United States District Court, M.D. North Carolina
WYNN, Circuit Judge, and SCHROEDER, Chief District Judge, and
EAGLES, District Judge.
MEMORANDUM OPINION AND ORDER (AMENDED)
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.).
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 identified its concerns and
appointed Dr. Nathaniel Persily of Stanford University as
Special Master (the “Special Master”) to assist
the Court in evaluating and, if necessary, redrawing those 9
district configurations (the “Subject Districts”)
in light of the fast-approaching filing period for the 2018
elections. 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.
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
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.
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
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.
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.
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.
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.
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).
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”).
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
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).
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.
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
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
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.
Criteria for House and Senate Plans, Sept. 7, 2017, ECF No.
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
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.
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
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
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.
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'
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
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.
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.
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
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
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.
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 Corrected 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.
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.
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.
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, offered some criticisms, 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.
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.
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
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 Plaintiffs'
objections to the Subject Districts and approve and adopt the
Special Master's Recommended Plans for reconfiguring
addressing the merits of Plaintiffs' objections to
certain districts in the 2017 Plans, including the Subject
Districts, we first must address several threshold arguments
made by Legislative Defendants, which seek to circumscribe
the scope of this Court's review of the General
Assembly's proposed 2017 Plans. In particular,
Legislative Defendants argue that: (1) the enactment of the
2017 Plans rendered this action moot; (2) this Court's
review of the 2017 Plans extends, at most, to determining
whether the plans corrected the racial gerrymander; (3) this
Court lacks jurisdiction under the three-judge panel statute
to consider any of Plaintiffs' objections other
than the racial gerrymandering allegations that initially
served as the basis of this panel's jurisdiction; and (4)
this Court may not, as a matter of federalism, consider
Plaintiffs' state law objections. We address each of
these arguments in turn.
Defendants first contend that the General Assembly's
enactment of the new districting plans rendered this case
moot. Leg. Defs.' Objs. Resp. 19-21. In particular,
Legislative Defendants argue that because the districting
plans that served as the basis of Plaintiffs' challenge
have been replaced, “[P]laintiffs no longer have a
concrete stake in the outcome of the case.”
Id. at 20. This argument is without merit.
Supreme Court long has held that when a federal court
concludes that a state districting plan violates the
Constitution, the appropriate state redistricting body should
have the first opportunity to enact a plan remedying the
constitutional violation. Reynolds v. Sims, 377 U.S.
585, 586 (1964). But after finding unconstitutional
race-based discrimination-as this Court did here-a district
court also has a “duty” to ensure that any remedy
“so far as possible eliminate[s] the discriminatory
effects of the past as well as bar[s] like discrimination in
the future.” Louisiana v. United States, 380
U.S. 145, 154 (1965); see also, e.g., Lane v.
Wilson, 307 U.S. 268, 275 (1939) (holding invalid
State's proposed remedy for state constitutional
provision that violated the Fifteenth Amendment because it
“part[ook] too much of the infirmity” of the
original unconstitutional provision). To that end, if the
state fails to enact “a constitutionally
acceptable” remedial districting plan, then “the
responsibility falls on the District Court.”
Chapman v. Meier, 420 U.S. 1, 27 (1975); see
also Reynolds, 377 U.S. at 586 (holding that a district
court “acted in a most proper and commendable
manner” by imposing its own remedial districting plan,
after the district court concluded that remedial plan adopted
by state legislature failed to remedy constitutional
accordance with Chapman and Reynolds, the
U.S. Court of Appeals for the Fourth Circuit has held that
when, as here, a state enacts a redistricting plan in an
effort to remedy a constitutional violation, a district court
must “consider whether the proffered remedial plan is
legally unacceptable because it violates anew constitutional
or statutory voting rights-that is, whether it fails to meet
the same standards applicable to an original challenge of a
legislative plan in place.” McGhee v. Granville
Cty., N.C. , 860 F.2d 110, 115 (4th Cir. 1988). Numerous
other courts have reached the same conclusion-federal courts
must review a state's proposed remedial
districting plan to ensure it completely remedies the
identified constitutional violation and is not otherwise
legally unacceptable. See, e.g., Large v.
Fremont Cty., Wyo., 670 F.3d 1133, 1138, 1148-49 (10th
Cir. 2012) (rejecting governmental entity's proposed
districting plan to remedy Voting Rights Act violation
because it failed to comply with state law); Ketchum v.
Byrne, 740 F.2d 1398, 1411-12 (7th Cir. 1984) (rejecting
governmental entity's proposed remedial districting plan
because it failed to completely remedy Voting Rights Act
violation); Williams v. City of Texarkana, Ark., 32
F.3d 1265, 1268 (8th Cir. 1994) (“If an appropriate
legislative body offers a remedial plan, the court must defer
to the proposed plan unless the plan does not completely
remedy the violation or the proposed plan itself constitutes
a . . . violation [of the Voting Rights Act].”
(emphasis added)); Harris v. McCrory, No.
1:13-cv-949, 2016 WL 3129213, at *2 (M.D. N.C. June 2, 2016)
(holding, in racial gerrymandering case, that a district
court “must determine whether the legislative remedy
enacted at its behest is in fact a lawful substitute for the
original unconstitutional plan”); United States v.
Osceola Cty., Fla., 474 F.Supp.2d 1254, 1258 (M.D. Fla.
2006) (rejecting governmental body's remedial districting
plan because it was “not a full and adequate
remedy” of the identified Voting Rights Act violation).
we emphasize that the General Assembly redrew the Subject
Districts pursuant to the opportunity provided by this
Court's order to “enact new House and Senate
districting plans remedying the constitutional
deficiencies.” Covington III, 2017 WL 3254098,
at *3. It is axiomatic that this Court has the inherent
authority to enforce its own orders. See, e.g.,
Carlisle v. United States, 517 U.S. 416, 438 (1996)
(noting that “[e]xamples of the exercise of the federal
courts' inherent powers are abundant in both our civil
and our criminal jurisprudence” and collecting cases);
see also Degen v. United States, 517 U.S. 820, 827
(1996); Spagnuolo v. Whirlpool Corp., 717 F.2d 114,
122 (4th Cir. 1983). This is especially so here, given that
the state constitution prohibited the General Assembly from