Dickson v. Rucho

368 N.C. 481

781 S.E.2d 404

Margaret DICKSON, Alicia Chisolm, Ethel Clark, Matthew A. McLean, Melissa Lee Rollizo, C. David Gantt, Valeria Truitt, Alice Graham Underhill, Armin Jancis, Rebecca Judge, Zettie Williams,

Tracey Burns –Vann, Lawrence Campbell, Robinson O. Everett, Jr., Linda Garrou, Hayes McNeill, Jim Shaw, Sidney E. Dunston, Alma Adams, R. Steve Bowden, Jason Edward Coley, Karl Bertrand Fields, Pamlyn Stubbs,

Don Vaughan, Bob Etheridge, George Graham, Jr., Thomas M. Chumley, Aisha Dew, 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, Bobby Charles Townsend, Albert Kirby, Terrence Williams, Norman C. Camp, Mary F. Poole, Stephen T. Smith, Philip A. Baddour, and Douglas A. Wilson

v.Robert RUCHO, in his official capacity only as the Chairman of the North Carolina Senate Redistricting Committee; David Lewis, in his official capacity only as the Chairman of the North Carolina House of Representatives Redistricting Committee; Nelson Dollar,in his official capacity only as the Co–Chairman of the North Carolina House of Representatives Redistricting Committee; Jerry Dockham, in his official capacity only as the Co–Chairman of the North Carolina House of Representatives Redistricting Committee; Philip E. Berger,in his official capacity only as the President Pro Tempore of the North Carolina Senate; Thom Tillis, in his official capacity only as the Speaker of the North Carolina House of Representatives; The State Board of Elections; and The State of North Carolina.

North Carolina State Conference of Branches of the NAACP, League of Women Voters of North Carolina, Democracy North Carolina, North Carolina A. Philip Randolph Institute, Reva McNair, Matthew Davis,

Tressie Stanton, Anne Wilson, Sharon Hightower, Kay Brandon, Goldie Wells, Gray Newman, Yvonne Stafford, Robert Dawkins, Sara Stohler, Hugh Stohler, Octavia Rainey, Charles Hodge, Marshall Hardy, Martha Gardenhight, Ben Taylor, Keith Rivers, Romallus O. Murphy, Carl, Rosa Brodie, Herman Lewis, Clarence Albert, Jr., Evester Bailey,

Albert Brown, Benjamin Lanier, Gilbert Vaughn, Avie Lester, Theodore Muchiteni, William Hobbs, Jimmie Ray Hawkins, Horace P. Bullock, Roberta Waddle, Christina Davis–McCoy, James Oliver Williams, Margaret Speed, Larry Laverne Brooks, Carolyn S. Allen, Walter Rogers, Sr.,

Shawn Meachem, Mary Green Bonaparte, Samuel Love, Courtney Patterson, Willie O. Sinclair, Cardes Henry Brown, Jr., and Jane Stephens

v.The State of North Carolina; The North Carolina State Board of Elections; Thom Tillis, in his official capacity as Speaker of the

North Carolina House of Representatives; and Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate.

No. 201PA12–3.

Supreme Court of North Carolina.

Dec. 18, 2015.

Poyner Spruill LLP, Raleigh, by Edwin M. Speas, Jr., John W. O'Hale, and Caroline P. Mackie, for Dickson plaintiff-appellants; and Southern Coalition for Social Justice, by Anita S. Earls and Allison Riggs, and Tin Fulton Walker & Owen, PLLC, Chapel Hill, by Adam Stein, for NC NAACP plaintiff-appellants.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, by Thomas A. Farr and Phillip J. Strach, for legislative defendant-appellees; and Roy Cooper, Attorney General, by Alexander McC. Peters, Special Deputy Attorney General, for all defendant-appellees.

Michael E. Casterline, P.A.; Asheville, Paul, Weiss, Rifkind, Wharton & Garrison LLP, by Theodore V. Wells, Jr., pro hac vice, Robert A. Atkins, pro hac vice, Jaren Janghorbani, pro hac vice, Farrah R. Berse, pro hac vice, and Pietro Signoracci, pro hac vice; and Brazil & Burke, P.A., by Meghann K. Burke, Asheville, for Congressional Black Caucus, amicus curiae.

H. Jefferson Powell, for North Carolina Law Professors Michael Curtis, Walter Dellinger, William P. Marshall, and H. Jefferson Powell, amici curiae.

NEWBY, Justice.

Following the 2010 Decennial Census, the General Assembly of North Carolina enacted redistricting plans for the North Carolina Senate and House of Representatives, and for the North Carolina districts for the United States House of Representatives. Plaintiffs challenge the legality of these plans, arguing that they violate the Constitutions of the United States and of North Carolina, controlling federal statutes, and applicable decisions of the Supreme Court of the United States (the Supreme Court) and the Supreme Court of North Carolina. The three-judge panel¹ reviewing the plans unanimously concluded that the General Assembly applied traditional and permissible redistricting principles to achieve partisan advantage and that no constitutional violations resulted. On plaintiffs' direct appeal, this Court affirmed the three-judge panel's ruling. Dickson v. Rucho, 367 N.C. 542, 766 S.E.2d 238 (2014). Thereafter, the Supreme Court vacated this Court's opinion and remanded the case to this Court for further consideration in light of its recent decision in Alabama Legislative Black Caucus v. Alabama, –––U.S. ––––, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015) (Alabama ). Dickson v. Rucho, ––– U.S. ––––, 135 S.Ct. 1843, 191 L.Ed.2d 719 (2015) (mem.).

In compliance with the Supreme Court's mandate, we have reconsidered this case in light of Alabama. Specifically, Alabama requires a district-by-district analysis in which the federal equal population requirement is simply a "background" rule that does not influence the predominant motive analysis. Alabama, ––– U.S. at ––––, 135 S.Ct. at 1271, 191 L.Ed.2d at 332–33. After rebriefing and a careful review of the record in this case, we observe that the three-judge panel conducted the required detailed district-by-district analysis without giving improper weight to population equalization. See id. at ––––, 135 S.Ct. at 1271, 191 L.Ed.2d at 332–33. The panel detailed its extensive findings and conclusions in a one hundred seventy-one page Judgment and Memorandum of Decision. Our careful review of that document leads us to conclude that, as to the twenty-six districts drawn to comply with the federal Voting Rights Act of 1965 ("Voting Rights Act" or "VRA"), the three-judge panel erred when it applied strict scrutiny prematurely; however, because these districts survive this most demanding level of review, plaintiffs were not prejudiced by the three-judge panel's error. As to the remaining challenged districts, we affirm the ruling of the three-judge panel that the predominant factors in their creation were the traditional and permissible redistricting principles encompassed within the mandatory framework as established by precedents of the Supreme Court and this Court.²

I. Procedural Background

The Constitution of North Carolina requires decennial redistricting of the North Carolina Senate and North Carolina House of Representatives, subject to several specific requirements. The General Assembly is directed to revise the districts and apportion Representatives and Senators among those districts ("House Districts" and "Senate Districts" or, collectively, "State House and Senate Districts"). N.C. Const. art. II, §§ 3, 5. Similarly, consistent with the requirements of the Constitution of the United States, the General Assembly establishes North Carolina's districts for the United States House of Representatives (Congressional Districts) after every decennial census. U.S. Const. art. I, §§ 2, 4; 2 U.S.C. §§ 2a, 2c (2012).

Redistricting in North Carolina has been challenged in this Court on multiple occasions.³ As a result, redistricting in this State does not proceed upon preferences or guidelines determined by the General Assembly. Instead, the legislature's priorities in drawing new district lines must be implemented within the mandatory framework recognized by this Court as required by federal law, federal and state constitutional mandates, and prior decisions of this Court. Pender County v. Bartlett, 361 N.C. 491, 493, 649 S.E.2d 364, 366 (2007) (Pender County ), aff'd sub nom. Bartlett v. Strickland, 556 U.S. 1, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (plurality) ( Strickland ); Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (Stephenson I ).

The North Carolina Constitution "enumerates several limitations on the General Assembly's redistricting authority." Pender County, 361 N.C. at 493, 649 S.E.2d at 366. In particular, Sections 3 and 5 of Article II of the North Carolina Constitution, which address State House and Senate Districts, both include an equal population requirement and a Whole County Provision (collectively referred to as the "Whole County Provision"). Specifically, those sections of the constitution provide:

Sec. 3. Senate districts; apportionment of Senators.

The Senators shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the senate districts and the apportionment of Senators among those districts, subject to the following requirements:

(1) Each Senator shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Senator represents being determined for this purpose by dividing the population of the district that he represents by the number of Senators apportioned to that district;

(2) Each senate district shall at all times consist of contiguous territory; (3) No county shall be divided in the formation of a senate district;

(4) When established, the senate districts and the apportionment of Senators shall remain unaltered until the return of another decennial census of population taken by order of Congress.

Sec. 5. Representative districts; apportionment of Representatives.

The Representatives shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall

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