16 o24Supreme CoL~rt, U.S,

FILED

JUN 3 0 2016OFFICE OF THE CLERK

~ut~rzme ~ourt of the ~Hniteb ~tate~

MARGARET DICKSON, et al.,Petitioners,

Vo

ROBERT RUCHO, et al.,Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF NORTH CAROLINA

PETITION FOR WRIT OF CERTIORARI

Edwin M. Speas, Jr.John W. O’HaleCaroline P. MackiePOYNER SPRUILL LLPPost Office Box 1801Raleigh, North Carolina 27602(919) 783-6400espeas@poynerspruill.comjohale@poynerspruill.comcmackie@poynerspruill.com

Counsel for PetitionersDickson, et al.

Anita S. EarlsCounsel of RecordAllison J. RiggsSOUTHERN COALITION

FOR SOCIAL JUSTICE1415 Highway 54, Suite 101Durham, North Carolina 27707(919) 794-4198anita@scsj.orgallison@scsj.org

Counsel for PetitionersNAACP, et al.

Dated: June 30, 2016

(Counsel Continued Inside Cover)

THE LEX GROUP"c ¯ 182.5 K Street, N.W. ¯ Suite 10.3 ¯ Washington, D.C. 20006

(202) 955-0001 ¯ (800) 856-4419 ¯ Fax: (202) 955-0022 ¯ www.thelexgroup.com

Adam SteinTIN FULTON WALKER & OWEN, PLLC312 West Franklin StreetChapel Hill, North Carolina 27516(919) 240-7089astein@tinfulton.com

Counsel for PetitionersNAACP, et al.

THE LEX GROUPDc ¯ 1825 K Street, N.W. ¯ Suite 103 ¯ Washington, D.C. 20006(202) 955-0001 ¯ (800) 8564419 ¯ Fax: (202) 955-0022 ¯ www.thelcxgroup.com

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ ofcertiorari to review the judgment of the SupremeCourt of North Carolina on remand in thisconsolidated Case.

QUESTIONS PRESENTED

The questions presented are:

Does Section 2 of the Voting Rights Actrequire a state to draw a raciallyproportionate, number of majority-blacklegislative districts at 50% or greater blackvoting age population?

Can a bizarrely shaped majority-blackdistrict drawn predominantly on the basisof race satisfy strict scrutiny under theEqual Protection Clause of the FourteenthAmendment where, despite the presence ofracially polarized voting, black voters’candidates of choice have been consistentlysuccessful when the district’s voting agepopulation previously was less than 50%black?

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PARTIES TO THE PROCEEDINGS BELOW

The Petitioners in the Dickson civil action areMargaret Dickson; Alicia Chisolm; Ethel Clark;Matthew A. McClean; Melissa Lee Rollizo; C. DavidGantt; Valeria Truitt; Alice Graham UnderhilliArmin Jancis; Rebecca Judge; Zettie Williams;Tracey Burns-Vann; Lawrence Campbell; RobinsonO. Everett, Jr.; Linda Garrou; Hayes McNeill; JimShaw; Sidney E. Dunston; Alma Adams; R. Stew~Bowden; Jason Edward Coley; Karl Bertrand Fields;Pamlyn Stubbs; Don Vaughan; Bob Etheridge;George Graham, Jr.; Thomas M. Chumley; AishaDew; Geneal Gregory; Vilma Leake; Rodney W.Moore; Brenda Martin Stevenson; Jane Whitley; I.T.("Tim") Valentine; Lois Watkins; Richard Joyner;Melvin C. McLawhorn; Randall S. Jones; BobbyCharles Townsend; Albert Kirby; Terrence Williams;Norman C. Camp; Mary F. Poole; Stephen T. Smith;Philip A. Baddour; and Douglas A. Wilson.

The Petitioners in the NAACP civil action arethe North Carolina State Conference of Branches ofthe NAACP; League of Women Voters of NorthCarolina; Democracy North Carolina; NorthCarolina A. Philip Randolph Institute; Reva McNair;Matthew Davis; Tressie Stanton; Anne Wilson;Sharon Hightower; Kay Brandon; Goldie Wells; GrayNewman; Yvonne Stafford; Robert Dawkins; SaraStohler; Hugh Stohler; Octavia Rainey; CharlesHodge; Marshall Hardy; Martha Gardenhight; BenTaylor; Keith Rivers; Romallus O. Murphy; CarlWhite; Rosa Brodie; Herman Lewis; Clarence Albert;Evester Bailey; Albert Brown; Benjamin Lanier;Gilbert Vaughn; Avie Lester; Theodore Muchiteni;

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William Hobbs; Jimmie Ray Hawkins; Horace P.Bullock; Roberta Waddle; Christina Davis-McCoy;James Oliver Williams; Margaret Speed; LarryLaverne Brooks; Carolyn S. Allen; Walter Rogers,Sr.; Shawn Meachem; Mary Green Bpnaparte;Samuel Love; Courtney Patterson; Willie O. Sinclair;Cardes Henry Brown, Jr.; and Jane Stephens.

The Respondents in the Dickson civil actionare Robert Rucho, in his official capacity only as theChairman of the North Carolina SenateRedistricting Committee; David Lewis, in his officialcapacity only as the Chairman of the North CarolinaHouse of Representatives Redistricting Committee;Nelson Dollar, in his official capacity only as the Co-Chairman of the North Carolina House ofRepresentatives Redistricting Committee; JerryDockham, in his official capacity only as the Co-Chairman of the North Carolina House ofRepresentatives Redistricting Committee; Philip E.Berger, in his official capacity only as the PresidentPro Tempore of the North Carolina Senate; ThomTillis, in his official capacity only as the Speaker ofthe North Carolina House of Representatives; TheState Board of Elections; and The State of NorthCarolina.

The Respondents in the NAACP civil actionare The State of North Carolina; The North CarolinaState Board of Elections; Thorn Tillis, in his officialcapacity as Speaker of the North Carolina House ofRepresentatives; and Philip E. Berger, in his officialcapacity as President Pro Tempore of the NorthCarolina Senate.

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, petitioners who arenon-governmental non-profit corporations state thalLno parent or publicly held company owns 10% ormore of their stock or interest.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

PARTIES TO THE PROCEEDINGS BELOW ..........ii

CORPORATE DISCLOSURE STATEMENT ..........iv

TABLE OF CONTENTS ............................................v

TABLE OF AUTHORITIES ......................................ix

OPINIONS BELOW ...................................................1

JURISDICTION .........................................................1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED ........................................2

INTRODUCTION .......................................................4

STATEMENT OF THE CASE ...................................6

1. BACKGROUND TO THE 2011REDISTRICTING PROCESS INNORTH CAROLINA .............................8

2. THE RACE-BASED CRITERIAUSED TO DRAW LEGISLATIVEDISTRICTS IN NORTHCAROLINA .........................................11

vi

RESULTS OF APPLYINGRACE-BASED REDISTRICTINGCRITERIA ............................................13

4. TRIAL COURT’S OPINION ................1’7

OPINION OF THE NORTHCAROLINA SUPREME COURTON REMAND ......................................18

REASONS FOR GRANTING THE PETITION .......2]!

THE NORTH CAROLINASUPREME COURT’S RULINGCREATES A SPLIT INTHEINTERPRETATION OFFEDERAL STATUTORYANDCONSTITUTIONAL LAW INNORTH CAROLINA AND INOTHER STATES .................................24

THE NORTH CAROLINASUPREME COURT FAILED TOAPPLY ALBC ON REMAND ASDIRECTED ..........................................29

THE NORTH CAROLINASUPREME COURT’S DECISIONIS A DANGEROUSDIGRESSION FROM STRICTSCRUTINY REVIEW ..........................34

vii

THIS PETITION SHOULD BEGRANTED IN ORDER TOCONSIDER THISCASE ALONGWITH RELATED CASESPENDING IN THIS COURT ..............38

CONCLUSION .........................................................39

APPENDIX:

Opinion ofThe Supreme Court of North Carolina

entered December 18, 2015 ................la

Judgment and Memorandum of Decision ofThe General Court of JusticeSuperior Court Division of Wake County

entered July 8, 2013 ....................... 140a

Order ofThe Supreme Court of North CarolinaOn Petition for Rehearing

entered February 11, 2016 .............369a

Section 5 of the Voting Rights Act,52 U.S.C. § 10304 ......................................373a

Maps of the Challenged Plans:

House VRA Districts .......................376a

Lewis Dollar Dockham 4(enacted plan) ..................................377a

VIII

House Fair and Legal(amendment defeated) .....................378a

Senate VRA Districts .......................379a

Rucho Senate 2 (enacted plan) ........380a

Senate Fair and Legal(amendment defeated) .....................381a

Senate 14 District 14 Comparison Map ....382a

House District 31 Comparison Map ..........383a

Recent Elections of African-AmericanOfficials from Majority White Districtsand from Non-Majority Black Districts,2006-2010 ....................................................384a

TABLE OF AUTHORITIES

Page(s)

CASES

Alabama Leg. Black Caucus v. Alabama,575 U.S. ~, 135 S. Ct. 1257 (2015) ......passim

Am. Tradition P’ship v. Bullock,567 U.S. __., 132 S. Ct. 2490 (2012) .............30

Bartlett v. Strickland,556 U.S. 1 (2009) i ...................................passim

Bethune-Hill v. Virginia State Bd. of Elections,141 F. Supp. 3d 505 (E.D. Va. 2015),prob. juris, noted,No. 15-680, 2016 U.S. LEXIS 3653(U.S., June 6, 2016) .......................................38

Brine v. Insurance Company,96 U.S. 627 (1877) .........................................28

Cooper v. Aaron,358 U.S. 1 (1958) ...........................................30

Covington v. State of North Carolina,No. 15-cv-399(M.D.N.C. filed May 19, 2015) .....................38

Dickson vo Rucho,__ U.S. __, 135 S. Ct. 1843 (2015) .......passim

X

Edward Hines Yellow Pine Trustees v. Martin,268 U.S. 458 (1925) ..................................27-28

Fisher v. Univ. of Texas,133 S. Ct. 2411 (2013) ..............................35, 36

Fisher v. Univ. of Texas,579 U.S. __.,2016 U.S. LEXIS 4059 (June 23, 2016) .........36

Harris v. McCrory,No. 1:13cv949,2016 U.S. Dist. LEXIS 14581(Feb. 5, 2016), prob. juris, noted,McCrory v. Harris,No. 15-1262, 2016 U.S. LEXIS 4112(June 27, 2016) .......................................passim

Hathorn v. Lovorn,457 U.S. 255 (1982) ........................................28

James v. City of Boise,577 U.S. __, 136 S. Ct. 685(Jan. 25, 2016) ................................................30

Johnson v. DeGrandy,512 U.S. 997 (1994) ......................18, 20, 23, 37

League of United Latin Am. Citizens v. Perry,548 U.S. 399 (2006) ..................................18, 37

Miller v. Johnson,515 U.S. 900 (1995) ..................................34, 35

xi

Page v. Virginia State Bd. of Elections,No. 3:13cv678,2015 U.S. Dist. LEXIS 73514 (June 5, 2015),appeal dismissed sub. nom.,Wittman v. Personhuballah,No. 14-1502, 2016 U.S. LEXIS 3353(May 23, 2016) ................................ 5, 22, 28, 29

Pender County v. Bartlett,361 N.C. 491, 649 S.E.2d 364 (2007) ............10

Ricci v. DeStefano,557 U.S. 557 (2009) .......................................35

Shaw v. Hunt,517 U.S. 899 (1996) .................................18, 26

Shaw v. Reno,509 U.S. 630 (1993) .......................................35

Shelby County v. Holder,570 U.S .... 133 S. Ct. 2612 (2013) ............. 36

Stephenson v. Bartlett,355 N.C. 354, 562 S.E.2d 377 (2002) ..............7

Stephenson v. Bartlett,357 N.C. 301, 582 S.E.2d 247 (2003) ..............7

Thornburg v. Gingles,478 U.S. 30 (1986) ..................................passim

xii

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. XIV .......................................4, 30

U.S. CONST. amend XIV, § 1 .......................................2

STATUTES

28 U.S.C. § 1257(a) ......................................................1

52 U.S.C. §§ 10301 et seq ..................................passim.

52 U.S.C. § 10301 ..............................................passim

52 U.S.C. § 10304 ..............................................passim

RULES

N.C.R. App. P. 9(c) .....................................................8

N.C.R. App. P. 9(d) .....................................................9

OPINIONS BELOW

The December 18, 2015, opinion and finaljudgment of the North Carolina Supreme Court, Pet.App. la, on remand from this Court is reported atDickson v. Rucho, 781 S.E.2d 404 (N.C. 2015)modified, reh’g denied, S.E.2d __., 2016 N.C.LEXIS 405 (Feb. 11, 2016). The first opinion of theNorth Carolina Supreme Court is reported atDickson v. Rucho, 367 N.C. 542, 766 S.E.2d 238(2014).

The Judgment and Memorandum of Decision,Pet. App. 140a, of the three-judge panel of theSuperior Court Division of the General Court ofJustice for Wake County, North Carolina dated July8, 2013, is unreported.

JURISDICTION

The opinion of the North Carolina SupremeCourt was entered on December 18, 2015. Pet. App.la. The mandate issued on January 7, 2016. OnFebruary 11, 2016 the court denied petitioners’request for rehearing and corrected an error in itsopinion. By order dated April 28, 2016, Chief JusticeRoberts extended the time for Petitioners to file thispetition until June 30, 2016. The jurisdiction of thisCourt is invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

This case involves Section 1 of the FourteenthAmendment to the United States Constitution,which states that:

All persons born or naturalized in theUnited States, and subject to thejurisdiction thereof, are citizens of theUnited States and of the state whereinthey reside. No state shall make orenforce any law which shall abridge theprivileges or immunities of citizens ofthe United States; nor shall any statedeprive any person of life, liberty, orproperty, without due process of law;nor deny to any person within itsjurisdiction the equal protection of thelaws.

This case also involves Sections 2 and 5 of theVoting Rights Act of 1965, 52 U.S.C. §§ 10301 et seq.Section 2 states:

(a) No voting qualification orprerequisite to voting or standard,practice, or procedure shall be imposedor applied by any State or politicalsubdivision in a manner which resultsin a denial or abridgement of the rightof any citizen of the United States tovote on account of race or color, or incontravention of the guarantees setforth in section 10303(f)(2) of this title,

3

as provided in subsection (b) of thissection.

(b) A violation of subsection (a) ofthis section is established if, based onthe totality of cirdumstances, it isshown that the political processesleading to nomination or election in theState or political subdivision are notequally open to participation bymembers of a class of citizens protectedby subsection (a) of this section in thatits members have less opportunity thanother members of the electorate toparticipate in the political process andto elect representatives of their choice.The extent to which members of aprotected class have been elected tooffice in the State or politicalsubdivision is one circumstance whichmay be considered: Provided, Thatnothing in this section establishes aright to have members of a protectedclass elected in numbers equal to theirproportion in the population.

52 U.S.C. § 10301.

The provisions of Section 5 of the VotingRights Act, 52 U.S.C. § 10304 are set out inPetitioners’ Appendix at 373a.

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INTRODUCTION

These cases present the issues of whethertwenty-five of North Carolina’s state legislativedistricts, and two of its congressional districts, all re,-drawn in 2011 as majority-black districts to"inoculate" the state from liability under Sections 2and 5 of the Voting Rights Act, and all drawn at 50%or greater black voting age population (hereinafter"BVAP"), are required by the Voting Rights Actproperly interpreted, and are constitutional underthe Fourteenth Amendment. This is the second timePetitioners have sought review of the North CarolinaSupreme Court’s decisions upholding these districts.

On April 20, 2015, this Court grantedPetitioners’ original petition for writ of certiorari inthis case and remanded the matter to the SupremeCourt of North Carolina for further consideration in.light of Alabama Leg. Black Caucus v. Alabama, 575U.S. __, 135 S. Ct. 1257, 191 L. Ed. 2d 314 (2015)(hereinafter "ALBC’). See Dickson v. Rucho, __ U.S.__., 135 S. Ct. 1843, 191 L. Ed. 2d 719 (2015). Onremand, the North Carolina Supreme Courtconcluded that this Court’s holdings in ALBC largelydo not apply to North Carolina’s redistricting andtherefore adhered to its prior opinion upholding thechallenged districts. See Pet. App. 32a-36a, 69a-72a,& 90a.

It is uncontested that the North CarolinaGeneral Assembly imposed two race-based criteriathat could not be compromised in its 2011redistricting plans for the state legislature: Astatewide racial proportionality requirement for thenumber of Voting Rights Act districts, (hereinafter

5

"VRA districts"), in the plan; and a requirement thateach VRA district have a BVAP of 50% or greater.Mechanically applying these criteria, the GeneralAssembly created twenty-three new majority blacklegislative districts compared to the prior plan. TheGeneral Assembly increased the number of majorityblack senate seats from zero under the 2003benchmark plan to nine under the enacted plan; andincreased the number of majority black house seatsfrom nine under the 2003 benchmark plan to twenty-three under the enacted plan. The legislature alsocreated two majority black congressional districtswhere none had existed under the 2002 benchmarkplan.

The North Carolina Supreme Court ruling onremand conflicts with this Court’s holding in ALBC.Moreover, the court rejected petitioners’ claims thatCongressional Districts 1 & 12 are unconstitutionalracial gerrymanders, directly contrary to the federaldistrict court’s decision in Harris v. McCrory, No.1:13cv949, 2016 U.S. Dist. LEXIS 14581 (Feb. 5,2016) prob. juris, noted, McCrory v. Harris, No. 15-1262, 2016 U.S. LEXIS 4112 (June 27, 2016), whichheld that they are unconstitutional gerrymanders.

The North Carolina Supreme Court’s decisionalso is in conflict with Page v. Virginia State Bd. ofElections, No. 3:13cv678, 2015 U.S. Dist. LEXIS73514 (June 5, 2015) appeal dismissed sub. nora.Wittman v. Personhuballah, No. 14-1502, 2016 U.S.LEXIS 3353 (May 23, 2016) (finding that Virginia’s3rd Congressional District was raciallygerrymandered and not narrowly tailored).

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Certiorari must be granted in this case toresolve the conflict between the state and federalcourts on the fundamental question of whetherSection 2 of the Voting Rights Act requires ajurisdiction to draw a racially proportionate numberof majority-black legislative districts each at greaterthan 50% BVAP. Resolution of this case on themerits is necessary to prevent the continuation of alegal standard in North Carolina requiring the,excessive use of racial considerations in redistrictingthat could be adopted in many other states in theredistricting process that occurs following the 2020census.

STATEMENT OF THE CASE

The first step taken by Dr. Thomas A.Hofeller, the chief architect of North Carolina’slegislative and congressional maps in 2011, beforedrawing any districts, was to prepare a statewideracial proportionality table. Calculating that theblack voting age population of the state was 21% ofthe total voting age population, he concluded that toachieve racial proportionality he needed to draw tenmajority-black state senate districts and twenty-fivemajority-black state house districts. All of theelection returns for elections in the previous decadeshowing the extent to which African-Americans werealready being elected to state legislative seats werepublicly available long before the redistricting datafor North Carolina was released by the CensusBureau. Yet neither the legislative leaders, nor Dr.Hofeller, reviewed this information prior to drawingthe VRA districts and providing them to the public.

In drawing state legislative districts in 2011,the North Carolina General Assembly was bound bythe state constitution’s whole county provision asinterpreted in two state Supreme Court opinions,Stephenson v. Bartlett, 355 N.C. 354, 562 SoE.2d 377(2002) and 357 N.C. 301, 582 S.E.2d 247 (2003). Forcounties that were not large enough to be one ormore legislative districts on their own, the onlyflexibility that legislators could exercise was to usethe federal Voting Rights Act, which preempts thestate constitution, as a shield to allow them to crosscounty lines more than otherwise would bepermitted under state law. Thus, Dr. Hofeller drew,and the legislature subsequently adopted, "VRAdistricts" nearly everywhere possible in the state,packing black voters in higher concentrations thanever before.

Implementation of this strategy required thelegislature to sacrifice traditional redistrictingcriteria and risk the integrity of the elections processby dividing an enormous number of electionprecincts. Because of the dispersion of the state’sAfrican America population, artificially packingAfrican American voters in districts produced a largenumber of oddly-shaped districts constructed usingland bridges and various appendages to ensure thatdistricts included a sufficient number of AfricanAmerican voters, and excluded a sufficient numberof white voters, to meet the legislature’s fifty percentplus one African American voting age populationrule. Defendants therefore divided precincts, towns,cities and counties along racial lines. Despite thestate constitutional requirement to keep countieswhole to the extent possible, twelve house and

8

senate districts were built entirely from pieces ofcounties.

BACKGROUND TO THE 2011REDISTRICTING PROCESS IN NORTHCAROLINA

Since this Court’s decision in Thornburg v.Gingles 478 U.S. 30 (1986), African-Americans inNorth Carolina increasingly have elected theircandidates of choice to the state legislature, often indistricts that were not majority-black in voting agepopulation. The General Assembly was aware in2011 that candidates of choice of African-Americanvoters won election to the General Assembly roughly90% of the time they ran between 2006 and 2010 inthe existing districts for State House and StateSenate that were less than 50% black in voting age,population. Dickson Trial Tr. vol II, (hereinafter"Tp.") at 405-410.1

As the General Assembly pointed out in itsSection 5 submissions, "[t]he 2008 General Electionrepresented the high water mark for African-American Senators with a total of nine African-Americans being elected," using a redistricting planthat had no majority-black voting age population

1 Pursuant to Rule 9(c) of the North Carolina Rules of Appellate

Procedure, Petitioners submitted the transcript from the June5-6, 2013 trial in the lower court as part of the Record onAppeal in the North Carolina Supreme Court. References tothat trial transcript in this petition are in the format (Tp __~.

9

districts. Doc. Ex. 77262 (2011 Senate Section 5Submission 19.) In that year, African-AmericanSenators Tony Foriest, Don Davis and MalcolmGraham were elected in districts that were 75.17%,65.13% and 59.89% white in voting age population,respectively. Doc. Ex. 6980 (Churchill Dep. Exs. 82& 83, at 30, 32 & 41.)

"There were twenty-two African-AmericanRepresentatives serving in the General Assemblyfollowing the 2008 General Election." Doc. Ex. 7726(2011 House Section 5 Submission 21.) This wasusing a redistricting plan that had only ten housedistricts where the TBVAP was greater than 50%.As in the senate, there were numerous African-American candidates elected from majority-whitevoting age population house districts, including, forexample, Linda Coleman and Ty Harrell, elected indistricts that were 67.68% and 82.85% white invoting age population respectively.Doc. Ex. 6980(Churchill Dep. Exs. 82 & 83, at 85.)

In 2010, African-American candidatescontinued to win election in legislative districts thatwere not majority black in voting age population.For example, African-American Senator MalcolmGraham held on to his seat in the 59.89% whitedistrict in Mecklenburg County, winning 58.16% ofthe vote and African-American Senator Dan Blue

2 Pursuant to Rule 9(d) of the North Carolina Rules of

Appellate Procedure, evidence properly admitted in the trialcourt was included in the Record on Appeal in the NorthCarolina Supreme Court as documentary exhibits submitted byPetitioners. References to those documentary exhibits in thispetition are in the format (Doc. Ex.

10

won in a district that was 51.84% white in voting agepopulation. Doc. Ex. 6980 (Churchill Dep. Exs. 82 &83, at 22, 35.) African-American RepresentativeRodney Moore won in a district that was 62.20%white in voting age population. Id.

The record developed by the GeneralAssembly in 2011 showed that fifty-six timesbetween 2006 and 2011, black candidates wonelection contests in state house and senate districtsthat were not majority-black. Twenty-two timesthose candidates were running in majority-whitedistricts. Pet. App. 384a-399a. Most of these;elections involved candidates of different races inwhich the black candidate defeated the white:candidate. Some of the defeated white candidateswere incumbents. Id. This was consistent with the,North Carolina Supreme Court’s observation in 2007that "past election results demonstrate that alegislative voting district ... with a total African-American voting age population of at least 38.37percent creates an opportunity to elect AfricanAmerican candidates." Pender County v. Bartlett,361 N.C. 491, 494, 517, 649 S.E.2d 364, 367, 380(2007).~

The 2010 Census data showed that thepopulation of North Carolina had grown significantlyover the decade, resulting in an increase of the ideal

~ While the legislative record did include studies showing thatracially polarized voting is still present in parts of NorthCarolina, no study examined whether the level of raciallypolarized voting in a particular area is such that the whitemajority votes sufficiently as a bloc to enable it "usually todefeat the minority’s preferred candidate." Thornburg v.Gingles, 478 U.S. 30, 50 (1986).

11

district size for state house and senate districts, butthe African-American percentage of the state’svoting age population remained roughly the same.Thus, differential rates of population growth do notexplain the dramatic increase in the number ofmajority-black districts in the 2011 redistrictingplans.

THE RACE-BASED CRITERIA USED TODRAW LEGISLATIVE DISTRICTS INNORTH CAROLINA

In 2011, the legislature itself did not adoptredistricting principles and the redistrictingcommittees established in the house and senate didnot discuss what criteria shouldbe followed.Instead, the chairmen of the legislature’sredistricting committees, SenatorRucho andRepresentative Lewis, issued joint written publicstatements on June 17, June 21, and July 12, 2011,describing the factors that had determined thenumber, location, and shape of the state house andsenate "VRA districts" challenged here. Doc. Ex. 540-53, 563-68. These public statements reflect the oralinstructions previously given to their consultant, Dr.Hofeller, to apply in drawing the districts. Pet. App.99a; Doc. Ex. 1921-22, 2306, 3078-79, 3184-85. Thoseinstructions were:

1. Draw "VRA Districts" innumbers equal to the African Americanproportion of the State’s population.

2. Draw each "VRA District" suchthat African American citizens

12

constitute at least a majority of thevoting age population in the district.

The Chairmen also made clear in thesewritten public statements that these criteria couldnot be compromised and that any alternative planthat strayed from strict adherence to theseinstructions would be rejected.

The racial proportionality and majority BVAPrequirements were uniformly implemented acrossthe state without any reference to the extent towhich candidates of choice of black voters wereelected to house and districts in various parts of thestate, and without any examination of the extent oflegally significant racially polarized votingthroughout the state. Instead, these requirementswere adopted in order to "expedite the preclearanceof each plan pursuant to Section 5 of the VotingRights Act", Doc. Ex. 543, and to insulate the Statefrom liability under Section 2 of the Voting RightsAct. Pet. App. 160a.

African-American legislators did not sharethese views about the state’s VRA obligations orpotential liability. Numerous African-Americanlegislators spoke out against all plans proposed bythe Chairmen. Tp. 114, lines 12-21. Every African-American Senator or Representative voted againstthe enacted plans. Tpp. 30, 114.

In addition, once the VRA districts wereintroduced, citizens from around the state and theNAACP, testified at public hearings that thedistricts went beyond what was required for

13

compliance with the Voting Rights Act. Doc. Ex.7726. Well before the final plans were enacted,legislators werespecifically informed in writtentestimony thatthe VRA districts they wereproposing werepremised on a fundamentalmisunderstanding of constitutional and civil rightslaw. Doc. Ex. 7726.

RESULTS OF APPLYING RACE-BASEDREDISTRICTING CRITERIA

The General Assembly’s majority BVAP andracial proportionality criteria resulted in anunprecedented and dramatic increase in the numberof majority African American districts in the houseand senate plans, expanding from none to nine inthe senate and from nine to twenty-three in thehouse. In addition, the new plan increased the blackvoting age population in the challenged districts asshown in the charts below:

14

Comparison of Black Voting Age PopulationPrior vs. Enacted House Districts

5 48.87% 54.17%7 60.77% 50.67%

12 46.45% 50.60%21 46.25% 51.90%24 50.23% 57.33%29 39.99% 51.34%31 47.23% 51.81%32 35.88% 50.45%33 51.74% 51.42%38 27.96% 51.37%42 47.94%

45.56%4852.56%51.27%

57 29.93% 50.69%99 41.26% 54.65%102 42.74% 53.53%106 28.16% 51.12%107 47.14% 52.52%

15

Comparison of Black Voting Age PopulationPrior vs. Enacted Senate Districts

4 49.70% 52.75%5 30.99% 51.97%14 42.62% 51.28%20 44.64% 51.04%21 44.93% 51.53%28 47.20% 56.49%38 46.97% 52.51%40 35.43% 51.84%

To meet the racial proportionality and 50%+1BVAP criteria, Dr. Hofeller drew oddly shapeddistricts containing numerous appendages andportions of districts connected by narrow landbridges. Traditional redistricting criteria, includingcompactness, communities of interest and adherenceto county, town and precinct boundaries, wereignored.

For example, Senate District 14, one of thedistricts challenged in this case, is located in WakeCounty and includes parts of the City of Raleigh. Itwas increased from 42.62% BVAP in the benchmarkplan to 51.28% BVAP in the enacted plan.Previously, a black candidate received at least 64%of the votes cast in each of the four elections held inthis district between 2004 and 2010. To increase theblack voting age population to the prescribed level,

16

twenty-nine precincts and the City of Raleigh had tobe divided on racial grounds.

The resulting changeillustrated below:

in the shape of the district is

Senate District 14 (Benchmark)

Senate District 14 (Enacted)

This pattern of the legislature’s mechanicallyapplied racial criteria having a very noticeable effecton how the district lines were drawn is present in allthe districts challenged by the Petitioners in thiscase. The Petitioners have not challenged all of themajority-black districts in the state’s house andsenate redistricting plans, only those with highlyirregular boundaries where race predominated in thedrawing of the district.

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4. TRIAL COURT’S OPINION

The trial court entered final judgment on July8, 2013, and issued a Memorandum of Decisionprimarily addressing Plaintiffs’ claims arising, underthe Equal Protection Clause of the FourteenthAmendment. Pet. App. 140a. The trial court firstconcluded that, for 26 of the 30 legislative andcongressional districts challenged, the "the shape,location and racial composition of each VRA districtwas predominately determined by a racial objectiveand was the result of a racial classification sufficientto trigger the application of strict scrutiny as amatter of law." Pet. App. 158a.

Applying strict scrutiny, the court observedthat the "[Defendants] assert that the VRA Districtsin the Enacted Plans were drawn to protect theState from liability under § 2 of the VRA, and toensure preclearance of the Enacted Plans under § 5of the VRA." Pet. App. 160a. The court held that itwas "required to defer to the General Assembly’s’reasonable fears of, and their reasonable efforts toavoid, § 2 liability.’" Pet. App. 162a.

Believing that the Defendants had acompelling interest in avoiding § 2 liability and inobtaining § 5 preclearance, the trial court thenplaced the burden on Plaintiffs to prove that theDefendants had not narrowly tailored the challengeddistricts to meet that interest. The trial court heldthat Plaintiffs failed to satisfy that burden because,in its view, rough proportionality was endorsed bythis Court as a means of ensuring compliance with§ 2 of the Voting Rights Act. Pet. App. 174a-77a

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(citing League of United Latin Am. Citizens v. Perry,548 U.S. 399, 429-30 (2006), Shaw v. Hunt, 517 U.S.899, 916 n. 8 (1996) (Shaw I1), and Johnson v.DeGrandy, 512 U.S. 997, 1000 (1994)).

In addition, the court concluded that the"ultimate holding" of the U.S. Supreme Court inBartlett v. Strickland, 556 U.S. 1 (2009) is thatwhere there is racially polarized voting and the state,has a reasonable fear of Section 2 liability, the state"must be afforded the leeway to avail itself of the’bright line rule’ and create majority-minoritydistricts." Pet. App. 184a. Since the state opted forthe safe harbor from Section 2 liability, the districtsare narrowly tailored. Pet. App. 186a-87a. The trialcourt’s opinion does not address the extensive andundisputed history of black electoral success forstate legislative seats in North Carolina.

5. OPINION OF THE NORTH CAROLINASUPREME COURT ON REMAND

On remand the North Carolina SupremeCourt, by a four-three vote, reaffirmed its earlierdecision that race did not predominate in thedrawing of any of the challenged districts, andmoreover, those districts satisfy strict scrutiny. Pet.App. 36a, 46a. On the question of whether race wasthe predominant factor in drawing the challengeddistricts, the court reiterated that the three-judgepanel erred in concluding that race waspredominant. Pet. App. 46a. Applying ALBC on thispoint, the court concluded that first, the trial courtconducted the required individualized district bydistrict analysis, and second, "[u]nlike the situation

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in Alabama, the General Assembly here did notplace special emphasis on compliance with federalone-person, one-vote standards; rather, equalpopulation was a ’background’ criterion that enteredinto formulating the challenged ... districts ..." Pet.App. 34a. Therefore, in the court’s view, ALBCsupported its conclusion that race did notpredominate because in contrast to Alabama, "NorthCarolina’s constitutional equal population criteriaare a component of and intertwined with the stateconstitution’s Whole County Provision." Pet. App.33a. The court further held that "the three-judgepanel’s finding that race was a predominant factor informing the VRA districts is unaffected." Pet. App.34a.

Turning to the question of whether thechallenged districts, though not a racialgerrymander in the court’s view, nonetheless werenarrowly tailored to achieve a compellinggovernmental interest, the court concluded thatALBC was essentially inapplicable to NorthCarolina. "Our conclusion that the VRA districts areconstitutional is not dependent on a section 5analysis. Each of the challenged VRA districtssubject to strict scrutiny was created because theState had a compelling interest in compliance withsection 2 ... therefore, each of the VRA districts isconstitutional on the basis of a section 2 analysisalone." Pet. App. 36a. While acknowledging thatALBC "made clear that section 5 ’does not require acovered jurisdiction to maintain a particularnumerical minority percentage’ in coveredjurisdictions," Pet. App. 69a (citations omitted), thecourt nonetheless concluded that ALBC also "did not

20

modify" the holding in Bartlett v. Str~ckland, 556U.S. 1 (2009), which, the court believed, requires thestate to create majority-black districts at greaterthan 50% BVAP. In the court’s view "[i]f on the onehand, a TBVAP exceeding fifty percent is required toavoid section 2 liability, we cannot, on the otherhand, conclude that this percentage is higher~ thannecessary to avoid retrogression under section 5. Inother words, section 5 cannot forbid what section 2requires." Pet. App. 71a.

The North Carolina Supreme Court’s opinionon remand holds that in the interest of avoidingliability under Section 2 of the Voting Rights Act, thestate is required, by this court’s opinions in Bartletl~v. Strickland, and Johnson v. DeGrandy, 512 U.S.997 (1994) to create a racially proportionate number’of majority black districts in the state, each of whichis greater than 50% black in voting age population.The undisputed record evidence of the sustainedelectoral success of black candidates under the 2003and earlier plans in districts that were less than 50%BVAP was not addressed by the Court.

Turning to whether the challenged districtsare narrowly tailored to comply with section 2, theCourt asked "whether the TBVAP in each of thechallenged districts are higher than reasonablynecessary to avoid the risk of vote dilution." Ratherthan examining this question separately andcarefully for each district, the Court globallyresponded to its rhetorical question with theobservation that while "the TBVAP percentageranges from a low of 50.45% to a high of 57.33% inthe twenty-six districts in question ... the average

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TBVAP of the challenged districts is only 52.28%"(emphasis in original). On that reasoning the Courtdeclared "we are satisfied that those districts aresufficiently narrowly tailored." Pet. App. 65a.

In a dissenting opinion, Justice Beasley tookthe position that the trial court’s judgment should bevacated and the case remanded for more completefindings of fact consistent with the guidanceprovided in ALBC. In her view, "[t]he majority readsALBC so narrowly that its implications for the casebefore this Court are negligible at best." Pet~ App.90a. Instead, "ALBC illuminates errors in the trialcourt’s analysis of plaintiffs’ racial gerrymanderingclaims in this case ..." Pet. App. 92a.

REASONS FOR GRANTING THE PETITION

The North Carolina Supreme Court hascreated a precedent of federal constitutional andstatutory law, binding on the state’s legislature andcourts, and available for consideration and potentialadoption throughout the United States. Thatprecedent (a) suggests that even the most explicituse of race (at least in redistricting) does not triggerstrict scrutiny, (b) holds that even under strictscrutiny a state legislature may constitutionallyadopt a redistricting plan with numerical racialgoals intended to create as precise a racial balance inlegislators as demographically possible, and to do soas a means of avoiding liability under Section 2 ofthe Voting Rights Act without any consideration ofless-rigid uses of race or other non-racial criteria;(c) holds that the courts should defer to thelegislature’s understanding of those statutory

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requirements without asking whether thelegislature’s understanding is correct or whether itsfear of VRA litigation is genuinely reasonable;(d) assumes that Section 2 can properly be construedto make racial proportionality in redistricting a safeharbor; and (e) implicitly holds, in order to avoid theotherwise patent errors in its reasoning, that thegeneral principles governing race and equalprotection do not apply in the context of redistrictingdespite this Court’s express statements to thecontrary.

This misinterpretation of Section 2 of theVoting Rights Act conflicts with the principlesestablished in ALBC, and followed in Page v.Virginia State Bd. of Elections, No. 3:13cv678, 2015U.S. Dist. LEXIS 73514 (June 5, 2015) appealdismissed sub. nom. Wittman v. Personhuballah, No.14-1502, 2016 U.S. LEXIS 3353 (May 23, 2016). Thedecision is also in direct conflict with Harris v.McCrory, No. 1:13cv949, 2016 U.S. Dist. LEXIS14581 (Feb. 5, 2016) prob. juris, noted, McCrory v.Harris, No. 15-1262, 2016 U.S. LEXIS 4112 (June27, 2016).

This decision interpreting federal law,notwithstanding ALBC, is binding on the NorthCarolina General Assembly. If it is allowed to standit will create confusion for states around the countrywith significant racial minority populations aboutthe statutory and constitutional principles governingthe application of Section 2 of the Voting Rights Actto redistricting and a lack of clarity about thegovernment’s ability to use racial classificationsmore generally.

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The North Carolina legislature’s use of racialtargets to ensure preclearance under Section 5 of theVoting Rights Act, as upheld by the Court below,Pet. App. 36a, is similar to the mechanical use ofracial targets by the Alabama legislature andcriticized by this Court in ALBC. Even moreimportantly, many of the districts challenged in thiscase are not in areas of the state that previouslywere covered by Section 5 of the Voting Rights Act.This case raises the different and more significantquestion of whether Section 2 of the Voting RightsAct as interpreted in DeGrandy and Bartlett requiresthe safe harbor proportionality and 50%+1 BVAPcriteria that were employed by the legislature here.

This Petition should be granted because thelegislative districts challenged here were drawn atthe same time as the congressional districts at issuein the case already accepted for review, Harris v.McCrory; and the very same congressional districtsare at issue as well. Moreover this Court shouldhear this case on the merits and not simply hold ituntil after ruling in Harris. The opinion belowraises the additional significant question of whetherJohnson v. DeGrandy, interpreting Section 2 of theVoting Rights Act, requires racial proportionality asa safe harbor from liability, which is the centraltenant of the General Assembly’s defense of itsactions. Pet. App. 73a-74a. Thus, the decision inHarris will not resolve one of the key issues in thiscase and will leave in place a rule previously rejectedby this court "because of a tendency to promote andperpetuate efforts to devise majority-minoritydistricts even in circumstances where they may notbe necessary," DeGrandy, 512 U.S. at 1019, and a

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rule this court has already said "could poseconstitutional concerns." Bartlett v. Strickland, 551U.S. at 24.

THE NORTH CAROLINA SUPREMECOURT’S RULING CREATES A SPLIT INTHE INTERPRETATION OF FEDERALSTATUTORY AND CONSTITUTIONALLAW IN NORTH CAROLINA AND INOTHER STATES

On February 5, 2016, a three-judge federa]ldistrict court invalidated two of North Carolina’scongressional districts. Harris v. McCrory, No. 13-.cv-949, 2016 U.S. Dist. LEXIS 14581 (M.D.N.C. Feb.5, 2016). That case has been accepted for review andis currently pending before this Court. See McCroryv. Harris, No. 15-1262, 2016 U.S. LEXIS 4112 (June27, 2016). The trial court in Harris found thatCongressional Districts 1 and 12 wereunconstitutional racial gerrymanderscreated "inblatant disregard for fundamentalredistrictingprinciples" in a manner that "stands the VRA on itshead." Harris, No. 13-cv-949, slip op. at 57.

The evidence in Harris for CongressionalDistricts 1 and 12 is nearly identical to the evidencein this case (both for those districts and the otherchallenged districts that were not at issue in Harris).The same legislators--Senator Rucho andRepresentative Lewis--were responsible fordevelopment of the Congressional map. They hiredthe same consultant to draw the congressional andlegislative maps. They issued the same directives tohim--all oral, but delineated in the public

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statements issued as part of the redistrictingprocess. The same race-based criteria governed thedrawing of the districts.

However, with regard to legislative districts,Senator Rucho and Representative Lewis gave Dr.Hofeller one race-based criterion for drawinglegislative districts that was not given for thecongressional districts. Dr. Hofeller was directed todraw the legislative districts with a roughlyproportional number of majority-black districts tothe percentage of the state’s black voting agepopulation.

The State also defended the districts on thesame ground in both cases: that the Voting RightsAct and Strickland provided it a safe harbor to drawdistricts based on race in order to insulate the statefrom Section 2 liability and obtain preclearanceunder Section 5.4 The Harris court looked beyondthe State’s proffered defense and reached the reverseconclusion of the Dickson court. It held that racepredominated in the drawing of both congressionaldistricts, and those districts were not narrowlytailored to serve a compelling governmental interest.

With regard to racial predominance, the courtin Harris described the direct and circumstantialevidence for CD 1 that is nearly identical to theevidence for the legislative ’WRA" districts andconcluded that CD 1 is a "textbook example of racial

~ The State did defend Congressional District 12 on the basis itwas not a racial gerrymander and strict scrutiny should not betriggered. The Dickson court ruled in favor of the State, whilethe Harris court ruled in favor of plaintiffs on this issue.

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predominance." Harris, No. 13-cv-949, slip. op. at 22.The court in Dickson ignored the extensive direct andcircumstantial evidence that race predominated byguessing that "many other considerations [were]potentially in play.". Pet. App. 45a.

Moreover, the court in Harris recognized thatthe legislature’s 50%+1 BVAP floor was a racialquota that "could not be compromised." Harris, No.13-cv-949, slip. op. at 19 (quoting Shaw II, 517 U.S.at 907). Yet the Dickson court held that the BVAPfloor was merely a "baseline number that allowed forflexibility within each district." Pet. App. 67a. These;legal determinations about the inflexible criterionimposed by the legislature cannot be squared withone another.

With regard to the implication of theStrickland decision, in a footnote, the Harris courtrecognized that "defendants’ reliance on Stricklandis misplaced." Harris, No. 13-cv-949, slip. op. at 61,n.10o The Strickland plurality held that Section 2did not require states to draw crossover districts. Infact, as the Harris court observed, "the case standsfor the opposite proposition [than Defendants’position and the North Carolina Supreme Court’sinterpretation]: ’Majority-minority districts are onlyrequired if all three Gingles factors are met and if§ 2 applies based on a totality of the circumstances."’Id., (quoting Strickland, 556 U.S. at 24).

The Dickson interpretation of Stricklandcannot be squared with the Harris interpretation.The court in Dickson held that majority-minoritydistricts are required, regardless of whether the

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third prong of Gingles could be met. Thus, theDickson court’s holding does precisely whatStrickland warns against: it entrenches majority-minority districts by command. A legislaturedrawing districts in North Carolina--or any otherjurisdiction--now has conflicting instructions withregard to whether 50%+1 districts are required orpermissible. If Harris is right, then such districtsare only required where all three Gingles factors aremet. But if Dickson is right, then these districts arenow required as a defense to potential--or evenremote--§ 2 liability, even if minority voters werepreviously able to elect their candidates of choice indistricts that were not majority in black voting agepopulation.

While Dickson says the mere existence ofracially polarized voting is enough, Harris makesclear that a "necessary premise" was absent: "thatthe white majority was actually voting as a bloc todefeat the minority’s preferred candidates." Harris,No. 13-cv-949, slip. op. at 55. Thus, a futurelegislature has no guidance as to whether ageneralized expert report of racially polarized votingis sufficient or whether the legislature must actuallylook at past election returns to determine if amajority-black district is required.

These conflicts between state and federalcourts in North Carolina need resolution. ThisCourt has recognized the "uncertainty and injusticewhich result from ’the discordant element of asubstantial right and which is protected in one set ofcourts and denied in the other.’" Edward HinesYellow Pine Trustees v. Martin, 268 U.S. 458, 464

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(1925) (quoting Brine v. Insurance Company, 96 U.S.627, 635 (1877)). See also Hathorn v. Lovorn, 457U.S. 255, 271 (1982) (J. Rehnquist, dissenting)(warning about the potential to breed conflictsbetween the state courts and federal district courtssitting within the States).

In fact, the State of North Carolina agreesthat the conflict between Dickson and Harris shouldbe resolved by this Court. It is one of the questionspresented in the Jurisdictional Statement andargued again in their briefs where the HarrisAppellants ask this Court to note probablejurisdiction to "resolve this split between the districtcourt and the North Carolina Supreme Court."McCrory v. Harris, No. 15-1262, Juris. Stmt. at ii--iii, (April 8, 2016); Appellants Br. in Opp. toAppellee’s Mot. to Affirm, at 3-4, (May 24, 2016).The Harris Appellants even agree that the evidencein the two cases "was essentially identical." Id., Br..in Opp. at 4. This Petition should be granted to,properly resolve the conflicts in these two cases.

The North Carolina Supreme Court decisionalso is in conflict with Page v. Virginia State Bd. ofElections, No. 3:13cv678, 2015 U.S. Dist. LEXIS73514 (June 5, 2015) appeal dismissed sub. nora.Wittman v. Personhuballah, No. 14-1502, 2016 U.S.LEXIS 3353 (May 23, 2016). In Page, a three-judgefederal panel in Virginia found that direct andcircumstantial evidence proved that racepredominated in the drawing of Virginia’sCongressional District 3. 2015 U.S. Dist. LEXIS73514, at "22-41. Specifically, it found that becauselegislative leaders required districts that elected

29

African Americans to be drawn to 55% BVAP floor,regardless of past success of black voters in electingtheir candidates of choice, Id. at *27, this was bothstrong evidence of racial predominance and lack ofnarrow tailoring. Id. at *52-55.

Relying heavily on this Court’s guidance inALBC, that district court noted that "the legislature[in Virginia]--by increasing the BVAP of a safemajority-minority district and using a BVAPthreshold-relied heavily on a mechanicallynumerical view as to what counts as forbiddenretrogression without a "strong basis in evidence fordoing so," and per ALBC, duly deemed that districtto be an unconstitutional racial gerrymander. Id. at*53. In this case, the North Carolina Supreme Courtreached the opposite conclusion on very similar facts,such that now a dramatically different constitutionalrule applies in neighboring states.

THE NORTH CAROLINA SUPREMECOURT FAILED TO APPLY ALBC ONREMAND AS DIRECTED

This Court considered four topics in ALBC:the district-specific nature of racial gerrymanderclaims; the standing required to pursue those claims;the proper calculation of the preponderance of race;and the need, for legislative bodies and courts, to askthe right questions in resolving compellinginterest/narrow tailoring questions. The second twoholdings are central to the correct resolution of thiscase, but neither was properly applied by the NorthCarolina Supreme Court in its decision on remanddespite this Court’s April 20, 2015 order.

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The failure to meaningfully apply this Court’sruling in ALBC to the remarkably similar facts athand represents an evasion of the state court’s dutyto comply with Supreme Court’s interpretation o:ffederal law. See, e.g., James v. City of Boise, 577U.S. __, 136 So Ct. 685, 694-95 (Jan. 25, 2016)("[O]nce the Court has spoken, it is the duty of othercourts to respect that understanding of thegoverning rule of law. And for good reason ... if statecourts were permitted to disregard this Court’srulings on federal law, the laws, the treaties, and theconstitution of the United States would be differentin different states, and might, perhaps, never haveprecisely the same construction, obligation, orefficacy, in any two states.) (internal citationsomitted); see also, Am. Tradition P’ship v. Bullock,567 U.S. ~, 132 S. Ct. 2490, 2491(2012) ("Thequestion presented in this case iswhether theholding of Citizens United applies tothe Montanastate law. There can be no serious doubt that it does.Montana’s arguments in support of the judgmentbelow either were already rejected in CitizensUnited, or fail to meaningfully distinguish thatcase.") (citations omitted); Cooper v. Aaron, 358 U.S.1, 16-17 (1958) (per curiam) (in a schooldesegregation case, holding "lilt follows that theinterpretation of the Fourteenth Amendmentenunciated by this Court in the Brown case is thesupreme law of the land, and Art. VI of theConstitution makes it of binding effect on the States"and that "no state legislator or executive or judicialofficer" may evade the Court’s authority).

Specifically, the court below flatly ignored thisCourt’s guidance in ALBC as to what constitutes

31

racial predominance in redistricting, and the rolethat direct evidence plays in concluding that race didpredominate. First and foremost, just one year ago,this Court unequivocally stated "[t]hat Alabamaexpressly adopted and applied a policy of prioritizingmechanical racial targets above all other districtingcriteria (save one-person, one-vote) provides evidencethat race motivated the drawing of particular linesin multiple districts in the State." Thus, there canbe no real dispute that where legislative leadersresponsible for redistricting publicly set racialquotas for redistricting, and announce that no plansthat deviate from those racial quotas will even beconsidered, race is the predominant factor inredistricting.

The record in this case contains undisputedand direct evidence that race predominated in thedrawing of each district challenged here. The NorthCarolina legislature did not have one fixed, race-based goal, as the state did in ALBC, it had dualrace-based goals. The North Carolina legislature didnot seek simply to maintain existing racialpercentages in the challenged districts; it sought toincrease the racial percentages in the challengeddistricts above a fixed, fifty percent floor. The NorthCarolina legislature did not seek simply to maintainthe number of existing majority-minority districts; itsignificantly increased the number of majoritydistricts to make in order to approximate so that thenumber of those districts would approximate theState’s black voting age population percentage.

These race-based goals had a profound impacton the shape of the challenged districts and in fact

32

determined the path of the boundaries of thosedistricts. As graphically demonstrated by the racialdensity maps that are part of the record in this case,see, e.g., Pet. App. 382a-83a, race obviously explainsthe shapes of the challenged districts and the twis~Land turns in their boundaries. The uncompromisingpursuit of these dual, race-based goals requireddisproportionate numbers of black citizens to be;assigned to the challenged districts anddisproportionate numbers of white citizens to beexcluded from those districts. Unprecedentednumbers of precincts were split on racial linesdespite a state law expressly requiring that precincts.be kept whole and the boundaries of counties crossed.despite a state court decision forbidding thelegislature from crossing county lines in formingdistricts except to the extent required to comply withfederal law.

There was no mention, much less anyexamination or discussion, of this undisputedevidence by the North Carolina Supreme Court onremand. Instead, choosing to ignore this Court’sremand directive, and again elevating statelegislative discretion over the protection of thefederal constitutional rights of citizens, the courtnakedly reaffirmed its view that the state trial courthad made a legal error in finding that "the shape,location and racial composition of each VRA districtswas predominately determined by a racial objective."

The ALBC opinion also outlined a clear pathfor the proper resolution of whether the districtschallenged here are narrowly tailored to serve thestate’s presumed compelling interest in compliance

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with the Voting Rights Act properly understood. Theprincipal question the North Carolina legislatureasked was "how can we insulate the state fromliability under Section 2 and guarantee preclearanceunder Section 5." The legislature’s answer, affirmedby the North Carolina Supreme Court, was "byseeking the safe harbor created (a) by drawingdistricts using a fifty percent plus one black votingage population floor and (b) by drawing thosemajority black districts in numbers proportional tothe state’s black voting age population." Thisresulted in districts that violated the equalprotection rights of North Carolina citizens.

The question that should have been asked bythe legislature in drawing the challenged districts,and by the court in evaluating the validity of thosedistricts, was laid out in plain terms in ALBC: "[t]owhat extent must we preserve existing minoritypercentages in order to maintain the minority’spresent ability to elect the candidate of its choice?"The failure to ask that question led the NorthCarolina legislature to manipulate the boundaries ofdistricts to include far more black citizens, andexclude far more white citizens, than necessary toprovide black citizens a reasonable opportunity toelect their candidates of choice, and it led the courtto excuse the violation of the constitutional rights ofNorth Carolinians in the name of legislativedeference.

Allowing this ruling to stand would send thevery real message to other states, and to thethousands of local jurisdictions that drawredistricting plans, that so long as they are seeking

34

to inoculate their plans from legal challenge, theyare free to draw a racially-proportionate number ofmajority-minority districts even where candidates ofchoice of minority voters have been consistentlysuccessful in elections in districts that are notmajority-minority in voting age population. Thepractice condoned as constitutional in this case mayeasily be followed by other jurisdictions unless thi~,~Court grants this Petition.

THE NORTH CAROLINA SUPREMECOURT’S DECISION IS A DANGEROUSDIGRESSION FROM STRICT SCRUTINY"REVIEW

It is well established that racial balancing and.race-based governmental classifications areunconstitutional unless narrowly tailored to meet acompelling governmental interest, see, e.g., Miller v.Johnson, 515 U.S. 900, 920 (1995), but the decisionby the North Carolina Supreme Court seriouslyundermines that principle, and sets a dangerousprecedent for the interpretation of equal protectionlaw across the country. Absent intervention by thisCourt, North Carolina has established a rule thatdistricts drawn to meet a racial proportionality floorare narrowly tailored because they permissibly havea total black voting age population that exceeds 50%and therefore are simply a safe harbor. Pet. App.30a-37a. This invites courts around the country toabandon any careful evaluation of whether the use ofrace in redistricting is limited to the extentnecessary to comply with Section 2 of the VotingRights Act. That rule also opens the door to courtsto relax their review under strict scrutiny in any

35

context so long as a jurisdiction is claiming to userace to avoid potential liability under any civil rightsprovisions. But see Ricci v. DeStefano, 557 U.S. 557,592 (2009) ("fear of litigation alone cannot justify anemployer’s reliance on race").

"Strict scrutiny must not be strict intheory but feeble in fact," Fisher v. Univ. of Texas,133 S. Ct. 2411, 2421 (2013), and this is particularlytrue in election-related cases. "Racial classificationswith respect to voting carry particular dangers,"which is why strict scrutiny in racialgerrymandering cases is quite strict: "[r]acialgerrymandering, even for remedial purposes, maybalkanize us into competing racial factions; itthreatens to carry us further from the .goal of apolitical system in which race no longer matters."Shaw v. Reno, 509 U.S. 630, 657 (1993). Thus, thisCourt has taken great care to not dilute the strengthof its inquiry into race-based lawmaking when itcomes to the drawing of political districts, and this isseen consistently in its racially gerrymanderingprecedents. "[C]ompliance with federalantidiscrimination laws cannot justify race-baseddistricting where the challenged district was notreasonably necessary under a constitutional readingand application of those laws." Miller v. Johnson,515 U.S. 900, 921 (1995). When specificallyaddressing narrow tailoring, this Court instructedthat "[a] reapportionment plan would not benarrowly tailored to the goal of avoidingretrogression if the State went beyond what wasreasonably necessary to avoid retrogression." Shaw,509 U.S. at 655. Thus, the strict scrutiny analysisunfailingly applied by this Court in its review of the

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excessive use of race in redistricting confirms theneed, and clearly articulates how, to carefullyscrutinize the use of race in .redistricting, and toreject it where unnecessary.

However, instead of carefully applying strictscrutiny, as this Court does at every turn in itsnarrow-tailoring analysis, the North CarolinaSupreme Court relieved Respondents of their burdento demonstrate that it used only as much "force" aswas necessary to comply with the Voting Rights Act..Just as required of the university in Fisher L herethe state "must prove that the means chosen by [the,state] to attain [the compelling governmentalinterest] are narrowly tailored to that goal. On thispoint, the. university receives no deference." Fisher,133 S. Ct. at 2420. Moreover, there is a "continuingobligation to satisfy the burden of strict scrutiny in.light of changing circumstances." Fisher v. Univ. ofTexas, 579 U.S .... 2016 U.S. LEXIS 4059, "10’(June 23, 2016) accord Shelby County v. Holder, 570U.S. __, 133 S. Ct. 2612 (2013). When lower courtsmiss this point, racial classifications in law willconsistently be upheld, which is why this Courtcorrected the lower court’s undue deference to theUniversity in applying strict scrutiny in Fisher I, id.at 2419-2420. It is just as vital to do so here, wherethe North Carolina Supreme Court has abandonedwholesale the correct standard for evaluating, understrict scrutiny, whether a governmental use of raceis narrowly tailored.

The North Carolina Supreme Court’s rulingessentially authorizes North Carolina, and all thejurisdictions in the state, to use racial

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proportionality as a safe harbor in the redistrictingprocess. Citing Johnson v. DeGrandy, 512 U.S. 997(1994) and League of United Latin Am. Citizens voPerry, 548 U.S. 399 (2006), the lower court held thatthe General Assembly had a strong basis in evidencefor concluding that ’rough proportionality’ wasreasonably necessary to protect the State fromanticipated liability under§ 2of the VRA andensuring preclearance under § 5 of the VRA," Pet.App. 22a, and that the "General Assemblyconsidered rough proportionality in a mannersimilar to its precautionary consideration ofthe Gingles preconditions, as a means of protectingthe redistricting plans from potential legalchallenges under section 2’s totality of thecircumstances test." What the court describes is asafe harbor. Beyond being flatly inconsistent withthe Supreme Court’s directions in DeGrandy, such arule also circumvents the narrow tailoringrequirement on states that use race in redistrictingin a predominant fashion. The seriousness of thislegal error, compounded by the potential for it toaffect so many jurisdictions, requires the Court totake this case to correct that error.

With the 2011 redistricting plans,Respondents turned Section 2 of the Voting RightsAct on its head and used it to subvert the equalprotection rights of North Carolinians under theUnited States Constitution. They used a lawdesigned to protect the voting rights of the country’smost vulnerable citizens to in fact segregate thosevoters by race. The drastic use of racialclassifications in constructing these districts was not

38

justified by current political conditions on theground or required by law.

THIS PETITION SHOULD BE GRANTEDI.N ORDER TO CONSIDER THIS CASEALONG WITH RELATED CASESPENDING IN THIS COURT

In addition to the Harris case dealing with thesame state and the same 2011 redistricting process,,this Court has also noted probable jurisdiction toreview the decision of the three-judge panel inBethune-Hill v. Virginia State Bd. of Elections,,141 F. Supp. 3d 505 (E.D. Va. 2015), prob. juris.noted, No. 15-680, 2016 U.S. LEXIS 3653 (U.S.,June 6, 2016). Bethune-Hill involves a racialgerrymandering challenge to several of Virginia’sstate legislative districts which raises issues similarto this case. A federal court challenge to numerousNorth Carolina state legislative districts on racialgerrymandering grounds is also currently pendingbefore a three-judge court involving many of thesame issues as in this case. See Covington v. State ofNorth Carolina, No. 15-cv-399 (M.D.N.C. filed May19, 2015). Trial in the Covington case was concludedon April 15, 2016 and the case is now ripe fordecision by the trial court. It is likely that a directappeal to this Court will follow whatever decision isrendered by the trial court.

Unlike Harris and Bethune-Hill, this casedirectly involves the issue of whether a racialproportionality criterion can be employed by alegislature to inoculate its redistricting plan fromany possible liability under Section 2 of the Voting

39

Rights Act. Thus, to resolve that question and tobring uniformity to the important issue of when andhow a legislature may consider race in redistricting,this case should be heard along with the relatedredistricting cases already before the Court.

CONCLUSION

The petition for a writ of certiorari should begranted.

Anita S. EarlsCounsel of RecordAllison J. RiggsSOUTHERN COALITION

FOR SOCIAL JUSTICE

1415 Highway 54, Suite 101Durham, North Carolina 27707(919) 794-4198anita@scsj.orgallison@scsj.org

Counsel for PetitionersNAACP, et al.

Edwin M. Speas, Jr.John W. O’HaleCaroline P. MackiePOYNER SPRUILL LLP

Post Office Box 1801Raleigh, North Carolina 27602(919) 783-6400espeas@poynerspruill.comjohale@poynerspruill.comcmackie@poynersp ruill.com

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Counsel for PetitionersDickson, et al.

Adam SteinTIN FULTON WALKER 8~ OWEN, PLLC312 West-Franklin StreetChapel Hill, North Carolina 27516(919) 240-7089astein@tinfulton.com

Counsel for PetitionersNAACP, et al.