Harper v. Hall ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-121
No. 413PA21
Filed 16 December 2022
REBECCA HARPER; AMY CLARE OSEROFF; DONALD RUMPH; JOHN
ANTHONY BALLA; RICHARD R. CREWS; LILY NICOLE QUICK; GETTYS
COHEN, JR.; SHAWN RUSH; JACKSON THOMAS DUNN, JR.; MARK S.
PETERS; KATHLEEN BARNES; VIRGINIA WALTERS BRIEN; and DAVID
DWIGHT BROWN
v.
REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House
Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his
official capacity as Co-Chair of the Senate Standing Committee on Redistricting
and Elections; SENATOR RALPH HISE, in his official capacity as Co-Chair of the
Senate Standing Committee on Redistricting and Elections; SENATOR PAUL
NEWTON, in his official capacity as Co-Chair of the Senate Standing Committee
on Redistricting and Elections; SPEAKER OF THE NORTH CAROLINA HOUSE
OF REPRESENTATIVES, TIMOTHY K. MOORE; PRESIDENT PRO TEMPORE
OF THE NORTH CAROLINA SENATE, PHILIP E. BERGER; THE NORTH
CAROLINA STATE BOARD OF ELECTIONS; and DAMON CIRCOSTA, in his
official capacity
NORTH CAROLINA LEAGUE OF CONSERVATION VOTERS, INC.; HENRY M.
MICHAUX, JR.; DANDRIELLE LEWIS; TIMOTHY CHARTIER; TALIA FERNÓS;
KATHERINE NEWHALL; R. JASON PARSLEY; EDNA SCOTT; ROBERTA
SCOTT; YVETTE ROBERTS; JEREANN KING JOHNSON; REVEREND
REGINALD WELLS; YARBROUGH WILLIAMS, JR.; REVEREND DELORIS L.
JERMAN; VIOLA RYALS FIGUEROA; and COSMOS GEORGE
v.
REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House
Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his
official capacity as Co-Chair of the Senate Standing Committee on Redistricting
and Elections; SENATOR RALPH E. HISE, JR., in his official capacity as Co-Chair
of the Senate Standing Committee on Redistricting and Elections; SENATOR
PAUL NEWTON, in his official capacity as Co-Chair of the Senate Standing
Committee on Redistricting and Elections; REPRESENTATIVE TIMOTHY K.
HARPER V. HALL
2022-NCSC-121
Opinion of the Court
MOORE, in his official capacity as Speaker of the North Carolina House of
Representatives; SENATOR PHILIP E. BERGER, in his official capacity as
President Pro Tempore of the North Carolina Senate; THE STATE OF NORTH
CAROLINA; THE NORTH CAROLINA STATE BOARD OF ELECTIONS;
DAMON CIRCOSTA, in his official capacity as Chairman of the North Carolina
State Board of Elections; STELLA ANDERSON, in her official capacity as
Secretary of the North Carolina State Board of Elections; JEFF CARMON III, in
his official capacity as Member of the North Carolina State Board of Elections;
STACY EGGERS IV, in his official capacity as Member of the North Carolina State
Board of Elections; TOMMY TUCKER, in his official capacity as Member of the
North Carolina State Board of Elections; and KAREN BRINSON BELL, in her
official capacity as Executive Director of the North Carolina State Board of
Elections
Appeal pursuant to N.C.G.S. § 7A-27(b)(1) from the unanimous decision of a
three-judge panel entered on 23 February 2022 in the Superior Court, Wake County,
approving Legislative Defendants’ Remedial House and Senate Plans, rejecting their
Remedial Congressional Plan, and adopting a Modified Remedial Congressional Plan.
Heard in the Historic 1767 Chowan County Courthouse on 4 October 2022.
Patterson Harkavy LLP, by Burton Craige, Narendra K. Ghosh, and Paul E.
Smith; Elias Law Group LLP, by Lalitha D. Madduri, Jacob D. Shelly, Graham
W. White, and Abha Khanna; and Arnold & Porter Kaye Scholer LLP, by
Elisabeth S. Theodore, R. Stanton Jones, and Samuel F. Callahan, for Harper
Plaintiffs.
Robinson, Bradshaw & Hinson, P.A., by John R. Wester, Adam K. Doerr,
Stephen D. Feldman, and Erik R. Zimmerman; and Jenner & Block LLP, by
Sam Hirsch, Jessica Ring Amunson, Karthik K. Reddy, and Urja Mittal, for
Plaintiff North Carolina League of Conservation Voters.
Southern Coalition for Social Justice, by Allison J. Riggs, Hilary H. Klein,
Mitchell Brown, Katelin Kaiser, Jeffrey Loperfido, and Noor Taj; and Hogel
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Lovells US LLP, by J. Tom Boer and Olivia T. Molodanof, for Plaintiff Common
Cause.
Nelson Mullins Riley & Scarborough LLP, by Phillip J. Strach, Thomas A.
Farr, John Branch, and Alyssa M. Riggins; and Baker & Hostetler LLP, by E.
Mark Braden and Katherine L. McKnight, for Legislative Defendants.
North Carolina Department of Justice, by Amar Majmundar, Senior Deputy
Attorney General, Terence Steed, Special Deputy Attorney General, Mary Carla
Babb, Special Deputy Attorney General, and Stephanie Brennan, Special
Deputy Attorney General, for State Defendants.
HUDSON, Justice.
¶1 The foundational democratic principles of equality and popular sovereignty
enshrined in our Constitution’s Declaration of Rights vest in the people of this state
the fundamental right to vote on equal terms. N.C. Const. art. I, §§ 1 (equality and
rights of persons), 2 (sovereignty of the people), 10 (free elections), 12 (freedom of
assembly), 14 (freedom of speech), 19 (equal protection of the laws); see Harper v.
Hall, 380 N.C. 317, 2022-NCSC-17, ¶ 158–59 (summarizing these principles and
rights). This fundamental right “encompasses the opportunity to aggregate one’s vote
with likeminded citizens to elect a governing majority of elected officials who reflect
those citizens’ views.” Harper, ¶ 160. Put differently, it requires that “voters of all
political parties [have] substantially equal opportunity to translate votes into seats.”
Id. ¶ 163. Therefore, when a districting plan systematically makes it harder for
individuals of one political party to elect a governing majority than individuals of
another party of equal size based upon that partisanship, it deprives a voter of his or
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her fundamental right to equal voting power. Id. “[S]uch a plan is subject to strict
scrutiny and is unconstitutional unless the General Assembly can demonstrate that
the plan is ‘narrowly tailored to advance a compelling governmental interest.’ ” Id. ¶
161 (citing Stephenson v. Bartlett, 355 N.C. 354, 377 (2002)).
¶2 In accordance with these principles, on 4 February 2022, this Court struck
down the General Assembly’s 2021 Congressional Map, State Senate Map, and State
House Map as unconstitutional partisan gerrymanders that failed strict scrutiny. See
generally Harper, 2022-NCSC-17. In doing so, we noted a few potential statistical
measures that could be used by the General Assembly and reviewing courts in
determining whether redistricting plans demonstrate “a significant likelihood . . . [of]
giv[ing] the voters of all political parties substantially equal opportunity to translate
votes into seats across the plan.” Id. ¶ 163. However, we expressly declined to
“identify an exhaustive set of metrics or precise mathematical thresholds which
conclusively demonstrate or disprove the existence of an unconstitutional partisan
gerrymander.” Id. Rather than relying on certain measures dispositively, we
emphasized that ultimately “[w]hat matters here . . . is that each voter’s vote carries
roughly the same weight when drawing a redistricting plan that translates votes into
seats in a legislative body.” Id. 169.
¶3 This was neither accident nor oversight. An individual statistical measure
standing alone, though helpful, is not dispositive of constitutional compliance.
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Rather, it constitutes one datapoint within a broader constellation of principles that
a court may consider in reaching its ultimate constitutional determination: whether
the proposed maps uphold or violate the fundamental right of all voters to vote on
equal terms. Id. ¶¶ 163–69.
¶4 After determining that the 2021 Maps failed strict scrutiny, this Court gave
the General Assembly the opportunity to submit remedial maps in accordance with
N.C.G.S. § 120-2.4(a). Id. ¶ 178. We remanded the case to the trial court to oversee
and assess the constitutionality of those remedial maps. Id. ¶ 223.
¶5 On 23 February 2022, the trial court issued its remedial order assessing the
General Assembly’s remedial maps. Therein, the trial court rejected the General
Assembly’s Remedial Congressional Plan but approved its Remedial House Plan and
Remedial Senate Plan. The parties appealed each of these rulings to this Court.
¶6 Now, this Court must review the alignment of the trial court’s remedial order
with the foundational principles established in Harper. We determine that the trial
court properly concluded that the Remedial Congressional Plan fell short of
constitutional standards and that the Remedial House Plan met constitutional
standards. These conclusions of law were supported by adequate factual findings,
which were in turn supported by competent evidence. However, we hold that the trial
court erred in its approval of the Remedial Senate Plan. Unlike the trial court’s
conclusions regarding the other plans, the trial court’s conclusion of law regarding
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the Remedial Senate Plan lacked adequate factual findings supported by competent
evidence. Indeed, the evidence dictates the opposite finding and conclusion.
Therefore, we affirm the trial court’s rejection of the Remedial Congressional Plan,
affirm the trial court’s approval of the Remedial House Plan, and reverse the trial
court’s approval of the Remedial Senate Plan.
¶7 In accordance N.C.G.S. § 120-2.4(a1), we now remand this case to the trial
court to oversee the creation and adoption of a Modified Remedial Senate Plan that
modifies Legislative Defendants’ Remedial Senate Plan only to the extent necessary
to achieve constitutional compliance. See N.C.G.S. § 120-2.4(a1) (2021).
¶8 In so doing, we expressly and emphatically reaffirm the fundamental right of
citizens to vote on equal terms enshrined within our Constitution’s Declaration of
Rights, and this Court’s constitutional responsibility and authority to assess
legislative compliance therewith. See Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992)
(“It is the state judiciary that has the responsibility to protect the state constitutional
rights of the citizens; this obligation to protect the fundamental rights of individuals
is as old as the State.”). These principles are—and must remain—the enduring
bedrock of our sacred system of democratic governance, and may be neither
subordinated nor subverted for the sake of passing political expediency.
I. Factual and Procedural Background
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¶9 A complete factual and procedural background of the liability phase of this
litigation can be found in Harper, ¶¶ 12–93. Here, we briefly restate that background
and summarize the subsequent remedial proceedings leading to the present appeal.
A. Liability Phase: 2021 Maps and Harper I
¶ 10 Every ten years, following the national census, the General Assembly is tasked
with redrawing North Carolina’s congressional and state legislative districts. See
U.S. Const. art. I, § 4; N.C. Const. art. II, §§ 3, 5. Accordingly, on 4 November 2021,
the General Assembly enacted new maps for North Carolina’s congressional districts
and state House of Representatives and Senate districts (2021 Maps). S.L. 2021-174,
S.L. 2021-175, S.L. 2021-173; see Harper, 2022-NCSC-17, ¶¶ 14–18 (describing the
2021 redistricting process).
¶ 11 On 16 and 18 November 2021, NCLCV Plaintiffs1 and Harper Plaintiffs2
respectively filed complaints against Legislative Defendants challenging the
constitutionality of the 2021 Maps under the North Carolina Constitution.
1 NCLCV Plaintiffs include the North Carolina League of Conservation Voters, Inc.,
Henry M. Michaux Jr., Dandrielle Lewis, Timothy Chartier, Talia Fernos, Katherine
Newhall, R. Jason Parsley, Edna Scott, Roberta Scott, Yvette Roberts, Jereann King Johnson,
Reverend Reginal Wells, Yarbrough Williams Jr., Reverend Deloris L. Jerman, Viola Ryals
Figueroa, and Cosmos George.
2 Harper Plaintiffs include Rebecca Harper, Amy Clare Oseroff, Donald Rumph, John
Anthony Balla, Richard R. Crews, Lily Nicole Quick, Gettys Cohen Jr., Shawn Rush, Mark
S. Peters, Kathleen Barnes, Virginia Walters Brien, Eileen Stephens, Barbara Proffitt, Mary
Elizabeth Voss, Chenita Barber Johnson, Sarah Taber, Joshua Perry Brown, Laureen Floor,
Donald M. MacKinnon, Ron Osborne, Ann Butzner, Sondra Stein, Bobby Jones, Kristiann
Herring, and David Dwight Brown.
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Specifically, Plaintiffs asserted that the 2021 Maps engaged in extreme partisan
gerrymandering and racial vote dilution in violation of the Free Elections Clause, art.
I, § 10, the Equal Protection Clause, art. I, § 19, and the Freedom of Speech and
Assembly Clauses, art. I, §§ 12, 14. Plaintiffs sought a declaratory judgment, a
permanent injunction against the use of the 2021 Maps, and the creation and
implementation of new, constitutionally compliant maps.
¶ 12 Plaintiffs’ cases were consolidated and assigned to a three-judge panel of the
Superior Court, Wake County, pursuant to N.C.G.S. § 1-267.1 and Rule 42 of the
North Carolina Rules of Civil Procedure.3 On 15 December 2021, the trial court
granted Plaintiff Common Cause’s motion to intervene in the consolidated case. In
response to Plaintiffs’ claims, Legislative Defendants asserted, inter alia, that the
only limitations on redistricting legislation are those expressly found in article II,
sections 2, 3, 4, and 5 of the North Carolina Constitution, and that Plaintiffs’ claims
were nonjusticiable.
¶ 13 From late December 2021 to early January 2022, the trial court conducted an
expedited and extensive discovery and trial process. Plaintiffs and Legislative
Defendants submitted evidence from several expert witnesses and accompanying
reports regarding the 2021 Maps.
3 We take a moment of privilege to express the Court’s gratitude to the panel for their
diligent service to the state in this case: Judge A. Graham Shirley, Judge Nathaniel J.
Poovey, and Judge Dawn M. Layton.
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¶ 14 On 11 January 2022, the trial court issued its final judgment. Therein, the trial
court found that all three of the 2021 Maps indeed constituted extreme partisan
outliers that were the product of intentional, pro-Republican redistricting at the
subordination of traditional, neutral redistricting principles. However, the trial court
concluded that claims of partisan gerrymandering present purely political questions
that are nonjusticiable under the North Carolina Constitution. Accordingly, the trial
court held that the 2021 Maps were not unconstitutional and denied Plaintiffs’
requests for declaratory and injunctive relief. Plaintiffs appealed to this Court from
the trial court’s judgment.
¶ 15 In February 2022, this Court reversed.4 Harper, ¶ 223. The Court concluded
that partisan gerrymandering claims are justiciable under the North Carolina
Constitution, that our Constitution’s Declaration of Rights enshrines the
fundamental right to vote on equal terms, and that the 2021 Maps violated that right.
Id. ¶¶ 7, 94.
¶ 16 First, the Court addressed Plaintiffs’ standing. Id. ¶ 95. The Court noted that
in accordance with Committee to Elect Dan Forest v. Employees Political Action
Committee, 376 N.C. 558, 2021-NCSC-6, “direct constitutional challenges to statutes
or other acts of government . . . require only the requisite concrete adverseness which
4 On 4 February 2022, the Court issued a preliminary order. On 14 February 2022,
the Court issued its subsequent full opinion.
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sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.” Harper, ¶ 96 (cleaned up). Here,
the Court determined that the parties’ allegations of the violation of their legal rights,
even if widely shared with others, were sufficient to show such concrete adverseness.
Id. The Court thus concluded that each individual and organizational plaintiff met
the requirements for legal standing under our Constitution. Id. ¶ 99.
¶ 17 Second, the Court addressed justiciability. Id. ¶ 100. The Court noted that
“simply because the Supreme Court [of the United States] has concluded partisan
gerrymandering claims are nonjusticiable in federal courts, it does not follow that
they are nonjusticiable in North Carolina courts.” Id. ¶ 110 (emphasis added) (citing
Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019)). Further, “the mere fact that
responsibility for reapportionment is committed to the General Assembly does not
mean that the General Assembly’s decisions in carrying out its responsibility are fully
immunized from any judicial review.” Id. ¶ 115. Rather, the General Assembly’s
reapportionment power is subject to constitutional limitations, including compliance
with the fundamental rights enshrined in the Declaration of Rights. Id. ¶ 119.
¶ 18 Then, the Court considered whether partisan gerrymandering violates those
rights. Id. ¶ 121. After surveying the history of our Declaration of Rights generally,
id. ¶¶ 122–32, the Court considered each pertinent clause in turn. First, the Court
concluded that partisan gerrymandering “is cognizable under the free elections clause
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because it can prevent elections from reflecting the will of the people impartially and
. . . diminish[ ] or dilut[e] voting power on the basis of partisan affiliation.” Id. ¶ 141;
N.C. Const. art. I, § 10. Second, the Court concluded that partisan gerrymandering is
cognizable under the equal protection clause because it “diminishes or dilutes a
voter’s opportunity to aggregate with likeminded voters to elect a governing
majority[,]” thus “infring[ing] upon that voter’s fundamental rights to vote on equal
terms and to substantially equal voting power.” Id. ¶ 150; N.C. Const. art. I, § 19.
Third, the Court concluded that partisan gerrymandering is cognizable under the free
speech and freedom of assembly clauses because it imposes a burden on the
fundamental right to equal voting power based on political viewpoint. Id. ¶ 157.
¶ 19 The Court summarized the intersection of the Declaration of Rights and
partisan gerrymandering, emphasizing that together, the fundamental principles of
equality and popular sovereignty “reflect the democratic theory of our constitutional
system: the principle of political equality.” Id. ¶ 158. In order to realize this principle,
the channeling of “political power” from the people to their
representatives in government through the democratic
processes envisioned by our constitutional system must be
done on equal terms. If through state action the ruling
party chokes off the channels of political change on an
unequal basis, then government ceases to “derive[ ]” its
power from the people or to be “founded upon their will
only,” and the principle of political equality that is
fundamental to our Declaration of Rights and our
constitutionally enacted represented system of government
is violated.
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Id. Accordingly, “[t]o comply with the constitutional limitations contained in the
Declaration of Rights which are applicable to redistricting plans, the General
Assembly must not diminish or dilute on the basis of partisan affiliation any
individual’s vote.” Id. ¶ 160. Therefore, “when a districting plan systematically makes
it harder for individuals [of one party] to elect a governing majority than individuals
in a favored party of equal size[,] the General Assembly deprives on the basis of
partisan affiliation a voter of his or her right to equal voting power.” Id. “[S]uch a
plan is subject to strict scrutiny and is unconstitutional unless the General Assembly
can demonstrate that the plan is narrowly tailored to advance a compelling
governmental interest.” Id. ¶ 161 (cleaned up).
¶ 20 The Court also noted various ways to measure partisan vote dilution. The
Court explained that partisan vote dilution
can be measured either by comparing the number of
representatives that a group of voters of one partisan
affiliation can plausibly elect with the number of
representatives that a group of voters of the same size of
another partisan affiliation can plausibly elect, or by
comparing the relative chances of voters from each party
electing a supermajority or majority of representatives
under various possible electoral conditions.
Id. However, the Court did “not believe it prudent or necessary to . . . identify an
exhaustive list of metrics or precise mathematical thresholds which conclusively
demonstrate or disprove the existence of an unconstitutional partisan gerrymander.”
Id. ¶ 163 Rather, the Court observed that
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as the trial court’s findings of fact indicate[d], there are
multiple reliable ways of demonstrating the existence of an
unconstitutional partisan gerrymander. In particular,
mean-median difference analysis; efficiency gap analysis;
close-votes, close-seats analysis; and partisan symmetry
analysis may be useful in assessing whether the mapmaker
adhered to traditional neutral districting criteria and
whether a meaningful partisan skew necessarily results
from North Carolina’s unique political geography. If some
combination of these metrics demonstrates there is a
significant likelihood that the districting plan will give the
voters of all political parties substantially equal
opportunity to translate votes into seats across the plan,
then the plan is presumptively constitutional.
Id. While the Court identified “a mean-median difference of 1% or less” and an
efficiency gap of 7% or less as potential “threshold[s] [for] a presumption of
constitutionality . . . absent other evidence,” we emphasized that ultimately “[w]hat
matters here, as in the one-person, one-vote context, is that each voter’s vote carries
roughly the same weight when drawing a redistricting plan that translates votes into
seats in a legislative body.” Id. ¶¶ 166, 167, 169.
¶ 21 The Court then held that “[o]nce a plaintiff shows that a map infringes on their
fundamental right to equal voting power . . . or that it imposes a burden on that right
based on their views[,] . . . the map is subject to strict scrutiny and is presumptively
unconstitutional.” Id. ¶ 170. At that point, the government must demonstrate that
the plan is nevertheless necessary to promote a compelling governmental interest. Id.
¶ 22 The Court then applied this constitutional standard to the 2021 Maps. Id. ¶¶
178–213. Based on the trial court’s extensive factual findings, the Court determined
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that all three of the 2021 Maps constituted partisan gerrymanders in violation of the
North Carolina Constitution’s Declaration of Rights. Id. Because Legislative
Defendants failed to show that the 2021 Maps were nevertheless narrowly tailored to
a compelling governmental interest, the Court concluded that each of the plans failed
strict scrutiny. Id. ¶¶ 195 (Congressional Map), 205 (State House Map), 213 (State
Senate Map).
¶ 23 Finally, the Court addressed the General Assembly’s compliance with
Stephenson requirements regarding racially polarized voting. Id. ¶¶ 214–16. The
Court concluded that compliance with article I, sections 3 and 5, and article II,
sections 3 and 5 of our Constitution “requires the General Assembly to conduct
racially polarized voting analysis within their decennial redistricting process in order
to assess whether any steps must be taken to avoid the dilution of minority voting
strength.” Id. ¶ 216.
¶ 24 In compliance with N.C.G.S. § 120-2.4(a), the Court then remanded the case to
the trial court “to oversee the redrawing of the maps by the General Assembly or, if
necessary, by the court.” Id. ¶ 223. In so doing, the Court ordered that “the General
Assembly shall now have the opportunity to submit new congressional and state
legislative districting plans that satisfy all provisions of the North Carolina
Constitution.” Id. The Court concluded by noting its “sincere hope . . . that these new
maps ensure that the channeling of ‘political power’ from the people to their
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representatives in government through elections . . . is done on equal terms so that
ours is a ‘government of right’ that ‘originates from the people’ and speaks with their
voice.” Id.
B. Remedial Phase: Remedial Plans and Trial Court’s Remedial Order
¶ 25 Thus began the remedial phase of this case. On 16 February 2022, the trial
court issued an order appointing three former North Carolina jurists—Justice Robert
F. Orr (ret.), Justice Robert H. Edmunds Jr. (ret.), and Judge Thomas W. Ross (ret.)—
to serve as Special Masters.5 The Special Masters’ task was twofold. First, they
assisted the trial court in reviewing the parties’ proposed remedial plans via a written
report. Second, they were to assist the trial court in developing an alternative,
constitutionally compliant remedial plan in the event that the General Assembly’s
proposed remedial plan fell short.
¶ 26 To assist in these tasks, the Special Masters were authorized to hire advisors
(Special Masters’ Advisors). They hired Dr. Bernard Grofman, Dr. Tyler Jarvis, Dr.
Eric McGhee, and Dr. Samuel Wang.
¶ 27 On 18 February 2022, Legislative Defendants timely submitted their Remedial
Plans to the trial court. These included the Remedial Congressional Plan (RCP),
Remedial House Plan (RHP), and Remedial Senate Plan (RSP).
5 We take a moment of privilege to express the Court’s gratitude to the Special Masters
for their diligent service to the state in this case.
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¶ 28 On 21 February 2022, Legislative Defendants filed a motion to disqualify two
of the Special Masters’ Advisors, Dr. Wang and Dr. Jarvis, because they had engaged
in prohibited ex parte communications with Plaintiffs’ experts.
¶ 29 On 21 February 2022, Plaintiffs timely submitted their comments and
objections to Legislative Defendants’ Remedial Plans. NCLCV Plaintiffs objected to
the RCP and RSP. NCLCV Plaintiffs did not specifically object to the RHP, but
instead requested that the trial court conduct its own analysis of the RHP. Harper
Plaintiffs objected to the RCP and RSP but did not object to the RHP. Plaintiff
Common Cause generally objected to all three Remedial Plans, and specifically
contended that House District 10 of the RHP and Senate District 4 of the RSP must
be redrawn.
¶ 30 Thereafter, the Special Masters’ Advisors submitted their analysis of each of
the proposed remedial plans. Because this analysis served as the foundational
evidence for the Special Masters’ and trial court’s subsequent findings of fact, we
briefly summarize this evidence here.
¶ 31 RCP Analysis. Dr. Grofman determined that the RCP “creates a distribution
of voting strength across districts that is very lopsidedly Republican.” He determined
that “[b]ecause they all point in the same direction, the political effects statistical
indicators of partisan gerrymandering strongly suggest the conclusion that this
congressional map should be viewed as a pro-Republican gerrymander.” He
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determined that the RCP yielded an efficiency gap of 6.37% but noted that that this
was “not . . . proof that there is no vote dilution” because, based on other measures,
“legislative map drawers have apparently sought to draw a congressional map that
just narrowly pass[es] a supposed threshold test for partisan gerrymandering.”
¶ 32 Dr. McGhee determined that the RCP yielded an efficiency gap of 6.4%, a
mean-median difference of 1.1%, a partisan asymmetry of 4.9%, and a declination
metric of 0.14, all favoring Republicans. He noted that “[t]he values with incumbency
factored in all lean more Republican . . . , and this incumbency effect is greater than
it was in the [2021] enacted plan.” Relatively, he noted that while the RCP shows
improvement from the 2021 enacted plan on several measures of partisan symmetry,
it is “clearly worse” than the remedial congressional plans proposed by Plaintiffs.
¶ 33 Dr. Wang determined that the RCP yields an average efficiency gap of 6.8%
and an average mean-median difference of 1.2%, both favoring Republicans. He
determined that in nine out of ten sample elections, “Republicans won more seats
than the Democrats with the same vote share.” “Averaging across all 10 elections, the
advantage was 1.7 more seats for Republicans, or 12% of the 14-seat Congressional
delegation.”
¶ 34 Finally, Dr. Jarvis determined that the RCP “consistently favors Republicans”
across all applicable measures. He determined that the RCP yields an efficiency gap
of 8.8%, a mean-median difference of 0.9%, a partisan bias of 5.2%, and a declination
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metric of 11.6%, all favoring Republicans.
¶ 35 RHP Analysis. Dr. Grofman determined that although the RHP “creates a
distribution of voting strength across districts that is very lopsidedly Republican,” it
“is genuinely far more competitive than either of the other two legislatively proposed
maps.” He observed that under the RHP, “unlike the other maps, the Democrats do
not have to win all of the competitive seats to win a majority in the House. Moreover,
unlike the [RCP and RSP], . . . the competitive seats [in the RHP] are substantially
Democrat in directionality.” He further noted that
quit[e] important in judging the constitutionality of this
map in the full context are the facts that: (a) the Harper
plaintiffs have not chosen to offer an alternative [RHP] but
are apparently content to see the legislative map
implemented by the Court, (b) the map was passed by a
clear bipartisan consensus in the legislature, including
members of the legislature who belong to particular
minority communities, and (c) that while it still is further
from being non-dilutive than the NCLCV [RHP]
alternative, it is far closer to Plaintiffs’ map than it is to
the rejected [2021] enacted NC House map.
He determined that while the RHP’s efficiency gap “remains in a pro-Republican
direction,” it is “at the low level of 2.72[%].”In considering “the totality of the
circumstances . . . and recognizing that this map is still not ideal (nor need it be),” he
concluded that the RHP “simply lacks the same clear indicia of egregious bias found
in the previously rejected maps and still found . . . in the [RCP] and [RSP].”
¶ 36 Dr. McGhee likewise determined that the RHP “still favors Republicans when
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all seats are open, but substantially less [than the 2021 congressional map].” He
determined that the RHP yields an efficiency gap of 3.0%, a mean-median difference
of 1.4%, a partisan asymmetry of 2.9%, and a declination metric of 0.16, all favoring
Republicans. Dr. McGhee concluded that the RHP “still favors Republicans: the party
would likely hold about 64 of 120 seats with half the vote, and it would take the
Democrats somewhere close to 52% of the vote to bring that number down to 60.”
Relatively, he determined that the RHP “is very similar to” NCLCV Plaintiffs’
proposed remedial house map on metrics of partisan symmetry, that it “do[es] a
reasonably good job of respecting traditional geographic principles,” and that it
reflects “very similar compactness” as Plaintiffs’ proposed remedial House map. He
concluded that the RHP’s partisan symmetry is “closer [to NCLCV’s proposed
remedial plan] than was the case for either the [RSP] or the [RCP],” noting that the
NCLCV Plaintiffs’ plan is only “a little better.” He concluded that this “relatively
marginal improvement hints that it may be difficult to do better while still abiding
by other constraints.”
¶ 37 Dr. Wang determined that the RHP favors Republicans in all six metrics
evaluated: seat partisan asymmetry, mean-median difference, partisan bias, lopsided
wins, declination angle, and efficiency gap. Specifically, he determined that the RHP
yielded an efficiency gap of 3.1%, a mean-median difference of 0.9%, a partisan
asymmetry of 7.2 seats, and a declination angle of 4.5 degrees.
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¶ 38 Finally, Dr. Jarvis determined that the RHP “appear[s] to be mostly typical in
terms of the number of seats won.” He determined that the RHP yields an efficiency
gap of 2.7%, a mean-median difference of 1.5%, an average partisan bias of 2.7%, and
a declination metric of 5.7%.
¶ 39 RSP Analysis. Dr. Grofman determined that the RSP “creates a distribution
of voting strength across districts that is very lopsidedly Republican.” He determined
the RSP’s vote bias indicates “a substantial pro-Republican bias” in which a statewide
majority of Republican voters would be able to win a majority of the seats while “only
a win by considerably more than 50% of the statewide vote can yield the Democrats
a majority of the seats.” He determined that “[b]ecause they all point in the same
direction, the political effects statistical indicators of partisan gerrymandering argue
for the conclusion that th[e] [RSP] should be viewed as a pro-Republican
gerrymander.” He concluded that “the dilutive effects of th[e] RSP] . . . are still . . .
quite substantial.”
¶ 40 Dr. McGhee determined that the RSP “still favors Republicans when all seats
are open.” He concluded that the RSP yields an efficiency gap of 4.8%, a mean-median
difference of 2.2%, a partisan asymmetry of 4.8%, and a declination metric of 0.20, all
favoring Republicans. He observed that “[t]he [efficiency gap] value now clearly falls
below the commonly identified threshold of 7%, though the [mean-median difference]
value falls well above the 1% number cited by Legislative Defendants.” He
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determined that “[a]ll the metric values for both the open seat and incumbency
scenarios are more than 50% likely to favor Republicans throughout the decade.” He
concluded that
the [mean-median difference] and [partisan symmetry]
metrics, which are more relevant for a state legislative plan
because they connect directly to control of the chamber,
suggest that in a tied election Republicans would still hold
27 or 28 [of 50 total] seats, and that Democrats would need
to win as much as 53 percent of the vote to claim 25 seats.
The odds are about three to one that Republicans would
maintain this advantage throughout the decade.
Relatively, Dr. McGhee observed that the Republican advantage within Plaintiffs’
proposed RSP “is often less than half the size of the same advantage in the Legislative
Defendants’ [RSP].” “This suggests that there is nothing foreordained about the
advantages in the Legislative Defendants’ plan.”
¶ 41 Dr. Wang determined that the RSP favors Republicans in all six metrics
evaluated: seat partisan asymmetry, mean-median difference, partisan bias, lopsided
wins, declination angle, and efficiency gap. Specifically, he determined that the RSP
yields an efficiency gap of 2.2%, a mean-median difference of 0.8%, and an average
partisan asymmetry of 2.1 seats, all favoring Republicans.
¶ 42 Finally, Dr. Jarvis determined that analysis of the RSP reveals that it “is often
a significant outlier in favor of the Republicans.” He determined that the RSP yields
an efficiency gap of 4.0%, a mean-median difference of 1.4%, an average partisan bias
of 4.0%, and a declination metric of 7.0%.
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¶ 43 Based upon this evidence, the Special Masters submitted their report to the
trial court on 23 February 2022 (Special Masters’ Report). As an initial matter, the
Special Masters addressed Legislative Defendants’ motion to disqualify Drs. Wang
and Jarvis. While the Special Masters “acknowledge[d] the technical breach of th[e]
[c]ourt’s mandate that no ex parte communication occur between parties and non-
parties,” they “respectfully recommend[ed] that the [c]ourt deny the motion.” Denial
was proper, the Special Masters contended, because: (1) the communications were not
made in bad faith; (2) the communications were solely for the purpose of proceeding
as quickly as possible; (3) the information sought was all publicly available; and (4)
the analysis provided by Drs. Wang and Jarvis, though helpful, was not
determinative in any of the Special Masters’ recommendations.
¶ 44 Next, the Special Masters recommended that the trial court approve the RHP
and RSP but reject the RCP.
¶ 45 Regarding the RHP, the Special Masters’ Report stated as follows:
The advisors as well as the experts of the parties (“experts”)
all found the efficiency gap of the proposed [RHP] to be less
than 7%. The majority of the advisors and experts found
the mean-median difference of the proposed [RHP] to be
less than 1%. In addition to these facts, the Special Masters
considered the findings of the advisors on the partisan
symmetry analysis, the declination metrics, and their
opinions on partisan bias and evidence of partisan
gerrymandering. Considering all of this information as
well as the totality of the circumstances, the Special
Masters conclude under the metrics identified by the North
Carolina Supreme Court that the proposed [RHP] meets
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the test of presumptive constitutionality. Further the
Special Masters did not find substantial evidence to
overcome the presumption of constitutionality and
recommend to the trial court that it give appropriate
deference to the General Assembly and uphold the
constitutionality of the [RHP].
¶ 46 Similarly, regarding the RSP, the Special Masters’ Report stated as follows:
All of advisors and experts found the efficiency gap of the
proposed [RSP] to be less than 7%. The majority of the
advisors and experts found the mean-median difference of
the proposed [RSP] to be less than 1%. In addition to these
facts, the Special Masters considered the findings of the
advisors on the partisan symmetry analysis, the
declination metrics, and their opinions on partisan bias
and evidence of partisan gerrymandering. Considering all
of this information as well as the totality of the
circumstances, the Special Masters conclude under the
metrics identified by the North Carolina Supreme Court
[that] the [RSP] meets the test of presumptive
constitutionality. Further the Special Masters did not find
substantial evidence to overcome the presumption of
constitutionality and recommend to the trial court that it
give appropriate deference to the General Assembly and
uphold the constitutionality of the [RSP].
¶ 47 Regarding the RCP, however, the Special Masters’ Report stated as follows:
Unlike the proposed [RHP] and [RSP], there is substantial
evidence from the findings of the advisors that the
proposed congressional plan has an efficiency gap above 7%
and a mean-median difference of greater than 1%. The
Special Masters considered this evidence along with the
advisors’ findings on the partisan symmetry analysis and
the declination metrics. There is disagreement among the
parties as to whether the proposed [RCP] meets the
presumptively constitutional thresholds suggested by the
Supreme Court. The Special Masters, considering the
reports of their advisors and the experts of the parties
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while giving appropriate deference to the General
Assembly, are of the opinion that the proposed [RCP] fails
to meet the threshold of constitutionality and recommend
that the [t]rial [c]ourt reject the proposed [RCP] as being
unconstitutional.
¶ 48 As instructed, the Special Masters therefore submitted to the trial court “a
modified version of the proposed [RCP] submitted by Legislative Defendants.”
(Modified RCP). The Report stated that “[i]t is [the Special Masters’] opinion that the
[Modified RCP] satisfies the requirements of the Supreme Court.” Specifically, the
Special Masters noted that because
the Constitution of North Carolina provides that the
General Assembly has the responsibility of redistricting,
[they] focused on the [RCP] submitted by the Legislative
Defendants. On that basis, the Special Masters worked
solely with [Advisor] Dr. Bernard Grofman and his
assistant to amend the Legislative Defendants’ plan to
enhance its consistency with the opinion of the Supreme
Court of North Carolina, the Constitutions of the United
States and of North Carolina, and the expressed will of the
General Assembly.
The Special Masters then determined that
the [M]odified [RCP] recommended for adoption to the
[t]rial [c]ourt achieves the partisan fairness and
“substantially equal voting power” required by the
Supreme Court of North Carolina without diluting votes
under the Voting Rights Act while maintaining the number
of county splits, retaining equal populations, compactness,
and contiguity, as well as respecting municipal boundaries.
Dr. Grofman’s analysis of the [M]odified [RCP]
recommended by the Special Masters indicates that the
plan has an efficiency gap of 0.63%, a mean-median
difference of 0.69%, seat bias of 0.28%, and vote bias of
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0.10%. According to Dr. Grofman, “this is the most non-
dilutive plan in partisan terms of any map that has been
submitted to the [c]ourt.”
Accordingly, the Special Masters recommend[ed] to the
[t]rial [c]ourt that it order the State of North Carolina to
utilize the [M]odified [RCP] prepared by the Special
Masters in the 2022 Congressional election.
¶ 49 On 23 February 2022, the trial court issued its subsequent remedial order. In
alignment with the recommendations of the Special Masters, the trial court approved
Legislative Defendants’ RHP and RSP but rejected their RCP and implemented the
Special Masters’ Modified RCP.
¶ 50 First, the trial court summarized the General Assembly’s remedial process.
The trial court noted that in addition to the traditional neutral redistricting criteria
considered in the creation of the 2021 Maps, the General Assembly intentionally used
partisan election data in the creation of the Remedial Plans in compliance with this
Court’s remedial order. The trial court further noted that “[t]he General Assembly
conducted an abbreviated racially polarized voting (“RPV”) analysis to determine
whether racially polarized voting is legally sufficient in any area of the state such
that Section 2 of the Voting Rights Act requires the drawing of a district to avoid
diluting the voting strength of African American voters during the remedial process.”
The trial court subsequently found “that the General Assembly satisfied the directive
in the Supreme Court Remedial Order to determine whether the drawing of a district
in an area of the state is required to comply with Section 2 of the Voting Rights Act.”
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¶ 51 The trial court then summarized the Special Masters’ Report. The trial court
found that while “[t]he Special Masters’ findings demonstrate that the [RHP] and
[RSP] meet the requirements of the Supreme Court’s Remedial Order and full
opinion[,] . . . [t]he Special Masters’ findings demonstrate that the [RCP] does not
meet [those] requirements.” The trial court then “adopt[ed] in full the findings of the
Special Masters.”
¶ 52 The trial court went on to review each of Legislative Defendants’ Remedial
Plans. First, the court assessed the RCP. The trial court observed that the RCP
passed both chambers of the General Assembly by a strict party-line vote, with
Republicans voting for and Democrats voting against. Assessing the partisanship of
the RCP, the trial court observed that “[t]he Supreme Court Remedial Order stated
that a combination of different methods could be used to evaluate the partisan
fairness of a districting plan; of those methods, the General Assembly used the ‘mean-
median’ test and the ‘efficiency gap’ test to analyze the partisan fairness of the
Remedial Plans.” The trial court then found, based upon “the analysis performed by
the Special Masters and their advisors, that the [RCP] is not satisfactorily within the
statistical ranges set forth in the Supreme Court’s full opinion. See Harper v. Hall,
2022-NCSC-17, ¶ 166 (mean-median difference of 1% or less) and ¶ 167 (efficiency
gap less than 7%).” The trial court further determined “that the partisan skew in the
[RCP] is not explained by the political geography of North Carolina.”
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¶ 53 Second, the trial court addressed the RSP. The court noted that the plan passed
both chambers of the General Assembly by a strict party-line vote, with Republicans
voting for and Democrats voting against. The court subsequently found, based upon
“the analysis performed by the Special Masters and their advisors, that the [RSP] is
satisfactorily within the statistical ranges set forth in the Supreme Court’s full
opinion. See Harper v. Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1% or
less) and ¶ 167 (efficiency gap less than 7%).” The court found that “to the extent
there remains a partisan skew in the [RSP], that partisan skew is explained by the
political geography of North Carolina.” The court determined that “the measures
taken by the General Assembly for the purposes of incumbency protection in the
[RSP] are consistent with the equal voting power requirements of the North Carolina
Constitution” and that “the General Assembly did not subordinate traditional neutral
districting criteria to partisan criteria or considerations in the [RSP].”
¶ 54 Third, the trial court addressed the RHP. The court noted that six amendments
to the plan were offered by Democratic Representatives and passed, and the RHP
then proceeded to pass the House by a vote of 115-5 and pass the Senate by a vote of
41-3. The court observed that “[t]he ‘aye’ votes in the House and Senate were by
members of both political parties[,]” while “[t]he ‘no’ votes in the House and Senate
were solely by members of the Democratic Party.” Regarding the RHP’s use of
partisanship, the court found, based upon and confirmed by “the analysis performed
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by the Special Masters and their advisors, that the [RHP] [is] satisfactorily within
the statistical ranges set forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1% or less) and ¶ 167
(efficiency gap less than 7%).” The court found that “to the extent there remains a
partisan skew in the [RHP], that partisan skew is explained by the political
geography of North Carolina.” The court determined that “the measures taken by the
General Assembly for the purposes of incumbency protection in the [RHP] are
consistent with the equal voting power requirements of the North Carolina
Constitution” and that “the General Assembly did not subordinate traditional neutral
districting criteria to partisan criteria or considerations in the [RHP].”
¶ 55 Next, the trial court considered the proposed alternative remedial plans.
Because the court was “satisfied with the [RHP] and [RSP], [it] did not need to
consider an alternative plan” for those maps. In accordance with N.C.G.S. § 120-
2.4(a1), the trial court ordered the use of the Special Masters’ “interim districting
plan for the 2022 North Carolina Congressional election that differs from the [RCP]
to the extent necessary to remedy the defects identified by the [c]ourt.” The trial court
determined that the Modified RCP “was developed in an appropriate fashion, is
consistent with N.C.G.S. § 120-2.4(a1), and is consistent with the North Carolina
Constitution and the Supreme Court’s full opinion.” (Footnote omitted).
¶ 56 Based on these factual findings, the trial court then reached its legal
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conclusions. First, the trial court noted this Court’s ruling in Harper that “there are
multiple reliable ways of demonstrating the existence of an unconstitutional partisan
gerrymander” and that “[i]f some combination of these metrics demonstrates there is
a significant likelihood that the districting plan will give the voters of all political
parties substantially equal opportunity to translate votes into seats across the plan,
then the plan is presumptively constitutional.” Harper, ¶ 163.
¶ 57 The trial court then specified its legal conclusions regarding the Remedial
Plans. The trial court concluded that the RSP and RHP “satisf[y] the Supreme Court’s
standards” and therefore concluded that the RHP and RSP “are presumptively
constitutional.” The trial court concluded that “no evidence presented to the [c]ourt is
sufficient to overcome this presumption for the [RSP] and [RHP], and those plans are
therefore constitutional and will be approved.
¶ 58 However, the trial court “conclude[d] that the [RCP] does not satisfy the
Supreme Court’s standards.” Accordingly, the court concluded that the RCP “is not
presumptively constitutional and is therefore subject to strict scrutiny.” The court
concluded that “[t]he General Assembly has failed to demonstrate that [the RCP] is
narrowly tailored to a compelling governmental interest, and . . . therefore . . .
conclude[d] that the [RCP] is unconstitutional.”
¶ 59 Accordingly, the trial court was required to adopt a new, constitutionally
compliant congressional plan. “Given that the ultimate authority and directive is
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given to the Legislature to draw redistricting maps,” the trial court declined to adopt
Plaintiffs’ proposed plans. Instead, it concluded “that the appropriate remedy is to
modify the [RCP] to bring it into compliance with the Supreme Court’s order. See
N.C.G.S. § 120-2.4(a1).” The trial court concluded that the Modified RCP “as proposed
by the Special Masters satisfies the Supreme Court’s standards and should be
adopted . . . for the 2022 North Carolina Congressional elections.”
¶ 60 Based on these factual findings and legal conclusions, the trial court then
ordered the following:
1. The [RSP] and [RHP] . . . are hereby APPROVED by the
[c]ourt.
2. The [RCP] . . . is hereby NOT APPROVED by the
[c]ourt.
3. The [Modified RCP] as recommended by the Special
Masters is hereby ADOPTED by the [c]ourt and
approved for the 2022 North Carolina Congressional
elections.
¶ 61 On 23 February 2022, contemporaneously with its remedial order, the trial
court issued an order denying Legislative Defendants’ motion to disqualify Drs. Wang
and Jarvis “for the reasons expressed in the Special Masters’ Report.”
C. Present Appeal
¶ 62 Following the trial court’s remedial order, all parties appealed to this Court.
Harper Plaintiffs and NCLCV Plaintiffs appealed the trial court’s acceptance of the
RSP. Plaintiff Common Cause appealed the trial court’s acceptance of both the RSP
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and RHP and the trial court’s determination that the General Assembly satisfied
racially polarized voting requirements. Legislative Defendants appealed the trial
court’s rejection of the RCP. We briefly summarize each party’s arguments in turn.
¶ 63 First, Harper Plaintiffs and NCLCV Plaintiffs argue that the trial court erred
in approving the RSP. They argue that the evidence shows that the RSP constitutes
a partisan gerrymander that violates the Harper standard by creating stark partisan
asymmetry; that is, by failing to give voters of all parties substantially equal
opportunity to translate votes into seats. They contend that under Harper, individual
statistical metrics can inform but not replace the determination as to whether a map
complies with this foundational principle. They assert that the trial court erroneously
used two statistical measures (mean-median difference and efficiency gap) as a
substitute for constitutional compliance, and therefore that its approval of the RSP
must be rejected. Specifically, they contend that two of the trial court’s factual
findings—those finding that the RSP falls within certain statistical ranges and that
any remaining partisan skew can be explained by political geography—lack
competent evidence, and indeed are contrary to the evidence. Approving the trial
court’s approach, they warn, would greenlight partisan gerrymandering and
gamesmanship by allowing the General Assembly to create maps that meet certain
metrics but nevertheless still create stark partisan asymmetry. Finally, they argue
that after rejecting the RSP, this Court should ensure that lawful maps endure by
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Opinion of the Court
ordering that a new remedial map be adopted not just for this year, but until the next
redistricting cycle following the 2030 census. This result is required, they assert,
based on the prohibition against mid-decade redistricting within article II, sections 3
and 5 of the North Carolina Constitution.6
¶ 64 Second, Plaintiff Common Cause argues that the trial court failed to evaluate
whether the RHP and RSP comport with all constitutional requirements by failing to
fully consider evidence of racially polarized voting. They contend that the RHP and
RSP dilute the voting strength of Black voters and destroy functioning crossover
districts in violation of equal protection principles.7 Separately, they argue that both
the RHP and RSP must be struck down as unconstitutional partisan gerrymanders
in violation of the Harper standard. They assert that the RHP and RSP deny
substantially equal voting power, that the trial court’s attribution of the plans’
partisan bias to political geography is legally and factually erroneous, and that the
plans therefore must receive and necessarily fail strict scrutiny. Accordingly, they
argue that this Court should ensure constitutional compliance by adopting Common
Cause’s proposed remedial maps.
6 In response, Legislative Defendants argue that the trial court’s approval of the RHP
and RSP should be affirmed and that this Court lacks the authority to adopt an alternative
remedial plan.
7 In response, Legislative Defendants argue that the General Assembly properly
performed RPV analysis, which showed that majority-minority districts are not required to
comply with Section 2 of the Voting Rights Act.
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¶ 65 Third, Legislative Defendants argue that the trial court erred in rejecting the
RCP and adopting the Modified RCP. They contend that the trial court failed to give
the RCP proper deference accorded to legislative enactments, and that the Special
Masters’ findings regarding the RCP were clearly erroneous. Further, Legislative
Defendants argue that the trial court abused its discretion in denying Legislative
Defendants’ motion to disqualify Special Masters’ Advisors Drs. Wang and Jarvis.
Accordingly, they assert that this Court should reverse the trial court’s approval of
the Modified RCP and its denial of their motion to disqualify.8
¶ 66 On 13 July 2022, Legislative Defendants filed with this Court a motion to
dismiss “the entirety of their portion of” this appeal. Therein, Legislative Defendants
asserted that dismissal of their own previous appeal was appropriate because the
Modified RCP “ordered by the trial court is only applicable to the 2022 election, and
that map will apply to the 2022 election regardless of the outcome of the appeal in
this Court.” In response, Harper Plaintiffs and NCLCV Plaintiffs opposed Legislative
Defendants’ motion to dismiss, arguing that the motion constitutes “a transparent
effort to prevent this Court from addressing important questions—questions that
Legislative Defendants have erroneously told the U.S. Supreme Court are
unresolved—about the meaning of North Carolina statutes that authorize North
8 In response, Plaintiffs argue that the trial court properly rejected the RCP and
denied Legislative Defendants’ motion to disqualify.
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Carolina courts to conduct state constitutional review of congressional-districting
plans, including [N.C.G.S.] §§ 1-267.1(a), 120-2.3, and 120-2.4.”
¶ 67 This case came before this Court for oral argument again on 4 October 2022.
II. Analysis
¶ 68 Now, this Court must review the alignment of the trial court’s remedial order
with the foundational principles established in Harper. “When the trial court
conducts a trial without a jury, the trial court’s findings of fact have the force and
effect of a jury verdict and are conclusive on appeal if there is competent evidence to
support them . . . .” Stephenson v. Bartlett, 357 N.C. 301, 309 (2003) (cleaned up). If
this Court determines “that the findings of fact are supported by the evidence, we
must then determine whether those findings of fact support the conclusions of law.”
Id. This Court reviews a trial court’s conclusions of law de novo. Sykes v. Health
Network Sols., Inc., 372 N.C. 326, 332 (2019). After consideration, we affirm the trial
court’s rejection of the RCP, affirm the trial court’s approval of the RHP, and reverse
the trial court’s approval of the RHP. Before reaching these determinations, we must
address Legislative Defendants’ motion to dismiss this appeal, which we deny.
Finally, we must also address Plaintiff Common Cause’s equal protection arguments,
which we reject.
A. Legislative Defendants’ Motion to Dismiss Appeal
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¶ 69 As an initial matter, we must address Legislative Defendants’ motion to
dismiss their own appeal. Because this motion was raised for the first time in this
Court, we review it within our own discretion. After consideration, we deny
Legislative Defendants’ motion.
¶ 70 In essence, Legislative Defendants contend that their appeal should be
dismissed because its outcome will have limited impact. That is, regardless of
whether this Court affirms or reverses the portion of the trial court’s order rejecting
of the RCP and adopting the Modified RCP, the Modified RCP has already been used
in the November 2022 elections and will ostensibly be replaced before future
elections. Harper Plaintiffs and NCLCV Plaintiffs, by contrast, contend that
Legislative Defendants’ motion seeks to “have it both ways” by “arguing about the
meaning of North Carolina law to the U.S. Supreme Court while simultaneously
withdrawing any attempts to have this Court address their misinterpretation of state
statutes and the state constitution.”
¶ 71 Lacking a crystal ball with which to divine Legislative Defendants’ purpose,
we turn to context. While Legislative Defendants’ motion correctly notes that “2022
is the only election to which the [Modified RCP] will apply,” that has been true since
the trial court issued its remedial order adopting the Modified RCP on 23 February
2022. Since then, Legislative Defendants not only appealed the trial court’s ruling
regarding the RCP, but have continued to move their appeal forward through motions
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practice throughout the spring and into the summer.
¶ 72 On 30 June 2022, however, the Supreme Court of the United States granted
Legislative Defendants’ petition for certiorari in Moore v. Harper. cert. granted, 142
S. Ct. 2901 (2022). There, the Court will consider whether the federal Constitution’s
Elections Clause prohibits state courts from resolving state constitutional challenges
to a state legislature’s congressional redistricting plans. Within their petition,
Legislative Defendants rebut Plaintiffs’ claim that certain state statutes expressly
authorize state courts to review challenges to congressional redistricting plans for
compliance with the state Constitution. On 8 July 2022, Plaintiffs each filed a notice
with this Court noting this development. Legislative Defendants filed their motion to
dismiss their own appeal in this Court three business days later.
¶ 73 This chronology is impossible to ignore, and indicates that Legislative
Defendants sought to dismiss their own appeal in order to avoid a ruling by this Court
that might affect their arguments before the Supreme Court of the United States. In
any event, this issue is of great significance to the jurisprudence of our state and is
squarely and properly before this Court through the trial court’s remedial order and
Legislative Defendants’ subsequent appeal. Accordingly, we deny Legislative
Defendants’ motion to dismiss.
B. Harper’s Constitutional Standard
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¶ 74 Next, before reviewing the Remedial Plans, we take this opportunity to clarify
and reaffirm the constitutional standard recognized by this Court in Harper v. Hall,
380 N.C. 317, 2022-NCSC-17.
¶ 75 Constitutional compliance is not grounded in narrow statistical measures, but
in broad fundamental rights. Therefore, a trial court reviewing the constitutionality
of a challenged proposed districting plan must assess whether that plan upholds the
fundamental right of the people to vote on equal terms and to substantially equal
voting power. Harper, ¶ 7. This fundamental right “encompasses the opportunity to
aggregate one’s vote with likeminded citizens to elect a governing majority of elected
officials who reflect those citizens’ views.” Id. ¶ 160. Put differently, it requires that
“voters of all political parties [have] substantially equal opportunity to translate votes
into seats.” Id. ¶ 163.
When, on the basis of partisanship, the General Assembly
enacts a districting plan that diminishes or dilutes a voter’s
opportunity to aggregate with likeminded voters to elect a
governing majority―that is, when a districting plan
systematically makes it harder for individuals because of
their party affiliation to elect a governing majority than
individuals in a favored party of equal size―the General
Assembly deprives on the basis of partisan affiliation a
voter of his or her right to equal voting power.
Id. ¶ 160.
¶ 76 Although Harper mentions several potential datapoints that may be used in
assessing the constitutionality of a proposed districting plan, those measures are not
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substitutes for the ultimate constitutional standard noted above. See id. ¶¶ 165–69.
That is, a trial court may not simply find that a districting plan meets certain factual,
statistical measures and therefore dispositively, legally conclude based on those
measures alone that the plan is constitutionally compliant. Constitutional compliance
has no magic number. Rather, the trial court may consider certain datapoints within
its wider consideration of the ultimate legal conclusion: whether the plan upholds the
fundamental right of the people to vote on equal terms and to substantially equal
voting power.
¶ 77 This is for good reason. As both Plaintiffs and Legislative Defendants
recognize, individual datapoints are vulnerable to manipulation and are not
independently dispositive of whether a map gives all voters a substantially equal
opportunity to translate votes into seats. Rather, it is only when these metrics and
record evidence align to “demonstrate[ ] [that] there is a significant likelihood that
the districting plan will give the voters of all political parties substantially equal
opportunity to translate votes into seats across the plan” that a challenged plan may
again be considered presumptively constitutional. Id. ¶ 163.
¶ 78 Contrary to the claims of the dissent, applying this standard, though of course
imperfect, is not impossible. There are many possible redistricting maps that could
uphold the fundamental right of all voters to vote on equal terms, just as there are
many possible factors that a trial court may consider in assessing the ultimate
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constitutionality of those maps. This is because our constitution speaks in broad
foundational principles, not narrow statistical calculations. As in other realms, the
absence of any one dispositive mathematical metric in redistricting does not absolve
the judiciary of its constitutional duty to interpret and protect the constitutional
rights of the citizens of our state. See Corum, 330 N.C. at 783 (“It is the state judiciary
that has the responsibility to protect the state constitutional rights of the citizens . .
. .”). Indeed, the very history of this case itself reveals that the judiciary, though not
always in perfect agreement, may meaningfully engage with these principles toward
the shared goal of ensuring the preservation of constitutional rights and the
maintenance of our sacred system of democratic governance.
¶ 79 Here, the trial court appears to have leaned very heavily upon its factual
findings regarding two datapoints, mean-median difference and efficiency gap, in
reaching its ultimate legal conclusion that the RHP and RSP “satisfy the Supreme
Court’s standards.”9 However, the trial court also expressly adopted into its factual
findings the findings within the Special Masters’ Report. That Report, in turn,
considered within its determination not just these two datapoints, but also “the
findings of the advisors on the partisan symmetry analysis, the declination metrics, .
. . their opinions on partisan bias and evidence of partisan gerrymandering[,]” and
To be clear, the ultimate standard for constitutional compliance originates from the
9
fundamental rights enshrined in the Constitution itself, not from this Court.
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“the totality of the circumstances.” Further, the trial court acknowledged the broader
constitutional standard at least in passing in its factual findings regarding
incumbency protection and traditional neutral districting criteria, which noted “the
equal voting power requirements of the North Carolina Constitution.” In so doing,
the remedial order indicates that the trial court functionally considered how the
evidence presented supported or undermined the compliance of the plans with the
broader constitutional standard, rather than using two datapoints as substitutes for
constitutional compliance.10 However, we encourage future trial courts considering
the constitutionality of districting plans to specify how the evidence does or does not
support the plan’s alignment with the broader constitutional standard of upholding
the fundamental right to vote on equal terms and avoiding partisan asymmetry, not
merely where its falls within certain statistical ranges.
C. Remedial Congressional Plan
¶ 80 With the proper constitutional standard clarified, we must now review the trial
court’s legal conclusions regarding the constitutionality of the RCP, RHP, and RSP
in alignment with that standard. We review conclusions of law de novo to determine
whether they are supported by findings of fact. Stephenson, 357 N.C. at 309; Sykes,
372 N.C. at 332. Factual findings are conclusive on appeal if they are supported by
10 The trial court’s brevity here must also be considered within the context of its
extremely compressed schedule on remand.
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competent evidence. Stephenson, 357 N.C. at 309. We first address the trial court’s
rejection of Legislative Defendants’ RCP. After consideration, we affirm.
¶ 81 In Conclusion of Law 7, the trial court “conclude[d] that the [RCP] does not
satisfy the Supreme Court’s standards” for constitutional compliance. The trial court
subsequently concluded that “the [RCP] is not presumptively constitutional and is
therefore subject to strict scrutiny.” The court ultimately concluded that because
“[t]he General Assembly has failed to demonstrate that the[ ] [RCP] is narrowly
tailored to a compelling governmental interest, . . . [it] is unconstitutional.”
¶ 82 These conclusions of law are supported by Findings of Fact 28 through 35.
Therein, the trial court found that the RCP was passed on a strict party-line vote,
that the RCP “is not satisfactorily within the statistical ranges set forth” in Harper,
and that “the partisan skew in the [RCP] is not explained by the political geography
of North Carolina.” Further, the Special Masters’ Report, as expressly adopted in full
into the trial court’s remedial order, found that “there is substantial evidence from
the findings of the advisors that the [RCP] has an efficiency gap above 7% and a
mean-median difference of greater than 1%.” After consideration of this evidence
“along with the advisors’ findings on the partisan symmetry analysis and the
declination metrics,” the Special Masters stated their “opinion that the [RCP] fails to
meet the threshold of constitutionality.” They therefore “recommend[ed] that the
[t]rial [c]ourt reject the [RCP] as being unconstitutional.”
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¶ 83 These factual findings are supported by competent evidence in the record.
Specifically, none of the Special Masters’ Advisors determined that the RCP yielded
both an efficiency gap below 7% and a mean-median difference below 1%. Beyond
these two measures, the Advisors determined that the RCP reflects stark and durable
partisan asymmetry, as illustrated by their observations that Republicans would
consistently win more seats than Democrats with the same share of votes across a
variety of electoral conditions. More broadly, the Advisors determined that the RCP
“consistently favors Republicans” across all applicable measures, “creates a
distribution of voting strength across districts that is very lopsidedly Republican,”
and “should be viewed as a pro-Republican gerrymander.” Finally, the Advisors
determined that the RCP created far worse partisan asymmetry than possible
alternatives.11
¶ 84 Collectively, this evidence amply supports the trial court’s factual findings that
the RCP does not satisfy constitutional standards. Those factual findings, in turn,
adequately support the trial court’s subsequent conclusion of law that the RCP must
be assessed under, and fails, strict scrutiny. Accordingly, we affirm the trial court
11 Of course, because there are any number of potential maps that could satisfy
constitutional standards, the existence of an alternative plan with greater partisan
symmetry does not dispositively prove the unconstitutionality of a less symmetrical plan.
However, as with any other piece of evidence, the existence or absence of an alternative plan
with significantly greater partisan symmetry—especially one that still honors traditional
neutral districting criteria—may serve as one datapoint within the trial court’s broader
constitutional determination.
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order’s rejection of the RCP.
¶ 85 Next, we must address the trial court’s subsequent remedy: the adoption of the
Modified RCP. In Conclusion of Law 8, the trial court stated that “[g]iven the ultimate
authority and directive is given to the Legislature to draw redistricting maps, we
conclude that the appropriate remedy is to modify the Legislative [RCP] to bring it
into compliance with the Supreme Court’s order. See N.C.G.S. § 120-2.4(a1).”
Subsequently, the court concluded that “[t]he [Modified RCP] as proposed by the
Special Masters satisfies the Supreme Court’s standards and should be adopted by
th[e] [c]ourt for the 2022 North Carolina Congressional elections.”
¶ 86 As an initial matter, the trial court is correct: N.C.G.S. § 120-2.4(a1) states, in
pertinent part, that “[i]n the event the General Assembly does not act to remedy [a
previously] identified defect[ ] to its [redistricting] plan within th[e] [required] period
of time, the court may impose an interim districting plan.” N.C.G.S. § 120-2.4(a1)
(2021). The statute further clarifies that this interim plan “may differ from the
districting plan enacted by the General Assembly only to the extent necessary to
remedy any defects identified by the court.” Id. In alignment with its broader
statutory framework including N.C.G.S. § 1-267.1 (entitled “Three-judge panel for
actions challenging plans apportioning or redistricting State legislative or
congressional districts; claims challenging the facial validity of an act of the General
Assembly”) and N.C.G.S. § 120-2.3 (entitled “Contents of judgments invalidating
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apportionment or redistricting acts), N.C.G.S. § 120-2.4 expressly authorizes judicial
review of legislative redistricting plans for state constitutional compliance and
judicial adoption of modified remedial plans in the event that the General Assembly
fails to remedy constitutional defects within its own proposed plans. Accordingly, the
trial court properly complied with N.C.G.S. § 120-2.4(a1) in adopting the Modified
RCP.
¶ 87 Further, the trial court’s conclusion of law that the Modified RCP satisfies the
constitutional standard is supported by its findings of fact. These factual findings
determined that the Modified RCP “was developed in an appropriate fashion, is
consistent with N.C.G.S. § 120-2.4(a1), and is consistent with the North Carolina
Constitution and the Supreme Court’s full opinion.” (Footnote omitted). The Special
Masters’ Report, as expressly adopted in full into the trial court’s remedial order,
likewise found that the Modified RCP “satisfies the requirements of the Supreme
Court” and “achieves the partisan fairness and ‘substantially equal voting power’
required by the Supreme Court of North Carolina.”
¶ 88 These findings of fact are supported by competent evidence. The evidence
indicates that the Modified RCP “has an efficiency gap of 0.63%, a mean-median
difference of 0.69%, seat bias of 0.28%, and vote bias of 0.10%.” According to Dr.
Grofman, “this is the most non-dilutive plan in partisan terms of any map that has
been submitted to the [c]ourt.” Finally, the evidence indicates that the Modified RCP
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achieves this level of partisan symmetry while still complying with traditional
neutral districting criteria such as “maintaining the number of county splits,
retaining equal population, compactness, and contiguity, as well as respecting
municipal boundaries.”
¶ 89 Collectively, this evidence amply supports the trial court’s factual findings that
the Modified RCP was developed in an appropriate fashion, is consistent with
N.C.G.S. § 120-2.4(a1), and meets constitutional standards. Those factual findings,
in turn, adequately support the trial court’s subsequent conclusion of law that
adopting the Modified RCP is legally and constitutionally appropriate remedy.
Accordingly, we affirm the trial court order’s adoption of the Modified RCP.
D. Remedial House Plan
¶ 90 Second, we address the trial court’s approval of Legislative Defendants’
Remedial House Plan (RHP). After consideration, we affirm.
¶ 91 In Conclusion of Law 4, the trial court “conclude[d] that the [RHP] satisfies the
Supreme Court’s standards” for constitutional compliance. It subsequently concluded
that “the [RHP is] presumptively constitutional” and that because “no evidence
presented to the [c]ourt is sufficient to overcome this presumption[,] . . . th[e] [RHP
is] therefore constitutional and will be approved.”
¶ 92 These conclusions of law are supported by Findings of Fact 51 through 63, none
of which have been specifically challenged as unsupported by evidence. Therein, the
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trial court found that the RHP was “amended by six amendments offered by
Democratic Representatives” and ultimately passed the House and Senate with
sweeping bipartisan approval. The trial court found, “based upon and confirmed by
the analysis of the Special Masters and their advisors, that the [RHP is] satisfactorily
within the statistical ranges set forth in the Supreme Court’s full opinion.” The court
found that “to the extent there remains a partisan skew in the [RHP], that partisan
skew is explained by the political geography of North Carolina.” Regarding the
General Assembly’s consideration of incumbency protection, the trial court found that
“the measures taken by the General Assembly for the purposes of incumbency
protection in the [RHP] were applied evenhandedly” and “are consistent with the
equal voting power requirements of the North Carolina Constitution.” The trial court
found “that the General Assembly did not subordinate traditional neutral districting
criteria to partisan criteria or considerations in the [RHP].” Further, the Special
Masters’ Report, as expressly adopted in full into the trial court’s remedial order,
found that “[t]he advisors as well as the experts of the parties . . . all found the
efficiency gap of the [RHP] to be less than 7%” and “[t]he majority of the advisors and
experts found the mean-median difference of the [RHP] to be less than 1%.” The
Special Masters determined, based on these facts and “the findings of the advisors on
the partisan symmetry analysis, the declination metrics, and their opinions on
partisan bias and evidence of partisan gerrymandering,” that “the [RHP] meets the
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test of presumptive constitutionality.”
¶ 93 Moreover, these factual findings are supported by competent evidence. The
Special Masters’ Advisors determined that the RHP yields an average efficiency gap
of about 2.88%, an average mean-median difference of about 1.27%, a partisan
asymmetry of 2.9%, and a declination metric of 0.16. Although the RHP shows some
Republican bias, the Advisors determined that the RHP “is genuinely far more
competitive than either of the other two legislatively proposed maps” and “simply
lacks the same clear indicia of egregious bias found in the previously rejected maps
and still found . . . in the [RCP] and [RSP].” Dr. Jarvis determined that the RHP
“appear[s] to be mostly typical in terms of the number of seats won,” and Dr. McGhee
observed that the RHP’s similarity to the NCLCV proposed plan “hints that it may
be difficult to do better while still abiding by other constraints.” Contextually, the
Advisors observed that neither the Harper Plaintiffs nor the NCLCV Plaintiffs
challenged the RHP on appeal, and that the RHP “was passed by a clear bipartisan
consensus in the legislature.”
¶ 94 Collectively, this evidence supports the trial court’s factual findings that the
RHP meets constitutional standards. Those factual findings, in turn, adequately
support the trial court’s subsequent conclusion of law that the RHP is constitutional
and should be approved. Accordingly, we affirm the trial court’s order approving the
RHP. In accordance with article II section 5(4) of our Constitution, the RHP is now
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“established” under law and therefore “shall remain unaltered until the return of
another decennial census of population taken by order of Congress.”
E. Remedial Senate Plan
¶ 95 Third, we address the trial court’s approval of Legislative Defendants’
Remedial Senate Plan (RSP). After consideration, we reverse.
¶ 96 In Conclusion of Law 3, the trial court “conclude[d] that the [RSP] satisfies the
Supreme Court’s standards.” It subsequently concluded that “the [RSP is]
presumptively constitutional,” and that because “no evidence presented to the [c]ourt
is sufficient to overcome this presumption[,] . . . th[e] [RSP is] therefore constitutional
and will be approved.”
¶ 97 These conclusions of law are based on Findings of Fact 36 through 50, but,
unlike for the RHP, are not supported by all of those findings. For instance, Finding
of Fact 36 found that the RSP kept many of the same county groupings as the
unconstitutional 2021 Senate plan. Finding of Fact 38 found that the RSP passed
both chambers of the General Assembly on strict party-line votes. Finding of Fact 39
found that suggested Senate plans drawn by Democrats were rejected and only “the
plan proposed by the Republican Redistricting and Election Committee members was
then put to a vote by the Senate Committee and advanced to the full chamber.”
Though far from dispositive, these contextual factual findings undermine, rather
than support, the trial court’s subsequent conclusion that the RSP meets
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constitutional standards of partisan symmetry. These contrary factual findings, in
part, distinguish the trial court’s analysis of the RSP from its analysis of the RHP,
¶ 98 Other findings of fact regarding the RSP, though supportive of the trial court’s
legal conclusions, are expressly challenged by Plaintiffs and, we conclude, are
unsupported by competent evidence.12 For instance, Finding of Fact 42 found that
“based upon the analysis performed by the Special Masters and their advisors, . . .
the [RSP] is satisfactorily within the statistical ranges set forth in the Supreme
Court’s full opinion.” Finding of Fact 43 found “that to the extent there remains a
partisan skew in the [RSP], that partisan skew is explained by the political geography
of North Carolina.” These two findings constitute the keystone of the trial court’s
factual support for its legal conclusion that the RSP is constitutionally compliant, but
neither are supported by competent evidence.
¶ 99 First, Finding of Fact 42 is not supported by competent evidence. Far from
supporting the constitutionality of the RSP, the analysis performed by the Special
Masters and their Advisors strongly indicates that the RSP reflects “a substantial
pro-Republican bias” that “should be viewed as a pro-Republican gerrymander” and
constitutes “a significant outlier in favor of the Republicans.” Statistically, all but one
Advisor, Dr. Wang, determined that the RSP yields a mean-median difference of over
12 Because these factual findings are expressly challenged as lacking competent
evidence, they require a more careful review than findings or conclusions that are more
generally rebutted or wholly unmentioned.
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1%, and the average of all four advisors’ mean-median difference calculation is also
above 1%. Even Dr. Wang concluded that the RSP indicates notable partisan bias in
all six metrics evaluated. And because the Special Masters expressly noted that Dr.
Wang’s analysis “was not determinative of any recommendations made by the Special
Masters to the court,” it is clear that this finding of fact cannot rest on his single
calculation alone. Further, the evidence indicates the RSP’s durable partisan
asymmetry is such that “in a tied election Republicans would still hold 27 or 28 seats,
and that Democrats would need to win as much as 53 percent of the vote to claim 25
seats.”
¶ 100 Finding of Fact 43 is likewise unsupported by competent evidence. There, the
trial court found “that to the extent there remains a partisan skew in the [RSP], that
partisan skew is explained by the political geography of North Carolina.” As an initial
matter, this finding is an incomplete statement of the requirement established in
Harper, which stated that a court may use statistical measures in assessing “whether
a meaningful partisan skew necessarily results from North Carolina’s unique political
geography.” Harper, ¶ 163 (emphasis added). In any event, the evidence shows the
opposite. The Advisors specifically determined that alternative remedial Senate
plans often reflect “less than half the size of the [partisan] advantage in the
Legislative Defendants’ [RSP],” indicating “that there is nothing foreordained about
the advantages in the Legislative Defendants’ plan.” This evidence likewise
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distinguishes the RSP from the RHP, which was found to reflect very similar partisan
symmetry as alternative plans, thus “hint[ing] that it may be difficult to do better
while still abiding by [traditional] constraints.” Indeed, when alternative plans reflect
substantially less partisan asymmetry while adhering equally or better to traditional
neutral redistricting criteria, it indicates that the more asymmetrical plan is
necessarily not explained by political geography.
¶ 101 To be clear, none of these datapoints are individually dispositive.
Cumulatively, though, they directly and significantly undermine, rather than
support, the trial court’s factual findings that the RSP satisfies constitutional
standards. Given this lack of competent evidentiary support, these challenged
findings of fact must be rejected as support for their subsequent legal conclusions.
¶ 102 Without these keystone factual findings, the trial court’s subsequent
conclusions of law crumble. That is, without any findings that the RSP satisfies
constitutional standards, the trial court’s conclusion affirming the RSP’s
constitutionality is wholly unsupported and likewise fails. Accordingly, we reverse
the trial court’s approval of the RSP.
¶ 103 Given this reversal, this Court must now implement a remedy. Under N.C.G.S.
§ 120-2.4(a1), when “the General Assembly does not act to remedy any identified
defects” to a remedial districting plan, “the court may impose an interim districting
plan . . . that . . . differ[s] from the districting plan enacted by the General Assembly
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only to the extent necessary to remedy any defects identified by the court.” In
accordance with this express statutory authorization and the Court’s constitutional
authority to remedy the violation of fundamental rights, see Corum, 330 N.C. at 783,
we remand this case to the trial court to oversee the creation of a Modified RSP. This
plan must modify Legislative Defendants’ RSP only to the extent necessary to achieve
constitutional compliance by ensuring that individuals “of all political parties are
given substantially equal opportunity to translate votes into seats across the plan.”
Harper, ¶ 163. Upon its review, if the trial court concludes that the proposed Modified
RSP meets this constitutional standard, then we instruct the trial court to adopt the
Modified RSP.
F. Legislative Defendants’ Motion to Disqualify Special Masters’ Advisors
¶ 104 Next, we must address Legislative Defendants’ contention that the trial court
abused its discretion in denying Legislative Defendants’ motion to disqualify two of
the Special Masters’ Advisors. This Court reviews a trial court’s discretionary ruling
for an abuse of that discretion. Davis v. Davis, 360 N.C. 518, 523 (2006). “A trial court
may be reversed for abuse of discretion only upon a showing that its actions are
‘manifestly unsupported by reason.’ ” Id. (quoting Clark v. Clark, 301 N.C. 123, 129
(1980)). We hold that the trial court did not abuse its discretion in denying Legislative
Defendants’ motion to disqualify for three reasons.
¶ 105 First, while “the analysis provided by Drs. Wang and Jarvis was helpful . . . ,
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it was not determinative of any recommendations made by the Special Masters to the
[c]ourt.” Second, the ex parte communications between the Advisors and Plaintiffs’
experts “do not appear to have been made in bad faith” and “were solely for the
purpose of proceeding as quickly as possible within the abbreviated time frame
allotted for the remedial process.” Third, all of the information sought by the Advisors
“was publicly available . . . at the time of the communications questioned.”
Accordingly, the trial court’s denial of Legislative Defendants’ motion to disqualify
was amply supported by reason. We therefore affirm the trial court’s denial of
Legislative Defendants’ motion.
G. Equal Protection Challenge
¶ 106 Finally, we must address Plaintiff Common Cause’s equal protection
arguments. Specifically, Common Cause contends that RHP District 10 and RSP
District 4 violate state equal protection requirements by failing to protect against
vote dilution for Black voters and due to the intentional destruction of functioning
crossover districts for Black voters. In response, Legislative Defendants assert the
General Assembly satisfactorily performed a racially polarized voting analysis which
showed that majority-minority districts are not required for Voting Rights Act (VRA)
compliance, and that the General Assembly lacked good reason to conclude that
drawing remedial districts without reference to race was required to protect from
VRA Section 2 liability. Because this Court has already reversed the trial court’s
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constitutional approval of the RSP, we focus primarily on Plaintiff Common Cause’s
RHP challenge. After consideration, we reject Plaintiff Common Cause’s claim.
¶ 107 In Harper, this Court held “that under Stephenson, the General Assembly was
required to conduct a racially polarized voting analysis prior to drawing district
lines.” Harper, ¶ 214. We further noted that this responsibility “arises from our state
constitution and decisions of this Court, including primarily Stephenson, and not from
the VRA itself, or for that matter from any federal law.” Id.¶ 108 Here, the trial court concluded that the RHP satisfied constitutional
standards, which include principles of equal protection. This conclusion of law, as it
relates to equal protection principles, was supported by Findings of Fact 16 and 17.
Therein, the trial court found that “[t]he General Assembly conducted an abbreviated
racially polarized voting (“RPV”) analysis to determine whether racially polarized
voting is legally sufficient in any area of the state such that Section 2 of the [VRA]
requires the drawing of a district to avoid diluting the voting strength of African
American voters during the remedial process.” The trial court found that “Legislative
Defendants’ expert Dr. Jeffery B. Lewis ran an analysis and concluded that all three
Remedial Plans provide African Americans with proportional opportunity to elect
their candidates of choice.” Accordingly, the trial court determined “that the General
Assembly satisfied the directive in the Supreme Court Remedial Order to determine
whether the drawing of a district in an area of the state is required to comply with
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Section 2 of the [VRA].”
¶ 109 The evidence on this issue, though limited, supports the trial court’s limited
findings of fact and conclusion of law. Specifically, the record reflects that the General
Assembly conducted RPV analysis during its remedial process in compliance with
this Court’s order and opinion in Harper, and that this analysis concluded that the
RHP met threshold requirements of providing Black voters with proportional
opportunity to elect candidates of their choice. Although Plaintiff Common Cause
notes contrary evidence indicating decreases in Black voting age population
percentages within the two challenged districts under the RHP and RSP, this
evidence does not lead to a conclusion that the trial court’s findings are unsupported
by competent evidence. Further, because the federal authorities cited by Plaintiff
Common Cause do not require the General Assembly to create functioning crossover
districts based on this data under state equal protection principles, this Court is not
in a position to consider Plaintiff’s requested remedy within an exclusively state law
claim in state court. Accordingly, we affirm the trial court’s approval of the RHP on
equal protection principles.
III. Conclusion
¶ 110 Our Constitution’s Declaration of Rights vests in the people of this state the
fundamental right to vote on equal terms. N.C. Const. art. I, §§ 1 (equality and rights
of persons), 2 (sovereignty of the people), 10 (free elections), 12 (freedom of assembly),
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14 (freedom of speech), 19 (equal protection of the laws); see Harper, ¶ 158–59
(summarizing these principles and rights). In exercising its redistricting authority,
the General Assembly is required to respect and uphold this fundamental right. Id. ¶
160. Therefore, when the General Assembly enacts a districting plan that
systematically makes it harder for certain voters to elect a governing majority based
on partisan affiliation, that plan “is subject to strict scrutiny and is unconstitutional
unless the General Assembly can demonstrate that the plan is narrowly tailored to
advance a compelling governmental interest.” Id. ¶ 161 (cleaned up). While individual
datapoints about a districting plan may be helpful toward assessing constitutional
compliance, they are not substitutes for constitutional compliance. Ultimately, a
districting plan must comply with the broader constitutional standard of upholding
the right to vote on equal terms and to substantially equal voting power. Id. ¶ 160.
¶ 111 Here, the trial court properly determined that Legislative Defendants’
Remedial Congressional Plan fell short of that standard. In accordance with N.C.G.S.
§ 120-2.4(a1), it then properly adopted a Modified RCP. Therefore, we affirm the trial
court’s rejection of the RCP and adoption of the Modified RCP.
¶ 112 Next, the trial court properly determined that Legislative Defendants’
Remedial House Plan met constitutional standards. We therefore affirm the trial
court’s approval of the RHP for use through the next decennial redistricting cycle.
¶ 113 However, the trial court erred in its determination that Legislative
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Defendants’ Remedial Senate Plan met constitutional standards. Specifically, the
trial court’s legal conclusion that the RSP is constitutionally compliant is
unsupported by findings of fact that are supported by competent evidence. Rather,
the evidence strongly indicates that the RSP creates stark partisan asymmetry in
violation of the fundamental right to vote on equal terms. We therefore reverse the
trial court’s approval of the RSP.
¶ 114 In accordance N.C.G.S. § 120-2.4(a1), we now remand this case to the trial
court to oversee the creation of a Modified RSP that modifies Legislative Defendants’
RSP only to the extent necessary to achieve constitutional compliance. After
assessing the Modified RSP for constitutional compliance, we instruct the trial court,
in accordance with N.C.G.S. § 120-2.4(a1), to adopt this Modified RSP.
¶ 115 If our state is to realize its foundational ideals of equality and popular
sovereignty, it must first “ensure that the channeling of ‘political power’ from the
people to their representatives in government through elections, the central
democratic process envisioned by our constitutional system, is done on equal terms.”
Harper, ¶ 223. Only then will ours truly be “a ‘government of right’ that ‘originates
from the people’ and speaks with their voice.” Id. As expressed in Harper, it remains
the sincere hope of this Court that our state’s leaders will exercise their constitutional
authority—in redistricting and all other realms—in a manner that upholds these
fundamental rights and principles. Id. Until then, it remains the solemn
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constitutional duty of this Court and our state judiciary to stand in the breach.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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Chief Justice NEWBY dissenting.
¶ 116 To which branch of government does our constitution place the role of
redistricting? The constitution expressly gives that responsibility to the legislative
branch; even the majority so concedes. While paying lip service to this express grant
of authority, the majority retains for itself the ultimate redistricting responsibility.
As previously warned in the initial dissent in this case,
[t]he majority replaces established principles with
ambiguity, basically saying that judges alone know which
redistricting plan will be constitutional and accepted by
this Court based on analysis by political scientists. This
approach ensures that the majority now has and
indefinitely retains the redistricting authority, thereby
enforcing its policy preferences.
Harper v. Hall (Harper I), 380 N.C. 317, 2022-NCSC-17, ¶ 229 (Newby, C.J.,
dissenting).
¶ 117 Today this prediction is fulfilled. In Harper I the majority effectively amended
the state constitution to establish a redistricting commission composed of judges and
political science experts. When, however, this commission, using the majority’s
redistricting criteria, reached an outcome with which the majority disagrees, the
majority freely reweighs the evidence and substitutes its own fact-finding for that of
the three-judge panel. Again, as predicted, “[t]he four members of this Court alone
will approve a redistricting plan which meets their test of constitutionality.” Id.
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¶ 118 On remand, despite very challenging deadlines established by the majority,
the General Assembly redrew its redistricting maps, this time using the guidelines
discussed by this Court in Harper I. The General Assembly made the policy decision
to use various approved, constitutionally compliant procedures. It chose appropriate
county groupings, utilized the most widely accepted redistricting software available,
Maptitude, and adopted for its use the twelve statewide races suggested by one of
plaintiffs’ experts. It made the policy decision to rely on the two, extensively peer-
reviewed, political science tests suggested by the majority. The majority said that if
a redistricting plan met these tests, it would be “presumptively constitutional.” Id.
¶¶ 166−67 (majority opinion). All of the General Assembly’s remedial plans met these
tests according to the Maptitude software.
¶ 119 The three-judge panel, its Special Masters, and their advisors did not give any
deference to the General Assembly’s policy choices listed above. Each advisor used
his own preferred software and set of elections to analyze the remedial plans.
Nevertheless, the Special Masters recommended, and the three-judge panel
concluded, that the remedial House plan (RHP) and the remedial Senate plan (RSP)
complied with the majority’s criteria from Harper I. The three-judge panel, however,
summarily rejected the remedial Congressional plan (RCP), as recommended by the
Special Masters, and judicially adopted a plan created by the Special Masters in
consultation with their advisors.
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¶ 120 Now the majority agrees with the three-judge panel’s acceptance of the RHP
and its rejection of the RCP. The majority, however, holds unconstitutional beyond a
reasonable doubt the RSP. While accepting the three-judge panel’s findings of fact for
the RHP, the majority wrongly reweighs the evidence, determines credibility, and
substitutes its own judgment for that of the three-judge panel in order to strike down
the RSP.
¶ 121 Despite the majority’s judicial amendments to our constitution to create an
active role for itself in redistricting, our case law directs that the General Assembly’s
policy determinations in enacting laws are entitled to a presumption of
constitutionality. See State ex rel. McCrory v. Berger, 368 N.C. 633, 639, 781 S.E.2d
248, 252 (2016). Showing that a policy decision is unconstitutional requires proof
beyond any reasonable doubt. See, e.g., Jenkins v. State Bd. of Elections, 180 N.C.
169, 172, 104 S.E. 346, 348 (1920). In compliance with the majority’s directive, the
General Assembly chose Maptitude, a set of twelve statewide elections, and two
political science tests, Mean-Median Difference and Efficiency Gap, which were
specifically approved in Harper I.
¶ 122 No one has challenged the General Assembly’s policy choices as
unconstitutional. According to Maptitude, all three remedial maps satisfied the
Mean-Median Difference and Efficiency Gap criteria, thus meeting the majority’s own
test for presumptive constitutionality—this test being in addition to the
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long-standing requirement that we treat all acts of the General Assembly as
constitutional.
¶ 123 Neither the majority nor the three-judge panel gave any deference to these
policy choices. Instead, they disrespect another branch of government by treating the
General Assembly as just another participant in their redistricting process. While the
three-judge panel correctly upheld the RHP and the RSP, it wrongly rejected the RCP.
The majority now wrongly rejects the RSP and upholds the three-judge panel’s
rejection of the RCP. The majority has effectively overturned its own decision in
Harper I. There it said that if the Remedial Plans met specified thresholds for certain
political science-based tests, the plans would be “presumptively constitutional.”
Harper I, 2022-NCSC-17, ¶¶ 166−67. Now, reversing course, it says none of these test
scores can entitle a proposed redistricting plan to a presumption of constitutionality.
It appears the majority seeks to apply strict scrutiny to all of Legislative defendants’
Remedial Plans.
¶ 124 By its actions today, the majority confirms the dangers of judicial usurpation
of the legislative redistricting role. By intentionally stating vague standards, it
ensures that four members of this Court alone understand what redistricting plan is
constitutionally compliant. Apparently, the General Assembly, the three Special
Masters (each a former jurist), and the three-judge panel were unable to discern the
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constitutional “standard” set out in Harper I. Only the four justices here know what
meets their standard.
¶ 125 When the constitution expressly assigns a task to a particular branch of
government, the constitution prohibits the judicial branch from intruding into that
task. Such intrusion violates separation of powers; the issue is nonjusticiable.
Similarly, a matter is nonjusticiable if there is “a lack of judicially discoverable and
manageable standards for resolving it.” Id. ¶ 237 (Newby, C.J., dissenting) (quoting
Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710 (1962)). While the presence of
either factor makes a matter nonjusticiable, both are present here.1
¶ 126 As previously stated,
[t]he majority ignores [the Supreme Court’s] warnings,
fails to articulate a manageable standard, and seems
content to have the discretion to determine when a
redistricting plan is constitutional. This approach is
radically inconsistent with our historic standard of review,
which employs a presumption that acts of the General
Assembly are constitutional, requiring identification of an
express constitutional provision and a showing of a
violation of that provision beyond a reasonable doubt.
The Supreme Court cautioned that embroiling
courts in cases involving partisan gerrymandering claims
1 The majority wrongly states that the presence of both factors is required to render
an issue nonjusticiable. Harper I, 2022-NCSC-17, ¶ 112 (majority opinion) (“This Court has
recognized two criteria of political questions: (1) where there is ‘a textually demonstrable
constitutional commitment of the issue’ to the ‘sole discretion’ of a ‘coordinate political
department[,]’ and (2) those questions that can be resolved only by making ‘policy choices
and value determinations.’ ” (first alteration in original) (emphasis added) (quoting Bacon v.
Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001))).
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by applying an “expansive standard” would amount to an
“unprecedented intervention in the American political
process.”
Id. ¶¶ 310−11 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2498 (2019)). Sadly,
the majority continues to do just that. I respectfully dissent.
I. Factual and Procedural History
A. Initial Litigation
¶ 127 As required by both our state constitution and the Federal Constitution, the
General Assembly, following the 2020 census, enacted redistricting plans for the
North Carolina Senate and House of Representatives and for the North Carolina
districts for the United States House of Representatives on 4 November 2021 (2021
Plans). North Carolina League of Conservation Voters (NCLCV) plaintiffs and
Harper plaintiffs each challenged the legality of these plans, arguing they
“establish[ed] severe partisan gerrymanders” and “engag[ed] in racial vote dilution”
in violation of the Free Elections Clause, the Equal Protection Clause, the Freedom
of Speech and Assembly Clauses, and the Whole County Provisions of the North
Carolina Constitution. See N.C. Const. art. I, §§ 10, 19, 12, 14; id. art. II, §§ 3(3), 5(3).
Both groups of plaintiffs also sought a preliminary injunction to enjoin use of the 2021
Plans.
¶ 128 The NCLCV and Harper actions were consolidated and assigned to a
three-judge panel of the Superior Court in Wake County. On 3 December 2021, the
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three-judge panel denied both NCLCV plaintiffs’ and Harper plaintiffs’ motions for
preliminary injunction. NCLCV plaintiffs and Harper plaintiffs filed a notice of
appeal with the North Carolina Court of Appeals.
¶ 129 The Court of Appeals denied NCLCV plaintiffs’ and Harper plaintiffs’ request
for a temporary stay. NCLCV plaintiffs and Harper plaintiffs then filed several items
with this Court, including two petitions for discretionary review prior to
determination by the Court of Appeals, a motion to suspend appellate rules to
expedite a decision, and a motion to suspend appellate rules and expedite schedule.
On 8 December 2021, this Court allowed NCLCV plaintiffs’ and Harper plaintiffs’
petitions for discretionary review, granted a preliminary injunction, and temporarily
stayed the candidate filing period for the 2022 election cycle “until such time as a
final judgment on the merits of [NCLCV and Harper] plaintiffs’ claims, including any
appeals, is entered and [a] remedy, if any is required, has been ordered.” In the same
order, this Court also directed the three-judge panel to hold proceedings on “the
merits of plaintiffs’ claims and to provide a written ruling on or before . . . January
11, 2022.”
¶ 130 Subsequently, Common Cause moved to intervene in the consolidated
proceedings as a plaintiff on 13 December 2021. The three-judge panel granted
Common Cause’s motion to intervene, and on 16 December 2021, Common Cause
filed its complaint alleging the 2021 Plans violated the Equal Protection Clause, the
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Free Elections Clause, and the Freedom of Speech and Freedom of Assembly Clauses
of the North Carolina Constitution. Hereinafter, NCLCV plaintiffs, Harper plaintiffs,
and Common Cause are collectively referred to as “plaintiffs.”
¶ 131 Legislative defendants filed their Answers on 17 December 2021. Thereafter,
the parties engaged in an “expedited two-and-a-half-week” discovery period, during
which the three-judge panel ruled on ten discovery-related motions and the parties
collectively designated ten expert witnesses and submitted accompanying reports.
Altogether, the parties collectively submitted over 1000 pages of reports and
materials to the three-judge panel. After the discovery period closed on 31 December
2021, the three-judge panel commenced a three-and-one-half day trial on 3 January
2022 during which it received approximately 1000 exhibits into evidence and
testimony from numerous fact and expert witnesses.
¶ 132 On 11 January 2022, the three-judge panel entered a judgment concluding that
plaintiffs’ partisan gerrymandering claims presented nonjusticiable, political
questions because redistricting “is one of the purest political questions which the
legislature alone is allowed to answer.” Additionally, the three-judge panel concluded
that the 2021 Plans did not violate North Carolina’s Declaration of Rights because
“[t]he objective constitutional constraints that the people of North Carolina have
imposed on legislative redistricting are found in Article II, Sections 3 and 5 of the
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1971 Constitution and not the Free Elections, Equal Protection, Freedom of Speech
or Freedom of Assembly Clauses found in Article I of the 1971 Constitution.”
¶ 133 Pursuant to this Court’s 8 December 2021 order certifying the case for review
prior to determination by the Court of Appeals, all plaintiffs filed notices of appeal to
this Court from the three-judge panel’s judgment. The case was argued before this
Court on 2 February 2022. On 4 February 2022, in a four-to-three decision, this Court
entered an Order (Remedial Order) adopting the findings of fact from the three-judge
panel’s judgment but concluding that the 2021 Plans were “unconstitutional beyond
a reasonable doubt under the free elections clause, the equal protection clause, the
free speech clause, and the freedom of assembly clause of the North Carolina
Constitution.” The Remedial Order reversed and remanded the matter to the
three-judge panel for remedial proceedings and noted that a full opinion would follow.
Three justices filed a dissent to the Remedial Order.
B. Harper I
¶ 134 Ten days later, the four-justice majority issued its full opinion. See Harper I,
380 N.C. 317, 2022-NCSC-17. The majority opinion first held that “partisan
gerrymandering claims are justiciable in North Carolina courts under the . . . [North
Carolina] Declaration of Rights” because there are “several manageable standards
for evaluating the extent to which districting plans dilute votes on the basis of
partisan affiliation.” Id. ¶ 174. Specifically, the majority determined that various
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political science metrics could serve as a sufficient standard. See id. ¶¶ 163, 166–67.
It indicated that a 1% or less Mean-Median Difference score and a 7% or less
Efficiency Gap score could indicate a redistricting map is “presumptively
constitutional.” See id. ¶¶ 166–67. The majority, however, refused to state a precise
standard, ultimately leaving that review to themselves. Id. ¶ 163 (“We do not believe
it prudent or necessary to, at this time, identify an exhaustive set of metrics or precise
mathematical thresholds which conclusively demonstrate or disprove the existence of
an unconstitutional partisan gerrymander.”).
¶ 135 Next, the majority held that “[p]artisan gerrymandering of legislative and
congressional districts violates the free elections clause, the equal protection clause,
the free speech clause, and the freedom of assembly clause” of the North Carolina
Constitution. Id. ¶ 160. Specifically, the majority reasoned that these provisions
reflect “the principle of political equality,” id. ¶ 158, which in turn requires that “the
channeling of ‘political power’ from the people to their representatives in government
through the democratic processes . . . must be done on equal terms,” id. Accordingly,
the majority concluded that to comport with these provisions in the Declaration of
Rights, the General Assembly “must not diminish or dilute on the basis of partisan
affiliation any individual’s vote” because “[t]he fundamental right to vote includes the
right to enjoy ‘substantially equal voting power and substantially equal legislative
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representation.’ ” Id. ¶ 160 (quoting Stephenson v. Bartlett (Stephenson I), 355 N.C.
354, 382, 562 S.E.2d 377, 396 (2002)).
¶ 136 The majority determined that because “[t]he right to vote on equal terms is a
fundamental right in this state,” strict scrutiny must apply once a party demonstrates
that a redistricting plan “infringes upon his or her fundamental right to substantially
equal voting power” based on partisan affiliation. Id. ¶ 181. To trigger strict scrutiny,
the majority held that a party must demonstrate that a redistricting plan “makes it
systematically more difficult for a voter to aggregate his or her vote with other
likeminded voters.” Id. ¶ 180. A party may make this demonstration using a variety
of political science-based metrics and tests such as:
median-mean difference analysis; efficiency gap analysis;
close-votes-close[-]seats analysis[;] partisan symmetry
analysis; comparing the number of representatives that a
group of voters of one partisan affiliation can plausibly
elect with the number of representatives that a group of
voters of the same size of another partisan affiliation can
plausibly elect; and comparing the relative chances of
groups of voters of equal size who support each party of
electing a supermajority or majority of representatives
under various possible electoral conditions. Evidence that
traditional neutral redistricting criteria were subordinated
to considerations of partisan advantage may be
particularly salient in demonstrating an infringement of
this right.
Id. Once a party makes this initial demonstration, the challenged redistricting plan
“is unconstitutional [unless] the State can[ ] establish that it is narrowly tailored to
advance a compelling governmental interest.” Id. ¶ 181 (quoting Stephenson I, 355
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N.C. at 377, 562 S.E.2d at 393). The majority opined that “compliance with traditional
neutral districting principles, including those enumerated in [the Whole County
Provisions] of the North Carolina Constitution,” might constitute a compelling
governmental interest that would overcome strict scrutiny, but “[p]artisan
advantage” is not. Id.¶ 137 The majority then applied these principles to the three-judge panel’s factual
findings and determined that the evidence at trial demonstrated that all of the 2021
Plans were partisan gerrymanders. Id. ¶ 178. The majority then applied strict
scrutiny to each map and concluded that the 2021 Plans were not “carefully calibrated
toward advancing some compelling neutral priority.” Id. ¶¶ 195, 213; see id. ¶ 205.
To the contrary, the majority concluded that each map “prioritized considerations of
partisan advantage above traditional neutral districting principles,” and therefore,
“must be rejected.” Id. ¶ 213; see id. ¶¶ 195, 205.
¶ 138 The majority concluded its Harper I opinion by reversing and remanding the
case to the three-judge panel and instructing the three-judge panel to “oversee the
redrawing of the maps by the General Assembly, or, if necessary, by the court.” Id. ¶
223. The three dissenting justices determined plaintiffs’ claims were non-justiciable.
The dissent noted that our state constitution expressly assigns the redistricting
responsibility to the General Assembly and that the majority failed to identify a
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judicially discernable, manageable standard by which to adjudicate the partisan
gerrymandering claims at issue. See id. ¶¶ 237−67 (Newby, C.J., dissenting).
C. Remand
1. Three-Judge Panel’s Initial Orders
¶ 139 This Court’s 4 February 2022 Remedial Order required an expedited process
with abbreviated deadlines. The majority ordered the General Assembly to submit
new congressional and state legislative districting plans “that satisfy all provisions
of the North Carolina Constitution” by 18 February 2022. The Remedial Order also
permitted plaintiffs to submit proposed remedial districting plans by the same
deadline. The majority permitted all parties to file and submit comments on any of
the submitted plans by 21 February 2022. The Remedial Order mandated that the
three-judge panel “approve or adopt compliant congressional and state legislative
districting plans no later than noon on 23 February 2022.” Any party could file an
emergency application for stay pending appeal by 5:00 P.M. on that same day.
¶ 140 On 8 February 2022, the three-judge panel entered an order requiring that
each party who submitted a proposed remedial plan must also submit a
corresponding explanation of the “data and other considerations” used in creating the
plan. Specifically, each party had to explain whether “traditional neutral districting
criteria” were used, whether incumbency was considered, whether any partisan skew
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“necessarily result[ed] from North Carolina’s unique political geography,” and any
political science metrics utilized.
¶ 141 In the same 8 February 2022 order, the three-judge panel also informed the
parties of its intent to appoint Special Masters to assist the panel in reviewing the
parties’ proposed remedial plans and, if needed, in developing alternative remedial
plans. The order permitted each party to submit to the three-judge panel suggested
individuals to serve as a Special Master. Each of the parties submitted their
suggestions, but the three-judge panel instead appointed three individuals of its own
choosing—former jurists Robert F. Orr, Robert H. Edmunds, Jr., and Thomas W.
Ross—in a 16 February 2022 order (Appointment Order).
¶ 142 The Appointment Order authorized the Special Masters to hire assistants
“reasonably necessary to facilitate their work.” The Special Masters hired four
advisors to assist in evaluating the Remedial Plans: Dr. Bernard Grofman, Dr. Tyler
Jarvis, Dr. Eric McGhee, and Dr. Samuel Wang. Notably, two of the advisors—Dr.
Grofman and Dr. Jarvis—were recommended by NCLCV plaintiffs as potential
Special Masters, and at least one of the advisors—Dr. Wang—filed a brief in support
of plaintiff Common Cause in previous litigation surrounding redistricting in North
Carolina. See Brief of Amici Curiae Professors Wesley Pegden, Jonathan Rodden, and
Samuel S.-H. Wang in Support of Appellees 2, Rucho v. Common Cause, 139 S. Ct.
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2484 (No. 05-1631). None of the advisors were recommended by Legislative
defendants.
2. General Assembly’s Remedial Process
¶ 143 The General Assembly enacted new congressional and legislative plans
(Remedial Plans) on 17 February 2022 and timely submitted them to the three-judge
panel on 18 February 2022. Per the three-judge panel’s 8 February 2022 and 16
February 2022 orders, the General Assembly also submitted a detailed memorandum
describing the data and process used to create the Remedial Plans.
¶ 144 The General Assembly understood Harper I as requiring it “to intentionally
create more Democratic districts in the [Remedial Plans].” To achieve this task, the
General Assembly started with a blank slate and followed the same process to create
each map. Each redistricting committee kept the county groupings used for the 2021
Plans as base maps. Accordingly, any single district county groupings from each of
the 2021 Plans were carried over to the Remedial Plans; otherwise, each map was
entirely new.
¶ 145 Next, each redistricting committee “dr[e]w new districts and ma[d]e
adjustments tailored to legitimate criteria.” The General Assembly made the policy
decision to utilize Caliper’s Maptitude redistricting software, a “widely accepted
districting program,” to draw and analyze the Remedial Plans. The General Assembly
chose Maptitude, as opposed to another redistricting software, because it is “widely
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accepted” in the field of redistricting and is “used by a supermajority of the state
legislatures, political parties, and public interest groups.” Overview: Maptitude for
Redistricting Software, https://www.caliper.com/mtredist.htm (last visited Dec. 7,
2022).
¶ 146 Although expressly prohibited by its previous redistricting criteria, the
General Assembly “used partisan election data as directed by the Supreme Court’s
Remedial Order” to achieve its goal of “intentionally creat[ing] more Democratic
districts.” The General Assembly made the policy decision to utilize partisan data
from the set of elections that plaintiffs’ expert, Dr. Mattingly, used to analyze the
[2021 Plans]. This set of elections included: Lieutenant Governor 2016, President
2016, Commissioner of Agriculture 2020, Treasurer 2020, Lieutenant Governor 2020,
U.S. Senate 2020, Commissioner of Labor 2020, President 2020, Attorney General
2020, Auditor 2020, Secretary of State 2020, and Governor 2020 (Mattingly Election
Set). Non-partisan, central staff “loaded [the] partisan election data into Maptitude
to view the projected effect on partisanship that resulted from changes to district
lines.”
¶ 147 After Maptitude produced initial House, Senate, and congressional maps, the
General Assembly analyzed the partisan fairness of each map using two political
science metrics—the Mean-Median Difference and the Efficiency Gap. The General
Assembly chose these two metrics because “they have been peer-reviewed in
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numerous articles by numerous scholars[ ] and because there is some (but not
uniform) agreement among scholars regarding thresholds for measuring
partisanship.” For each of these metrics, the General Assembly selected threshold
scores that, if achieved, would indicate that the relevant map contained an acceptable
level of partisan fairness under Harper I.
¶ 148 The General Assembly selected threshold scores based on general agreement
among political scientists:
[I]t is widely considered by academics that a mean-median
as close to zero as possible, but under [1%] is
“presumptively constitutional.” See Harper v. Hall, 2022
NCSC-17 ¶166. On the efficiency gap, scholars including
NCLCV’s Dr. Duchin have opined that anything below [8%]
is presumptively legal while Dr. Jackman, used as an
expert in Gill v. Whitford, and Common Cause v. Rucho,
opined that anything below [7%] was constitutional.
The General Assembly also selected these threshold scores because the Harper I
majority opined that they could indicate a presumptively constitutional level of
partisanship:
[U]sing the actual mean-median difference measure, from
1972 to 2016 the average mean-median difference in North
Carolina’s congressional redistricting plans was 1%.
Common Cause [v. Rucho], 318 F. Supp. 3d [777,] 893
[(M.D.N.C. 2018)]. That measure instead could be a
threshold standard such that any plan with a
mean-median difference of 1% or less when analyzed using
a representative sample of past elections is presumptively
constitutional.
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With regard to the efficiency gap measure, courts
have found “that an efficiency gap above 7% in any
districting plan’s first election year will continue to favor
that party for the life of the plan.” Whitford v. Gill, 218 F.
Supp. 3d 837, 905 (W.D. Wis. 2016) rev’d on other grounds,
138 S. Ct. 1916 (2018). It is entirely workable to consider
the seven percent efficiency gap threshold as a
presumption of constitutionality, such that absent other
evidence, any plan falling within that limit is
presumptively constitutional.
Harper I, 2022-NCSC-17, ¶¶ 166–67 (majority opinion).
¶ 149 After making the policy choices of the political science metrics and threshold
scores to be used, the General Assembly then adjusted each of the Remedial Plans
until their Mean-Median Difference and Efficiency Gap scores were at or below the
selected thresholds. After the adjustments were complete, Maptitude scored each of
the Remedial Plans as follows:
RHP RSP RCP
Mean-Median 0.7% 0.65% 0.61%
Efficiency 0.84%2 3.97% 5.29%
Gap
¶ 150 Along with prioritizing the creation of more “purportedly Democratic leaning
districts” and ensuring the Remedial Plans scored well on the selected metrics, the
2 Legislative defendants were “unable to find a legislative plan passed anywhere else
in the country with a lower efficiency gap” than the RHP. Thus, it would be unfair to use this
Efficiency Gap score as a required standard.
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General Assembly also focused on the “neutral and traditional redistricting criteria”
used in creating the 2021 Plans unless those criteria conflicted with Harper I.
¶ 151 After drawing their respective plans, each chambers presented their plans to
the relevant redistricting committee. The General Assembly enacted the Remedial
Plans on 17 February 2022 and submitted them to the three-judge panel on 18
February 2022.
¶ 152 After the General Assembly submitted the enacted Remedial Plans to the
three-judge panel, plaintiffs submitted comments and objections. Significantly, none
of the parties questioned the General Assembly’s policy decision to utilize Maptitude
or to use the Mattingly Election Set. The Special Masters also submitted a report on
the Remedial Plans primarily based on four reports submitted by the advisors.
Notably, in crafting their reports, none of the advisors used the General Assembly’s
chosen program, Maptitude, nor did they use the General Assembly’s chosen
Mattingly Election Set. Further, none of the advisors worked together in analyzing
the Remedial Plans, nor did they submit a singular report. Instead, each advisor used
his own preferred approach and summarized that approach in his own report.3 The
Special Masters’ Report found that the RHP and RSP met the requirements of Harper
I but that the RCP did not. Because the Special Masters concluded that the RCP was
3 Despite the majority’s numerous implications that the advisors filed a singular
report, this is untrue. Each advisor used an individual approach and supplied his own
individual analysis.
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unconstitutional, they developed and submitted an alternative plan (Modified
Congressional Plan), in consultation with one of the advisors, Dr. Bernard Grofman,
for the three-judge panel to consider.4
¶ 153 In reviewing the Remedial Plans, the three-judge panel “adopt[ed] in full the
findings of the Special Masters,” and, like the Special Masters, concluded that the
4 One could legitimately question the objectivity of this court-appointed, de facto
“redistricting commission” when one of the Special Masters publicly participated in
advertisements for a Democratic candidate in a statewide senatorial campaign and for a
Democratic congressional candidate in a district he created during this remedial process. See
Jim Stirling, Former Justice Bob Orr Puts His Thumb on the Scale for Congressional
Democrats, John Locke Foundation (Nov. 7, 2022), https://www.johnlocke.org/former-justice-
bob-orr-puts-his-thumb-on-the-scale-for-congressional-democrats/. Given this Special
Master’s direct participation in current elections involving a district he helped fashion, one
wonders if the three-judge panel can allow his continued involvement.
Furthermore, one of the advisors to the Special Masters—Dr. Wang—came under
investigation earlier this year for allegedly manipulating data in favor of Democrats in his
role as a redistricting expert in another state. See Princeton redistricting expert who analyzed
N.C. voting maps faces university investigation, WRAL News (April 28, 2022, 6:02 PM),
https://www.wral.com/princeton-redistricting-expert-who-analyzed-nc-voting-maps-faces-
university-investigation/20256616/.
Is the judicial creation of this “redistricting commission,” which favors the political
alignment of the majority of this Court, consistent with the fact that our constitution assigns
the duty of redistricting to the General Assembly, which the people elected in 2020 using
court-approved maps?
The majority upholds the three-judge panel’s denial of Legislative defendants’ motion
to disqualify two of the Special Masters’ advisors for improper ex parte communications with
some of plaintiffs’ experts. The motion, however, should have been allowed. The role of
advisor—a purportedly neutral subject matter expert—to the three Special Masters is vital
to a proper, unbiased evaluation of the legislative redistricting plans. The Special Masters,
three-judge panel, and the majority, in reweighing the evidence, place great weight on the
opinions of each of the advisors. If the challenged advisors had been judges who engaged in
similar ex parte communications, they would have been removed from the case and possibly
faced sanctions. If this de facto “redistricting commission” is to supervise the remedial
redistricting process, it must be above reproach. The motion to disqualify Drs. Wang and
Jarvis should have been granted.
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RHP and RSP complied with the requirements of Harper I, but that the RCP was “not
presumptively constitutional,” was “subject to strict scrutiny,” and was not “narrowly
tailored to a compelling governmental interest.” Accordingly, the three-judge panel
concluded the RCP was unconstitutional. To support its holding, the three-judge
panel relied primarily on the “analysis performed by the Special Masters and their
advisors,” and its conclusion that the RHP and RSP scored below the relevant
thresholds for the Mean-Median Difference and Efficiency Gap metrics, but the RCP
did not. The three-judge panel did not point to any other evidence regarding the
purported level of partisan bias in the Remedial Plans.
¶ 154 Finally, because the three-judge panel rejected the General Assembly’s RCP,
it adopted the Modified Congressional Plan recommended by the Special Masters. All
parties appealed.5
5Legislative defendants have moved to dismiss their appeal of the court-generated
Modified Congressional Plan, recognizing that, by statute, it will not be reused now that the
recent 2022 election cycle has concluded. This Court invariably allows parties to craft their
own appeals. The majority, however, believing a dismissal could hinder its own, self-
appointed redistricting authority, denies Legislative defendant’s motion. In doing so, the
majority effectively punishes Legislative defendants for successfully seeking review by the
Supreme Court of the United States of the role of state courts in congressional redistricting
under the Federal Constitution. See Moore v. Harper, cert. granted, 1425 S. Ct. 2901 (2022).
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II. Standards of Review
A. Presumption of Constitutionality
¶ 155 In reviewing an act of the General Assembly, this Court is guided by a specific
and binding standard of review—the presumption of constitutionality. See generally
State ex rel. McCrory, 368 N.C. at 639, 781 S.E.2d at 252. The presumption of
constitutionality has been well established for over 150 years. See, e.g., Holton v. Bd.
of Comm’rs, 93 N.C. 430, 435 (1885). This standard sets a high bar which only the
highest quantum of proof—proof beyond a reasonable doubt—will overcome, and the
party challenging a statute bears the burden of establishing its unconstitutionality.
Jenkins, 180 N.C. at 172, 104 S.E. at 348 (“The party who undertakes to pronounce a
law unconstitutional takes upon himself the burden of proving beyond any reasonable
doubt that it is so.”).
¶ 156 The presumption of constitutionality is not merely a standard of review; it is a
function of the fundamental separation-of-powers principle found in Article I, Section
6 of our constitution: “The legislative, executive, and supreme judicial powers of the
State government shall be forever separate and distinct from each other.”
Unquestionably, the separation-of-powers principle
is the rock upon which rests the fabric of our government.
Indeed, the whole theory of constitutional government in
this State and in the United States is characterized by the
care with which the separation of the departments has
been preserved, and by a marked jealousy of encroachment
by one upon another.
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Person v. Bd. of State Tax Comm’rs, 184 N.C. 499, 502, 115 S.E. 336, 339 (1922).
¶ 157 The separation-of-powers clause is located within the Declaration of Rights in
Article I, which is an expressive yet nonexhaustive list of protections afforded to
citizens against governmental intrusion, along with “the ideological premises that
underlie the structure of government.” John V. Orth & Paul Martin Newby, The
North Carolina State Constitution 46 (2d ed. 2013) [hereinafter State Constitution].
Placement of the separation-of-powers clause in the Declaration of Rights suggests
that keeping each branch within its described spheres protects the people by limiting
overall governmental power. The clause does not establish the various powers but
simply states the powers of the branches are “separate and distinct.” N.C. Const. art.
I, § 6. Subsequent constitutional provisions develop the nature of those powers. State
Constitution 46 (“Basic principles, such as popular sovereignty and separation of
powers, are first set out in general terms, to be given specific application in later
articles.”).
¶ 158 Because “a constitution cannot violate itself,” Leandro v. State, 346 N.C. 336,
352, 488 S.E.2d 249, 258 (1997), a branch’s exercise of its express, constitutional
authority by definition comports with the separation-of-powers principle.
Accordingly, a violation of separation of powers only occurs when one branch of
government exercises, or prevents the exercise of, a power reserved for another
branch of government. State ex rel. McCrory, 368 N.C. at 650, 781 S.E.2d at 259
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(Newby, J., concurring in part and dissenting in part). Understanding the prescribed
powers of each branch is the basis for stability, accountability, and cooperation within
state government. See State v. Emery, 224 N.C. 581, 584, 587−88, 31 S.E.2d 858, 861,
863−64 (1944).
¶ 159 The legislative power is vested in the General Assembly because “all people
are present there in the persons of their representatives,” State Constitution 95, and,
therefore, the people act through the General Assembly, see Baker v. Martin, 330 N.C.
331, 336−37, 410 S.E.2d 887, 890 (1991). Pursuant to the text of the constitution, the
General Assembly primarily exercises the people’s political power though statutory
enactments. See N.C. Const. art. II, §§ 22−23.
¶ 160 Relevant here, the General Assembly enacts redistricting plans through
statute. In fact, both the Federal Constitution and the North Carolina Constitution
expressly assign redistricting authority to the legislature. U.S. Const. art. I, § 4, cl.
1; N.C. Const. art. II, §§ 3, 5. Our state constitution also provides explicit limitations
on the General Assembly’s redistricting authority. N.C. Const. art. II. §§ 3, 5
(providing that each state Senator and state Representative must represent an equal
number of people, each senate and representative district must consist of a
contiguous territory, and senate and representative districts may not unduly divide
counties).
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¶ 161 The common law provided, and now the General Statutes provide, a limited
role for the courts in reviewing the General Assembly’s redistricting plans. See
N.C.G.S. § 120-2.3 to -2.4 (2021). The General Assembly enacted these statutory
provisions in 2003 to limit and codify the common law process by which courts had
been reviewing redistricting plans for some time. See An Act to Establish House
Districts, Establish Senatorial Districts, and Make Changes to the Election Laws and
to Other Laws Related to Redistricting, S.L. 2003-434, §§ 7−9, 2003 N.C. Sess. Laws
(1st Extra Sess. 2003) 1313, 1415−16; Stephenson I, 355 N.C. at 385, 562 S.E.2d at
398. In fact, the General Assembly enacted these statutory provisions limiting the
judicial branch’s role in response to this Court’s involvement in the redistricting
process in 2001. See Stephenson v. Bartlett (Stephenson III), 358 N.C. 219, 221−22,
595 S.E.2d 112, 114−15 (2004). No doubt these limiting provisions, N.C.G.S. § 120-2.3
to -2.4; N.C.G.S. § 1-267.1 (2021), are in keeping with our federal and state
constitutional provisions, U.S. Const. art. I, § 4, cl. 1; N.C. Const. art. II, §§ 3, 5.
¶ 162 Section 1-267.1 requires that a three-judge panel hear challenges to
redistricting plans. N.C.G.S. § 1-267.1. Specifically, under N.C.G.S. § 120-2.3, courts
review challenges regarding whether a redistricting plan is “unconstitutional or
otherwise invalid.” N.C.G.S. § 120-2.3. If a court finds a redistricting plan is
unconstitutional, it must give the General Assembly an opportunity to remedy the
identified defects by enacting a new redistricting plan. N.C.G.S. § 120-2.4(a). By
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statute, a court may not impose a remedial redistricting plan of its own unless “the
General Assembly does not act to remedy” those defects. N.C.G.S. § 120-2.4(a1). Even
then, a court-imposed redistricting plan may only differ from the General Assembly’s
enacted plan “to the extent necessary to remedy” the defects identified by the court
and will only be used for the next general election. Id. After the next general election,
the General Assembly will replace the court-imposed map with a new, legislatively
enacted map. This limited role of judicial review comports with the principle of
separation of powers because it respects that redistricting “is a legislative
responsibility.” Stephenson III, 358 N.C. at 230, 595 S.E.2d at 119 (“Not only do these
statutes allow the General Assembly to exercise its proper responsibilities, they
decrease the risk that the courts will encroach upon the responsibilities of the
legislative branch.”).6
¶ 163 Without question, the legislative and policymaking powers belong to the
General Assembly. Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004).
Because the people have granted the legislative power, including the specific power
6 In its remand instructions, the majority instructs the “[three-judge panel] to oversee”
the redrawing of new senatorial districts. Harper v. Hall (Harper II), 2022-NCSC-121, ¶ 114.
Pursuant to N.C.G.S. § 120-2.4(a), however, the General Assembly elected in November 2022
must have the first opportunity to redraw the RSP. See Pender County v. Bartlett, 361 N.C.
491, 509, 649 S.E.2d 364, 376 (2007) (striking a remedial legislative plan and remanding it
to the General Assembly to redraw it for a second time, noting that “[r]edistricting is a
legislative responsibility, [and] N.C.G.S. §§ 120-2.3 and 120-2.4 give the General Assembly a
first, limited opportunity to correct the plans that the courts have determined are flawed.”
(second alteration in original) (quoting Stephenson III, 358 N.C. at 230, 595 S.E.2d 119)).
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of redistricting, exclusively to the General Assembly, see N.C. Const. art. II, §§ 1, 3,
5, the judicial branch should exercise its power to declare statutes unconstitutional
with “great reluctance,” Bayard v. Singleton, 1 N.C. (Mart.) 5, 6 (1787), “recognizing
that when it strikes down an act of the General Assembly, [it] is preventing an act of
the people themselves,” State ex rel. McCrory, 368 N.C. at 650, 781 S.E.2d at 259
(citing Baker, 330 N.C. at 336−37, 410 S.E.2d at 890).
¶ 164 The presumption of constitutionality, therefore, is a limiting tool of judicial
review that helps the judicial branch avoid encroaching on the General Assembly’s
legislative authority. Where a statute is susceptible to two interpretations, one that
is constitutional and one that is not, courts must adopt the former. Wayne Cnty.
Citizens Ass’n v. Wayne Cnty. Bd. of Comm’rs, 328 N.C. 24, 29, 399 S.E.2d 311, 315
(1991). Courts will not declare a statute void unless that “conclusion is so clear that
no reasonable doubt can arise, or the statute cannot be upheld on any reasonable
ground.” Id. (citing Poor Richard’s, Inc. v. Stone, 322 N.C. 61, 63, 366 S.E.2d 697, 698
(1988)). Presuming that a statutory enactment is constitutional and resolving every
doubt in favor of the statute ensures that the Court will not inadvertently prevent a
lawful exercise of legislative power.
¶ 165 This exercise of judicial restraint is especially necessary to counterbalance the
power of judicial review because our constitution does not enable the other branches
to check our exercise of the judicial power to strike down statutes:
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The power of declaring laws unconstitutional should
always be exercised with extreme caution, and every doubt
resolved in favor of the statute. As has been well said, these
rules are founded on the best of reasons, because, while the
supreme judicial power may interfere to prevent a
legislative, and other departments, from exceeding their
powers, no tribunal has yet been devised to check the
encroachments of the judicial power itself.
Jenkins, 180 N.C. at 170, 104 S.E.2d. at 347. Applying the presumption of
constitutionality and adhering to its separation-of-powers principles, courts should
presume that the General Assembly’s policy decisions, made while acting pursuant
to its legislative authority, are constitutional.
¶ 166 In this case, the General Assembly made various policy decisions during each
step of the remedial map-drawing process, such as the decision to use Maptitude or
to obtain partisan election data from the Mattingly Election Set. Accordingly, the
three-judge panel should have started from the presumption that these policymaking
decisions were constitutional. Then it should have reviewed the evidence to determine
if, beyond a reasonable doubt, one or more of those policy decisions was arbitrary,
flawed, or unreasonable so as to render at least one of the Remedial Plans
unconstitutional. For example, such evidence might show that Maptitude is a
defective software that vastly undercalculated the Remedial Plans’ Mean-Median
Difference and Efficiency Gap scores or that the Mattingly Election Set contained
flawed data. If the evidence supported a determination that these policy decisions
were constitutionally flawed beyond a reasonable doubt, only then could the
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three-judge panel have declared the affected map or maps constitutionally invalid. If
the evidence did not demonstrate this sort of constitutional defect, however, it would
be insufficient to overcome the presumption, and the three-judge panel would have
been required to uphold the Remedial Plans. Accordingly, we consider whether the
three-judge panel’s “findings of fact and conclusions of law were appropriate and
adequate” in approving the RSP and RHP and rejecting the RCP. Stephenson v.
Bartlett (Stephenson II), 357 N.C. 301, 309, 582 S.E.2d 247, 252 (2003).
B. Findings of Fact and Conclusions of Law
¶ 167 In cases such as this one, in which the trial court presides over a trial without
a jury, this Court’s role of review is very limited. See Bailey v. State, 348 N.C. 130,
146, 500 S.E.2d 54, 63 (1998). In reviewing a trial court’s findings of fact, “we are
‘strictly limited to determining whether the trial judge’s underlying findings of fact
are supported by competent evidence.’ ” State v. Williams, 362 N.C. 628, 632, 669
S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,
619 (1982)). If the trial court’s findings of fact are supported by competent evidence,
the findings “have the force and effect of a jury verdict and are conclusive on appeal
if there is competent evidence to support them.” Stephenson II, 357 N.C. at 309, 582
S.E.2d at 252 (quoting Bailey, 348 N.C. at 146, 500 S.E.2d at 63). Such findings are
binding on appeal even if the “evidence is conflicting,” Williams, 362 N.C. at 632, 669
S.E.2d at 294 (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)),
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and “could be viewed as supporting a different finding,” Stephenson II, 357 N.C. at
309, 582 S.E.2d at 252 (quoting Bailey, 348 N.C. at 146, 500 S.E.2d at 63); see also
Biggs v. Lassiter, 220 N.C. 761, 770, 18 S.E.2d 419, 424 (1942) (noting that a trial
court’s findings of fact are binding on appeal “unless there is no sufficient evidence to
support them, or error has been committed in receiving or rejecting testimony upon
which they are based, or some other question of law is raised with respect to said
findings”). Where contradictory evidence exists, “the trial judge is in the best position
to ‘resolve the conflict.’ ” Williams, 362 N.C. at 632, 669 S.E.2d at 294 (quoting Smith,
278 N.C. at 41, 178 S.E.2d at 601). Likewise, the trial court determines the amount
of weight given to various pieces of evidence. In re I.K., 377 N.C. 417, 2021-NCSC-60,
¶ 25 (“It is the trial court’s responsibility to pass upon the credibility of the witnesses
and the weight to be given their testimony . . . .” (quoting In re G.G.M., 377 N.C. 29,
2021-NCSC-25, ¶ 18)).
¶ 168 If we conclude that competent evidence supports the trial court’s findings of
fact, “we must then determine whether those findings of fact support the conclusions
of law.” Stephenson II, 357 N.C. at 309, 582 S.E.2d at 252. We review a trial court’s
conclusions of law de novo. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878
(2011).
III. Analysis
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¶ 169 Here the majority upholds the three-judge panel’s approval of the RHP but
finds unconstitutional the RSP. It affirms the three-judge panel’s conclusion that the
RCP was unconstitutional and upholds the Modified Congressional Plan redrawn by
the Special Masters. To reach these holdings, the majority briefly mentions the
appropriate standards of review but then, when necessary, circumvents those
standards to reach its desired results. The majority fails to apply the presumption of
constitutionality in a manner consistent with our precedent and the textual allocation
of power between the branches of government. Likewise, the majority fails to
consistently limit itself to considering whether the three-judge panel’s underlying
findings of fact are supported by competent evidence. Instead, the majority freely
reweighs and distorts evidence that is essentially the same to support two conflicting
results—affirmation of the RHP but reversal of the RSP. The majority strips the
three-judge panel of its responsibility to assess credibility and distribute weight to
the evidence and freely substitutes its own judgment regarding weight and
credibility.
¶ 170 The three-judge panel relied heavily on each map’s Mean-Median Difference
and Efficiency Gap scores in forming its findings of fact and reaching its ultimate
conclusions of law. It focused on these metrics because in Harper I the majority
identified threshold scores for these metrics that it said could serve as safe harbors
of constitutionality. See Harper I, 2022-NCSC-17, ¶¶ 166–67. Here there is competent
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evidence to support the three-judge panel’s findings of fact that both the RHP and the
RSP satisfy those thresholds. Nevertheless, the majority insists that the three-judge
panel correctly approved the RHP but somehow incorrectly approved the RSP. The
only explanation is that the majority has shaped its analysis to ensure a
predetermined outcome.
¶ 171 Additionally, the majority affirms the three-judge panel’s erroneous rejection
of the RCP. The three-judge panel failed to give the RCP the correct presumption of
constitutionality because it did not defer to the General Assembly’s policy choices to
use Maptitude and the Mattingly Election Set. It then adopted the Special Masters’
summary rejection of the RCP and accepted the Special Masters’ Modified
Congressional Map.
¶ 172 The dissent in Harper I forecasted the incongruent results the majority reaches
today. The majority’s result confirms that there is no discernable, manageable
standard by which to adjudicate partisan gerrymandering claims. See id. ¶ 241
(Newby, C.J., dissenting). Even though the majority insists that the General
Assembly’s Remedial Plans must pass the Harper I tests to be entitled to the
presumption of constitutionality, see id. ¶ 163 (majority opinion), it now changes the
tests. Further, this analysis flips the presumption of constitutionality on its head and
permits the majority to select pieces of data from four, court-appointed political
scientists and evidence presented by plaintiffs to uphold the redistricting plans it
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finds politically favorable and reject those that it does not. As discussed in the dissent
in Harper I, the majority disingenuously commandeered this heightened standard
approach from Stephenson I, 355 N.C. at 383−84, 562 S.E.2d at 396−97. See id. ¶¶
258−59 (Newby, C.J., dissenting). In Stephenson I, however, this Court overcame the
presumption of constitutionality by applying clear standards derived from the text of
the constitution itself, rather than the ever-changing, nebulous “standards” of the
majority’s results-oriented approach.
A. Remedial House Plan
¶ 173 On remand, the General Assembly made the policy decision to use Maptitude
along with partisan election data from its chosen Mattingly Election Set to draw and
adjust the Remedial Plans until each fell within the Mean-Median Difference and
Efficiency Gap thresholds identified by this Court in Harper I. The General Assembly
chose to use the Mean-Median Difference and Efficiency Gap scores, as opposed to
other tests, because these metrics have been peer-reviewed extensively and because
scholars generally agree on the appropriate thresholds for measuring partisanship
with these metrics. As measured by Maptitude, the RHP satisfied these threshold
standards:
RHP
Mean-Median 0.7%
Efficiency 0.84%
Gap
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¶ 174 In its order, the three-judge panel relied primarily on the reports of its Special
Masters in making its findings of fact. Specifically, the Special Masters reviewed the
“submissions from all of the parties as well as the reports of the advisors” and
materials from the parties’ “experts.” In all, this evidence included twelve
submissions and briefs from the parties, seven reports and affidavits from the parties’
experts, and four reports from the Special Masters’ advisors, totaling 716 pages. The
Special Masters also considered the “findings of the advisors on the partisan
symmetry analysis, the declination metrics, and their opinions on partisan bias and
evidence of partisan gerrymandering.” The advisors’ evidence was extensive and
diverse and included an array of partisan fairness metrics, differing counts of
“competitive” seats, measures of compactness, and graphic comparisons to ensemble
maps. Of note, each advisor submitted a separate report. They did not submit a single
collective report as indicated by the majority. “Considering all of this information as
well as the totality of circumstances,” the Special Masters concluded that the RHP
“meets the test of presumptive constitutionality . . . under the metrics identified by
the North Carolina Supreme Court.”
¶ 175 In turn, the three-judge panel “adopt[ed] in full the findings of the Special
Masters” and reviewed “all remedial and alternative plans . . . as well as additional
documents, materials, and information pertaining to the submitted plans” in making
“additional specific findings” on the Remedial Plans. First, the three-judge panel
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summarized the General Assembly’s process for drawing and analyzing all the
Remedial Plans and found that it was constitutionally compliant:
13. The General Assembly’s Remedial Criteria
governing the remedial map drawing process were those
neutral and traditional redistricting criteria adopted by the
Joint Redistricting Committees on August 12,
2021 . . . unless the criteria conflicted with the Supreme
Court Remedial Order and full opinion.
14. Although expressly forbidden by the
previously-used August 2021 Criteria, the General
Assembly as part of its Remedial Criteria intentionally
used partisan election data as directed by the Supreme
Court’s Remedial Order. The General Assembly did so by
loading such data into Maptitude, the map drawing
software utilized by the General Assembly in creating
districting plans . . . .
15. The Court finds that the General Assembly’s
use of partisan data in this manner comported with the
Supreme Court Remedial Order.
The three-judge panel then addressed the RHP specifically, finding that it contained
“key differences” that rendered it more competitive than the 2021 House Plan, that
the General Assembly appropriately balanced incumbency protection with
“traditional neutral districting criteria,” that the RHP was “satisfactorily within the
statistical ranges set forth in [Harper I],” and that any “partisan skew” remaining in
the RHP was “explained by the political geography of North Carolina.”
¶ 176 Based on these findings, the three-judge panel concluded that the RHP
“satisfies th[is] [ ] Court’s standards” in Harper I, and that none of the evidence
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presented was “sufficient to overcome th[e] presumption” that the RHP was
constitutional. Accordingly, the three-judge panel approved the RHP.
¶ 177 The majority upholds the RHP by finding that competent evidence supports
the relevant findings of fact which in turn support the conclusion that the RHP is
constitutional. This result is correct, but the majority reaches it for the wrong
reasons. In concluding that the relevant findings of fact are supported by competent
evidence, the majority looks only to the evidence submitted by the Special Masters’
advisors and does not even mention Legislative defendants’ data or chosen remedial
process. For example, the majority notes that “[t]he Special Masters’ [a]dvisors
determined that the RHP yields an average [E]fficiency [G]ap of about 2.88%, [and]
an average [M]ean-[M]edian [D]ifference of about 1.27%,”7 but does not acknowledge
that Legislative defendants calculated an Efficiency Gap of 0.84% and a
Mean-Median Difference of 0.70% using Maptitude and the Mattingly Election Set.
Harper II, 2022-NCSC-121, ¶ 93.
¶ 178 The majority’s approach is inappropriate because, as already noted, the proper
starting point when reviewing an act of the General Assembly is to exercise the
7 Nowhere in Harper I does the majority mention using averages of Mean-Median
Difference and Efficiency Gap scores to assess a map’s partisan fairness. By definition, to
determine an average requires giving equal weight to each score. Nevertheless, the majority
now relies on these average scores in upholding the RHP, despite the fact that its calculation
of the RHP’s average Mean-Median Difference is significantly outside its stated parameter
of 1% or less.
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presumption that the General Assembly’s policy choices are constitutional. This
Court should presume the General Assembly’s policy choices, such as the use of
Maptitude or the Mattingly Election Set, were constitutional and only review the
advisors’ reports to see whether they rebut the presumption beyond a reasonable
doubt. The majority does the opposite, however.
¶ 179 No one alleged the General Assembly’s policy decisions—such as, which
redistricting software and which partisan election data to use—were
unconstitutional. There was no evidence to that effect in the record. Thus, by looking
exclusively to the advisors’ evidence and ignoring entirely Legislative defendants’
evidence, the majority’s analysis defers to the advisors’ methods and reports and uses
them to build a case that the RHP is constitutional.
¶ 180 The majority’s approach is erroneous because it adopts the advisors’ policy
determinations—that is, their selected analyses—as the redistricting standard. Such
an approach reverses the presumption of constitutionality because it no longer
requires the evidence to demonstrate that the General Assembly’s plan fails to meet
an objective standard of constitutionality. Instead, it requires the General Assembly
to show that some group of unspecified political scientists agree that its policy
determinations meet constitutional muster. This backwards approach permits the
majority to weigh the various redistricting approaches from the individual advisors
as it sees fit, rather than deferring to the General Assembly’s selected redistricting
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approach. As a result, the majority can select the evidence that supports its preferred
outcome and reject the evidence that does not.
¶ 181 With the RHP, the majority happened to reach the correct result without giving
proper deference to the legislative branch’s policy choices. Following this same
approach, however, enables the majority to reach a contradictory result with the RSP.
A comparison of the majority’s treatment of the RSP with its treatment of the RHP
demonstrates the inherent flaws in the majority’s approach.
B. Remedial Senate Plan
¶ 182 Despite the three-judge panel’s upholding of the RHP, as recommended by the
Special Masters, the majority declines to give the RSP a presumption of
constitutionality, applies strict scrutiny, and determines that it is unconstitutional
beyond a reasonable doubt. The majority arrives at this conclusion despite the fact
that the evidence regarding the RSP and the RHP is very similar. Considered
together, the majority’s holdings regarding the RSP and the RHP make clear that it
is simply reweighing and, at times, mischaracterizing the evidence in order to reach
its preferred outcome.
¶ 183 On remand, the General Assembly made the exact same policy choices and
followed the exact same redrawing process for the RSP as it did for the RHP. It
utilized Maptitude and the partisan election data from the Mattingly Election Set to
draw and adjust the RSP until the RSP fell within the Mean-Median Difference and
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Efficiency Gap thresholds identified by this Court in Harper I. Just like the RHP, the
RSP, as measured by Maptitude, satisfied the Harper I threshold standards:
RSP
Mean-Median 0.65%
Efficiency 3.97%
Gap
¶ 184 Likewise, the Special Masters considered very similar evidence in assessing
the RSP as they did in assessing the RHP. Notably, from their weighing of this
evidence the Special Masters made almost identical findings regarding the RHP and
the RSP:
I. Proposed Remedial House Plan
The advisors as well as the experts of the parties (“experts”)
all found the efficiency gap of the proposed [RHP] to be less
than 7%. The majority of the advisors and experts found
the mean-median difference of the proposed [RHP] to be
less than 1%. In addition to these facts, the Special Masters
considered the findings of the advisors on the partisan
symmetry analysis, the declination metrics, and their
opinions on partisan bias and evidence of partisan
gerrymandering. Considering all of this information as
well as the totality of circumstances, the Special Masters
conclude under the metrics identified by the North
Carolina Supreme Court that the proposed [RHP] meets
the test of presumptive constitutionality. Further the
Special Masters did not find substantial evidence to
overcome the presumption of constitutionality and
recommend to the [three-judge panel] that it give
appropriate deference to the General Assembly and uphold
the constitutionality of the [RHP].
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II. Proposed Remedial Senate Plan
All of the advisors and experts found the efficiency gap of
the proposed [RSP] to be less than 7%. The majority of the
advisors and experts found the mean-median difference of
the proposed [RSP] to be less than 1%. In addition to these
facts, the Special Masters considered the findings of the
advisors on the partisan symmetry analysis, the
declination metrics, and their opinions on partisan bias
and evidence of partisan gerrymandering. Considering all
of this information as well as the totality of circumstances,
the Special Masters conclude under the metrics identified
by the North Carolina Supreme Court [that] the [RSP]
meets the test of presumptive constitutionality. Further
the Special Masters did not find substantial evidence to
overcome the presumption of constitutionality and
recommend to the [three-judge panel] that it give
appropriate deference to the General Assembly and uphold
the constitutionality of the [RSP].
¶ 185 In turn, the three-judge panel adopted these findings “in full” and found that
they demonstrated that the RHP and RSP “meet the requirements of [Harper I].” The
panel also made “additional specific findings” regarding each plan. Similar to the
Special Masters’ findings, the three-judge panel’s specific findings regarding the RSP
and RHP were nearly identical:
36. In determining the base map for the State
Senate Districts, the Senate also started from scratch. The
Senate altered two county groupings and adopted
groupings for Senate Districts 1 and 2 that were preferred
by Common Cause Plaintiffs. The remaining county
groupings remained the same. As a result, the 13
wholly-contained single district county groupings in the
[RSP] were kept from the [2021 Senate] Plan.
....
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HARPER V. HALL
2022-NCSC-121
Newby, C.J., dissenting
39. The process for the development of the
Remedial Senate Plan began with separate maps being
drawn by the Senate Democratic Caucus and the
Republican Redistricting and Election Committee
members, respectively. The plans were then exchanged
and discussed; however, after the two groups could not
come to a resolution, the plan proposed by the Republican
Redistricting and Election Committee members was then
put to a vote by the Senate Committee and advanced to the
full chamber.
40. The [RSP] includes ten districts that were
within ten points in the 2020 presidential race.
41. The [RSP] reflects key differences from the
2021 [ ] Senate Plan in the projected partisan makeup of
districts in certain county groupings.
a. In the Cumberland-Moore County
grouping, Senate District 21 is now more
competitive.
b. In the Iredell-Mecklenburg County
grouping, one district is more competitive.
c. In New Hanover County, the districts
were made more competitive, resulting in
a Senate District 7 that leans Democratic.
d. In Wake County, Senate Districts 17 and
18 are more Democratic leaning.
42. The Court finds, based upon the analysis
performed by the Special Masters and their advisors, that
the [RSP] is satisfactorily within the statistical ranges set
forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶ 166 ([M]ean-[M]edian [D]ifference
of 1% or less) and ¶ 167 ([E]fficiency [G]ap less than 7%).
-41-
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Newby, C.J., dissenting
43. The Court finds that to the extent there
remains a partisan skew in the [RSP], that partisan skew
is explained by the political geography of North Carolina.
....
51. In determining the base map for the State
House Districts, the House started from scratch after
keeping only the 14 districts that were the product of single
district county groupings.
....
54. The [RHP] reflects key differences from the
2021 [ ] House Plan in the projected partisan makeup of
districts in certain county groupings.
a. Buncombe County, which consisted of 1
Republican and 2 Democratic districts in
the [2021 House] Plan, consists of 3
Democratic districts in the [RHP].
b. Pitt County, which consisted of 1
Republican and 1 Democratic district in
the [2021 House] Plan, consists of 2
Democratic districts in the [RHP].
c. Guilford County now consists of 6
Democratic leaning districts.
d. Cumberland County now consists of 3
Democratic districts and 1 competitive
district.
e. Mecklenburg and Wake Counties now
consist of 13 Democratic leaning districts
each.
f. New Hanover, Cabarrus, and Robeson
Counties now contain an additional
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2022-NCSC-121
Newby, C.J., dissenting
competitive district each.
55. The Court finds, based upon and confirmed by
the analysis of the Special Masters and their advisors, that
the [RHP] [is] satisfactorily within the statistical ranges
set forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶166 ([M]ean-[M]edian [D]ifference
of 1% or less) and ¶167 ([E]fficiency [G]ap less than 7%).
56. The Court finds that to the extent there
remains a partisan skew in the [RHP], that partisan skew
is explained by the political geography of North Carolina.
¶ 186 The evidence underlying the three-judge panel’s findings of fact regarding the
RHP’s and RSP’s Mean-Median and Efficiency Gap scores was also characteristically
the same. Both sets of findings were based on “the analysis of the Special Masters
and their advisors”:
Remedial Senate Plan
Grofman McGhee Wang Jarvis Mattingly Barber Maptitude
6 election Planscore 2016- 16 new General
composite 2020 Election Assembly’s
Composite Mattingly
Election
Set
Mean- 0.77% 2.2% 0.8% 1.4% 1.3% 0.65% 0.63%
Median
Diff.
Efficiency 4.24% 4.8% 2.2% 4.0% 4.07% 3.97% 3.98%
Gap
Remedial House Plan
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Newby, C.J., dissenting
Grofman McGhee Wang Jarvis Mattingly Barber Maptitude
6 election Planscore 2016- 16 new General
composite 2020 Election Assembly’s
Composite Mattingly
Election
Set
Mean- 0.89% 1.4% 0.9% 1.5% 1.45% 0.7% 0.71%
Median
Diff.
Efficiency 2.72% 3.0% 3.1% 2.7% 3.23% 0.84% 0.84%
Gap
For both plans, at least four advisors and experts calculated a Mean-Median
Difference score of less than 1%, and all of the advisors and experts calculated an
Efficiency Gap score of less than 7%.8
¶ 187 Given the similarities between both the three-judge panel’s findings of fact
regarding each plan and the evidence supporting those findings of fact, it is clear
there was evidence supporting the panel’s conclusion that both plans “meet th[is] [ ]
Court’s standards and requirements” from Harper I, particularly when the
three-judge panel was required to presume that the General Assembly’s selected
approach of using Maptitude, pulling partisan election data from the Mattingly
Election Set, and relying on the resulting Mean-Median Difference and Efficiency
8The appropriate standard of review is whether any evidence supports the three-judge
panel’s findings of fact. Here there is clearly ample evidence in the record to support the
three-judge panel’s findings of fact that the RHP and the RSP were “satisfactorily within the
statistical ranges set forth in [Harper I].”
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Newby, C.J., dissenting
Gap scores was constitutional. As a result, the majority’s decision to overturn the
RSP but uphold the RHP when each is supported by comparable evidence is
inconsistent and can only be explained by the majority’s desire to reach a particular
outcome. To accomplish this outcome, the majority reweighs and defers exclusively
to select portions of the evidence that the Special Masters and three-judge panel in
fulfilling its duty as the fact-finder apparently chose to discount.
¶ 188 The majority says one of the “keystones” of the three-judge panel’s decision is
its erroneous views of the statistical data. For example, the majority notes that “all
but one [a]dvisor” concluded that the RSP scored above the 1% Mean-Median
Difference threshold but ignores the fact that all the advisors found that the RSP
scored below the 7% Efficiency Gap threshold. Harper II, 2022-NCSC-121, ¶ 99. The
majority’s statement that “all but one [a]dvisor” calculated a Mean-Median Difference
above 1% for the RSP is not only selective, but inaccurate. Half of the advisors, not
one, calculated the RSP’s Mean-Median Difference score as less than 1%. This
inaccuracy illustrates why appellate courts must refrain from reweighing evidence
and instead must defer to the trial court’s assessment of the record. See In re I.K.,
2021-NCSC-60, ¶ 25 (“It is the trial court’s responsibility to pass upon the credibility
of the witnesses and the weight to be given their testimony and the reasonable
inferences to be drawn therefrom. Because the trial court is uniquely situated to make
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Newby, C.J., dissenting
this credibility determination appellate courts may not reweigh the underlying
evidence presented at trial.”).9
¶ 189 Nevertheless, according to the majority, this evidence undermines the three-
judge panel’s finding that the RSP met the statistical thresholds identified in Harper
I. The same number of advisors, however, found that the RHP scored above the 1%
Mean-Median Difference threshold as well. Inexplicably, the majority concludes that
this fact weighs against the three-judge panel’s findings of fact regarding the RSP
but supports its findings of fact regarding the RHP.
¶ 190 In upholding the RHP, the majority states that collectively “[t]he [ ] [a]dvisors
determined that the RHP yields an average [E]fficiency [G]ap of about 2.88%, [and]
an average [M]ean-[M]edian [D]ifference of about 1.27%.” Harper II, 2022-NCSC-121,
¶ 93. The advisors’ average scores for the RSP are very close to those for the RHP.
For the RSP, the average of the advisors’ Efficiency Gap scores is 3.81% and the
average of their Mean-Median Difference scores is 1.29%. The average Mean-Median
Difference scores for the two plans are within two-one-hundredths of a percentage
point of each other. Why does 1.27% weigh in favor of the RHP’s constitutionality but
1.29% weighs against the RSP’s constitutionality? If there is something critical about
that difference, the majority does not explain it.
9 To the extent the majority questions the work of the three-judge panel and its
assessment of the evidence, the correct resolution is to remand for clarification, not for an
appellate court to reweigh evidence and find its own facts.
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Newby, C.J., dissenting
¶ 191 The majority’s use of average scores is also problematic for another reason. The
advisors did not calculate the average of their Mean-Median Difference and Efficiency
Gap scores. Instead, each advisor individually calculated a set of scores using his
chosen redistricting software and set of elections, and then each advisor submitted
his set of scores to the three-judge panel. The majority, on its own, calculates these
average scores, giving each equal weight, and then relies on this new data to support
its conclusion that the RHP is constitutional and the RSP is unconstitutional. The
majority does this even though it never mentioned using averages of Mean-Median
Difference and Efficiency Gap scores to assess a map’s partisan fairness in Harper I.
¶ 192 In calculating its own average scores, the majority essentially reweighs the
evidence to give equal weight and credibility to each of the advisors’ calculations. It
gives equal weight to these four sets of scores despite claiming to discount the
analyses of the two advisors who engaged in forbidden ex parte communications.10
The three-judge panel, however, should weigh the evidence, determine credibility,
and find facts because it “is in the best position” to do so. Williams, 362 N.C. at 632,
669 S.E.2d at 294 (quoting Smith, 278 N.C. at 41, 178 S.E.2d at 601). In its order, the
three-judge panel did not specify the weight that it gave to each of the advisors’ scores,
though it did incorporate the Special Masters’ finding that “the analysis provided by
Drs. Wang and Jarvis was helpful” but “not determinative” of any particular finding
10 See generally footnote 4.
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Newby, C.J., dissenting
of fact. Accordingly, in averaging the advisors’ scores and assigning each of their
scores equal weight, the majority reweighs the evidence and attaches creditability to
evidence that the three-judge panel and Special Masters might have discounted. The
majority usurps the three-judge panel’s role as fact-finder by replacing the three-
judge panel’s assessment of the advisors’ credibility with its own.11
¶ 193 Similarly, the majority rejects the three-judge panel’s finding of fact that any
“partisan skew” remaining in the RSP is “explained by the political geography of
North Carolina.” Harper II, 2022-NCSC-121, ¶ 100. The majority rejects this finding,
claiming that it “is an incomplete statement of the requirement established in Harper
[I].” Id. The three-judge panel, however, made the exact same finding of fact
regarding the RHP: “The [trial] [c]ourt finds that to the extent there remains a
partisan skew in the [RHP], that partisan skew is explained by the political
11 As already noted, the majority here freely disregards the appropriate standard of
review and reweighs the evidence only when necessary to reach its preferred outcome.
However, in another case also filed today, the same majority insists that it must defer to a
trial court’s findings of fact when supported by competent evidence:
many of defendants’ arguments in this case ask this Court to
rewrite the trial court’s findings of fact. But when the trial court
conducts a trial without a jury, “the trial court’s findings of fact
have the force and effect of a jury verdict and are conclusive on
appeal if there is competent evidence to support them, even [if]
the evidence could be viewed as supporting a different findings.”
Holmes v. Moore, 2022-NCSC-122, ¶ 83 (quoting In re Skinner, 370 N.C. 126, 139, 804 S.E.2d
449, 458 (2017)). Thus, it is clear that the majority understands the appropriate standard of
review, but simply ignores it at will to reach its favored outcome.
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2022-NCSC-121
Newby, C.J., dissenting
geography of North Carolina.” The majority, however, does not reject this identical
finding of fact as an “incomplete statement” of its criteria from Harper I. Instead, the
majority accepts this finding as “supported by competent evidence.” Id. ¶ 93. How can
this finding of fact support the conclusion that the RHP is constitutional, but weigh
against the conclusion that the RSP is constitutional?12
¶ 194 Finally, in addition to the various errors contained in the majority’s analysis
listed above, the majority also gravely mischaracterizes the evidence from below.
Most notably, the majority repeatedly cites from one of the advisors’ reports but
describes that cited data or opinion as if it were the collective conclusion of all four
advisors. For example, the majority states the “[t]he [a]dvisors specifically
determined that alternative remedial Senate plans often reflect ‘less than half the
size of the [partisan] advantage in the Legislative [d]efendants’ [RSP].’ ” Harper II,
2022-NCSC-121, ¶ 100 (second and fourth alteration in original). This quote,
12 Notably, the three-judge panel’s finding regarding political geography was born out
in the November 2022 election. While various political science tests may seek to assess the
political geography of the state, nothing is more accurate in revealing the political geography
than our most recent election. Six statewide Republican judicial candidates won their seats
by at least 5%, each carrying at least eighty-one counties. See North Carolina State Board of
Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=JUD&contest=0 (last
visited Dec. 8, 2022). Similarly, aggregating votes across the state, the Republican state
senatorial candidates received 59% of the total vote share, while Republican state House
candidates received over 57%. See North Carolina State Board of Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=NCS&contest=0 (last
visited Dec. 8, 2022); see North Carolina State Board of Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=NCH&contest=0 (last
visited Dec. 8, 2022).
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Newby, C.J., dissenting
however, is contained in only one of the advisors’ reports; it is not, at least as far as
the record reflects, the conclusion of all four advisors. Nevertheless, the majority
describes this opinion as if it were reached by the advisors collectively.
¶ 195 The majority mischaracterizes various portions of evidence in this way
throughout its opinion, essentially implying that the four advisors collectively
assessed the Remedial Plans and generally agreed on every aspect of their analysis.
This depiction is simply inaccurate. Each advisor individually analyzed the Remedial
Plans using his own preferred metrics, election data, and calculation methods, and
each reached different individual conclusions. Accordingly, the majority’s rendering
of the advisors’ reports as a shared analysis is misleading.
¶ 196 Regardless of the various flaws in the majority’s analysis, the appropriate
standard of review in this case required the three-judge panel to assume that the
General Assembly’s methods and scores were valid and accurate unless the evidence
demonstrates otherwise beyond a reasonable doubt. The General Assembly, one
expert, and two of the four advisors agreed that the RSP scored below the 1%
threshold for Mean-Median Difference, and the General Assembly, one expert, and
all four advisors agreed that the RSP scored below the 7% threshold for Efficiency
Gap. This evidence is more than competent to support the three-judge panel’s finding
that the RSP is “satisfactorily within the statistical ranges set forth in” Harper I, and
it was the duty of the three-judge panel to weigh this evidence. As a result, it does
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Newby, C.J., dissenting
not matter that some of the advisors and experts calculated scores above the
thresholds.
¶ 197 The majority is bound by the three-judge panel’s findings of fact if they are
supported by competent evidence, even when there is a conflict, Williams, 362 N.C.
at 632, 669 S.E.2d at 294, and the three-judge panel could have made “a different
finding,” Stephenson II, 357 N.C. at 309, 582 S.E.2d at 252. The majority fails to
employ the correct standard of review by seeking evidence that contradicts the three-
judge panel’s findings of fact, rather than looking for evidence that supports those
findings. The majority is required to presume the General Assembly acted
constitutionally absent evidence showing, beyond a reasonable doubt, that it did not.
C. Remedial Congressional Plan
¶ 198 The General Assembly drew and scored the RCP using the exact same
approach as it followed for the RHP and RSP. As with the other two maps, Maptitude
measured the RCP’s Mean-Median Difference and Efficiency Gap scores within the
majority’s thresholds:
RCP
Mean-Median 0.61%
Difference
Efficiency Gap 5.29%
¶ 199 In reviewing the RCP, the three-judge panel and the Special Masters once
again seemed to take the same approach. They examined the same extensive evidence
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Newby, C.J., dissenting
from the “submissions from all of the parties as well as the reports of the advisors”
and materials from the parties’ “experts.” From this evidence, the Special Masters
found that “there is substantial evidence from the findings of the advisors that the
[RCP] has an [E]fficiency [G]ap above 7% and a [M]ean-[M]edian [D]ifference of
greater than 1%,” and that “[t]here is disagreement among the parties as to whether
the proposed [RCP] meets the presumptively constitutional thresholds suggested by
th[is] [ ] Court.” However, the scores do not support this finding:
Remedial Congressional Plan
Grofman McGhee Wang Wang Jarvis Mattingly Barber Maptitude
6 election Planscore 2016- 10 16 new General
composite 2020 Election Election Assembly’s
Composite Mattingly
Election
Set
Mean- 0.66% 1.1% 0.7% 1.2% 0.9% 1.01% 0.61% 0.61%
Median
Diff.
Efficiency 6.37% 6.4% 7.4% 6.8% 8.8% 7.31% 5.29% 5.3%
Gap
¶ 200 Once again, the Special Masters also considered “the advisors’ findings on the
partisan symmetry analysis and the declination metrics.” The advisors completed the
same diverse array of partisan fairness metrics, counts of “competitive” seats and
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Newby, C.J., dissenting
compactness, and graphic comparisons to ensemble maps for the RCP as they did for
the other two plans. Considering all of this evidence, the Special Masters concluded
that the RCP “fails to meet the threshold of constitutionality” set forth in Harper I
and recommended that the three-judge panel reject the RCP.
¶ 201 Given their recommendation, the Special Masters created and submitted the
Modified Congressional Plan that, in their opinion, satisfied the standards from
Harper I. In creating the Modified Congressional Plan, the Special Masters “focused”
on the RCP and “worked solely” with one of the advisors, Dr. Bernard Grofman, and
his assistant to amend it. Dr. Grofman created three maps for the Special Masters’
consideration. The Special Masters selected one of Dr. Grofman’s maps and then
“modified” it “to improve the [E]fficiency [G]ap and [M]ean-[M]edian [D]ifference
scores” using Dave’s Redistricting App.13
¶ 202 The three-judge panel adopted the Special Masters’ findings in full, and
proceeded to make its own, additional findings regarding the RCP. First, as with the
RHP and RSP, the three-judge panel approved of the General Assembly’s remedial
process for drawing the RCP. Then the three-judge panel noted that the RCP
13 Not only is the composition of this de facto redistricting commission suspect, see
generally footnote 4, but the actual 2022 election results reflect the Democratic bias in the
Modified Congressional Plan. Democrats had 47% of the statewide aggregate congressional
votes but won one-half of the seats. See North Carolina State Board of Elections,
https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=FED&contest=0 (last
visited Dec. 8, 2022).
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Newby, C.J., dissenting
contained “key differences from the 2021 Congressional Plan” that made it more
competitive, including the fact that “[f]our congressional districts are some of the
most politically competitive in the country.” Next, the three-judge panel looked to the
RCP’s Mean-Median Difference and Efficiency Gap scores and found, “based upon the
analysis performed by the Special Masters and their advisors, that the [RCP] is not
satisfactorily within the statistical ranges set forth in [Harper I].” Finally, the three-
judge panel found “that the partisan skew in the [RCP] is not explained by the
political geography of North Carolina.” As a result, the three-judge panel found that
“[t]he Special Masters’ findings demonstrate that the [RCP] does not meet the
requirements of th[is] [ ] Court’s Remedial Order and full opinion” in Harper I.
¶ 203 The three-judge panel then turned to the Special Masters’ Modified
Congressional Plan. The three-judge panel found that the Special Masters’ plan “was
developed in an appropriate fashion, is consistent with N.C.G.S. § 120-2.4(a1), and is
consistent with the North Carolina Constitution and th[is] [ ] Court’s [Harper I]
opinion.”
¶ 204 Based on these findings, the three-judge panel concluded that the RCP “does
not satisfy th[is] [ ] Court’s standards” from Harper I and therefore, was “not
presumptively constitutional.” Accordingly, the three-judge panel concluded that the
RCP was subject to strict scrutiny. Applying strict scrutiny, the three-judge panel
concluded that “[t]he General Assembly has failed to demonstrate that their [RCP] is
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Newby, C.J., dissenting
narrowly tailored to a compelling governmental interest,” and thus, concluded that
the RCP was unconstitutional. As a result, the three-judge panel concluded that the
Special Masters’ Modified Congressional Plan should be adopted instead.
¶ 205 Although the three-judge panel weighed the same volume and variety of
evidence in reviewing the RCP as it did with the RSP and RHP, this evidence was not
competent to support its findings of fact that the RCP “does not meet the
requirements of [Harper I]” or its conclusions of law that the RCP was
unconstitutional. The evidence is not competent to support a rejection of the RCP
because, under the presumption of constitutionality, the standard of proof for
declaring an act of the General Assembly unconstitutional is significantly higher than
that for accepting that an act of the General Assembly is constitutional. To support
the three-judge panel’s findings of fact regarding the RCP, competent evidence would
have to rebut the presumption that the General Assembly acted constitutionally
beyond a reasonable doubt.
¶ 206 Overall, the three-judge panel only made two specific findings of fact that
support its conclusion of law that the RCP was unconstitutional:
34. The Court finds, based upon the analysis
performed by the Special Masters and their advisors, that
the [RCP] is not satisfactorily within the statistical ranges
set forth in the Supreme Court’s full opinion. See Harper v.
Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1%
or less) and ¶ 167 (efficiency gap less than 7%).
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Newby, C.J., dissenting
35. The Court finds that the partisan skew in the
[RCP] is not explained by the political geography of North
Carolina.
The only other findings of fact that were specific to the RCP were (1) that the General
Assembly’s remedial process and use of partisan data “comported with” this Court’s
Remedial Order, and (2) that the RCP contained “key differences” that made four of
its districts “some of the most politically competitive in the country.” Neither of these
findings supports a conclusion that the RCP is unconstitutional. Accordingly, the
three-judge panel’s rejection of the RCP appears to be based primarily, if not solely,
on its finding that the plan did not meet the Mean-Median Difference and Efficiency
Gap thresholds. In turn, the three-judge panel based this finding of fact “upon the
analysis performed by the Special Masters and their advisors.”
¶ 207 The Maptitude software used by the General Assembly, however, produced
results which found that the RCP’s Mean-Median Difference and Efficiency Gap
scores were within the thresholds identified by this Court in Harper I, and the three-
judge panel approved of the General Assembly’s method for calculating those scores.
The three-judge panel’s order contains no finding that identifies the RCP’s actual
Mean-Median Difference and Efficiency Gap scores. Nor does it identify any
purported flaw in the General Assembly’s metrics or process that rendered its scores
inaccurate as compared with those calculated by the advisors. The order summarily
found that “based upon the analysis performed by the Special Masters and their
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Newby, C.J., dissenting
advisors,” the scores for the General Assembly’s RCP were too high. However, as
shown, the scores were consistent with those for the RHP and RSP, which were
upheld by the three-judge panel. In fact the RCP’s average Mean-Median Difference
score is 0.88% and its average Efficiency Gap score is 6.91%. Both are clearly within
the “presumptively constitutional” ranges identified by the majority in Harper I.
¶ 208 Accordingly, it appears that the three-judge panel, instead of presuming that
the General Assembly acted constitutionally in drawing, adjusting, and scoring the
RCP, deferred to the reports of the Special Masters and the advisors. Again, such a
backwards approach ignores the presumption of constitutionality altogether and
defeats its purpose entirely. Even taken together, these reports do not overcome the
presumption of constitutionality’s high bar. None of the advisors even addressed the
General Assembly’s remedial process or metrics, let alone demonstrated that the
legislature’s decisionmaking was arbitrary, unreasonable, or otherwise
constitutionally flawed. Why were Maptitude’s Mean-Median Difference and
Efficiency Gap scores sufficient for the RHP and the RSP, but not for the RCP?
¶ 209 Additionally, while the advisors and the experts each calculated slightly
different scores, this is not surprising because each utilized different redistricting
software, partisan election data, and calculation methods. For example, each of the
advisors used different redistricting software from the others, and none chose to use
Maptitude, as had the General Assembly. Dr. Grofman used Dave’s Redistricting App
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Newby, C.J., dissenting
to calculate the RCP’s Mean-Median Difference and Efficiency Gap scores, and Dr.
McGhee used a web-based redistricting software called PlanScore. It is not clear from
Dr. Grofman’s or Dr. McGhee’s reports how these technologies calculate the relevant
metrics or whether they do so differently than Maptitude.
¶ 210 Likewise, each of the advisors used different sets of elections as their source of
partisan data to measure the RCP. Once again, none chose the same set of elections
as each other or as the General Assembly. Dr. Jarvis, for example, pulled partisan
election data from eleven statewide elections. Nine of these matched the General
Assembly’s Mattingly Election Set, but two did not. Dr. Grofman used “major
statewide races [in] 2016−2020,” but did not specify how many election contests or
which ones. Dr. Wang used a set of ten statewide elections to create his own sets of
hypothetical partisan election data. Dr. Wang varied the vote totals in each of these
elections “above and below an average [vote total]” in order to “evaluat[e] a range of
future [vote total] scenarios that may arise in the coming decade.” Dr. Wang also
created a composite of vote totals by averaging together three data points: (1) the
average two-party vote share of the 2016 and 2020 presidential elections; (2) the
average two-party vote share of the 2016 and 2020 United States Senate elections;
and (3) the average two-party vote share of the 2020 elections for Governor and
Attorney General. None of the advisors stated why they preferred their selected set
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of elections or hypothetical elections or purported to explain why their selection
should be substituted for the General Assembly’s.
¶ 211 Additionally, Dr. McGhee took a very “different approach” to calculating the
Mean-Median Difference and Efficiency Gap scores. Instead of analyzing which
party’s candidate would win in a proposed new district by using data from prior
election contests, Dr. McGhee used PlanScore to “predict” potential partisan
outcomes in the future. Dr. McGhee did not explain which elections PlanScore applied
to predict future election results, nor did he explain the criteria used by PlanScore to
make such predictions. Dr. McGhee also calculated two sets of Mean-Median
Difference and Efficiency Gap scores. He calculated one set from a simulated election
that assumed that no incumbents ran for reelection and another set from a simulated
election that assumed that all incumbents ran for reelection in the proposed district
containing their residence.
¶ 212 Accordingly, none of the advisors used the same software or followed the same
methods as the General Assembly, which explains the variance among the calculated
scores. Once again, we should defer to the General Assembly’s policy choices, such as
its decision to use Maptitude and the Mattingly Election Set over the policy choices
of others. It does not matter that the advisors chose to use different software, election
results, or calculation methods if that evidence does not demonstrate that the General
Assembly’s alternative choices were constitutionally flawed.
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¶ 213 These varying results prove that the process of drawing a redistricting map
involves and requires a multitude of policy choices. At each step of the process, the
General Assembly could have chosen to do something different. The General
Assembly could have chosen Dave’s Redistricting App or another redistricting
software instead of Maptitude. Alternatively, the General Assembly might have
chosen a different set of elections to supply its partisan election data. It could have
pulled data from five previous elections, instead of twelve. Or, it could have used only
presidential elections, instead of a variety of statewide contests.
¶ 214 But the General Assembly did not make any of these decisions. The mere
existence of other possible redistricting methods does not raise a suspicion, let alone
demonstrate beyond a reasonable doubt, that the General Assembly’s selected
approach was constitutionally inadequate in any way. If “every doubt” is to be
“resolved in favor of” an act of the General Assembly, Jenkins, 180 N.C. at 170, 104
S.E. at 347, then the three-judge panel should have deferred to the General
Assembly’s policy choices and its chosen redistricting method when presented with
nothing more than an array of alternative calculation methods and scores from
court-appointed political scientists. Accordingly, the three-judge panel erred in
rejecting the RCP, and this Court should reverse that portion of its order.
¶ 215 Nevertheless, the majority, like the three-judge panel, defers to the report of
the Special Masters and ignores the presumption of constitutionality entirely. The
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majority flips the presumption of constitutionality on its head by deferring to the
policy choices of four court-appointed political scientists to invalidate the policy
choices of the people’s chosen representatives. For example, in affirming the
three-judge panel’s rejection of the RCP, the majority notes that none of the advisors
found that the RCP “yielded both an [E]fficiency [G]ap below 7% and a
[M]ean-[M]edian [D]ifference below 1%.” Harper II, 2022-NCSC-121, ¶ 83. The
majority does not recognize, however, that the General Assembly’s Maptitude
software measured the RCP’s Efficiency Gap as 5.29% and its Mean-Median
Difference as 0.61%, both well below the thresholds identified by this Court in Harper
I. The majority simply defers to the advisors’ findings on the RCP’s Mean-Median
Difference and Efficiency Gap scores without explaining how the advisors’ analysis
shows that the General Assembly’s calculation of these scores was constitutionally
flawed. Nor does the majority create its own averages for the RCP as it did the RHP
and RSP. If it had it would see that both scores for the RCP are within the
“presumptively constitutional” ranges identified in Harper I. The RCP has an average
Mean-Median Difference of 0.88% and an average Efficiency Gap of 6.91%.
¶ 216 In doing so, the majority usurps the role of the General Assembly—the
policymaking branch of government—by replacing the General Assembly’s
discretionary redistricting decisions with its own preferred redistricting approaches.
More broadly, however, the majority eliminates the presumption of constitutionality
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entirely and inserts the judiciary squarely into future policy decisions that rightfully
belong to the General Assembly. Under the majority’s analytical framework, it
appears that any act of the General Assembly may be declared unconstitutional so
long as there is at least one scientist, scholar, specialist, or expert willing to opine
that the statute fails under at least one political science-based metric. As a result, the
majority has wrenched political power from the people and vested it entirely in its
own hands.
¶ 217 This Court’s decision from more than a century ago in Jenkins v. State Board
of Elections, 180 N.C. 169, 104 S.E. 346 (1920), illustrates the significance of the
separation-of-powers principles and the strength of the presumption of
constitutionality. In that case the General Assembly exercised its legislative
authority to amend the State’s election laws to allow absentee voting. Specifically,
the General Assembly enacted the Absentee Voters Law, which permitted any
registered voter who was “absent from the county in which” he was registered, id. at
172, 104 S.E. at 348, to vote using mail-in ballot forms provided by the State Board
of Elections, Compl. 7, Jenkins, 180 N.C. 169 (No. 260). J.J. Jenkins, who was running
for the Office of State Treasurer, Pl.’s Br. 1, Jenkins, 180 N.C. 169 (No. 260), filed suit
challenging the Absentee Voters Law as a violation of Article VI of the state
constitution and sought to enjoin the State Board of Elections from implementing the
statute in the 1920 general election, id. at 7, 8.
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¶ 218 The plaintiff primarily argued that the Absentee Voters Law conflicted with
Article VI, Section 2 of the North Carolina Constitution. See id. at 2−29. At the time,
Article VI, Section 2 of the North Carolina Constitution required that, to qualify to
vote in a particular county or district, a person must have “resided . . . in the precinct,
ward or other election district, in which he offers [to] vote, four months next preceding
the election.” N.C. Const. of 1868, art. VI, § 2. The plaintiff contended that this
provision not only required voters to reside in their respective county or district for
the requisite period of time but also prohibited voters from submitting a ballot unless
they were physically present in their county or district of residence. See Pl.’s Br. at
11−13.
¶ 219 Before this Court, the plaintiff made several arguments to support this
contention. For example, he argued that the verb “offer” in Article VI, Section 2
referred to a voter’s act of submitting a ballot, not the local board of elections’ act of
accepting and counting a ballot. Id. at 13. Accordingly, the act of submitting the ballot
had to occur in the voter’s county of residence and could not be completed by mailing
a ballot from another location. Id. The plaintiff also analogized the phrase “offers to
vote” to an offer to form a contract, which is “complete the moment [it] passes out of
the hands of the [offeree].” Id. at 14. Thus, like a contract offer, the plaintiff argued
that a voter’s “offer[ ] to vote” was complete the moment he submitted it for
acceptance by his local board of elections. Id. at 17. Thus, according to the plaintiff,
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the voter could only submit his ballot by hand in the county in which he resided. Id.
Lastly, the plaintiff also compared Article VI, Section 2 to similar provisions in other
state constitutions that were held to prohibit absentee voting laws. Id. at 18−19.
Accordingly, the plaintiff concluded that the Absentee Voters Law violated Article VI,
Section 2 by permitting voters to “offer to vote” from locations outside their county or
district of residence.
¶ 220 In answering this question, this Court first explained that the well-settled
presumption of constitutionality applied. Jenkins, 180 N.C. at 170, 104 S.E. at 347(“No rule of construction is better settled, both upon principle and authority, than
that legislative enactments are presumed to be constitutional until the contrary is
shown. It is only when they plainly conflict with some provision of the [c]onstitution
that they should be declared void.”). The Court then noted that the plaintiff raised a
compelling argument that Article VI, Section 2 required a voter to “offer[ ] to vote”
while physically present in his county or district of residence. Id. at 172, 104 S.E. at
348. The Court admitted that, as a result, there was some doubt regarding the
constitutionality of the Absentee Voters Law. Id. (“[W]e must admit that the question
is perplexing and involved in doubt.”). Regardless, the Court determined that raising
a compelling argument of unconstitutionality was insufficient to overcome the
presumption of constitutionality’s high bar. Id. at 172−73, 104 S.E. at 348.
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Accordingly, this Court concluded that it was, therefore, required to uphold the
statute:
[W]e think the language of the [c]onstitution is susceptible
of a fair interpretation which will sustain the statute, in
which case it is our duty to uphold it and give to the law
the benefit of the doubt. The party who undertakes to
pronounce a law unconstitutional takes upon himself the
burden of proving beyond any reasonable doubt that it is
so. Nothing should have the effect of avoiding a statute
duly enacted but a direct collision between its provisions
and the [c]onstitution. That collision is not so clear as to
justify us in setting aside a statute, which is the law in a
majority of the States of the Union, and, so far as we can
find, has not been contested in recent years.
Id.¶ 221 Thus, the presumption of constitutionality imposes a high bar to surmount and
can only be overcome if it is clear beyond a reasonable doubt that the relevant
enactment directly conflicts with an express provision of the constitution. See Baker,
330 N.C. at 334−37, 410 S.E.2d at 889−90. As applied to this case, plaintiffs have not
shown that the General Assembly’s Remedial Plans, presumed constitutional, violate
the constitution beyond a reasonable doubt.
IV. Political Question
¶ 222 The dissenting opinion in Harper I explained in great detail that partisan
gerrymandering claims present nonjusticiable political questions because the North
Carolina Constitution textually assigns the issue of redistricting to the legislature
and because there is no judicially discernible, manageable standard by which courts
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may adjudicate such claims. See Harper I, 2022-NCSC-17, ¶¶ 237−67 (Newby, C.J.,
dissenting). The exact justiciability pitfalls forecasted by the dissenting opinion in
Harper I permeated the proceedings on remand, and they are present again in the
majority’s decision today. Accordingly, revisiting the political question analysis from
Harper I is warranted.
¶ 223 “The Supreme Court of the United States has explained that ‘as essentially a
function of the separation of powers,’ courts must refuse to review issues that are
better suited for the political branches.” Id. ¶ 237 (quoting Baker, 369 U.S. at 217, 82
S. Ct. at 710). Such matters are nonjusticiable, political questions. One characteristic
of a political question is the absence of a standard that is judicially discoverable and
manageable. Id.¶ 224 As explained in the dissent in Harper I, the Supreme Court of the United
States recently provided detailed guidance regarding the nonjusticiability of partisan
gerrymandering claims in Rucho v. Common Cause, 139 S. Ct. 2484 (2019). See
Harper I, 2022-NCSC-17, ¶¶ 238–45. In Rucho the Supreme Court determined that
claims of excessive partisanship—brought by a group of Maryland and North
Carolina voters regarding their states’ congressional maps—were nonjusticiable. 139
S. Ct. at 2491.
¶ 225 The Court first noted that “[p]artisan gerrymandering claims have proved far
more difficult to adjudicate” than other types of redistricting issues because “while it
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is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage
in racial discrimination in districting, ‘a jurisdiction may engage in constitutional
political gerrymandering.’ ” Id. at 2497 (quoting Hunt v. Cromartie, 526 U.S. 541, 551,
119 S. Ct. 1545, 1551 (1999)). Because some level of partisan gerrymandering is
constitutional, “[t]he ‘central problem’ ” with such claims is “ ‘determining when
political gerrymandering has gone too far,’ ” id. (quoting Vieth v. Jubelirer, 541 U.S.
267, 296, 124 S. Ct. 1769, 1787 (2004) (plurality opinion)), and “providing a standard
for deciding how much partisan dominance is too much,” id. (quoting League of United
Latin Am. Citizens v. Perry, 548 U.S. 399, 420, 126 S. Ct. 2594, 2611 (2006) (opinion
of Kennedy, J.). Because of this inherent difficulty, the Supreme Court stressed that
if there exists a standard for resolving such claims, it “must be grounded in a ‘limited
and precise rationale,’ be ‘clear, manageable, and politically neutral,’ ” id. at 2498
(quoting Vieth, 541 U.S. at 306−08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the
judgment)), and “reliably differentiate unconstitutional from ‘constitutional political
gerrymandering,’ ” id. at 2499 (quoting Cromartie, 526 U.S. at 551, 119 S. Ct. at
1551).
¶ 226 The Supreme Court then examined whether it could find such a standard in
the Federal Constitution. The Court explained that partisan gerrymandering claims
are effectively requests for courts to allocate political power to achieve proportional
representation, something the Federal Constitution does not require. Id. (“Our cases,
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however, clearly foreclose any claim that the Constitution requires proportional
representation . . . .” (quoting Davis v. Bandemer, 478 U.S. 109, 130, 106 S. Ct. 2797,
2809 (1986) (plurality opinion))). Accordingly, partisan gerrymandering claims do not
seek to redress a violation of any particular constitutional provision; rather, such
claims “ask the courts to make their own political judgment about how much
representation particular political parties deserve—based on the votes of their
supporters” and “to apportion political power as a matter of fairness.” Id. (first
emphasis added). This judgment call is not the kind of “clear, manageable, and
politically neutral” standard required for justiciable issues. Id. at 2498 (quoting Vieth,
541 U.S. at 306−08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the judgment)); see
also id. at 291, 124 S. Ct. at 1784 (plurality opinion) (“ ‘Fairness’ does not seem to us
a judicially manageable standard. . . . Some criterion more solid and more
demonstrably met than that seems to us necessary to enable the state legislatures to
discern the limits of their districting discretion, to meaningfully constrain the
discretion of the courts, and to win public acceptance for the courts’ intrusion into a
process that is the very foundation of democratic decisionmaking.”).
¶ 227 The Court also concluded that, unlike one-person, one-vote claims, the Federal
Constitution was devoid of any objective, mathematical metric for measuring
“political fairness”: “[T]he one-person, one-vote rule is relatively easy to administer
as a matter of math. The same cannot be said of partisan gerrymandering claims,
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because the Constitution supplies no objective measure for assessing whether a
districting map treats a political party fairly.” Rucho, 139 S. Ct. at 2501.
¶ 228 Finding no appropriate standard in the Federal Constitution, the Supreme
Court then turned to the political science-based tests proposed by the Rucho
plaintiffs. Id. at 2503−04. These tests proved insufficient as well:
The appellees assure us that “the persistence of a
party’s advantage may be shown through sensitivity
testing: probing how a plan would perform under other
plausible electoral conditions.” Experience proves that
accurately predicting electoral outcomes is not so simple,
either because the plans are based on flawed assumptions
about voter preferences and behavior or because
demographics and priorities change over time. . . .
Even the most sophisticated districting maps cannot
reliably account for some of the reasons voters prefer one
candidate over another, or why their preferences may
change. Voters elect individual candidates in individual
districts, and their selections depend on the issues that
matter to them, the quality of the candidates, the tone of
the candidates’ campaigns, the performance of an
incumbent, national events or local issues that drive voter
turnout, and other considerations. Many voters split their
tickets. Others never register with a political party, and
vote for candidates from both major parties at different
points during their lifetimes. For all of those reasons,
asking judges to predict how a particular districting map
will perform in future elections risks basing constitutional
holdings on unstable ground outside judicial expertise.
Id. (citations omitted). In conclusion, the Supreme Court held that partisan
gerrymandering claims are nonjusticiable because there is “no plausible grant of
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authority in the Constitution, and no legal standards to limit and direct their
decisions.” Id. at 2507.
¶ 229 Today’s decision further illustrates the wisdom of that Court’s observations.
According to the majority, the General Assembly and six jurists were unable to
understand and apply the criteria set forth by the majority in Harper I. If, as the
majority insists, the “test” from Harper I “provide[s] a clear standard” so that the
General Assembly can “reliably” identify and avoid political gerrymandering, Harper
I, 2022-NCSC-17, ¶ 310 (quoting Rucho, 139 S. Ct. at 2499), then why did the General
Assembly, the three-judge panel, and the Special Masters all fail to discern and apply
that standard on remand? The fact that they could not properly understand and apply
the criteria discussed in Harper I is prima facie evidence that the majority’s standard
is unworkable. The majority even concedes that its standard from Harper I is
“imperfect” and “vulnerable to manipulation,” Harper II, 2022-NCSC-121, ¶¶ 78, 77,
yet it continues to insist its standard must be applied.
¶ 230 Additionally, the majority’s holding today renders the applicable “standard”
going forward even less manageable than the standard it iterated in Harper I. In
Harper I the majority suggested “possible bright-line standards” from “political
science literature.” Harper I, 2022-NCSC-17, ¶ 165 (majority opinion). It specifically
opined that “any plan with a [M]ean-[M]edian [D]ifference of 1% or less when
analyzed using a representative sample of past elections is presumptively
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constitutional.” Id. ¶ 166. Similarly, it concluded that a “seven percent [E]fficiency
[G]ap threshold” was presumptively constitutional. Id. ¶ 167. Now the majority backs
away from any possible bright-line standard and basically removes any presumption
by stating that even these threshold scores that it identified cannot reliably identify
a constitutional redistricting plan:
Constitutional compliance has no magic number. Rather,
the trial court may consider certain datapoints within its
wider consideration of the ultimate legal conclusion:
whether the plan upholds the fundamental right of the
people to vote on equal terms and to substantially equal
voting power.
Harper II, 2022-NCSC-121, ¶ 76. How the General Assembly, constitutionally tasked
with the redistricting responsibility, or a three-judge panel can recognize whether a
redistricting plan meets this criteria, however, the majority does not say.
V. Conclusion
¶ 231 When is a legislative redistricting plan constitutional? Only four justices on
this Court know, and they refuse to say why the plans at issue today are
unconstitutional. Why are they reluctant to say?
¶ 232 Ambiguity leads to redistricting by the judiciary, which appears to be the goal.
Legislative defendants’ redistricting decisions and their Remedial Plans are entitled
to our historic deference. The majority gives the General Assembly none.
¶ 233 The majority admits its standard is “imperfect,” Harper II, 2022-NCSC-121, ¶
78, but argues it can be applied by a three-judge panel. Absent from its discussion is
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the branch that is constitutionally assigned redistricting responsibilities—the
legislative branch. The majority ignores the primary role of the General Assembly in
seeking to interpret and apply the vague “standard” it discusses.
¶ 234 Properly analyzed under the correct standard of review, all three of the
General Assembly’s Remedial Plans should be approved. The RCP and the RSP meet
the criteria of presumptive constitutionality set forth in Harper I. Most telling, the
majority strikes down the RSP when the three Special Masters and the three-judge
panel all agreed that it was constitutionally compliant under Harper I. Apparently,
six jurists and the General Assembly were unable to discern and apply the correct
constitutional test or recognize a constitutional redistricting plan. Once again, only
four justices know what redistricting plan will meet their view of constitutionality. I
respectfully dissent.
Justices BERGER and BARRINGER join in this dissenting opinion.
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