Raleigh Wake Citizens Assoc v. Wake County Board of Elections

against tax documents priva- Ingalls; Amy asserted Lee; Matthew T. Erwin cy interests.” Portman; Portman; Rog Susan Jane ers; Vandenbergh; Barbara John G. conclude, however,

We that the district Vandenbergh; Amygayle Womble; L. right court struck the balance in permit Perry Woods, Plaintiffs-Appellants, ting these email redactions. On the one scale, side of the employees, as well IRS v. government as other employees, “have a WAKE COUNTY BOARD OF substantial interest in the nondisclosure of ELECTIONS, Defendant- their identities and their connection with Appellee, particular investigations because of the potential harassment, annoy future ance, Neely FBI, or embarrassment.” v. Barefoot, Chad capacity his official (4th 2000); 208 F.3d 464-65 Cir. see as primary sponsor Senator and of SB Watch, States, also Judicial Inc. v. United 181; Phillip Berger, E. in his official (4th 2004) (un Fed.Appx. Cir. capacity Tempore as President Pro of

published) (concluding that privacy “the Senate; North Carolina Tim protected by interest Exemption 6 encom Moore, in his capacity official passed] ... of employ names federal Speaker of the North Carolina House ees,” including “lower-level I.R.S. employ Representatives, of Defendants. ees”). But, on the other side of the scale case, in this the record contains no indica Wright; Bethel; Calla Amy Willie J. T. that disclosing tion the names and contact Lee; Amygayle Womble; L. John G. information of employees these IRS would Vandenbergh; Vandenbergh; Barbara Neely, public serve the interest. See Ajamu Dillahunt; G. Elaine E. Dilla F.3d at 464 (recognizing public hunt; Mackethan; Lucinda H. William interest in the government names em Clifford; Long B. Campbell; Ann Greg ployees alone “would appear negligi to be Flynn; Beverley Clark; S. Concerned ble” absent a allegation “compelling Citizens for African-American Chil agency corruption or illegality”). Accord dren, Coalition of Concerned d/b/a ingly, we conclude that the district court Citizens for African-American Chil did not err in holding that the IRS em dren; Raleigh Wake Citizens Associa ployees’ interest in maintaining the priva tion, Plaintiffs-Appellants, cy of their names contact information outweighed the public interest in the dis

closure of this information. County Elections, Board Defendant-Appellee, judgment court is accordingly

AFFIRMED. Carolina, State of North Defendant.

No. No. 16-1271 United States of Appeals, Fourth Circuit. Argued: May RALEIGH WAKE CITIZENS ASSOCI- July Decided: ATION; Barnes; Beverley Jannet B. S.

Clark; Clifford; William B. Brian

Fitzsimmons; Greg Flynn; Dustin Earls,

ARGUED: Anita Sue Allison Jean Riggs, Southern Coalition for Social Justice, Durham, Carolina, North Ap- for pellants. Marshall, III, Foster Charles Brooks, Pierce, Mclendon, Humphrey & Leonard, L.L.P., Raleigh, Carolina, North Appellee. ON George BRIEF: E. Eppsteiner, Southern Coalition for Social Justice, Durham, Carolina, North Ap- pellants. Tynan, Matthew B. Jessica Thal- ler-Moran, Brooks, Pierce, Mclendon, Leonard, Humphrey L.L.P., & Raleigh, Carolina, North for Appellee. MOTZ, GREGORY, Before WYNN, and Judges. Circuit and in part Reversed remanded and part affirmed in by published opinion. Judge wrote majority opinion, WYNN in Judge joined. which Judge GREGORY MOTZ dissenting opinion. wrote a WYNN, Judge: Circuit right The to vote is “fundamen tal,” right and once that granted “is to the electorate, may lines not bе which drawn are Equal with the inconsistent Protection Clause of the Fourteenth Amendment.” Gore, 98, 104-05, Bush v. 531 U.S. (2000) S.Ct. (quota 148 L.Ed.2d 388 omitted). tion marks and citation “It must be right remembered that” the to vote “can be a denied debasement or dilution of the a weight of citizen’s vote just as effectively by wholly prohibiting Reynolds free (quoting exercise.” Id. showed that Wake the census In Sims, by 43.51% grown had County’s population (1964)). L.Ed.2d decade, causing preceding over Plaintiffs, cases, consolidated In these have a districting plan to then-existing organizations civie voters registered of 47.89%.1 deviation population maximum Carolina, claim County, North Board, time at that dominated The School drawn) redis- (identically the two under its dis- redrew Republicans,2 by registered challenge, some Wake they tricting laws the 2010 census. light tricts County and Wake Board County School districts County Commissioners Board redistricting plan to a effort led That while others over-populated, have been hav- compact geographically fur- Plaintiffs under-populated. have been deviation maximum ing result discrepancies that these assert ther from the deviating no district 1.75% others more while counting votes in some by even 1%. district ideal discrepancies stem less, that the count districting, the new under first election As redistricting factors. illegitimate from Board with in a School resulted Fall below, that Plain- hold agree, we explained majority. a Democratic state and federal their proven have tiffs Republican-controlled claims, and therefore one vote (“Gen- Assembly Carolina Generаl North reverse. objection of Assembly”), over eral (cid:127) that one discrete also claim every Board and majority of the School gerry- racial product of was the legisla- and African-American Democratic hold the district mandering. We a local Assembly, passed tor in General claim rejecting that clearly err did not numer- making bill, Law Session affirm. and thus Board’s method the School changes to ous things, Session other Among of selection. I. Board’s the School changed Law 2013-110 districts single-member nine make-up from 2013, the leading up years In the and set single-member (“School to seven Board County School Wake for compact boundaries less geographically Board”) members elected of nine consisted The maximum set of districts. this new dis- Those single-member districts. from single- among the new population deviation every ten change subject to tricts were to over 7%. districts swelled member census. following the decennial years largest population.” the apportionment of Daly Hunt, usually analyze! the ] "[C]ourts (4th population 1215 n. maximum F.3d plan[s] terms of the in Generally, 1996). among the districts. deviation Cir. deviation, the first maximum calculate by di- hypothetical ideal district a constructs nominally non- Board is the 2. While School political unit the viding population of total the routinely registered are partisan, its members by of county) the total number (e.g., or state and Re- the Democratic affiliated with and population. representatives who serve Parties, tes- trial publican uncontroverted and Then, thе how much court determines high partisanship timony a level of showed from district varies of each population actual nonpartisan elec- be a supposed to "what's devia- district. This of ideal also, e.g., 234; (noting J.A. 254 see J.A. tion.” of ideal percentage expressed as tion is more local have “become such races is the sum deviation population. Maximum candidates,” to "block partisan-based” due of the the deviation value absolute machine,” "money”). party "political the smallest district with Additionally, polled voters, Session Law 2013-110 cre- County nearly every “super ated two districts” that overlaid the Democratic state legislator, every Af- single-member districts. J.A. 160. One su- legislator rican-American in the General per outer, district formed a donut of more Assembly. Fourteen individuals and a civic rural of the county, areas while the other organization shortly thereafter, filed suit inner, formed a donut hole urban challenging the Board of County Commis- area. The maximum population deviation redistricting plan sioners’ violating super between the districts exceeded even person, guarantees one one vote of the single-member -just that of the districts— state and federal constitutions. shy of 10%. Session Law 2013-110 moved In appeal Plaintiffs’ from the district elections to years, even-numbered and lim- dismissal, Court, court’s March 2014 this ited the ability School Board’s to make May held that allega- “Plaintiffs’ changes to its method of election until in support tions of their claim that [Session 2021., Law 2013-110]violates the оne' In August thirteen individuals and principle vote suffice to survive a motion to organizations two civic filed suit in the dismiss for failure to state a claim.” United States District Court for the East- Wright Carolina, v. North 787 F.3d Carolina, ern District of North challenging (4th 2015). Cir. We therefore reinstat- constitutionality of the districts that ed Plaintiffs’ complaint against the Wake Session Law 2013-110 established. The County Board Elections. complaint alleged that plan unevenly remand, On the district weighted the votes of court consolidat- county citizens reasons, ed the impermissible challenging suits thereby violat- Session Law 2013- ing one-person, 110 and guarantees one-vote Session Law expedited 2015-4 and the federal discovery. and state constitutions. In Discovery was further limited March the district court dismissed legislators’ the state refusing Plaintiffs’ Plaintiffs’ suit for failure to state claim. discovery requests, claiming legislative Wright Carolina, v. North privilege.4 December the district (E.D.N.C. 2014). appealed. trial, court held a bench in which Plaintiffs presented witnesses, numerous including In April appeal while Plaintiffs’ citizens, legislators, and experts, as well as pending Court, was before this the General copious documentary evidence, with 481 Assembly enacted Session Law exhibits including: 'expert reports and sup- making system the electoral for the Wake data; porting school assignment maps; County County Board of Commissioners (“Board campaign reports; finance Commissioners”) results data County of identi- elections; from various excerpts legisla- of system cal to the it had created for the tive transcripts; public and polling School Board with results. Session Law 2013-110.3 contrast, Defendant, 2015-4, too, By Session Law of With the General Board Elec- Assembly forced a tions that local bill on administers elections with no Wake County despite opposition majori-. “political from the stake in the interests of the Gen- ty Commissioners, County the Board of Assembly,” I, 13:24-25, eral Trial Tr. vol. Previously, County agreement members of the Board of 4. Pursuant to an between' Plaintiffs at-large, subject Commissioners were elected particular legislators, and certain external requirement to the that one had legislators member to be communications between the and county's elected from each of the parties seven resi- third no internal communica- —but dency districts. amongst legislators produced. tions —were

340 applicable impression a mistaken upon sim- own. Defendant none of its

presented reviewing court is not legal principles, Plaintiffs’ witnesses cross-examined ply clearly standard.” by the erroneous bound argument. legal made Labs., Inc., Labs., Ives 456 Inc. v. Inwood for Nevertheless, ruled court the district 2182, 15, 72 102 S.Ct. n. 855 U.S. Ass’n v. Citizens Wake Defendant. (1982). 606 L.Ed.2d Elections, Cty. No. 5:13-CV- Bd. of 553, 2016 WL 607-D, III. 2016). (E.D.N.C. The dis- Feb. one of every single

trict court discredited appeal, on primary argument their With witnesses, as “anec- example for Plaintiffs’ court the district contend Plaintiffs 1060378,at dotal,” 2016 WL id. at adju- for wrong legal standard applied 604-05, 2016 *28-29, id. at “unhelpful,” claim. one vote their one dicating hold, to It went on at *32. WL below, we explained reasons For “in order things, other among agree. person case in а one prima facie prove a at least must challenge, plaintiffs vote one A. rea- legitimate common negate the most “fundamen right to vote is The legislature’s explain that could sons tal,” right granted “is and once 1060378, at 589, 2016 WL Id. at action.” which electorate, not be drawn may lines omit- marks and citations *22 (quotation Equal Protection are inconsistent ted). Plaintiffs held that Amendment.” the Fourteenth Clause requisite and the other meet failed to this Bush, 104-05, 121 S.Ct. 525 531 U.S. appealed. burdens. omitted). In marks and citation (quotation apportion deed, through unequal allowing, II. districts, a vote to be amongst ment judg review appeal, “‘[w]e On than another more in one district “worth under a trial resulting from bench ments fundamental to our ... run counter would findings factual of review: mixed standard Reyn government.” of democratic ideas erroneous, clearly if only may reversed be olds, (quota U.S. de of law are examined conclusions while omitted). re This and citation tion marks ” La the Blind v. Nat’l Fed’n novo.’ votes be that all citizens’ quirement 2016) (4th mone, 494, 502 Cir. 813 F.3d per one as the equally, known weighted No. 96 Local Union Plasterers’ (quoting just son, applies principle, vote Pepper, 210, 215 663 F.3d Plan Pension also to government but state the federal 2011)). (4th deemed Findings will be Cir. school governments including and local — if, example, “even clearly erroneous bodies. county governing boards support evidence to though there some Cty., Avery v. Midland court, reviewing review on finding, (1968). L.Ed.2d record, a definite is left with of the recognized have Courts been a mistake has firm conviction “[mjаthematical precision or is exactness using findings were made made,” if or require hardly a workable constitutional Coal Consol. legal standards.” “incorrect require “identical thus do not of ment” and Mine Workers Local United Co. v. 1995) government local (4th in state and Am., (quo numbers” Cir. 48 F.3d Reynolds, omitted). 377 U.S. districts. “Of citation marks and tation Nevertheless, governments findings S.Ct. course, court bases its if the trial good must “make an honest and faith ef less than predominance 10% reflected] fort” to construct as close to equal districts illegitimate of reapportionment factors.” population “as is Id. practicable.” To as Id “practicable,” sess what the Supreme Cox, contrast, By in Larios v. has population Court allowed some devia plaintiffs proving succeeded in their one “legitimate

tion for considerations” such as person, one vote claims. 300 F.Supp.2d compactness contiguity, integrity (N.D. Ga.) aff'd, (three-judge panel), subdivisions, political of and balance 542 U.S. ‍​​‌‌‌‌​‌‌​‌​​​​​‌‌‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌‌‍124 S.Ct. 159 L.Ed.2d among political parties. Harris v. Ariz. In (2004) (mem.). Larios, In a federal — dep. Redistricting Comm’n, U.S.-, court struck a Georgia down 1301, 1306, 136 S.Ct. 194 L.Ed.2d 497 plan that disproportionately favored Dem (2016). ocrats under-populating in Generally, a districting plan “with a urban region Atlanta and the rural maximum deviation under 10% south—both strongholds— Democratic by itself, not, will support equal protec an while over-populating suburban districts Wright, tion claim.” 787 F.3d at 264 (quo with Republican-leaning voters. The re added). tation marks omitted and emphasis districting created a maximum population Rather, plaintiffs in such cases “must show deviation of 9.98% and disproportionately that it is probable more than not that a protected Democratic incumbents. Id. at deviation of less than 10% reflects the (with Supreme 1328-31. The Court only predominance illegitimate of reapportion Justice Scalia dissenting) affirmed the ment legitimate factors rather than” con rejection court’s of the redistrict ,such siderations as compactness or the Larios, ing. 124 S.Ct. 2806. Harris, integrity political subdivisions. 136 S.Ct. at 1307. Supreme As the explained, Court has Larios, attacking “those the plan had Harris, Supreme Court’s most shown probable that it was more than not recent, lucid, and arguably most pro- that the use of illegitimate signifi- factors nouncement plaintiffs’ as to burdens cantly explained deviations from numerical person, one vote cases below the 10% devi- Harris, equality among districts.” threshold, ation unanimously at 1310. Supreme The Court noted the noted that the plaintiffs there had claimed “many examples showing that population plan’s deviations from “absolute deviation as shape many well as the equality political reflect ... districts did not any result from attempt to help efforts to party.” Democratic Id. create districts that however, compact were or con- Crucially, plaintiffs “failed to tiguous, whole, or to keep counties or prove Instead, this claim.” Id. “the record preserve the prior out” cores of districts.” b[ore] that the Id. “predomi- deviations omitted). nantly (quotation marks reflected ... and citation efforts to achieve cоm- pliance Act, with the federal Court contrasted the Voting Rights Larios plaintiffs’ political showing to secure successful advantage for one that of Harris, party.” words, plaintiffs Id. In the failed plaintiffs other stating “[i]t Harris is appellants’ inability foundered not because their one show that person, one challenge present plan’s vote failed as a boundary mat- deviations and law, ter of they but because shapes did not muster result from predominance the evidence needed to it similarly show to be “more illegitimate factors that makes probable than not that deviation of inapposite [the] [Larios] here.” Id.

342 Harris, 136 Harris, factors.” reapportionment we and at Larios

Looking deviation-fo- specific, This merits, at 1307. that, on to succeed conclude markedly from inquiry differs cases cused vote one person, in one plaintiffs of review rational-basis district court’s 10% must below deviations with could ex- policy a state whether rational the evidence of preponderance a show redistricting generally. plain predominate considerations improper just This is the deviations. explaining in there legal standard case,

such a applies. fore Wright, Further, emphasized we in affir- Court’s importance of

B. Thus, we this case. of for mance Larios more than Larios made it clear that was little holding summary affirmance mere challenging. is in this area The law Ass’n, Raleigh Citizens sway. Wake matter, we of this appeal the earlier 1060378, at 584-86, 2016 F.Supp.3d at WL to ease clarify points to some sought Wright, forth Instead, set we with *18. Nonetheless, court. district on the burden courts binding on the district precedent in which instances numerous there were con- Larios making clear that this Circuit Wright not was out law we set authority generally, persuasive stitutes evaluating example, For to. adhered concrete authority this analogous well as claim, the vote one person, Plaintiffs’ one Wright, The district F.3d at 267. case. properly characterize not court did district Scalia’s heavy emphasis on Justice court’s The succeed. must show to dissent&emdash;an Plaintiffs what prece- no opinion Larios with stated, that “in example, for court value&emdash;is district at odds squarely thus dential in a one facie case prima prove order to Raleigh Wright. See, e.g., Citi- Wake must challenge, plaintiffs one vote person Ass’n, F.Supp.3d at zens legiti- common negate at least most (“According to Jus- at *18-19 WL legis- explain that could mate reasons Scalia, a ‘tradition- as usual’ is ‘politics tice Raleigh Citizens Wake lature’s action.” criterion,’ ‘a constitu- al ” “ 589, 2016 Ass’n, at WL F.Supp.3d political one,’ ‘[f]erreting out tional and cita- (quotation marks at *22 deviations motives minute omitted). court indicated tion encourage likely to me more seems to purpose legislative “any conceivable vin- litigation than to politically motivated redistricting plan support sufficient” ”). political rights.’ dicate rationality” “attacking the and that those Moreover, misapplied the district court every [negate] “have the burden thereof Larios. The district principles core it.” might support which conceivable basis that, stated, in contrast example, (alter- 1060378, *27 Id. at 2016 WL Larios, prove here Plaintiffs did marks and ci- (quotation in original) ation Assembly disregarded “that the General omitted). tation creating principles in districting all Plan, or County School Board 2013 Wake court’s Contrary to the district Board County School that the characterization, must actu what permissi- to a rationally related Plan is not with their ally show to succeed improving ble, policy rational state probable it is that is “more one vote claims representation.” Board 10% School of less than that a deviation than not Ass’n, Wake Citizens illegitimate predominance reflects the 343 1060378, Ass’n, 2016 WL at *36. The district Citizens F.Supp.3d 166 at 2016 Larios, court thus concluded that “unlike WL at *29. plaintiffs prove have failed to that the 2013 only analogous case in the purport County

Wake School Board Plan resulted Veasey Abbott, ed “line of precedent,” v. from a desire to favor suburban and rural (5th 796 2015), F.3d 487 Cir. has been voters over urban voters.” Id. vacated and longer law, is thus no good (5th 2016) 815 F.3d 958 Cir. (granting re Crucially, three-judge neither the dis- hearing en banc and vacating panel Larios, trict in nor the Supreme opinion). The other cases the district court in affirming and later discussing cited—cases dealing with statutory inter Larios, suggested plaintiffs ever pretation for the unremarkable and —stand such need to cases show that “all district- inapposite proposition that courts usually ing principles” “disregarded.” were Id. do not much weight “accord to the state Further, neither court on focused the chal- ments of a bill’s opponents [when inter lenged redistricting plans as a In- whole. preting the words of the bill]. The fears stead, focus, as, Larios as well Har- opposition doubts of the are no author ris, was “deviation[s] whether of less than guide itative to the legisla construction of predominance 10% reflected] of ille- Dep’t tion.” Shell Oil Co. v. Iowa of Reve gitimate Harris, reapportionment factors.” nue, 19, 29, 488 U.S. 109 S.Ct. 102 added); at (emphasis Lar- (1988) L.Ed.2d (quotation marks, cita ios, F.Supp.2d at (holding tion, omitted) and brackets (holding that “population deviations ... supported one passing reference preemption in a legitimate by ... interests ... cannot speech by opponent an cannot of a law scrutiny” withstand constitutional (empha- properly guide the court’s interpretation of added)). Larios, sis legisla- state law); Schwegmann also see Bros. attempt ture’s to privilege rural and urban Corp., Calvert 384, 394, Distillers 341 U.S. expense Democrats of suburban Re- (1951) 71 S.Ct. 95 L.Ed. 1035 (noting publicans explained the in popu- deviations opposition” “doubts of the do not lation, not redistricting plan generally, guide “the legislation”); construction of did not legitimate constitute a apportion- Vegetable NLRB v. Fruit & & Packers factor, Larios, ment prohibited. and was Warehousemen, 58, 66, Local (1964) 12 L.Ed.2d 129 (same). This is not a case about awhat Additionally, in evaluating the particular evidence word a statute means. Rath proffered support er, their one at the heart of this case is whether claims, one vote the district court illegitimate predominated factors the Gen improperly every discounted single Assembly’s one of eral supplemental redistricting Plaintiffs’ fifteen trial witnesses. For ex- of County illegitimate Wake such that fac ample, it all testifying discredited leg- explain tors deviations islators because of “strong legislative their the redistricting plan. we recognize While opposition to the 2013 County Wake that a trial judge generally may consider School pertinent] Board Plan. [The testi- or prejudice” “bias when “assessing wit mony at trial fits within prece- Muse, the line of credibility,” ness United States v. giving (4th dent no weight 1996), statements made F.3d 676-77 Cir. the dis by opponents legislation.” trict categorically court discredited J.A. municipal boundaries.” cinct ob- and regarding testimony, even legislators’ extremely “with thus concluded has Dr. Chen court the district facts. Yet jective any sort beyond certainty, see, controlling high statistical precedent cited, no and we only way to draw that “the here” testimony should of doubt their that suggesting as the partisanship as extreme wholesale districts discounted have been simply use B and A districts Citizens legislature’s Wake no “giv[en] weight.” high. are J.A. 600, that Ass’n, at 2016 WL deviations” F.Supp.3d population words, testified Dr. Chen other at *29. 463. In certainty from could conclude with that he completely court Similarly, district the at the deviations issue his simulations unhelp- flawed and “materially rejected as using partisanship the result here are *32, at ful,” 2016 WL at id. the districts. apportioning expert Dr. Jowei of Plaintiffs’ analysis the the from professor science Chen, political a analysis, the Dr. Chen’s critiquing In' in- Michigan. Upon closer University of that cer- on the fact court seized district court’s however, the district it is spection, computer in the tain accounted criteria analysis that is Dr. analysis of Chen’s own maximum setting simulations —such materially flawed.- or “com- at 2% or less deviation population Ra- ignoring] partisanship,” ... pletely popula- the analyzed whether Dr. Chen Ass’n, leigh Citizens Wake single-member in the seven tion deviations *30, are re- 2016 WL districts super two plans and law. nor federal by neither quired state pur- partisan a motivated plans were The point critique point: misses This program- using computer simulation pose legally plans are is not that simulated gener- him to that allow techniques ming they help demon- but rather that required, of alternative randomly large a number ate population might explain what strate subject to tradi- redistricting plans created plan. in the enacted deviations The four tradi- redistricting criteria. tional Dr. used redistricting criteria Chen tional “find[] on to court went The district munic- equality; keeping were: simply show simulations that Dr. Chen’s whole; intact; precincts keeping ipalities redistricting plans were ... that ‘better’ compactness. Dr. Chen’s geographic equate not plans do but ‘better’ possible, log- are based on simulations computer unconstitutionality randomly five draws computer that if a ic Id. Board With County School Plan.” following tradi- redistrieting plans hundred missed again court the district finding, criteriа, actual and the tional Dr. Chen’s sim- import The point: completely outside plans enacted fall plans, better produce not to ulations was drawn, computer has range what legitimate ap- to hold several but rather crite- that the traditional can conclude constant so portionment considerations plan. that enacted explain ria do not whether the could assess that Dr. Chen challenged deviations in led Dr. Chen simulations computer of some- product could have been the plans that the “enacted just that conclusion: He conclud- partisan than bias. thing other partisan a distribu- create districting plans certain- extremely high statistical ed “with falling completely outside of seats tion here” of doubt beyond any sort ty, under possible are range of outcomes The district have. J.A. 463. they that cre- could districting process non-partisan in re- reversibly erred clearly and max- court while equally populated ates testimony. Eas- expert Dr. Chen’s pre- jecting preserving compactness imizing ley Cromartie, Likewise, here, we deem remand unnec- (2001) 149 L.Ed.2d trial, (reversing essary. At to copious addition doc- three-judge district panel court a racial umentary evidence, presented gerrymandering case in which the district fifteen live witnesses —two experts, four clearly erred in rejecting expert legislators, evi- four county officials, elected dence). and five plaintiffs lay witnesses.5

These witnesses and presented documents support abundant for per- Plaintiffs’ one 4. son, one vote claims within thе nine-hour go We could on detailing the errors in total that the district court allowed Plain- the opinion below. it say Suffice to that the for presenting tiffs their case. legal analysis of what Plaintiffs needed to Defendant, by contrast, offered not even show as well as the of the evaluation evi- Instead, one witness. Defendant expressly proffered dence Plaintiffs to make that any disclaimed stake in “representing the showing fundamentally are flawed. political interests of the General ‍​​‌‌‌‌​‌‌​‌​​​​​‌‌‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌‌‍Assem- bly,” I, 13:24-25, Trial Tr. vol. and essen- C. tially passed on defending the General As- sembly’s redistricting. legislative Even the 1. proponents of the challenged redistrieting When, here, the district court -laws actions, refused to defend their in- applies standards, the wrong we tend to stead claiming legislative immunity. remand to allow “the trier of fact to reex record, The resulting discussed in amine the record” using the correct stan below, more detail permits only one resolu Kelley Co., dards. v. S. Pac. 419 U.S. tion of person, Plaintiffs’ one one vote (1974). 95 S.Ct. 42 L.Ed.2d 498 claims: Plaintiffs have proven that it is

However, when “the record permits only more probable than that the population one issue,” resolution of the factual Pull deviations at issue here reflect predo Swint, 273, 292, man-Standard v. 456 U.S. illegitimate minance of a reapportionment (1982), 102 S.Ct. 72 L.Ed.2d 66 re Harris, factor, 136 S. namely Ct. mand is 1307— unnecessary, and may we rule an “intentional effort” to “a signifi create Thus, based on the record us. before Larios, cant ... partisan advantage,” example, in the recent Class v. Towson (Stevens, J., U.S. at 124 S.Ct. 2806 University opinion, Court, this bаsed on concurring). words, In other Plaintiffs have it, the record before straight-out reversed successfully made their case. court, the district had applied which legal incorrect following standard a bench 2. (4th 2015).

trial. 806 F.3d 236 Cir. And in Cromartie, First putting the challenged plans in outright context, reversed a the evidence at trial showed that three-judge panel district court a racial County’s that Wake generally, because, gerrymandering case among oth and the overall population deviation things, er clearly had amongst the School par- Board districts in rejecting erred in pertinent ticular, expert evi significantly by swelled the time of dence. the 2010 Accordingly, decennial census. Ass'n, 5. The any district court did not deem of Plain- Wake Citizens untrustworthy. tiffs’ witnesses to be 2016 WL 1060378. with passed presented in a bill and ed maps. its election Board redrew

the School thought.” for rational opportunity re- little redistricting plan resulting 2011 down 263. J.A. deviation duced maximum deviation single district 1.75%, no The dis- the ideal. from 1% reaching even county residents “vetted” tricts were showing Plaintiffs to the Moving on Board, and School of'the and the members their one on needed to make contig- relatively compact, considered

were claims, evidence uncontroverted vote in- communities uous, respectful resulting that the deviations trial showed County The Board J.A. terest. like- redistricting more latter-day from the residency redrew its also Commissioners predominance of ly than not reflected census. 2010 decennial after factors. illegitimate reapportionment 2011 fact the Despite the evi- uncontroverted proffered “Republican a shepherded had been predominat- illegitimate factor of an dence “Republican law- that a and Board” School redistricting: skewed, unequal ing in the 420, districts, J.A. yer” had drafted victory guaranty Republican to attempt an un- elections, the first administered Demo- packing of the intentional through ] in a “shift[ resulted plan, der the new witnesses testified districts. Various cratic' to Democrats.” Republicans from for the redis- motivation[ ]” that “the true Gener- Republican-controlled 200. The J.A. control Republican to “ensure tricting was re- with the intervened Assembly al then J.A. expense of Democrats.” ... at the subject of are that districting plans the redis- The reason” behind 364. “real action. this ma- Republican ensure a tricting was “[t]o testimony and evidence Uncontroverted totals,” J.A. ... the vote jority despite legislative that the showed at trial adduced effort and retributive to punitive of a “kind Law 2013-110 relating to Session process winning,” J.A. for the Democrats punish having example, for by, was truncated of participation hearings and “community Anthony Fairfax ana- expert Plaintiffs’ failing and J.A. parties,” affected redistricting plans challenged lyzed the peo- that “any of the ideas incorporate things, among that reported, and other “dis- even id. without ple proffered,” ... overpo- of pattern a marked was County] del- “[t]here amongst [Wake it cussing dis- Democratic-performing in pulation from first,” departure” a “stark egation Republicаn- in tricts, underpopulation and As School practice, J.A. 419. common And as Mr. J.A. Fletcher, performing districts.” registered Bill Board Member “by overpo- testimony, in his Fairfax noted it, “nothing discussed. was put Republican, Demo- obviously you minimize pulating provide input, opportunity was no There districts, in other other performance cratic about differ- or discussion have a debate 305.6 surrounding districts.” J.A. simply it draft- strategies, was election ent County.” Wake data in istration Mr. Fairfax’s court discounted 6. The district Ass’n, F.Supp.3d single Citizens one of testimony just every did as it focusing on elec- at *34. Yet in WL the case of witnesses. And Plaintiffs’ other data, others, registration Mr. instead of Fairfax, tion results the bases for Mr. precisely what the Fairfax apart upon careful in- followed discounting fall analyzing redis- those has fault- . Court instructed example, the district spection. For Cromartie, See, e.g., data, tricting plans to do. using results election ed Mr. Fairfax (noting its instruc- S.Ct. 1452 reg- analyze U.S. voter asserting “failed to he Chen, expert, Plaintiffs’ second Dr. con- We do not doubt that some amount of an analysis showing ducted “[t]he partisan politics par for the course in Assembly’s districting General enacted redistricting generally. example, For plans partisan create a distribution Gaffney Cummings, a case on which the falling seats completely range outside the here, district court relied the Supreme possible outcomes are under a non- Court upheld a redistricting plan drawn partisan districting process that creates partisan based on considerations. 412 U.S. еqually populated districts while maximiz- 735, (1973). 37 L.Ed.2d 298 ing compactness preserving precinct and But the consequences facts of Gaff- municipal boundaries.” J.A. 768. In ney differ markedly tellingly from words, trial, other as Dr. Chen testified at Gaffney, those here. In legislature state only way “the to achieve a districting plan had drafted a redistricting plan following a that allowed for such an partisan extreme census; so, decennial in doing it followed a Republican control over four districts out ” “policy ‘political fairness.’ Id. at seven, only way to an create such plan, S.Ct. 2321. The which exhibited less partisan plan extreme was to deviate from than 2% overall deviation state sen- population equality great to a extent.” J.A. ate and less than 8% overall deviation in 466-67. house, the state sought “proportional rep- legislators who hatched the redis- major resentation of the two political par- tricting plans legislative immunity. claimed .... ties Board [T]he took into account the record, therefore, from Absent the any is party voting .in results the preceding three (or trial testimony confirming denying) a elections, and, statewide basis, on that cre- partisan motive behind the ated what thought was to a proportion- be does, and its deviations.7 The record how- ate Republican number of and Democratic ever, contain several including e-mails legislative seats.” Id. parties, only third the category of e-mails case, In by contrast, this rather obtain, than managed that indeed seeking proportional representation of suggest partisan a the motive behind the re- two main political parties, the districting and its deviations. evidence example, For shows that challenged the County Republican plans under- Party Wake Chair exchanged with, populated several e-mails appar- Republican-leaning and districts and with, ently key legislators over-populated met Democratic-leaning involved in dis- the redistricting, with a focus on “how we tricts in to gerrymander order Republican take 5 would of the 9 seats.” words, J.A. 1114. victories.8 other the challenged here, that showing tion courts should look “data may of direct lack evidence have its behave, actually showing how voters legislators' not avoiding discovery data roots in the only registered’’). how those voters are through legislative immunity. claims More- over, simply required. direct evidence is not the district court and Both make Defendant ado legislators much of the admissions played up 8. The district court the fact that Larios, noting made the direct evidence exceptions District 5 and District 6 constitute legislators purposefully that Democratic-leaning skewed district to the rule that urban, suburban, along deviations over-populated and rural Republican-leaning were and See, e.g., partisan goals. divides to achieve under-populated. districts were 41; Raleigh Ass’n, Appellee’s 609, Br. at F.Supp.3d Wake Citizen Citizens at s Ass'n, 1060378, at 2016 WL WL According at *35. to the district 1060378, court, at *18. Both Defendant systematic and the dis ”[t]his evidence belies a un- case, trict court contrast der-population those facts this with of districts to harm incum- with its lack of such direct registered evidence. But bents ... are who Democrats who Equal Protection ] fair- that did political subverts redistricting here “withstand! scrutiny”). representation proportional ness and Gaff- gamesmanship. partisan sublimates Supreme Court that recognize We read as ney reasonably be simply cannot exactly partisan yet clarified when has not that; anything, it does if supporting legiti line from cross the considerations sug- Indeed, Supreme Court opposite. See, e.g., Harris v. to unlawful. mate legitimate not a partisanship that gested McCrory, 1:13-CV-949, 2016 WL No. more than votes weight some reason to 2016) (M.D.N.C. 2, 3129213, *2 June Gaffney under- others, itself 947,124 Larios, S.Ct. 542 U.S. (citing “mini- redistricting so as to that scored redistricting plans that proposition for party a or strength” of “political mize” the consid challenged partisan “when may be constitutionally “vulnera- be group would ” far,’ citing Vieth ‘too while go erations Id. ble.” Jubelirer, 124 S.Ct. 541 U.S. rejected Further, Supreme Court “judi (2004), lack of for the L.Ed.2d in Lar- games partisan deviation just such manageable stan cially discernible ios, indicating gerryman adjudicating political dards any population “if contains plan a claims”). to bear important Yet it is dering deviations, may a court decide (i.e., not a only plurality in mind by impermissible caused are deviations Supreme Court majority) of the controlling ... plan down strike partisanship and re suggested partisanship-based has one comply for failure be considered claims should districting & Pamelа S. vote.” Samuel Issacharoff Vieth, after shortly And nonjusticiable.9 Id. Karlan, the Line?: Judicial to Draw Where Court, in nearly unanimous Gerrymanders, 153 U. of Political Review plu from Vieth cluding three Justices Larios, (2004); see 567-68 Pa. L. Rev. Larios, lower in which the affirmed rality, (holding perti- that at 1338 300 redistricting plan with a struck down court “not the were “population deviations” nent 10% as a bla deviations under population any legiti- to further of an effort result attempt partisan at fa unlawful tant and “systemat- instead were policy mate” but Larios, 947, 124 542 S.Ct. U.S. “protect voritism. intentionally created” ically and holding that 2806.10 Democratic incumbents” (2006) ("A plu- 165 L.Ed.2d policies." IR support progressive' education Vieth would have held the Court in rality of actually belies the tenu- What the evidence challenges to be [political gerrymandering] analysis the district court’s ousness —be- political questions, but a nonjusticiable ma- 6 exhibit 5 and District both District cause so.")). do popula- jority declined to from ideal only negligible deviations less tion—both than 0.2%. different, "barely [after two months Stated 10. Vieth], part of an were three of those Justices incorrectly suggested that court 9. The district judg- majority affirmed the Vieth, eight-Justice that rejected as Supreme Court “[i]n Larios, which the lower a case in political gerrymandering ment nonjusticiable Ass'n, relatively plan [with] down struck Wake Citizens claim." F.Supp.3d ... because deviations minuscule 2016 WL at 601 n. ‘blatantly partisan and discrimi- '“19, they reflected contrary, as noted On we n. 11. (Vieth) protect natory’ attempts to Democratic in- Wright, majority "a undermining Republican-held while gerrymander- political cumbents deem refused to says in The Sound Sister Maria And the As per nonjusticiable. seats. ing se claims to be door, Music, closes a some- ‘When the Lord recognized as much.” Court has since ” League & opens a Issacharoff (citing He window.’ Latin where of United F.3d at 269 Karlan, Perry, U. Pa. L. Rev. U.S. Am. Citizens ing about rationale, this stated cost reduc- tion, explains deviation only Not did the uncontested record evi- amongst the districts. dence illegitimate demonstrate reap- Another stated goal of the portionment redistricting predominated, factors result- legislation increasing voter ing in an overall turnout —also barely deviation of under — has nothing to 10%; do with re-drawing dis- exposed evidence also the stated tricts, much less re-drawing unequal- them redistricting reasons for the pretextual. ly. The district court noted that “Plaintiffs example, goal For one stated of the School dispute do not the other legislative goal of Board’s was to increase the increasing voter turnout by having ... alignment between voting citizen’s elections in years.” even-numbered Ra- assigned and their schools. Uneontroverted leigh Ass’n, Wake Citizens 166 F.Supp.3d testimony at trial indicated that the redis- at 599 n. 2016 WL at *27 n. tricting resulted in the opposite, “mak[ing] they 18. But did dispute not need to alignment Indeed, worse.” “[j]ust J.A. 235. goal, because it no logical has connection a perfect downtown example is Daniels to, and justify, does not re-drawing dis- School Broughton Middle High tricts, much less districts with population Sehool[, which] are in the same feeder deviations. pattern, they were in the same district under the 2011 maps ... but they were in A further given rationale for the redis- different districts under the map” [new] tricting: allowing greater voters represen- challenged Further, here. J.A. 424. even if tation. Yet the redistricting of County alignment increased goal, were indeed a it Commission arguably reduced citizens’ op- need not necessarily resulted in popu- have portunity to cast preferred votes their lation deviations amongst the districts. by moving away commissioners from an all at-large system. trial, As testified at voters

A second stated rationale for the redis- ability “had the to elect all seven mem- tricting debunked at reducing trial: cam- bers .... As it stands with maps costs. trial paign testimony As demonstrat- passed by were Senate, the House and the ed, proponents “the legislation of this said [they] will be able to exercise [their] vote they were concerned about the cost of only on members, two of those so with campaigning and that these districts would every everything that I know about the make it cheaper to run. ... — That is either word representation, that’s less.” J.A. 387-

inaccurate or deceptive, because Wake again, 88. And nothing about goal this County is a media if you’re market and explains population the deviations of the going any to run in of these widespread districts as drawn. you’re districts here or if going to run all county you the entire Moreover, are still going to suggested alternatives were be advertising in the Raleigh/Wake achieved, media that would have evеn more effec- market, expensive.” it’s still [and] J.A. 395- tively, the stated rationale of increased Further, 96. moving representation down-ballot races like resulting without in such for those School Board great members to even population For deviations. example, years that congressional include presi- and Representative Darren Jackson proposed dential “going races is dramatically to in- an amendment to create two at purely crease the costs of running” in large those elec- districts instead of the donut and tions, J.A. even simply for candidates donut hole districts, while maintaining the “to have any visibility in a Presidential single-member districts. a plan Such cycle.” And, election J.A. again, noth- would have “accomplishfed] of both the own dis- knowledge [their] about more tailed give you to goals, stated Republicans’ Indeed, expert Plaintiffs’ tricts,” and to J.A. 280.11 Board School on the representation traditional, Board several had a School Dr. Chen considered you sure make criteria, i.e., child’s your reapportionment represented legitimate who member community pre- of those and accomplished both school, equality, it population and amendment, which boundaries, geographical That and J.A. 354. cinct goals.” .com- representa- greater redistricting achieved the have found that pactness, would and Board, rejected— was of on the School seats partisan tion distribution “create[d] ratio- the stated yet range more evidence of outside the out- falling completely justify the fail to and pretextual nales were non-parti- under possible that are comes challenged re- in the deviations equally creates process that districting san districting. maximizing com- while districts populated and mu- precinct preserving and pactness redistricting the pushing legislators

The J.A. nicipal boundaries.” it in ground administrative to sought also Board Board and ease, the School having proposed Gill also Rosa Representative fall under County of Commissioners during leg- an alternative wholly unre- goal is Again, that plan. same demonstrat- proposal Her process. islative justify, fails to to, plainly and lated all entirely to meet possible it was ed that amongst dis- deviations skewed the stated rationales certainly relatedly, and Somewhat tricts. giving voters redistricting including — circumstances, breathtakingly under board two school to elect opportunity re- County Commissioners’ Board members, representation providing district ostensibly intended districting was Commissioners, moving County for the Raleigh Wake Citizens litigation.” “avoid numbered elections to even board school Ass’n, 2016 WL F.Supp'3d turnout, reducing increase voter years to Board re- the School at *37. Yet districts for by using same confusion and actively litigated being districting was and the Board School Board both the this Court before pending in fact was Commissioners, reducing County rationale is thus litigation The time. miniscule creating only devia- costs—while further, and, logi- has no utterly irrational no divided plan Representative tions. Gill’s issue. deviatiоns at cal connection in the overall deviations precincts had ratio- pretextual beyond Moving of less single-member super nales, evidence demonstrates the record J.A. 795-96. than 0.5%. traditional, legitimate apportionment evidence trial dismissed con- On the predominate. not did factors plan be- Gill’s alternative Representative in: “a total redistricting resulted trary, the plans that ‘better’ “simply cause it shows (as opposed to precincts” [split] of 31 drawn, plans do can but ‘better’ plan), the 2011 J.A. under be. precincts split unconstitutionality.” equate districts, including 805; bizarrely shaped Ass’n, at F.Supp.3d Wake Citizens munehkin[s],” J.A. and “donut “donut[s]” fact, at In what *33. WL “pincer[s],” J.A. claw[s]” “crab legitimate is that plan shows alternative non-compact 212; obviously considerations, including the stated ratio- harder, for example, it make utterly redistricting, failed nales for have more de- “to Board members School apportionment factor. legitimate regarding as a argument nized party an No has made 11. it. do not recog We address compliance, therefore Voting Rights also Act explain justify high region or levels of devia- and the rural south-Georgia area— plans tion the enacted those strongholds both Democratic over- —because —while rationales could have been accomplished populating districts Republican-lean- with Wright, plan virtually a no devi- ing voters.” 787 F.3d at In 266-67. Wright, Larios, ations. that, we left no doubt as in

Plaintiffs here claim that “a legisla- state 5. designed ture redistricting a plan with a maximum deviatiоn in population just day, At the end of the when we review 10%, under designed pit rural and urban record, evidentiary only we can reach against voters one another” and that Plaintiffs, only one conclusion: that if Larios does “[e]ven not control this case trial, parties to make their case at success- ..., we nevertheless find it” rejec- and its fully showed it to probable be more than regional tion of favoritism as a basis for not that the deviations at issue here reflect deviating from ideal by such predominance illegitimate of an reap- margins “persuasive.” Id. at 267. portionment legitimate factor rather than Harris, Moreover, considerations. at S.Ct. ‍​​‌‌‌‌​‌‌​‌​​​​​‌‌‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌‌‍the district court held that that, recognize generally, We “attacks on “the Assembly General rationally consid- deviations under 10% will only succeed ered the communities of interest within rarely, in unusual cases.” Id. But after County’s Wake urban areas and within reviewing closely, this matter and for the County’s rural and suburban areas above, reasons discussed we are convinced in adopting” challenged redistricting mid-decadé, Ass’n, that these partisan redistrict- plans. Wake Citizens ing plans just constitute such an unusual at 2016 WL at case. The district court therefore commit- pertinent *40. But inquiry is not ted granting reversible error in judgment whether it was “rational” to “consider” favor. Defendant’s communities of in adopting interest instead,

plans generally; proper inqui- ry is redistricting’s whether the deviations likely more than not predomi- reflect the improper addition to partisanship, illegitimate nance of reapportionment fac- Plaintiffs claimed improper regional favor- Harris, tors. 1307. The district illegitimate itism as an factor behind the plainly engaged the wrong legal deviations in challenged reapportion- analysis standard in its of this factor. But ments. Because we already have ruled in because we rule on the partisan- basis of Plaintiffs’ favor based partisanship, on we ship, go we need no regional further of the need not reach this separate related but favoritism issue. basis. We nevertheless note that citi- “[a] zen, voter, a qualified is no more nor no D. less so city because he lives in the or on the farm. This is the clear strong In addition to their federal constitutional command of our Equal claim, Constitution’s Pro- one vote Reynolds, tection Clause.” brought U.S. a similar North Carolina state Larios, Therefore, 84 S.Ct. 1362. “[i]n claim. Under the North Carolina Constitu- tion, federal court struck down a legisla- right equal [state] “[t]he to vote on terms in tive plan.... plaintiffs representative elections—a one-person, there alleged plan ... under- one-vote standard —is fundamental Blankenship Bartlett, populated] districts in the urban right.” Atlanta v. 363 N.C. 352 going to evidence (2009). or more direct graphics 759, A 762-63

518, 681 S.E.2d pre race was the purpose, legislative the state’s analysis of North Carolina legisla thé motivating factor dominant follows generally Clause Protection “Equal num significant a place to ture’s decision of the analysis of the particular a or without voters within ber of the corre- interpreting States United Lеgislative v. Black Caucus Ala. If district.” Id. at clause.” sponding federal — Alabama, 1257, -, 135 S.Ct. U.S. person, one one North Carolina’s anything, (2015) (quotation 1267, L.Ed.2d 314 191 force even more applies with principle vote omitted). See, e.g., citation marks and id. counterpart. federal than its vote person, one (deeming the one at 763 proof showing requires a Such in North Carolina’s applicable principle subordinated tradi legislature that “the even superior judges of election principles districting race-neutral tional have articulated courts though “federal Miller v. racial considerations.” ... is standard ‘one-person, one-vote’ that the Johnson, 2475, 115 S.Ct. 515 U.S. elections”); judicial to state inapplicable (1995). race- Traditional 132 L.Ed.2d Bartlett, 354, 562 Stephenson N.C. v. “compactness, include principles neutral (2002) legisla- (requiring S.E.2d political subdi respect contiguity, minus plus or to be within tive districts by actual defined or communities visions Accord- population). ideal percent five interests,” incumbency protec id. shared that Plaintiffs reasons the same ingly, for Vera, v. tion, advantage, Bush political claim, so, too, do their federal succeed 952, 964, 116 S.Ct. 517 U.S. North Carolina with their they succeed (1996). evidence that And L.Ed.2d claim. one vote person, state a took back seat principles such traditional may include direct considerations to racial IV. legislative evidence and circumstantial percentage a racial intent, indications one vote their one In addition non-negotiable, was given a distriсt a racial within brought also claim, have Plaintiffs shapes, district non-compact or bizarre regarding claim gerrymandering traditional through cut lines that District district Commissioners’ County Board of pre or election boundaries geographic predomi- that race contend 4.12Plaintiffs 970-71, See, e.g., Vera, at 517 U.S. boundaries, cincts. determining nated in Miller, 917-18, 1941; 515 U.S. 116 S.Ct. district composition shape, and Reno, 2475; Shaw a com- 115 tailoring to S.Ct. serve without narrow 125 L.Ed.2d below, 630, explained As pelling state interest. (1993). clear not commit court did the district claim. this rejecting error successfully shows plaintiff If a drawing the lines predominance racial A. district, “strictest apply the court must a Miller, 915,115 scrutiny,” U.S. challenge the con successfully To is, determine whether it must under electoral stitutionality of an challenged district was Clause, design of the plaintiff Protection Equal compelling narrowly tailored advance through “show, circumstantial either must the state must interest —a burden demo state shape and a district’s evidence of We, like the district no such claim. corresponding School made though the 12. Even court, Wright address that issue. identical, do therefore Board district

353 Hunt, bear, 899, 908, drawing 4, i.e., Shaw v. 116 of District of racial gerry- (1996). 1894, 135 L.Ed.2d 207 If the mandering. no, that question answer to is the district

must be struck as unconstitutional. Further, in the racial gerryman context, dering partisan advantage may be

B. considered a traditional redistricting crite In person, rion, contrast to its one one and evidence politics was the analysis, vote the district court did not primary motivation for the drawing of a miscomprehend applicable law. Ac district can defeat an allegation that race cordingly, while we were “not bound See, e.g., Cromartie, predominated. clearly erroneous regarding standard” Vera, at 1452; U.S. 121 S.Ct. person, the one findings, vote Inwood 968, at U.S. 116 S.Ct. 1941. The district Labs., 15, at n. U.S. this, recognized noting that the fact Here, the same cannot be said here. that District 4 majority-minority “alone we must affirm if “the district court’s ac does not mean that the General Assembly count plausible,” of the evidence is even if racially gerrymandered 4,” District Ra we are “convinced that we would have leigh Ass’n, Wake Citizens 166 F.Supp.3d question decided the differently.” fact at *47, 2016 WL at and that TFWS, Franchot, Inc. v. 572 F.3d supports evidence having district’s (4th 2009) Cir. (quotation marks cita been drawn with a focus on partisanship omitted). tion rather than race. example, For in evaluat ing expert support for Plaintiffs’ racial might

While we have decided this claim, gerrymandering the district court differently instance, matter in the first we expert’s noted that the “partisan neutral” say cannot that the district court’s account analysis help did not question answer the of the evidence is plausible; it is. For of whether politics or race led to District example, the district court leg considered Here, too, 4’s boundaries. Id. we cannot islator indicating comments that race was disagree. in consideration process, representative’s such as a observation sum, even if might we have found “that at-large systems electoral submerge instance, othеrwise the first it was not minorities, the views of various ‘whether implausible for the district court to deter- racial, gender, rural, it’s political, urban or mine that Plaintiffs ” had fallen short of Ass’n, whatever.’ Wake Citizens proving that traditional districting criteria 2016 WL were subordinated to drawing race *46. While such comments evidence the Accordingly, of District 4. because the dis- fact that race was a consideration in the trict analysis court’s of Plaintiffs’ racial redistricting process, doing so is not un gerrymandering clearly claim is not erro- See, e.g., Miller, lawful. 515 U.S. at neous, we affirm on that issue. 115 S.Ct. 2475 (“Redistricting legislatures will, example, always for almost be aware of racial demographics; but it does not V. predominates

follow race in the redis above, For the reasons tricting process.”). We cannot fault discussed we district court reverse the determining judgment district court’s comments here did not constitute direct Defendant’s favor as to Plaintiffs’ one predominated evidence that race one voté claims. We remand with to the challenges judg- Plaintiffs’ immediately13 to enter instructions plans. Plaintiffs, declara- granting both ment as injunction, permanent and a

tory relief How- claims. one vote person, I. to the judg- district court’s ever, affirm the we. requires a Clause Equal Protection The racial as to Plaintiffs’ ment for Defendant faith good to “make an honest State claim. gerrymander legislative] dis- construct [state effort to IN AND REMANDED as nearly equal population REVERSED ... as tricts Reynolds Sims, IN PART AFFIRMED PART AND 377 U.S. v. practicable.” is 1362, 506 577, 12 L.Ed.2d 533, S.Ct. 84 MOTZ, Reynolds (1964). itself rec- But, Circuit GRIBBON DIANA that, “prac- detеrmining what dissenting: Judge, ognized . ticable,” permits some de- the Constitution majori from the respect, I dissent With equality perfect from viations court erred that the district holding ty’s consider- by “legitimate justified when chal protection equal Plaintiffs’ rejecting aof to the effectuation ations incident constitutional presumptively lenge to twin 579, 84 S.Ct. policy.” state Id. rational Plaintiffs’ one redistricting plans. Harris, at 1306. 1362; 136 S.Ct. accord their contention on claim rests one vote of eases decided long line a “partisanship” rendered improper that Reynolds, has held that the Court wake of redistricting plans unconstitu challenged here, a districts, those at issue like popu tional, plans those have even though under deviation “maximum less than 10%1 If such lation deviations of constitutional. presumptively 10%” are it is not clear justiciable, and claim is Thomson, e.g., See, Brown v. necessary prove is, showing to it (1983); 214 77 L.Ed.2d The 103 S.Ct. extremely demanding. a claim is such Harris, at 1307 and cases 136 S.Ct. accord only a weeks explained few Supreme Court “minor deviations therein. These only cited challenges “will succeed ago that such not, by do mathematical equality Ariz. from Harris v. cases.” rarely, in unusual — Redistricting Comm’n, themselves, prima facie case make out Indep. U.S. under Four- invidious discrimination 1301, 1307, 194L.Ed.2d 497 -, 136 S.Ct. justifi- require so to here, in teenth Amendment (2016). like that challenge Harris, 136 S.Ct. at by the State.” Harris, this cation “unusual case.” For is not that Cummings, Gaffney v. (quoting entirety the in its reason, I would affirm 37 L.Ed.2d rejecting U.S. of the district judgment favoritism, tions, predominately regional why the November We see no rеason challenged plans. Unsurprising- under the unconsti- proceed elections should motivated today. down plans we strike ly, tutional that Plaintiffs district court found "impermis- prove” plan "failed either complaint, also their amended 1. In sibly rural voters over favors suburban and impermissibly favored alleged plans that the substantially dilutes the voters or indi- urban n trial, At how- urban voters. voters over rural County's voting strength Wake ur- vidual ever, assertedly improper they on focused Wake Citizens Ass’n ban voters.” produced evidence scant "partisanship” and Elections, Cty. Bd. of No. 5:15-CV- advantage over sought rural that the State 553, 616, 156-D, 2016 WL evi- even offer did not urban voters. Plaintiffs 26, 2016). (E.D.N.C. at *40 Feb. On they considered dence as which provide on which to appeal, Plaintiffs no basis experts testified or Their "urban” "rural.” finding. illegitimate "partisan” motiva- disturb assertedly (1973)) (internal quotation ways marks omit- legitimately take political account of ted). considerations. The sug- Court has never gested that doing so constitutes reliance It difficulty was because of “the inherent “illegitimate on an reapportionment fac- measuring comparing factors that Harris, tor.” ap- This may legitimately account for small devia- proach necessarily follows from the fact tions strict equality” from mathematical “[p]olitics that political considerations Supreme recently that the Court reiterat- inseparable are districting from appor- ed that “attacks on deviations under 10% tionment” and so “districting inevitably only rarely, will in succeed unusual cases.” has and is intended to have substantial Harris, 136 S.Ct. at prevail 1307. To on Gaffney, political consequences.” 412 U.S. claims, such the Harris Court held that a 753, at 93 S.Ct. 2321. challenger “must show that it is more probable than not that a deviation of If less those attacking a redistricting plan prove than 10% reflects predominance of ille- that a State has abused legitimate gitimate reapportionment factors rather political considerations systemically ” ‘legitimate than the considerations’ or over- under-populating ben previous the Court had identified in cases. efit one party expense another, at the then may Id. challengers be able to prevail as Cox, they in did Larios v. 300 F.Supp.2d In earlier Supreme cases the Court had (N.D. 1320, Ga.), aff'd, 947, 542 U.S. identified “legitimate numerous consider- 2806, (2004) 124 S.Ct. 159 L.Ed.2d 831 justifying ations” reapportion- State’s (mem.). heavily Plaintiffs lean on Larios. plan. Among ment them are a State’s valid Their reliance is misplaced. in: maintaining interests the competitive Gaffney, among balance political parties, First, ignore very Plaintiffs different 2321; at U.S. 93 S.Ct. accord factual developed record in that case. In Harris, Larios, 136 S.Ct. at avoiding contests challenged plan paired in the between incumbents as long district, as incumbents pitted same and thus against each party other, of one are not favored over those of 37 of the 74 Republicans incumbent Daggett, another, Karcher v. only U.S. but 9 of the 105 incumbent Demo- (1983), Larios, 103 S.Ct. 77 L.Ed.2d 133 crats. 300 F.Supp.2d at 1326. In recognizing interest, communities of Georgia legislators admitted before the — Abbott, -, ‍​​‌‌‌‌​‌‌​‌​​​​​‌‌‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌‌‍Evenwel v. U.S. thеy 136 district court that intentionally had 1120, 1124, (2016). S.Ct. 194 L.Ed.2d 291 legislative drawn districts to favor incum- League Indeed, in of United Latin Ameri- party bents of one over those of the other. Perry, Larios, can Citizens v. Supreme Thus, Court Id. at 1325. in the state “avoiding pairing characterized in- legislators they conceded that had not “ cumbents” as a ‘neutral’ “good made the faith effort” equal to draw Reynolds and “maintaining ]” communities requires. districts that The rec- standard! of interest” as a “traditional in districting ord this case no contains such evidence. 399, 412, principle!].” 548 U.S. 126 S.Ct. In ignoring addition to very different (2006) 165 L.Ed.2d 609 (plurality Larios, evidentiary record in Plaintiffs (“LULAC”); opinion) at Id. 126 S.Ct. eye turn a blind to the subsequent Court’s (majority opinion). LULAC, treatment of that case. Thus, notwithstanding Plaintiffs’ appar- explained Court give Larios “does not belief, ent expressly recog- the Court has guidance” clear in “addressing political nized that a redistricting plan justification can in these equal- motivation as a for an rejection Furthermore, its explaining violation.”

protection claims, the Su- plaintiffs’ the Harris in Har- opinion). And (plurality ways Larios distinguished preme Court ex- ris, Court the unanimous here. The Har- equal force apply of whether question reserved pressly Larios, unlike that in held ris Court issue partisanship at of abusive the sort (and case at in the it unlike case before re- illegitimate “an even constitutes Larios hand), found that those “the district court Harris, factor.” districting attacking plan no had shown” protestations Plaintiffs’ Despite 1310.2 the deviations explained factors legitimate of Larios foundаtions contrary, the added). (emphasis Id. at 1310 plan. in the shaky ground. authority rest on persuasive “It is explained: appel- The Harris take no significantly, illegitimate Equally inability to show” that lants’ that, even in Harris makes holding [Larios] “that predominated of the notice factors an the Court em- here.” Id. Thus inapposite did constitute partisanship if abusive at- that those re-emphasized factor, the and challenging phasized those illegitimate re- constitutional tacking presumptively car- it had “not plan before redistricting here, must districting plan, like Plaintiffs holding is Id. This their burden.” ried predominat- factors illegitimate prove the given that significant particularly ed. strong- a much made plaintiffs Harris had do evidentiary showing than Plaintiffs

er sum, partisanship if In even abusive plaintiffs the Harris example, provide here. For the justiciable, and do claims are claim, of a Republican- vote direct evidence offered for a one basis competitive” the prove “more at trial leaning district made had to in redis- redistrict- consideration a Democratic relied on this request of State at the prece- reliance took tricting, Re- and that this by “hyperpacking ing commissioner considerations, legitimate over all at 1309 dence Id. into districts.” other publicans political balance omitted). including maintaining The (internal marks quotation avoiding parties, contests among political had ov- redistricting commission Harris and parties, incumbents both of between Republican-le- all erpopulated almost interest. The communities of recognizing thirty-district plan aning districts in hand, State, not to the other did need on all almost underpopulating while justification presumptively for its any offer at 1309- Id. Democratic-leaning districts. e.g., See, redistricting plans. constitutional evidence, the of this Even the face Harris, 136 S.Ct. at 1307. redistricting find the court did not district record review of the seems Supreme A fair factual unconstitutional —and plan Harris, that, as in demonstrate me at 1309. agreed. Id. Court allegedly redistricting plan favors it because Tellingly, Court has never addressed break holding by in Lar- voters would new the lower court or "urban” "rural” alternative plans challenged on the invalidating never before ground. Supreme has ios Court regional favoritism. That alternative considering basis suggested that Larios or after precedential persuasive or holding has little is or rural characteristics urban ex- Supreme has given, value as the fact, illegitimate apportionment factor. In an an affir- summary affirmance plained, "a suggest that in several cases these statements only,” the ratio- judgment mance of quintessential types of communities are the court, not be which "should the lower nale of may when a State consider redistrict- interest breaking ground.” Mandel new understood Davis, See, e.g., U.S. ing. v. Dusch 173, 176, Bradley, S.Ct. (1967). L.Ed.2d (1977). invalidating a And 53 L.Ed.2d 199 Plaintiffs here failed to their Supreme meet burden repeated Court’s character- so, and as the Court did Har- ization of deviations below 10% as “minor” ris, we should affirm the district court’s its admonition that such minor devia- rejection of their tions challenge.3 do not “substantially dilute the weight of individual votes the larger

II. districts so deprive as to individuals in these districts of fair and repre- effective attempting to meet their substantial Regester, sentation.” White v. burden, Plaintiffs U.S. principally rely on the 755, 764, 37 L.Ed.2d 314 testimony trial expert, their Dr. Jowei (1973). Chen. On the basis of statistical models created,

that he had Dr. opined Chen The second fatal flaw in Dr. Chen’s anal- deviations in the challenged redistricting ysis is his failure to beyond look what he plans were entirely by motivated a desire considered to be only four legitimate “Republican partisan obtain control over or “traditional” districting popu- factors — four of the” seven numbered districts and equality, lation intact municipal bound- over one of the super-dis- two lettered aries, intact precincts, geographic But, found, tricts. as the district court Dr. compactness.4 Dr. ignored Chen many simply Chen’s model prove does not either apolitical political may factors States conclusion. Dr. analysis Chen’s suffers (like during consider striking from two critical flaws. a competitive among balance political par- ties, avoiding incumbents, among contests

First, model, in his Dr. pegged Chen and recognizing interest), communities maximum tolerable population level of de- if pursuing even goals these causes minor viation between doing districts at 2%. In so population deviations. he held the State to a standard not re- quired by course, law. Of a State must particularly This is troubling because it “good undisputed make a faith effort” to draw equal is that two of legitimate Reynolds, districts. 377 U.S. at districting factors Dr. Chen failed to con- S.Ct. 1362. But neutral may factors incumbency cause protection and group- sider — population deviations well above 10% ing with- communities of actually moti- interest — See, running out afoul of the Constitution. vated legislature here. parties e.g., Howell, 315, 328, Mahan v. 410 U.S. stipulated accuracy to the of transcripts (1973). 93 S.Ct. 35 L.Ed.2d 320 legislative More- debate and those transcripts over, Dr. arbitrary Chen’s 2% threshold reveal legislators state altered the particularly seems unwarranted in light of district lines the final version of the 3. rejected The district court actually also Plaintiffs’ Plaintiffs concede the limited reach analysis, noting one of Dr. analysis one vote claim under the Chen's North his partisanship "shows that the of the Carolina enacted Constitution. Because North Car- happen districts does not when traditional "generally olina analysis courts followf] redistricting criteria are followed.” Plaintiffs’ Supreme of the Court of the United States” added). course, Rep. (emphasis Br. at 21 Of interpreting when corresponding the State’s above, explained as See Court Clause, Equal Protection I would affirm the repeatedly recognized legiti- has numerous finding district court’s that Plaintiffs failed to 'redistricting mate criteria’ other than those carry their burden on their state law claims that Dr. Chen considers "traditional.” And in for the apply same reasons that to their feder- LULAC, 548 U.S. at 126 S.Ct. Blankenship Bartlett, al claims. 363 N.C. expressly "maintaining included com- (2009). 681 S.E.2d among munities of interest” "traditional” re- districting сriteria. is no erally, argue “[t]here protect bill to Board

School rationales way [the stated] possible Democrat registered incumbents —one two A needs to be why Super District Further, explain Republican. registered District Super than 44,117 larger people incumbent, Christine the Democratic According to at 12. Rep. Br. B.” Plaintiffs’ Priek- trial that “Ms. Kushner, testified Chen, improper “partisanship” again Dr. Republican, had ett, registered is a who only explanation. leaning dis- into a Democratic placed been of that district trict,” moved out “was but model does again, Dr. And Chen’s district, leaning Republican into put sure, To be this conclusion. support out of switched was Kushner] I A, [Ms. District overpopulated could have State 5,” she admit- which 2 into District District County historically that has area of the an for her. district” “more favorable was a candidates, ted to in- for Democratic voted legitimate interest Accommodating the odds of Republican candidate’s crease a had parties incumbents both protecting also B. But the State winning in District on the impact a demonstrable population equal- from could have deviated num- the seven four of across deviations areas in District more ity group urban plan. This, District in the bered interests. A on their shared based to -0.41% overpopulated 2.76% swung all, having from purpose was the after - from swelled place, District and of underpopulated. in the first super-districts just -1.05% clearly underpopulated valid State 4.19% course it constitutes Evenwel, dipped from District underpopulated. See interest. underpopu- -1.53% overpopulated to had the dual moti-

0.19% could have Or State -0.14% grew6 from Finally, Dr. accomplish lated. District both. Chen’s mod- vation to overpopulated. to 1.6% how underpopulated nothing grouping about el tells us of interest motivated together communities any way not in does Dr. model Chen’s priori it a excludes legislature because As deviations. for these account legitimate of that redis- any consideration nothing but result, that Dr. Chen’s view tricting consideration. explain the could “partisanship” improper also falls remaining in the twin redistrict- evidence Plaintiffs’ deviations population undisput- prov- their burden of ignores meeting the of completely far short ing plans partisan effort to legislative illegitimate that ing that consider- impact ed on the Plaintiffs’ ex- had here. predominated two incumbents ations protect omission, that Anthony I cannot concluded pert Fairfax light that plans. of clearly erred “minimize the Demo- court desired to legislature the district agree that testimony by in certain districts Dr. Chen’s concluding performance” cratic perform- legislature the “Democratic overpopulating did not demonstrate equality only opinion for rests on his ing districts.” That deviated from overpopula- creating four between view that correlation predominant purpose performance out of seven. Democratic seats tion and Republican safe leg- in and of demonstrates districts itself sort of the same Dr. committed Chen i.е., numbers islative intent — let- considering the two analytic error The district speak for themselves. One of the stated super-districts. tered they do not. concluded that to im- was super-districts for the purposes no basis provides here for The record in rural for voters representation prove clearly erroneous. Of holding finding con- challenging State’s areas. Without assertedly favorable or four districts gen- of interest sideration of communities Democrats, competitive for three are over- lative intent. experts Plaintiffs’ tendered five populated. assertedly Of the analyses conclusions that their could not competitive Republicans, favorable or support. remaining Plaintiffs’ evidence only underpopulated are three more proved little. The district court refused to districts, than of these three 1%. One Dis- preferred draw Plaintiffs’ inference. In do- underpopulated by just trict -1.05%. so, ing the court clearly did not err. To the Thus, the asserted correlation between contrary, given the weakness of Plaintiffs’ is, performance and Democratic case, Defendants would strong have had least, say minimal. This minimal grounds appeal had the district court strength any correlation limits the infer- ruled otherwise. Harris, ence that can be drawn. Cf. I would affirm the judgment of the dis- (refusing predo- 1309-10 to infer entirety. trict court in its illegitimate minance of partisanship over a thirty-district plan every where district (nine

underpopulated by than more 1%

total) every favored Democrats and (twelve

overpopulated by than more 1%

total) Republicans). very favored At the

least, clearly the district court did not err declined,

when it as the did in stronger Harris the face of evi- HARRIS, Keith Plaintiff-Appellee, dence, to make an inferenсe of unconstitu- tional motivation. ‍​​‌‌‌‌​‌‌​‌​​​​​‌‌‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌‌‍lay testimony also offered the HAHN; Hollingsworth; Harold Jarvis legislature members of the state who Jenkins, Jr.; Cumber; Robert Sada

opposed redistricting plans. I agree Christopher Huckabee; Monty; Jacob majority with the that the district court Shepard; Steen, Jr.; Janelle John categorically erred in rejecting this testi- Teuscher; Raymond Paredes; David But, mony error, as irrelevant. despite this Fertitta; Wilson, Jr.; Tilman Welcome testimony does not move the needle far Madson; Spencer Armour, III; Beth intent, on the issue of voting those Roger Welder; Durga Agrawal; Paula adopt because, the redistricting plans to a Mendoza; Taaffe, Peter Defendants- lay Plaintiffs’ witnesses disclaimed Appellants. any knowledge sponsors’ of the motiva- No. 15-20105 tions.5 sum, heavy faced with the burden of United States Appeals, Court of proving assertedly illegitimate “parti- Fifth Circuit. sanship” predominant constituted the mo- Filed June

tivation for the presumptively constitution- al redistricting plans, Plaintiffs failed to any

offer truly probative legis- evidence probative permit 5. More are emails from Wake them to "take 5 of the How- 9 seats.” County Republican ever, Chairwoman Donna requests the record does not contain Republican Williams to members of the state responses information or from State officials legislature and School Board. ex- Williams any lobbying or indication that Ms. Williams’ pressed proposed map concern that the would any legislation. efforts had effect on the sufficiently Republicans not be favorable to

Case Details

Case Name: Raleigh Wake Citizens Assoc v. Wake County Board of Elections

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 1, 2016

Citation: 827 F.3d 333

Docket Number: 16-1270, 16-1271

Court Abbreviation: 4th Cir.