lines around the black population centers identified in the “exemplar districts, ” Dr. Hofeller then constructed as many majority-black districts as possible. Id. at 136-37.

         Because the Chairs had instructed Dr. Hofeller that the three “primary” criteria could not be compromised, in drawing the districting plans Dr. Hofeller subordinated other race-neutral districting principles such as preserving political subdivisions and communities of interest, compactness, and complying with state districting laws such as the Whole County Provision. Id. at 137-39. As a result of the decision to adhere to the Chairs' mechanical racial targets over traditional race-neutral districting principles, the number of majority-black districts in Dr. Hofeller's proposed state House map increased from nine to thirty-two. Id. at 126, 134, 137. Similarly, the number of majority-black districts in the proposed state Senate map increased from zero to nine. Id. at 126. The state Senate and House considered and adopted, with minor modifications, the 2011 Plans on July 27 and 28, 2011, respectively. Id.

         Soon after the General Assembly approved the 2011 Plans, North Carolina voters filed actions in state court alleging that the lines of numerous legislative districts enacted by the General Assembly amounted to unconstitutional racial gerrymanders, in violation of the North Carolina and United States Constitutions. See Dickson v. Rucho, 766 S.E.2d 238 ( N.C. 2014), vacated, 135 S.Ct. 1843 (2015) (mem.). A divided Supreme Court of North Carolina held that both the Senate and House districting plans satisfied all “state and federal constitutional and statutory requirements.” Dickson, 766 S.E.2d at 260. In April 2015, the Supreme Court of the United States unanimously vacated the state court's ruling without opinion and remanded the case for reconsideration of the federal constitutional and statutory questions presented in light of the Supreme Court's recent decision in Alabama Legislative Black Caucus. Dickson, 135 S.Ct. 1843. On remand, the Supreme Court of North Carolina again concluded that the 2011 Plans complied with federal law. Dickson v. Rucho, 781 S.E.2d 404 ( N.C. 2015), vacated, 137 S.Ct. 2186 (2017).

         While litigation in state court continued, Plaintiffs initiated this action in May 2015. Covington I, 316 F.R.D. at 128. As in the ongoing state court action, Plaintiffs alleged that districts in the 2011 Plans constituted racial gerrymanders and thus violated the Fourteenth Amendment of the U.S. Constitution. First Am. Compl. at 2, July 24, 2015, ECF No. 11. To remedy the alleged constitutional violation, Plaintiffs sought an injunction barring further use of the challenged districts in the 2011 Plans and requiring the General Assembly to adopt constitutionally compliant plans for use in any future elections. Id. at 92-93. Plaintiffs named as Defendants: (1) the State of North Carolina; (2) Senator Rucho, Representative Lewis, President Pro Tempore of the North Carolina Senate Philip E. Berger, and Speaker of the North Carolina House of Representatives Timothy K. Moore (collectively, the “Legislative Defendants”); and (3) the North Carolina State Board of Elections, as well as each of the five members of that body (collectively, the “Board Defendants”).

         On August 11, 2016, this Court unanimously concluded that Defendants unjustifiably, and therefore unconstitutionally, predominantly relied on race in drawing the lines of twenty-eight majority-minority districts in the 2011 Plans. Covington I, 316 F.R.D. at 176. In particular, this Court concluded that Defendants lacked a “strong basis in evidence” for their belief that race-based districting was necessary to comply with Section 2 of the Voting Rights Act because Defendants never analyzed whether, for each challenged district, the presence of “racial bloc voting . . . would enable the majority usually to defeat the minority group's candidate of choice.” Id. at 167 (citing Thornburg v. Gingles, 478 U.S. 30, 51 (1986)). On June 5, 2017, the Supreme Court summarily affirmed, without dissent, this Court's judgment that the Senate and House districting plans violated Plaintiffs' rights under the Fourteenth Amendment. Covington, 137 S.Ct. 2211. Notwithstanding that this Court had found the district lines violated the Constitution in August 2016 and that the Supreme Court affirmed that conclusion in early June 2017, the General Assembly made no effort to begin drawing remedial districting plans until late July 2017.

         After obtaining jurisdiction from the Supreme Court, this Court received evidence, briefing, and argument regarding the appropriate remedy for the constitutional violations. In an order entered on July 31, 2017, this Court gave the General Assembly until September 1, 2017, “to enact new House and Senate districting plans remedying the constitutional deficiencies” with the districts found unconstitutional in this Court's August 2016 opinion and order. Covington v. North Carolina (Covington III), ___ F.Supp.3d. ___, 2017 WL 3254098, at *3 (M.D. N.C. 2017). This Court advised that it would extend this deadline until September 15, 2017, if the General Assembly made certain showings regarding the public nature of its redistricting process. Id. The order further explained that the Court selected the September deadlines to ensure that it would have adequate time “(1) to review the General Assembly's enacted remedial district plans, and (2) if the enacted plans prove constitutionally deficient, to draw and impose its own remedial plan.” Id. In the same order, and as further explained in a subsequent opinion, this Court denied Plaintiffs' request for a special election. Id. at *2; see also Covington v. North Carolina (Covington IV), ___ F.Supp.3d. ___, 2017 WL 4162335 (M.D. N.C. 2017).

         Electing not to make the public showings necessary to obtain an extension of the deadline, the General Assembly's Senate Redistricting Committee and House Select Committee on Redistricting (collectively, the “Joint Committee”) put in place a streamlined process designed to ensure enactment of remedial plans in advance of the September 1, 2017 deadline. Representative Lewis and Senator Ralph Hise, who had replaced Senator Rucho as chair of the Senate Redistricting Committee, again engaged Dr. Hofeller to assist the Joint Committee's Republican supermajority in drawing the remedial maps.

         The Joint Committee met on August 10, 2017, during which Representative Lewis and Senator Hise proposed the following criteria to govern the drawing of the remedial district plans:

Equal Population.
The Committees shall use the 2010 federal decennial data as the sole basis of population for drawing legislative districts in the 2017 House and Senate plans. The number of persons in each legislative district shall comply with the 5 percent population deviation standard established [Stephenson I].
Contiguity.
Legislative districts shall be comprised of contiguous territory. Contiguity by water is sufficient.
County Groupings and Traversals.
The Committees shall draw legislative districts within county groupings as required by [Stephenson I, Stephenson II, Dickson I, and Dickson II]. With county groupings, county lines shall not be traversed except as authorized by Stephenson I, Stephenson II, Dickson I, and Dickson II.
Compactness.
The Committees shall make reasonable efforts to draw legislative districts in the 2017 House and Senate plans that improve the compactness of the current districts. In doing so, the Committees may use as a guide the minimum Reock (“dispersion”) and Polsby-Popper (“perimeter”) scores identified by Richard H. Pildes and Richard G. Neimi in Expressive Harms, “Bizarre Districts, ” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993).
Fewer Split Precincts.
The Committees shall make reasonable efforts to draw legislative districts in the 2017 House and Senate plans that split fewer precincts than the current legislative redistricting plans.
Municipal Boundaries.
The Committees may consider municipal boundaries when drawing legislative districts in the 2017 House and Senate plans.
Incumbency Protection.
Reasonable efforts and political considerations may be used to avoid pairing incumbent members of the House or Senate with another incumbent in legislative districts drawn in the 2017 House and Senate plans. The Committees may make reasonable efforts to ensure voters have a reasonable opportunity to elect non-paired incumbents of either party to a district in the 2017 House and Senate plans.
Election Data.
Political considerations and election results data may be used in the drawing of legislative districts in the 2017 House and Senate plans.
No Consideration of Racial Data.
Data identifying the race of individuals or voters shall not be used in the drawing of legislative districts in the 2017 House and Senate plans.

         Adopted Criteria for House and Senate Plans, Sept. 7, 2017, ECF No. 184-37.

         During the hearing, Democratic members of the Joint Committee objected to the Incumbency Protection criterion as likely to perpetuate the effects of the racial gerrymander by protecting incumbents elected under the racially gerrymandered plans. See, e.g., Joint Select Comm. On Redistricting Meeting Tr. 120:9-121:9, Aug. 10, 2017, ECF No. 184-9 (“[I]t seems just ridiculous to me that [the Republican majority] would get to now say we get to protect the members that we were able to elect using unconstitutional maps.”). Likewise, Democratic Joint Committee members expressed concern with the “Election Data” criterion on grounds that the purpose of using such data was unclear and that such data would be used to preserve the partisan makeup of the two chambers achieved under the unconstitutional districting plans. See, e.g., id. at 134:13- 139:2. In the course of the discussion on the use of Election Data, Representative Lewis represented that the Joint Committee's Republican leadership did not “have a goal of maintaining the current partisan advantage in the House and the Senate.” Id. at 138:15- 21. And Democratic Joint Committee members objected to the criterion barring consideration of “racial data” on grounds that it was necessary to consider such data to determine whether remedial plans remedied the racial gerrymander. See, e.g., id. at 151:6-11 (“[I]f the districts were declared unconstitutional because of race, if you don't use race to correct it, how are you going to show the Court that they still are not unconstitutional.”).

         The Joint Committee unanimously adopted the Equal Population and County Groupings and Traversal criteria. Leg. Defs.' Resp. to Pls.' Objs. (“Leg. Defs.' Objs. Resp.”) 8-10, Sept. 22, 2017, ECF No. 192. The remaining seven criteria were adopted by party-line votes. Id. Representative Lewis and Senator Hise directed Dr. Hofeller to follow the adopted criteria in drawing the remedial maps, but the Committee provided Dr. Hofeller with no formal guidance as to the relative precedence of the various criteria. House Select Comm. On Redistricting Meeting Tr. 62:4-6, Aug. 25, 2017, ECF No. 184-18. Legislative Defendants did not introduce any evidence regarding what additional instructions, if any, Representative Lewis or Senator Hise provided to Dr. Hofeller about the proper use and weighting of the various criteria. Nor did they offer any evidence as to how Dr. Hofeller weighted or ordered the criteria in drawing the proposed remedial maps, either in general or as to any particular district.

         The General Assembly released Dr. Hofeller's proposed Senate and House Plans on August 19 and 20, 2017, respectively. The General Assembly provided block assignment files and statistical information regarding the 2017 Plans on August 21, 2017. The 2017 Plans altered a total of 116 of the 170 state House and Senate districts. On August 22, 2017, the Joint Committee held a public hearing on the proposed plans in Raleigh, allowing attendees at six satellite locations to participate via teleconference. The Committees also received thousands of public comments through the General Assembly's website.

         On August 23, 2017, Plaintiffs sent a letter to the House Select and Senate Committees on Redistricting and Defendants' counsel raising the following objections to the 2017 Plans: (1) several of the proposed districts failed to remedy the racial gerrymander; (2) the plans, when analyzed as a whole, amounted to “grossly unconstitutional partisan gerrymanders” in violation of the Equal Protection Clause; (3) the House plan's reconfiguration of certain districts in Mecklenburg and Wake County untainted by the racial gerrymander violated the North Carolina Constitution's prohibition on mid-decade redistricting; and (4) proposed district configurations in Cabarrus and Greene Counties violated the North Carolina Constitution's requirement that, where possible, state legislative districts respect county lines. Letter to Counsel, Sept. 15, 2017, ECF No. 187-1. Plaintiffs also provided the Committees with alternative maps that addressed Plaintiffs' objections, and Democratic representatives offered those maps as amendments during the legislative process.

         The Committees did not revise the proposed remedial plans to address Plaintiffs' objections and rejected Plaintiffs' alternative redistricting plans. By party-line vote, the Senate Redistricting Committee approved Dr. Hofeller's proposed Senate plan on August 24, 2017. The House Redistricting Committee approved Dr. Hofeller's proposed House plan on August 25, 2017, also by a party-line vote. The General Assembly adopted, with minor modifications, both 2017 Plans on August 31, 2017.

         One week later, Legislative Defendants filed with this Court the 2017 Plans and supporting data and materials required by the Court's July 31 order, including the complete legislative record. On September 15, 2017, Plaintiffs filed objections to 12 of the 116 redrawn districts, alleging essentially the same violations that they had identified in their August 23, 2017 letter to Defendants and the Committees. Objs. (“Pls.' Objs.”), Sept. 15, 2017, ECF No. 187. Along with their objections, Plaintiffs filed several supporting records, affidavits, and expert analyses. One week later, Legislative Defendants responded to Plaintiffs' objections, asserting that this Court was without jurisdiction to consider the objections and that the objections otherwise were without merit. See generally Leg. Defs.' Objs. Resp. The State of North Carolina and Board Defendants (collectively, the “State Defendants”) took no position on Plaintiffs' objections.

         On October 12, 2017, this Court held a hearing on Plaintiffs' objections. This Court gave Legislative Defendants the opportunity to introduce evidence-in addition to the legislative record, data, and other materials submitted in accordance with the Court's July 31, 2017 order-and present witnesses to establish that the General Assembly's proposed remedial plans cured the identified constitutional violations and were not otherwise legally unacceptable. Legislative Defendants elected not to offer any such evidence, either in written submissions or at the hearing.

         That same day, the Court issued an order directing the parties to confer and, if possible, jointly submit a list of three persons qualified to serve as a special master under Federal Rule of Civil Procedure 53 to assist the Court in its remedial efforts. Order, Oct. 12, 2017, ECF No. 200. The order further stated that if the parties failed to reach an agreement as to a list of candidates, the Court would select a special master. Id. The parties subsequently informed the Court that they had conferred but failed to reach an agreement as to the requested list of special master candidates. Notice, Oct. 18, 2017, ECF No. 201.

         On October 26, 2017, the Court informed the parties that, after carefully considering Plaintiffs' objections, it was concerned that nine district configurations in the 2017 Plans either failed to remedy the identified constitutional violations or were otherwise legally unacceptable. Order, Oct. 26, 2017, ECF No. 202. The Court further informed the parties that in light of its concerns, it intended to appoint Dr. Nathaniel Persily of Stanford University as Special Master to assist the Court by drawing alternative remedial districting plans. Id. The Court gave the parties an opportunity to object to the appointment of Dr. Persily. Id. Pursuant to the Court's invitation, Legislative Defendants objected to the appointment of a special master and Dr. Persily, in particular, but they did not identify any alternative candidate to serve as special master. Obj., Oct. 30, 2017, ECF No. 204.

         In a November 1, 2017 order, the Court overruled Legislative Defendants' objections and appointed Dr. Persily as Special Master. Order (“Appointment Order”), Nov. 1, 2017, ECF No. 206. The Appointment Order described the Court's concerns with the Subject Districts and set forth the scope of the Special Master's responsibilities. Id. The Appointment Order also directed the Special Master to adhere to the following guidelines in redrawing Subject Districts:

a. Redraw district lines for [2011 Enacted Senate Districts 21 and 28 and House Districts 21, 33, 38, 57, 99, 102, and 107] and any other districts within the applicable 2017 county grouping necessary to cure the unconstitutional racial gerrymanders. As to House District 57, the redrawn lines shall also ensure that the unconstitutional racial gerrymanders in 2011 Enacted House Districts 58 and 60 are cured. As to 2011 Enacted House Districts 33, 38, 99, 102, and 107, no 2011 Enacted House Districts which do not adjoin those districts shall be redrawn unless it is necessary to do so to meet the mandatory requirements set forth in Paragraphs 2(b) through 2(e) of this Order, and if the Special Master concludes that it is necessary to adjust the lines of a non-adjoining district, the Special Master shall include in his report an explanation as to why such adjustment is necessary.
b. Use the 2010 Federal Decennial Census Data.
c. Draw contiguous districts with a population as close as possible to 79, 462 persons for the House Districts and 190, 710 persons for the Senate Districts, though a variance up to 5% is permitted and authorized if it would not conflict with the primary obligations to ensure that remedial districts remedy the constitutional violations and otherwise comply with state and federal law, would enhance compliance with state policy as set forth in subsection (f) below, and would not require redrawing lines for an additional district.
d. Adhere to the county groupings used by the General Assembly in the 2017 Enacted Senate and House Plans.
e. Subject to any requirements imposed by the United States Constitution or federal law, comply with North Carolina constitutional requirements including, without limitation, the Whole County Provision as interpreted by the North Carolina Supreme Court.
f. Make reasonable efforts to adhere to the following state policy objectives, so long as adherence to those policy objectives does not conflict with the primary obligations of ensuring that remedial districts remedy the constitutional violations and otherwise comply with state and federal law:
i. Split fewer precincts than the 2011 Enacted Districts;
ii. Draw districts that are more compact than the 2011 Enacted Districts, using as a guide the minimum Reock (“dispersion”) and Polsby-Popper (“perimeter”) scores identified by Richard Pildes & Richard Neimi, Expressive Harms, “Bizarre Districts, ” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993); and
iii. Consider municipal boundaries and precinct lines.
g. After redrawing the districts, in view of the policy decision by the General Assembly that efforts to avoid pairing incumbents are in the interest of North Carolina voters, the Special Master may adjust district lines to avoid pairing any incumbents who have not publicly announced their intention not to run in 2018, but only to the extent that such adjustment of district lines does not interfere with remedying the constitutional violations and otherwise complying with federal and state law. Additionally, the Special Master shall treat preventing the pairing of incumbents as “a distinctly subordinate consideration” to the other traditional redistricting policy objectives followed by the State. Ga. State Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs, 996 F.Supp.2d 1353, 1363 (N.D.Ga. 2014) (collecting cases).
h. Except as authorized in Paragraph 2(g), the Special Master shall not consider incumbency or election results in drawing the districts. See, e.g., Wise v. Lipscomb, 437 U.S. 535, 541 (1978) (noting that courts lack “political authoritativeness” and must act “in a manner free from any taint of arbitrariness or discrimination” in drawing remedial districts) (quoting Connor v. Finch, 431 U.S. 408, 417 (1977)); Wyche v. Madison Par. Police Jury, 769 F.2d 265, 268 (5th Cir. 1985) (“Many factors, such as the protection of incumbents, that are appropriate in the legislative development of an apportionment plan have no place in a plan formulated by the courts.”); Wyche v. Madison Par. Police Jury, 635 F.2d 1151, 1160 (5th Cir. 1981) (noting that “a court is forbidden to take into account the purely political considerations that might be appropriate for legislative bodies”); Favors v. Cuomo, Docket No. 11-cv-5632, 2012 WL 928216, at *18 (E.D.N.Y. Mar. 12, 2012), report and recommendation adopted as modified, No. 11-cv-5632, 2012 WL 928223, at *6 (E.D.N.Y Mar. 19, 2012); Molina v. Cty. of Orange, No. 13CV3018, 2013 WL 3039589, at *8 (S.D.N.Y. June 3, 2013), supplemented, No. 13CV3018, 2013 WL 3039741 (S.D.N.Y. June 13, 2013), report and recommendation adopted, No. 13 CIV. 3018 ER, 2013 WL 3009716 (S.D.N.Y. June 14, 2013); Larios v. Cox, 306 F.Supp.2d 1214, 1218 (N.D.Ga. 2004); Balderas v. Texas, No. 6:01CV158, 2001 WL 36403750, at *4 (E.D. Tex. Nov. 14, 2001).
i. The Special Master may consider data identifying the race of individuals or voters to the extent necessary to ensure that his plan cures the unconstitutional racial gerrymanders and otherwise complies with federal law.

Id. The Appointment Order further directed the Special Master to submit to the Court by December 1, 2017, a report that included reconfigured districting plans for each of the Subject Districts, an explanation of those plans, and a comparison of those plans with the related districts in the 2017 Plans and districts submitted by Plaintiffs. Id.

         Pursuant to the Court's Appointment Order, the Special Master immediately set out to draw new configurations for the Subject Districts. On November 14, 2017, the Special Master disclosed to the parties and filed with the Court draft reconfigurations of the Subject Districts as well as an explanation of his rationale behind those reconfigurations. Special Master's Draft Plan and Order, Nov. 14, 2017, ECF No. 213. In accordance with the Court's Appointment Order, the Special Master's draft plan made no effort to avoid pairing incumbents. Id. at 4. Rather, the Special Master ordered the parties to submit objections and proposed revisions to the draft plan, including suggestions “as to how incumbents shall be unpaired without degrading the underlying features of the [draft] plan.” Id. at 19.

         Pursuant to the Special Master's order, Plaintiffs submitted comments on the Special Master's draft plan on November 17, 2017, stating, inter alia, that they believed the draft plan remedied the constitutional flaws with the subject districts. Pls.' Resp. & Proposed Modifications to the Special Master's Draft Plan, Nov. 17, 2017, ECF No. 216. Plaintiffs further suggested several approaches the Special Master could take in revising his draft plans to avoid pairing incumbents in some, but not all, of the reconfigured districts. Id.

         By contrast, Legislative Defendants elected not to raise any objection to specific aspects of the Special Master's draft plan or offer suggestions as to how the Special Master could improve his draft plan or avoid pairing incumbents, representing that they lacked authority under State law to advise the Special Master on the drawing of remedial districts. Leg. Defs.' Response to Special Master's Draft Rep. (“Leg. Defs.' Draft Rep. Resp.”) 5, Nov. 17, 2017, ECF No. 215 (explaining that “the legislative defendants do not themselves speak for the entire General Assembly” and therefore that “[a] few members of the legislature, even if they are leaders, are not authorized to state how the entire legislature would vote on, or amend, draft districts proposed by a law professor”). Rather than offering any substantive comments or suggestions regarding the Special Master's draft plan, Legislative Defendants elected to renew their objections to this Court's jurisdiction and the Special Master's authority to draw remedial districts. See generally id.

         In response, Plaintiffs asserted that Legislative Defendants' jurisdictional arguments were without merit. Pls.' Resp. to Leg. Defs.' Nov. 17, 2017 Filing, Nov. 21, 2017, ECF No. 217. The Legislative Defendants then objected to Plaintiffs' suggestions for unpairing incumbents on grounds that the suggestions served to benefit Democratic candidates and recommended that the Special Master advise the Court to adopt the General Assembly's 2017 Plans in full, rather than his proposed remedial plans. Leg. Defs.' Resp. to Pls.' Proposed Modifications to Special Master's Draft Plan, Nov. 21, 2017, ECF No. 218.

         On December 1, 2017, after receiving comments and suggestions from the parties, the Special Master filed with this Court his Recommended Plan and Report and numerous supporting materials. Special Master's Rec. Plan & Rep. (“Rec. Plan & Rep.”), Dec. 1, 2017, ECF No. 220. In his 69-page report, the Special Master presented his Recommended Plans for the Subject Districts and thoroughly explained how those configurations conformed to the Court's guidelines and advanced traditional redistricting criteria; described how the Recommended Plans addressed the Court's concerns with the Subject Districts and cured the constitutional violations with the related districts in the 2011 Plans; explained why his remedial configurations were superior to those proposed by Plaintiffs; and offered alternative configurations to address several potential concerns with his Recommended Plans. See generally Id. Notwithstanding that Legislative Defendants elected not to suggest how incumbents should be unpaired-and categorically objected to Plaintiffs' suggestions for unpairing certain incumbents-the Special Master's Recommended Plans avoids pairing all but two of the incumbents-one Republican and one Democrat-in his reconfigured districts and did not pair any incumbents of the same party. Id. at 30, 37.

         On December 8, 2017, Plaintiffs notified the Court that they had no objections to the Special Master's Recommend Plan. Pls.' Pos. on the Special Master's Recommended Plan, Nov. 8, 2017, ECF No. 223. That same day, Legislative Defendants filed with the Court numerous objections to the Special Master's Recommended Plan and Report, Leg. Defs.' Resp. to Special Master's Recommended Plan & Report (“Leg. Defs.' Rec. Plan Resp.”), Nov. 8, 2017, ECF No. 224, notwithstanding that Legislative Defendants had previously represented that they lacked authority under state law to comment on or provide suggestions regarding the Special Master's reconfigurations, Leg. Defs.' Draft Rep. Resp. 5. Legislative Defendants maintained that the Recommended Plans “reveal[] the [S]pecial Master's single-minded focus on race” and that the recommended districts, if adopted by the Court, would “impose on the State a racial gerrymander that favors one political party.” Leg. Defs.' Rec. Plan Resp. at 2-3. Although Legislative Defendants had offered no substantive suggestions to the Special Master regarding his earlier draft plan, Legislative Defendants raised several district-specific objections to the Recommended Plans and argued that the 2017 Plans were superior to the Recommended Plans. Id. at 8-17. Finally, Legislative Defendants objected to the Special Master's unpairing of Democratic incumbents, but appeared to acquiesce in the Special Master's unpairing of Republican incumbents. Id. at 20 (“The special master agreed to allow plaintiffs' requests and submitted a final plan that un-pairs numerous Democratic incumbents, even where doing so required him to make changes to his draft districts in a way that did not improve the scoring of the districts under traditional redistricting principles.”).

         On January 5, 2017, the Court held a hearing during which the Special Master presented his Recommended Plans and addressed numerous questions raised by the parties. At the hearing, Legislative Defendants also introduced expert and testimonial evidence pertaining to alleged infirmities with the Recommended Plans. Having carefully reviewed the 2017 Plans; the Special Master's Recommended Plan and Report, and the materials appended thereto; and the parties' evidence, briefing, and oral arguments, we sustain ...


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