INTRODUCTION ......................................................................................................................

FINDINGS OF FACT ................................................................................................................ 5

I. Summary of Relevant Procedural History .................................................................... 5

II. The Challenged Redistricting Legislation ................................................................... 12

A. Background on Decennial Redistricting .......................................................... 12

B. 2020 Census Data for the 2021 Redistricting Process ..................................... 13

C. Adoption of the 2021 Redistricting Criteria .................................................... 14

D. Establishing the District Lines in the 2021 Enacted Plans ............................ 21

1. Selection of County Groupings .............................................................21

2. The Map-Drawing Process ....................................................................24

3. The 2021 Redistricting Plans are Enacted ...........................................26

III. Extreme Partisan Gerrymandering Claims ................................................................ 29

A. Evidence Showing Partisan Intent, Effects, or a Lack Thereof ...................... 29

1. Direct Evidence .....................................................................................29

2. Circumstantial Evidence ......................................................................30

B. District-by-District Analysis ............................................................................ 81

1. North Carolina Senate Districts ...........................................................81

2. North Carolina House of Representatives Districts ..........................106

3. North Carolina Congressional Districts .............................................147

C. Elections are Decided by any Number of Factors .......................................... 186

IV. Intentional Racial Discrimination and Racial Vote Dilution Claims ....................... 187

A. Intentional Racial Discrimination ................................................................. 187

1. Direct Evidence ...................................................................................187

2. Circumstantial Evidence ....................................................................187

B. Racial Vote Dilution ....................................................................................... 190

1. The Parties’ Experts ...........................................................................190

2
 2. A District-by-District Analysis of Racial Vote Dilution Is Not
Necessary ............................................................................................193

V. Whole-County Provision Claim ................................................................................. 193

VI. Individual and Organizational Plaintiffs’ Standing.................................................. 195

A. Individual NCLCV Plaintiffs ......................................................................... 195

B. Individual Harper Plaintiffs .......................................................................... 196

C. North Carolina League of Conservation Voters ............................................ 196

D. Common Cause ............................................................................................... 198

E. Standing to Assert Intentional Racial Discrimination and Racial Vote

Dilution Claims .............................................................................................. 199

CONCLUSIONS OF LAW..................................................................................................... 200

I. Standing ..................................................................................................................... 200

A. General Principles .......................................................................................... 200

B. Plaintiffs’ Standing......................................................................................... 202

II. Partisan Gerrymandering Claims ............................................................................. 204

A. Historical Background.................................................................................... 209

1. Structure of Government, Apportionment and Election of

Members to Legislative Bodies Under the Lord Proprietors
1663-1729 ............................................................................................209

2. Structure of Government, Apportionment and Election of

Members to The General Assembly During Colonial Rule
1729-1996 ............................................................................................210

3. Structure of Government, Apportionment and Election of

Members to the General Assembly of the State of North
Carolina 1776-Present ........................................................................212

4. 1835 Amendments to the N.C. Constitution of 1776 .........................213

5. The North Carolina Constitution of 1868 ..........................................215

6. Amendments to the North Carolina Constitution of 1868 .................216

7. The North Carolina Constitution of 1971 ..........................................218

8. The Governor’s Power to Veto Acts of the General Assembly ...........220

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 9. Power to Draw Congressional Districts. ............................................221

B. The Constitutional Provisions Plaintiffs Claim Have Been Violated ........... 222

1. Free Elections Clause .........................................................................222

2. Equal Protection Clause .....................................................................222

3. Free Speech Clause .............................................................................222

4. Freedom of Assembly Clause ..............................................................223

C. Redistricting is an Inherently Political Process ............................................ 223

D. The Enacted Maps Are Not Unconstitutional as a Result of Partisan

Gerrymandering. ............................................................................................ 225

1. The Enacted Maps Do Not Violate the Free Elections Clause ..........225

2. The Incorporation of the Free Speech Clause and the Equal

Protection Clause to the North Carolina Constitution of 1971
Was Not Intended to Bring About a Fundamental Change to
the Power of the General Assembly ...................................................235

E. Plaintiffs’ Claims Are Nonjusticiable............................................................. 242

III. Intentional Racial Discrimination and Racial Vote Dilution Claims ....................... 249

A. Intentional Discrimination and Voter Dilution in Violation of the Equal

Protection Clause ........................................................................................... 249

B. Voter Dilution in Violation of the Free Elections Clause .............................. 254

IV. Whole-County Provision Claims ................................................................................ 254

V. Declaratory Judgment Claim Regarding the Redistricting Process Laid Out in

Stephenson I and Dickson. ......................................................................................... 255

DECREE ................................................................................................................................ 258

4
 INTRODUCTION

These consolidated cases present this Court with the unique challenge of balancing

the competing interests of fairness, the role of the judiciary, statutory and constitutional

construction, the interpretation of prior court rulings, and good old fashion common sense.

Sometimes, courts are required to make decisions that are not popular, but because judges

take an oath to uphold the law, those rulings are mandated. And sometimes, redress of a

perceived wrong does not lie with the judiciary, but rather, with one of the other co-equal

branches of government.

All of Plaintiffs' claims in these lawsuits, in essence, stem from the basic argument

that the 2021 redistricting maps passed by the North Carolina General Assembly are

unconstitutional under the North Carolina Constitution. We have taken great lengths to

examine that document. At the end of the day, after carefully and fully conducting our

analysis, it is clear that Plaintiffs’ claims must fail. Judges, just like many of the citizens

they serve, do not always like the results they reach. That fact notwithstanding, judges have

a solemn duty to uphold the law. We have done our best to perform that duty, regardless of

the consequences. Our complete ruling is more fully set forth in the following Findings of

Fact and Conclusions of Law:

FINDINGS OF FACT

I. Summary of Relevant Procedural History

1. Plaintiffs North Carolina League of Conservation Voters, Inc.; Henry M.

Michaux, Jr.; Dandrielle Lewis; Timothy Chartier; Talia Fernos; Katherine Newhall; R.

Jason Parsley; Edna Scott; Roberta Scott; Yvette Roberts; Jereann King Johnson; Reverend

Reginald Wells; Yarbrough Williams, Jr.; Reverend Deloris L. Jerman; Viola Ryals Figueroa;

and Cosmos George (hereinafter “NCLCV Plaintiffs”) filed their Complaint (Civil Action No.

21 CVS 015426) contemporaneously with a Motion for Preliminary Injunction pursuant to

5
Rules 7(b) and 65 of the North Carolina Rules of Civil Procedure on November 16, 2021. The

NCLCV Plaintiffs’ Complaint alleges that the 2021 districting plans for Congress, the North

Carolina Senate, and the North Carolina House of Representatives violate the North

Carolina Constitution by establishing severe partisan gerrymanders in violation of the Free

Elections Clause, Art. I, § 10, the Equal Protection Clause, Art. I, § 19, and the Freedom of

Speech and Assembly Clauses, Art. I, §§ 12, 14; by engaging in racial vote dilution in violation

of the Free Elections Clause, Art. I, § 10, and the Equal Protection Clause, Art. I, § 19; and

by violating the Whole County Provisions, Art. II, §§ 3(3), 5(3).

2. Plaintiffs Rebecca Harper; Amy Clare Oseroff; Donald Rumph; John Anthony

Balla; Richard R. Crews; Lily Nicole Quick; Gettys Cohen Jr.; Shawn Rush; Mark S. Peters;

Kathleen Barnes; Virginia Walters Brien; Eileen Stephens; Barbara Proffitt; Mary Elizabeth

Voss; Chenita Barber Johnson; Sarah Taber; Joshua Perry Brown; Laureen Floor; Donald M.

MacKinnon; Ron Osborne; Ann Butzner; Sondra Stein; Bobby Jones; Kristiann Herring; and

David Dwight Brown (hereinafter “Harper Plaintiffs”) filed their Complaint (Civil Action No.

21 CVS 500085) on November 18, 20211, and a Motion for Preliminary Injunction pursuant

to Rule 65 and N.C.G.S. § 1-485 on November 30, 2021. Harper Plaintiffs amended their

Complaint on December 13, 2021, and the Harper Plaintiffs’ operative Complaint alleges that

the 2021 districting plans for Congress, the North Carolina Senate, and the North Carolina

House of Representatives violate the North Carolina Constitution—namely its Free Elections

Clause, Art. I, § 10; its Equal Protection Clause, Art. I, § 19; and its Freedom of Speech and

Freedom of Assembly Clauses, Art. I, §§ 12, 14.

1 Plaintiffs Eileen Stephens, Barbara Proffitt, Mary Elizabeth Voss, Chenita Barber Johnson,
Sarah Taber, Joshua Perry Brown, Laureen Flood, Donald M. MacKinnon, Ron Osborne, Ann
Butzner, Sondra Stein, Bobby Jones, and Kristiann Herring were added as Plaintiffs upon the filing
of Harper Plaintiffs’ Amended Complaint.

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 3. On November 19, 2021, and November 22, 2021, the NCLCV and Harper

actions, respectively, were assigned to the undersigned three-judge panel of Superior Court,

Wake County, pursuant to N.C.G.S. § 1-267.1.

4. On December 3, 2021, the undersigned consolidated these respective cases

pursuant to Rule 42 of the North Carolina Rules of Civil Procedure and heard NCLCV

Plaintiffs’ and Harper Plaintiffs’ Motions for Preliminary Injunction. On December 3, 2021,

after considering the extensive briefing and oral arguments on the motions, the undersigned

denied NCLCV Plaintiffs’ and Harper Plaintiffs’ Motions for Preliminary Injunction.

5. NCLCV Plaintiffs and Harper Plaintiffs thereafter filed a notice of appeal with

the North Carolina Court of Appeals. After initially partially granting a temporary stay of

the candidate filing period for the 2022 elections, the North Carolina Court of Appeals denied

the requested temporary stay on December 6, 2021.

6. On December 8, 2021, on NCLCV Plaintiffs’ and Harper Plaintiffs’ Petitions

for Discretionary Review Prior to Determination by the Court of Appeals, Motion to Suspend

Appellate Rules to Expedite a Decision, and Motion to Suspend Appellate Rules and Expedite

Schedule, the Supreme Court of North Carolina granted a preliminary injunction and

temporarily stayed the candidate filing period “until such time as a final judgment on the

merits of plaintiffs’ claims, including any appeals, is entered and remedy, if any is required,

has been ordered.” SCONC order on Pls motion p. 3. The Order further directed this Court to

hold proceedings on the merits of NCLCV Plaintiffs’ and Harper Plaintiffs’ claims and provide

a written ruling on or before January 11, 2022.

7. In light of our Supreme Court’s directive and the history of redistricting

litigation in our state courts, including the Common Cause v. Lewis action in 2019 in which

a final judgment was not entered until almost a year after the filing of the plaintiffs’

complaint and an extensive discovery period culminated in a two-week trial, this Court

7
entered a scheduling order on December 13, 2021, expediting discovery and scheduling trial

to commence on January 3, 2022. This Case Scheduling Order was thereafter supplemented

on December 28, 2021, and December 30, 2021.

8. On December 13, 2021, Common Cause moved to intervene in these

consolidated cases as a plaintiff, challenging the process undertaken by the General

Assembly to create and enact the state legislative and congressional districts as a product of

intentional racial discrimination undertaken for the purpose of racial vote dilution and to

further the legislature’s partisan gerrymandering goals. On December 15, 2021, this Court

granted Common Cause’s motion to intervene as a plaintiff in these consolidated cases, and

Plaintiff-Intervenor Common Cause filed its Complaint on December 16, 2021.2 Plaintiff

Common Cause’s Complaint alleges that the 2021 districting plans for Congress, the North

Carolina Senate, and the North Carolina House of Representatives violate the North

Carolina Constitution—namely its Equal Protection Clause, Art. I, § 19; its Free Elections

Clause, Art. I, § 10; and its Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§

12, 14—and seeks, among other relief, a declaratory ruling under the Declaratory Judgment

Act.

9. The North Carolina Congressional Districts challenged by Plaintiffs

collectively include all fourteen enacted Congressional Districts.

10. The North Carolina Senate Districts challenged by Plaintiffs collectively

include Senate Districts 1, 2, 13, 14, 15, 16, 17, 18, 19, 21, 26, 27, 28, 31, 32, 37, 38, 39, 40,

41, 42, 46, 47, 49, 50.

11. The North Carolina House of Representatives Districts challenged by Plaintiffs

collectively include House Districts 2, 4, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 29, 30, 31,

2 Unless specifically designated otherwise in the remainder of this Judgment, “Plaintiffs”

collectively refers to NCLCV Plaintiffs, Harper Plaintiffs, and Plaintiff Common Cause.

8
33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 49, 57, 58, 59, 60, 61, 62, 71, 72, 74, 75, 88, 91,

92, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 112, 114, 115, and 116.

12. On December 15, 2021, this Court entered a Protective Order to govern the

production and exchange of the parties’ documents, and any testimony at deposition relating

to such documents, that reflect the parties’ confidential information.

13. On December 17, 2021, Defendants Representative Destin Hall, in his official

capacity as Chairman of the House Standing Committee on Redistricting; Senators Ralph E.

Hise, Jr., Warren Daniel, Paul Newton, in their official capacities as Co-Chairmen of the

Senate Committee on Redistricting and Elections; Philip E. Berger, in his official capacity as

President Pro Tempore of the North Carolina Senate; Timothy K. Moore, in his official

capacity as Speaker of the North Carolina House of Representatives (hereinafter “Legislative

Defendants”) filed their Answer to NCLCV Plaintiffs’ Complaint, asserting seventeen

affirmative defenses, and Harper Plaintiffs’ Amended Complaint, asserting fifteen

affirmative defenses.

14. Affirmative defenses raised by Legislative Defendants include inter alia that

granting the requested relief will violate the Voting Rights Act and the United States

Constitution; that granting the requested relief will violate the rights of Legislative

Defendants, Republican voters, and Republican candidates under the United States and

North Carolina Constitutions; that the court cannot lawfully prevent the General Assembly

from considering partisan advantage and incumbency protection; that Plaintiffs seek to

require districts where Democratic candidates are elected where such candidates are not

currently elected; that Plaintiffs’ claims are barred by the doctrine of laches; that Plaintiffs

have failed to state claims upon which relief can be granted; that Plaintiffs seek a theory of

liability that will act to impose a judicial amendment to the North Carolina Constitution;

that the only limitations on redistricting legislation are found in Article II, Sections 2, 3, 4,

9
and 5 of the North Carolina Constitution; that Plaintiffs’ request for a court-designed

redistricting plan violates the separation of powers doctrine; that Plaintiffs’ claims are non-

justiciable and fail to provide judicially manageable standards; that Plaintiffs lack standing;

and, that Plaintiffs have unclean hands and therefore are not entitled to equitable relief.

15. Defendant Ralph E. Hise, Jr. is a Republican member of the North Carolina

Senate, representing Senate District 47, and the Chairman of the Senate Standing

Committee on Redistricting and Elections. Defendant Hise is sued in his official capacity

only. Defendant Hise resides in Senate District 47 in the 2021 districting plan.

16. Defendant Warren Daniel is a Republican member of the North Carolina

Senate, representing Senate District 46, and the Chairman of the Senate Standing

Committee on Redistricting and Elections. Defendant Daniel is sued in his official capacity

only. Defendant Daniel resides in Senate District 46 in the 2021 districting plan.

17. Defendant Paul Newton is a Republican member of the North Carolina Senate,

representing Senate District 36, and the Chairman of the Senate Standing Committee on

Redistricting and Elections. Defendant Newton is sued in his official capacity only. Defendant

Newton resides in Senate District 34 in the 2021 districting plan.

18. Representative Destin Hall is Republican member of the North Carolina House

of Representatives, representing House District 87, and the Chairman of the House Standing

Committee on Redistricting. Defendant Hall is sued in his official capacity only. Defendant

Hall resides in House District 87 in the 2021 districting plan.

19. Defendant Timothy K. Moore is a Republican member and the Speaker of the

North Carolina House of Representatives, representing House District 111. Defendant Moore

is sued in his official capacity only. Defendant Moore resides in House District 111 in the

2021 districting plan.

10
 20. Defendant Philip E. Berger is a Republican member and the President Pro

Tempore of the North Carolina Senate, representing Senate District 30. Defendant Berger is

sued in his official capacity only. Defendant Berger resides in Senate District 26 in the 2021

districting plan.

21. On December 17, 2021, Defendants North Carolina State Board of Elections

and its members Damon Circosta, in his official capacity as Chairman of the Board of

Elections; Stella Anderson, in her official capacity as Secretary of the Board of Elections; and

Jeff Carmon III, Stacy Eggers IV, and Tommy Tucker, in their official capacities as Members

of the Board of Elections filed their Answer to Harper Plaintiffs’ Amended Complaint. Also

on December 17, 2021, these same Defendants along with Defendant State of North Carolina

and Defendant Karen Brinson Bell, in her official capacity as Executive Director of the North

Carolina State Board of Elections filed their Answer to NCLCV Plaintiffs’ Complaint.3

22. Legislative Defendants and State Defendants did not file an answer to Plaintiff

Common Cause’s Complaint. Pursuant to this Court’s order granting Common Cause’s

intervention, however, the allegations and requested relief in Plaintiff Common Cause’s

Complaint are deemed denied by all Defendants.

23. Throughout the intervening and expedited two-and-a-half-week period

reserved for discovery, the parties filed and the Court expeditiously ruled upon over ten

discovery-related motions—a number far exceeding the number of such motions filed in

Common Cause v. Lewis, in which discovery spanned a period of over five months.

24. Pursuant to the Court’s Case Scheduling Order, pre-trial submissions began

with the exchange and submission of initial expert reports on December 23, 2021. Plaintiffs

3 For simplicity, unless specifically designated otherwise in the remainder of this Judgment,
“State Defendants” refers to the State Board of Elections-related Defendants as well as Defendant
State of North Carolina.

11
collectively designated eight individuals as expert witnesses and submitted accompanying

reports. Legislative Defendants designated two individuals as expert witnesses and

submitted accompanying reports. The initial reports and accompanying materials submitted

on behalf of the expert witnesses for all parties exceeded a collective 900 pages of materials.

25. Rebuttal expert reports were exchanged and submitted on December 28, 2021.

Plaintiffs collectively submitted five rebuttal reports. Legislative Defendants submitted

three rebuttal reports. The rebuttal reports and accompanying materials submitted on behalf

of the expert witnesses for all parties exceeded a collective 100 pages of materials.

26. The discovery period closed on December 31, 2021—the date upon which all

fact and expert witness depositions were to be conducted pursuant to the Case Scheduling

Order. The parties thereafter submitted, in lieu of pre-trial briefs, an initial stipulation of

facts and initial proposed findings of fact and conclusions of law. The parties collectively

listed approximately 1,200 pre-marked exhibits for trial.

27. Commencing on January 3, 2022, this Court conducted a three-and-one-half

day trial, receiving testimony from numerous fact and expert witnesses and receiving

approximately 1,000 exhibits into evidence. The following findings of fact are made upon this

voluminous record.4

II. The Challenged Redistricting Legislation

A. Background on Decennial Redistricting

28. Following each decennial census, the North Carolina General Assembly must

redraw the districts for the North Carolina House of Representatives, the North Carolina

Senate, and the North Carolina Congressional map.

4 Due to the time limitations between the conclusion of trial and the entry of this Final
Judgment, and to avoid confusion when reviewing the finalized trial transcript, citations to the trial
transcript are only to a specific day on which a witness testified and are denominated as “Trial Tr.
[Date of Testimony].”

12
 29. In North Carolina, legislative redistricting is performed exclusively by the

General Assembly. The Governor of North Carolina has no power to veto redistricting bills.

30. The State Constitution specifically enumerates four limitations upon the

redistricting and reapportionment authority of the General Assembly, including that:

a. Each Senator and Representative shall represent, as nearly as possible, an

equal number of inhabitants;

b. Each senate and representative district shall at all times consist of

contiguous territory;

c. No county shall be divided in the formation of senator or representative

districts (the “Whole County Provision”); and

d. Once established, the senate and representative districts and the

apportionment of Senators and Representatives shall remain unaltered until
the next decennial census of population taken by order of Congress.

31. Between 1870 and 2010, the Democratic Party at all times controlled one or

both houses of the General Assembly.

32. After the 2010 election, for the first time since 1870, Republicans constituted

a majority of both the North Carolina House of Representatives and the North Carolina

Senate.

33. Republicans have constituted a majority in both the North Carolina House of

Representatives and the North Carolina Senate from 2010 to present day and have therefore

controlled each of the last two cycles of redistricting in North Carolina.

B. 2020 Census Data for the 2021 Redistricting Process

34. On February 12, 2021, the U.S. Census Bureau announced that its release of

P.L. 94-171 redistricting data would be delayed by the COVID-19 pandemic, and would not

be released until the fall of 2021, and specifically that it would deliver the Public Law 94-171

redistricting data to all states by September 30, 2021. PX131.

13
 35. On March 15, 2021, the United States Census Bureau announced that it would

release a “legacy” format summary redistricting data file to all states by mid-to-late August

2021, in addition to the “tabulated” P.L. 94-171 block-level data released before September

30, 2021, “[i]n recognition of the difficulties this timeline creates for states with redistricting

and election deadlines prior to Sept. 30.” PX132.

36. On April 26, 2021, the United States Census Bureau released data indicating

that North Carolina’s population increased from 9,535,483 residents in 2010 to 10,439,388

residents in 2020. PX142; PX133; PX143. This 9.5 percent population increase resulted in

North Carolina being given an additional Congressional seat following the 2020 Census,

resulting in North Carolina’s congressional delegation growing from 13 to 14 members.

PX144.

37. On August 12, 2021, the U.S. Census Bureau released the 2020 Census

Redistricting Data (Public Law 94-171) Summary File for all states, including North

Carolina, in “legacy” format. PX134.

C. Adoption of the 2021 Redistricting Criteria

38. On February 24, 2021, after the U.S. Census Bureau announced that its

release of P.L. 94-171 redistricting data would be delayed, the North Carolina State Board of

Elections Executive Director Karen Brinson Bell presented recommendations to the House

Elections Law and Campaign Finance Reform Committee to move the 2022 primary to a May

3 primary, July 12 second primary, and November 8 general election. PX1402.

39. When Senator Hise received Director Bell’s recommendations, he had “no idea”

how long the redistricting process would take. PX146 Hise. Dep. 155:3-18. Nonetheless, he

and his co-chairs did not follow the Board’s recommendations to delay the primaries and

provide more time for the redistricting cycle. Id. at 140:18-25. Senator Hise did, however, co-

14
sponsor a senate bill that modified the deadline for municipalities similarly impacted by the

census delay. Id. at 143:1-8.

40. Legislative Defendants were aware that the delay in the release of Census

Data would shorten the amount of time available to pass new state Legislative and

Congressional maps before relevant deadlines, including the one-year residency deadline

that state Legislative candidates would have to meet and the candidate-filing deadline on

December 6, 2021, for all 2022 general election candidates. PX146 Hise Dep. 149:23-150:5.

Nonetheless, they chose not to convene the Senate and House Redistricting Committees

earlier to plan for the process, PX146 Hise Dep. 143:8-22, and chose not to propose or set

forth a schedule for the redistricting process that would have allowed the public or their

Democratic colleagues to prepare for the steps that would be taken before final enactment of

state Legislative and Congressional plans. PX146 Hise Dep. 153:7-13. The Chairs of the

Redistricting Committees had the general authority to make such decisions and set forth a

predictable schedule but chose not to. PX146 Hise Dep. 143:12-19.

41. On Thursday, August 5, 2021, at 2:00 PM, the Senate Committee on

Redistricting and Elections convened a Joint Meeting of the Senate Redistricting and

Elections Committee and the House Redistricting Committee to begin discussion on the

redistricting process. PX138.

42. Following this meeting, staff member Erika Churchill distributed to the joint

committee members the legislative redistricting criteria ordered by the North Carolina

Superior Court for Wake County in its September 3, 2019, Judgment in the matter Common

Cause v. Lewis, No. 18 CVS 014001, 2019 N.C. Super. LEXIS 56 (the “2019 Criteria”).

PX1404. Consistent with state Constitutional requirements, including the Supremacy

Clauses in Article I, Sections 3 and 5, the 2019 Criteria set forth by the court in Common

Cause specifically required that new maps comply with the VRA and other federal

15
requirements concerning the racial composition of districts, and required the parties to

submit briefing and expert analysis on whether VRA districts were required within 14 days

of the order, including consideration of whether the minimum Black Voting Age Population

(“BVAP”) thresholds were met to implicate the VRA. Common Cause v. Lewis, No. 18 CVS

014001, 2019 N.C. Super. LEXIS 56, at *417 (N.C. Super. Ct. Sept. 3, 2019).

43. On Monday, August 9, 2021, the redistricting chairs of the joint committees

released the “2021 Joint Redistricting Committee Proposed Criteria.” PX33.

44. The Joint Redistricting Committees received in-person public comment on the

Proposed Criteria on Tuesday, August 10, 2021, beginning at 8:30 AM.

45. At that public comment period, Plaintiff Common Cause’s Counsel Allison

Riggs urged legislators to change the criterion providing that “Data identifying the race of

individuals or voters shall not be used in the construction or consideration of districts in the

2021 Congressional, House and Senate plans,” PX33, stating the following:

It is neither appropriate nor required to draw districts race-blind. As long as

redistricting has occurred, it has been a tool used to harm voters of color.
Beyond compliance with the Voting Rights Act, it is entirely appropriate to
advance race-equity to consider race in the drawing of districts, to ensure that
voters of color are not being packed or cracked. Additionally, in Covington v.
North Carolina, this legislative body tried the same thing with respect to race-
blind redistricting. A three-judge panel, including Republican and Democratic
appointees, and a unanimous Supreme Court, rejected your race-blind
remedial drawing of two Senate districts and two House districts. In fact, there
is apparently not a federal judge out there who agrees with this approach, and
we urge you to abandon that criteria.

PX1487.

46. On Thursday, August 12, 2021, the Joint Redistricting Committees convened

to debate and vote on the 2021 Joint Redistricting Committee Proposed Criteria.

47. At this meeting, Senator Newton, Chair of the Senate Redistricting

Committee, made the following statement:

16
 The second question I want to address is the decision to exclude racial data
from being used by this committee in the drawing of districts; of course we
understand that North Carolina is obligated to comply with Section 2 of the
Voting Rights Act when drawing districts in the 2021 Congressional, House,
and Senate plans, but during the last decade the Supreme Court told us that
there is not sufficient evidence of racially polarized voting in North Carolina to
justify the consideration of race when drawing districts. If you have new
evidence or new studies of racially polarized voting in North Carolina, we
would be willing to examine that evidence, and nothing in this criteria prevents
any member from bringing forward such evidence during this process.

PX77 at 10-11 (8/12/2021 Transcript).

48. In response, Senator Dan Blue stated that the Supreme Court of North

Carolina held in Stephenson v. Bartlett that legislators were first required to determine

whether districts are required to comply with the VRA. PX77 at 15 (8/12/2021 Transcript).

Senator Blue queried how this would be possible without the use of racial data, stating, “I

think that Stephenson makes it relatively clear that before you consider clustering or

groupings, you have to make that VRA determination.” PX77 at 15 (8/12/2021 Transcript).

49. Senator Newton replied, “The chairs have considered the various options and

we will comply with the law and the methodology we used in 2019 [sic] passed muster and

we’re going to continue with that methodology.” PX77 at 15 (8/12/2021 Transcript).

50. Senator Warren Daniel then proposed that the Joint Committees add a

sentence under the criteria stating, “The Committee will draw districts that comply with the

Voting Rights Act.” PX77 at 15 (8/12/2021 Transcript). The amendment was adopted into the

final criteria. PX77 at 18-19 (8/12/2021 Transcript).

51. After Senator Daniel proposed his amendment, Senator Blue proposed an

amendment titled “Voting Rights Act.” This amendment provided: “As condemned by the

United States Supreme Court in Cooper v. Harris and Covington v. State of North Carolina,

African-Americans shall not be packed into any grouping or district to give partisan

advantage to any political party.” PX77 at 53-55 (8/12/2021 Transcript); PX73 (proposed

17
amendment). During debate on this amendment, Senator Blue offered the following comment

on the amendment:

The amendment is sort of self-explanatory. I simply say that for the four
decades since the 1980s redistricting, starting with Gingles v. Edmisten, and
through Shaw v. Reno, and through the series of cases at the early part of this
century, and the cases in the last redistricting cycle, North Carolina has
basically been the state with the chin out before the Supreme Court to get our
redistricting plans struck down. And we’ve spent tens of millions of dollars over
that time period, from the 80s forward, to have the Supreme Court basically
say no to all of those efforts that we’ve done. So this is an effort to make sure
that we make an effort to try and save the taxpayers what now is collectively
more than 50 million dollars in efforts and futility, by setting forth that related
to Senator Daniel’s earlier amendment, that we know what the Voting Rights
Act requires, we know what the Supreme Court has said, and this is the
language that they have used with respect to, in both Cooper v. Harris and
Covington v. North Carolina, what you’ve got to do to comply with the Voting
Rights Act. I just offer the amendment so that it’s constantly before us, so that
we don’t get tempted to sort of skirt to the edge again and cost the taxpayers
another 10 to 20 million dollars defending this thing back up through the Court
of Appeals or the Supreme Court, or a three-judge panel and the Supreme
Court. So, I move for the adoption of the amendment.

PX77 at 53-55 (8/12/2021 Transcript).

52. During debate on the amendment, Senator Clark raised concerns about how

North Carolina could comply with the VRA without considering racial data: “How do we

intend to comply with the Voting Rights Act if we don’t use the racial data that is required to

comply with it?” PX77 at 56 (8/12/2021 Transcript). In response, Defendant Daniel expressed

the view that prior case law in North Carolina did not require the use of racial data:

Just as Senator Newton explained at the beginning of the meeting, in the event
that evidence is presented to the committee that there’s racially polarized
voting in North Carolina then that might be something the committee would
need to address. At this point, the courts in 2019 and even the Democrats’ own
expert have said that there is not racially polarized voting in North Carolina,
and so that’s sort of where we think we’re at.

53. PX77 at 56-57 (8/12/2021 Transcript). Senator Clark then responded: “Given

that the Stephenson requirement is there, that we do VRA districts first, is it not incumbent

upon the General Assembly itself to perform racially polarized studies in order to make that

18
determination that, as we are here today, that there is no racial polarization in North

Carolina with regard to voting?” PX77 at 57 (8/12/2021 Transcript). Senator Daniel

responded by saying, “We don’t feel that that is necessary at this point at the outset of the

map drawing.” PX77 at 57 (8/12/2021 Transcript).

The amendment offered by Senator Blue failed. PX77 at 63 (8/12/2021 Transcript).

In that same meeting, Representative Hall said:

We’re agreeing – or at least we’re proposing in this criteria not to use racial
data at all in the drawing of these maps, but as Senator Daniel has said,
members of the committee and members of the public are welcome to gather
whatever evidence and put forth evidence that might fall under Section 2 of
the Voting Rights Act, that that may require some use of racial data. And, of
course, that will be up to this body, to this committee, and ultimately two
bodies of the two chambers as to whether to consider that and how to do that.
But at this point, none of that evidence has been put forth.

PX77 at 86:10-23 (8/12/2021 Joint Committee Transcript).

54. On August 12, 2021, the Joint Redistricting Committees adopted the final

redistricting criteria (“Adopted Criteria”), which were as follows:

Equal Population. The Committees will use the 2020 federal decennial
census data as the sole basis of population for the establishment of districts in
the 2021 Congressional, House, and Senate plans. The number of persons in
each legislative district shall be within plus or minus 5% of the ideal district
population, as determined under the most recent federal decennial census. The
number of persons in each congressional district shall be as nearly as equal as
practicable, as determined under the most recent federal decennial census.

Contiguity. No point contiguity shall be permitted in any 2021 Congressional,

House, and Senate plan. Congressional, House, and Senate districts shall be
compromised of contiguous territory. Contiguity by water is sufficient.

Counties, Groupings, and Traversals. The Committees shall draw

legislative districts within county groupings as required by Stephenson v.
Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (Stephenson I), Stephenson v.
Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003) (Stephenson II), Dickson v. Rucho,
367 N.C. 542, 766 S.E.2d 238 (2014) (Dickson I) and Dickson v. Rucho, 368 N.C.
481, 781 S.E. 2d 460 (2015) (Dickson II). Within county groupings, county lines
shall not be traversed except as authorized by Stephenson I, Stephenson II,
Dickson I, and Dickson II.

19
 Division of counties in the 2021 Congressional plan shall only be made for
reasons of equalizing population and consideration of double bunking. If a
county is of sufficient population size to contain an entire congressional district
within the county’s boundaries, the Committees shall construct a district
entirely within that county.

Racial Data. Data identifying the race of individuals or voters shall not be
used in the construction or consideration of districts in the 2021 Congressional,
House, and Senate plans. The Committees will draw districts that comply with
the Voting Rights Act.

VTDs. Voting districts (“VTDs”) should be split only when necessary.

Compactness. The Committees shall make reasonable efforts to draw

legislative districts in the 2021 Congressional, House and Senate plans that
are compact. In doing so, the Committee may use as a guide the minimum
Reock (“dispersion”) and Polsby-Popper (“permitter”) scores identified by
Richard H. Pildes and Richard G. Neimi in Expressive Harms, “Bizarre
Districts,” and Voting Rights: Evaluating Election-District Appearances After
Shaw v. Reno, 92 Mich. L. Rev. 483 (1993).

Municipal Boundaries. The Committees may consider municipal boundaries

when drawing districts in the 2021 Congressional, House, and Senate plans.

Election Data. Partisan considerations and election results data shall not be
used in the drawing of districts in the 2021 Congressional, House, and Senate
plans.

Member Residence. Member residence may be considered in the formation

of legislative and congressional districts.

Community Consideration. So long as a plan complies with the foregoing

criteria, local knowledge of the character of communities and connections
between communities may be considered in the formation of legislative and
congressional districts.

PX34; LDTX15.

20
 D. Establishing the District Lines in the 2021 Enacted Plans

55. On Wednesday, September 1, 2021, the Joint Redistricting Committees

announced a Joint Public Hearing Schedule, that would consist of 13 public hearings held

from September 8, 2021, through September 30, 2021.5; PX86.

56. The 13 public hearings listed in the Joint Public Hearing Schedule were as

follows:

a. 6:00 PM on Wednesday, September 8, 2021, at Caldwell Community

College and Technical Institute;
b. 4:00 PM on Tuesday, September 14, 2021, at Forsyth Technical Community
College;
c. 5:00 PM on Tuesday, September 14, 2021, at Elizabeth City State
University;
d. 6:00 PM on Wednesday, September 15, 2021, at Durham Technical
Community College;
e. 5:00 PM on Wednesday, September 15, 2021, at Nash Community College;
f. 5:00 PM on Thursday, September 16, 2021, at Alamance Community
College;
g. 3:00 PM on Thursday, September 16, 2021, at Pitt Community College;
h. 5:00 PM on Tuesday, September 21, 2021, at Western Carolina University;
i. 3:00 PM on Wednesday, September 22, 2021, at Central Piedmont
Community College;
j. 3:00 PM on Thursday, September 23, 2021, at Mitchell Community College,
Iredell County Campus;
k. 4:00 PM on Tuesday, September 28, 2021, at UNC Pembroke;
l. 5:00 PM on Wednesday, September 29, 2021, at UNC Wilmington; and,
m. 6:00 PM on Thursday, September 30, 2021, at Fayetteville Technical
Community College.

PX86.

1. Selection of County Groupings

57. On Tuesday, October 5, 2021, the Senate Committee on Redistricting and

Elections and the House Committee on Redistricting each convened separately. The General

5 9.1.21 released Hearing schedule:

https://www.ncleg.gov/documentsites/committees/House2021-182/2021/Public%20Hearing
%20Schedule.pdf

21
Assembly’s members were tasked with creating State House districts containing between

82,645 and 91,345 people; that is 86,995 plus or minus 5% from the ideal population. PX79

12:25–13:4 (Oct. 5, 2021). Members were tasked with creating Senate districts containing

between 198,348 and 219,227 people; that is 208,788 people plus or minus 5% from the ideal

population. PX80 6:5–10 (Oct. 5, 2021).

58. In both meetings, the Redistricting Chairs announced utilization of county

groupings described in the academic paper N.C. General Assembly County Clusterings from

the 2020 Census (the “Duke Academic Paper”), published on the Duke University website

“Quantifying Gerrymandering.” PX79 at 8:2-4 (10/5/2021 House Redistricting Transcript);

PX80 at 1–21 (10/5/2021 Senate Redistricting Transcript); PX70 (Quantifying

Gerrymandering). These groupings were then verified by non-partisan staff. PX79 8:4-7 (Oct.

5, 2021).

59. The Duke Academic Paper states that “[t]he one part of Stephenson v. Bartlett

which this analysis does not reflect is compliance with the Voting Rights Act,” PX70

(Quantifying Gerrymandering), a fact that was known to the Redistricting Chairs and

announced publicly in both the House and Senate Redistricting Committee Meetings. PX80

at 18:6-9 (10/5/2021 Senate Redistricting Transcript); PX79 at 9:14-16 (10/5/2021 House

Redistricting Transcript).

60. In the meeting of the Senate Committee on Redistricting and Elections,

Defendant Hise provided the set of sixteen possible Senate cluster options, based upon the

Duke Academic Paper, that constituted the set of options eligible for adoption (the “Duke

Senate Clusters”). PX71 (“Duke Senate Groupings Maps 11x17”).

61. In this meeting, Senator Blue asked how leadership had ensured compliance

with the VRA, as required under the North Carolina Constitution, in the mandated clusters

without any demographic analysis. PX80 at 20-21 (10/5/2021 Senate Redistricting

22
Transcript). Senator Marcus stated the committee needed to conduct a Racial Polarization

Analysis (“RPV”) study to ensure legal compliance. PX80 at 26 (10/5/2021 Senate

Redistricting Transcript). Chair Hise confirmed the Chairs’ views that no demographic data

was legally required, and that there was no directive to staff to order any RPV analysis or

provide racial data to members drawing maps. PX80 at 26-27 (10/5/2021 Senate Redistricting

Transcript); PX80 at 24:16-24 (10/5/2021 Senate Redistricting Transcript); PX146 Hise Dep.

185:14-22. Defendant Hise also said “this committee is still open to consider any information

that exists on racially polarized voting,” Ex 80 at 31:24-32:2 (10/5/2021 Senate Redistricting

Transcript), and that “if information does come forward regarding racially polarized voting,

we will consider it.” PX80 at 26:12-15 (10/5/2021 Senate Redistricting Transcript).

62. In the meeting of the House Committee on Redistricting, Defendant Hall

provided the set of eight possible House cluster options, based upon the Duke Academic

Paper, that constituted the set of options eligible for adoption (the “Duke House Clusters”).

PX72 (“Duke House Groupings Maps 11x17”).

63. In this Meeting, Representative Harrison similarly questioned how the

committee would comply with the VRA, as the Duke Academic Paper stated its analysis did

not reflect compliance with the VRA as required by Stephenson. PX79 at 36 (10/5/2021 House

Redistricting Transcript). Representative Reives inquired about the obligations under the

VRA and how to comply with them. PX79 at 75 (10/5/2021 House Redistricting Transcript).

Chair Hall stated the committees made a decision not to use racial data, contrary to

redistricting criteria used in the previous two sessions, which Chair Hall alleged to be “the

best way” to ensure compliance with the VRA as well as other state and federal law. PX79 at

35 (10/5/2021 House Redistricting Transcript).

64. On Friday, October 8, 2021, Legislative Defendants received a letter from

Allison J. Riggs, current counsel for Plaintiff Common Cause, concerning the county

23
clustering option maps introduced on Tuesday, October 5, 2021. PX1412. Representative Hall

chose not to read this letter, and Sen. Hise took no action after receiving this letter. PX146

Hise Dep. 200:23-201:1, PX145 Hall Dep. 249:11-16.

65. On Monday, October 25, 2021, Legislative Defendants received a second letter

from Allison J. Riggs, current counsel for Plaintiff Common Cause, concerning draft Senate

map, “SST-4,” and its chosen grouping “Duke Senate 02.” PX1413. No action was taken in

response to this letter. PX146 Hise Dep. 206:17-20, 211:2-6.

66. Overall, the redistricting chairs unilaterally decided not to undertake or

commission any racially polarized voting study for the 2021 redistricting cycle. PX146 Hise

Dep. 135:19-25. Plaintiffs evidence, however, fails to sufficiently show that any of the districts

were required to be VRA districts and, to the extent Stephenson requires this determination

at the outset, Plaintiffs do not assert a VRA claim.

2. The Map-Drawing Process

67. At the October 5, 2021, meetings, the House and Senate Chairs of the

Redistricting Committees announced in their respective committee meetings that they would

make computer stations available to legislators to draw maps, beginning the morning of

October 6, 2021. PX1468 Daye Aff. ¶ 6. There would be four stations available to the House

in Room 643 of the Legislative Office Building, and there would be four stations available to

the Senate in Room 544 of the Legislative Office Building. Id. The stations would be open

during business hours, and both the rooms and the screens of the station computers would

be live streamed while the stations were open. Id.

68. Legislative Defendants sought to instill public confidence by requiring

legislators to draw and submit maps using software on computer terminals in the

redistricting committee hearing rooms. PX79 at 3:1-20 (statement of Rep. Destin Hall,

Chairman, H. Comm. on Redistricting) (Oct. 5, 2021, H. Redistricting Comm. Hr’g Tr.). That

24
software did not include political data, and the House and Senate Committees would only

consider maps drawn and submitted on the software. Id. at 52:3-8.

69. According to Representative Hall, the Committee and “the House as a whole”

would “only consider maps that are drawn in this committee room, on one of the four

stations.” PX79 at 4:15-19. “So, if a map is not drawn on one of these four stations, in this

committee room, during those committee hours that the committee is open, then those maps

will not be considered for a vote by this committee, and of course, will not be considered for a

vote by the House.” Id. at 4:19-24. Legislators could ensure that was the case, Representative

Hall asserted, because “when you put a map into one of these computers, that becomes a

matter of public record, and we can tell which were drawn on these computers. It has to be

drawn in this committee room.” Id. at 4:25-5:4. Representative Hall assured the public that

this process would be fundamentally different from “what’s happened in the past,” where

“some outside entity, a consultant, goes and they draw the map behind closed doors”; in 2021,

we “will literally be drawing on the stations that you see.” Id. at 41:23-42:13.

70. The Committees chose this method to draw the maps on their own accord—not

because the law required them to. See, e.g., PX79 34:17–35:4 (Oct. 5, 2021). The Committees

took “the unprecedented step of being as transparent” as they possible could. PX79. 35:21–

24 (Oct. 5, 2021).

71. The Committees chose not to take racial data into account in selecting county

groupings because they did not take into account in 2017 and 2019, and courts approved the

2017 and 2019 plans. PX79 37:17–25 (Oct. 5, 2021). This gave them “confidence that, without

using racial data, [they would] comply with the Voting Rights Act.” PX79 39:3–5 (Oct. 5,

2021). Further, they took into account the fact plaintiffs’ experts in previous cases “all said

that there is no legally significant racially polarized voting in North Carolina.” PX79 37:10-

16 (Oct. 5, 2021); see also PX80 26:3-15 (Oct. 5, 2021).

25
 72. Representative Hall testified that he personally drew nearly all of the House

map enacted as House Bill 976, and that he did so over multiple days at an official computer

terminal. PX145 at 110:4-9, 116:11-15, 120:5-24; Trial Tr. 01/05/2022. Representative Hall

also testified that, between his sessions at the public terminal, he met with his then-General

Counsel, Dylan Reel, and others about the map-drawing in a private room adjacent to the

public map-drawing room. Id. at 128:2-132:17.

73. While the four computer terminals in the committee hearing room did not

themselves have election data loaded onto them, the House and Senate Committees did not

actively prevent legislators and their staff from relying on pre-drawn maps created using

political data, or even direct consultation of political data. PX79 at 66:11-66:16.

Representative Hall and Senator Ralph E. Hise, Jr., one of the Chairs of the Senate

Redistricting Committee, confirmed that no restrictions on the use of outside maps were ever

implemented or enforced. PX145 at 70:22-71:1 (Hall Dep.); PX 146 at 40:2-6.

3. The 2021 Redistricting Plans are Enacted

74. A placeholder version of the state House Map was filed on Thursday, October

28, 2021, as House Bill 976 (“HB976”) where it passed its first reading. A committee

substitute (“HBK-14”) received a favorable review and, after one amendment, passed its

second and third readings on the House and its first reading in the Senate on November 2,

2021. It received a favorable report from the Senate Redistricting Committee on November

3, 2021, without alteration and passed its second and third readings on November 4, 2021.

75. HB976 was ratified into law on November 4, 2021, as S.L. 2021-175. S.L. 2021-

175 is entitled “AN ACT TO REALIGN NORTH CAROLINA HOUSE OF

REPRESENTATIVES DISTRICTS FOLLOWING THE RETURN OF THE 2020 FEDERAL

DECENNIAL CENSUS” and re-writes N.C.G.S. § 120-2(a) to divide the State of North

Carolina into one-hundred-twenty (120) districts, with each district electing one

26
Representative, “[f]or the purpose of nominating and electing members of the North Carolina

House of Representatives in 2022 and periodically thereafter.” 2021 N.C. Sess. Laws 175, §

1.

76. A proposed version of the state Senate map (“SST-13”) was filed on Friday,

October 29, 2021, as Senate Bill 739 (“SB739”) and received its first reading in the Senate

that day. It was then referred to the Senate Redistricting Committee on November 1 where

the Redistricting Committee adopted a substitute along party lines (“SBK-7”). On November

2, Senator Marcus offered an amendment entitled “SBVAmend-2” to the Senate Redistricting

Committee.6 Senator Clark also offered an amendment entitled “SCGAmend-3” to the Senate

Redistricting Committee.7 Both amendments were adopted and included in the final version

of SB739. The bill then passed its second and third readings in the Senate on November 3

along party lines and passed all three readings and the House Redistricting Committee

without any alteration on November 3 – 4, 2021.

77. SB739 was ratified into law on November 4, 2021, as S.L. 2021-173. S.L. 2021-

173 is entitled “AN ACT TO REALIGN THE DISTRICTS OF THE NORTH CAROLINA

STATE SENATE FOLLOWING THE RETURN OF THE 2020 FEDERAL DECENNIAL

CENSUS” and re-writes N.C.G.S. § 120-1(a) to establish the composition of the fifty (50)

senatorial districts in the State of North Carolina, and apportion seats among those districts

with each district electing one senator, “[f]or the purpose of nominating and electing members

of the Senate in 2022 and periodically thereafter.” 2021 N.C. Sess. Laws 173, § 1.

6https://www.ncleg.gov/documentsites/committees/Senate2021-154/2021/11-02-
2021/Adopted%20Amendments/S739-ATU-40.printing.pdf
7 https://www.ncleg.gov/documentsites/committees/Senate2021-154/2021/11-02-

2021/Adopted%20Amendments/S739-ABA-40.printing.pdf

27
 78. A proposed Congressional map (“CST-13”) was filed on October 29, 2021, as

Senate Bill 740 (“SB740”) and passed its first reading and received a favorable report from

the Senate Redistricting Committee on November 1, 2021. It proceeded unaltered through

its second and third readings in the Senate and its first reading in the House on November

2, received a favorable report from the House Redistricting Committee on November 3, and

proceeded unaltered through its second and third readings in the House on November 4,

2021.

79. SB740 was ratified into law on November 4, 2021, as S.L. 2021-174. S.L. 2021-

174 is entitled “AN ACT TO REALIGN THE CONGRESSIONAL DISTRICTS FOLLOWING

THE RETURN OF THE 2020 FEDERAL DECENNIAL CENSUS” and re-writes N.C.G.S. §

163-201(a) to divide the State of North Carolina into fourteen (14) districts “[f]or purposes of

nominating and electing members of the House of Representatives of the Congress of the

United States in 2022 and periodically thereafter[.]” 2021 N.C. Sess. Laws 174, § 1.

80. The State House, State Senate and Congressional Maps all passed along party

lines.

81. The State House map, HB976, passed the House on a strict party line vote,

with 67 Republican Representatives in favor and 49 Democratic Representatives opposed.

HB976 also passed the Senate on a strict party line vote, with 25 Republican Senators in

favor and 21 Democratic Senators opposed.

82. The State Senate map, SB739, passed the Senate on a strict party line vote,

with 26 Republican Senators in favor and 19 Democratic Senators opposed. SB739 also

passed the House on a strict party line vote, with 65 Republican Representatives in favor and

49 Democratic Representatives opposed.

83. The Congressional map, SB740, passed the Senate on a strict party line vote,

with 27 Republican Senators in favor and 22 Democratic Senators opposed. SB740 also

28
passed the House on a strict party line vote, with 65 Republican Representatives in favor and

49 Democratic Representatives opposed.

84. Plaintiffs challenge the North Carolina Congressional Districts, North

Carolina Senate Districts, and North Carolina House of Representatives Districts

established, respectively, by acts of our General Assembly ratified on November 4, 2021, in

N.C. Sess. Laws 2021-174 (hereinafter “S.L. 2021-174” or “S.B. 740”), N.C. Sess. Laws 2021-

173 (hereinafter “S.L. 2021-173” or “S.B. 739”), and N.C. Sess. Laws 2021-174 (hereinafter

“S.L. 2021-175” or H.B. 976”) (collectively hereinafter, the “Enacted Plans”).

III. Extreme Partisan Gerrymandering Claims

A. Evidence Showing Partisan Intent, Effects, or a Lack Thereof

1. Direct Evidence

85. There is no express language showing partisan intent within the text of the

session laws establishing the Enacted Plans.

86. The Adopted Criteria expressly forbade partisan considerations and election

results data from being used in drawing districts in the Enacted Plans.

87. No elections have been conducted under the Enacted Plans to provide direct

evidence of partisan effects that could be attributed as a result of the Enacted Plans.

88. The 2021 Congressional Plan was passed on strict party-line votes in the House

on November 4 and the Senate on November 2. No member of the Democratic party in either

chamber voted for the plan.

89. The General Assembly enacted the 2021 House Plan, on strict party-line votes,

on November 4. No member of the Democratic party in either chamber voted for the plan.

90. The General Assembly enacted the 2021 Senate Plan, on strict party-line votes,

on November 4. No member of the Democratic party in either chamber voted for the plan.

29
 2. Circumstantial Evidence

a. Recent History of Partisan Redistricting Litigation and

Legislation

91. The General Assembly’s intentional redistricting for partisan advantage has

been subject to judicial review in multiple cases over the past decade.

92. First, in Rucho v. Common Cause, 139 S. Ct. 2484 (2019), the plaintiffs

challenged North Carolina’s congressional districting maps in federal court as

unconstitutional partisan gerrymanders. The well-established record showed that

Republican legislators leading the redistricting effort instructed their mapmaker to use

political data to draw a map that would produce a congressional delegation of ten republicans

and three democrats. Common Cause v. Rucho, 318 F. Supp. 3d 777, 807-808 (M.D.N.C.

2018).

93. The federal district court concluded that all but one of the districts in North

Carolina’s 2016 Congressional Plan violated the Equal Protection Clause by intentionally

diluting the voting strength of Democrats. In examining intent, effects, and causation, the

concern was that such a degree of vote dilution meant the elected representatives would feel

free to ignore the concerns of the supporters of the minority party. Id. at 867. The district

court also found partisan gerrymandering claims justiciable under the First Amendment. Id.

at 929. Despite the undisputed findings of partisan intent in drawing the challenged districts,

the Supreme Court of the United States held that partisan gerrymandering claims present

political questions beyond the reach of the federal courts. 139 S. Ct. at 2506-07.

94. Then, in Common Cause v. Lewis, 18 CVS 14001 (N.C. Super. Ct. Sep. 03,

2019), the plaintiffs challenged North Carolina’s legislative maps in state court as

unconstitutional partisan gerrymanders. After a federal court had struck down certain

districts as unconstitutional racial gerrymanders, Id. at 13-14, and in 2017, the Senate

30
Redistricting Committee and the House Select Committee on Redistricting met to enact new

plans where leaders stated that they would again employ the same mapmaker to draw these

new plans and the adopted criteria allowed for political considerations and the use of election

data results, id. at 14-16. While Republican legislators did not publicly state that they drew

the maps for partisan advantage, there was meaningful dispute that this was the case. Id. at

23.

95. Prior to final judicial approval of the 2019 remedial maps, the court in Common

Cause determined that the 2017 legislative maps at issue were the result of extreme partisan

gerrymandering, and ordered those maps to be remedied to the extent necessary to cure that

defect—in other words, to redraw the 2017 legislative maps so that the partisan

gerrymandering would not be classified as “extreme.” To the extent the 2021 redistricting

committees sought to retain the district lines of the 2019 maps, partisan bias, although not

“extreme” by the Common Cause standard, is present in the Enacted Maps.

96. The three-judge panel concluded that 14 of the House district county groupings

and 7 of the Senate district county groupings violated the North Carolina Constitution by

operating through vote dilution such that an election would not reflect the will of the people,

Id. at 302, by seeking to diminish the electoral power of supporters of a disfavored party, id.

at 307, and by burdening the protected expression and association of voting, banding together

in a political party, and spending on elections. Id. at 320. Unlike the federal court, however,

the three-judge panel found that these claims were justiciable and the standards for

evaluating the plaintiffs’ claims were satisfactory and manageable.

97. Finally, in Harper v. Lewis, 19 CVS 12667 (N.C. Super. Ct. Oct. 28, 2019), the

plaintiffs sought a declaration that the 2016 congressional districts, as challenged in Rucho

v. Common Cause, violated the rights of Democratic voters in North Carolina under the North

31
Carolina Constitution’s Free Elections Clause, Equal Protection Clause, and Freedom of

Speech and Freedom of Assembly Clauses. Id. at 1. The three-judge panel agreed with the

ruling in Common Cause v. Lewis that extreme partisan gerrymandering is violative of the

North Carolina Constitution and presented justiciable issues. See Harper v. Lewis generally.

Noting that “the 2016 congressional districts have already been the subject of years-long

litigation in federal court arising from challenges to the districts on partisan gerrymandering

grounds,” the Court found that there was a detailed record of the partisan intent and effects

of the 2016 congressional plan. The Court held that the Plaintiffs had shown a likelihood of

success on the merits and granted the preliminary injunction, enjoining the use of the 2016

congressional districts in the 2020 election.

98. Redistricting for political gain occurred well before these most recent

instances, but it has not been forbidden by the people of North Carolina through a

constitutional amendment or legislative act.

99. Since the 2000 Census, there has been several proposed redistricting bills in

both the House and Senate of the General Assembly. The most prominent proposed

redistricting bill has been related to establishing—by constitutional amendment and

statute—an independent redistricting commission.

100. In all the various iterations of proposed bills, this commission would be tasked

with either the redistricting process in its entirety, removing this power from the General

Assembly, or with introducing plans to the General Assembly. In all these proposed bills, the

redistricting plans were to be done without consideration of political affiliation of voters,

voting data from previous elections, location of incumbents’ residences, or demographic data

outside of that provided by the U.S. Census Bureau. None of these bills passed, or even

crossed over. With few exceptions, when Democrats have controlled the House and Senate,

32
Republicans have introduced these bills; and when Republicans have controlled the House

and Senate, Democrats have introduced these bills.

101. From 2001-2010, the Democratic Party had control of the General Assembly.

A version of the independent redistricting commission was proposed and, with the exception

of the 2005-2006 session where a Democrat was the primary sponsor of the bill, Republican

members of the legislature were the primary sponsors of these bills. These bills were

introduced at least once during each session. H.B. 318, 2001 Leg., 144th Sess. (N.C. 2001);

S.B. 283, 2001 Leg., 144th Sess. (N.C. 2001); S.B. 285, 2001 Leg., 144th Sess. (N.C. 2001);

S.B. 1437, 2001 Leg., 144th Sess. (N.C. 2001); H.B. 1060, 2003 Leg., 145th Sess. (N.C. 2003);

H.B. 1090, 2003 Leg., 145th Sess. (N.C. 2003); S.B. 650, 2003 Leg., 145th Sess. (N.C. 2003);

S.B. 651, 2003 Leg., 145th Sess. (N.C. 2003); H.B. 1425, 2005 Leg., 146th Sess. (N.C. 2005);

H.B. 1448, 2005 Leg., 146th Sess. (N.C. 2005); S.B. 430, 2005 Leg., 146th Sess. (N.C. 2005);

H.B. 76, 2007 Leg., 147th Sess., (N.C. 2007); S.B. 1122, 2007 Leg., 147th Sess., (N.C. 2007);

H.B. 252, 2009 Leg., 148th Sess., (N.C. 2009); S.B. 25, 2009 Leg., 148th Sess., (N.C. 2009);

H.B. 894, 2009 Leg., 148th Sess., (N.C. 2009).

102. Similarly, from 2011-present, Republicans have had control over the General

Assembly, and a version of this bill has had a Democratic primary sponsor; however, in the

2011-2012, 2013-2014, 2015-2016, 2016 Extra Session 4, and 2017-2018 sessions, at least one

Republican was a primary sponsor of these bills. Since Republican control, Democrats have

been the prominent sponsor of these bills in both the House and Senate. H.B. 783, 2011 Leg.,

149th Sess., (N.C. 2011); S.B. 591, 2011 Leg., 149th Sess., (N.C. 2011); H.B. 824, 2011 Leg.,

149th Sess., (N.C. 2011); H.B. 606, 2013 Leg., 150th Sess., (N.C. 2013); H.B. 910, 2013 Leg.,

150th Sess., (N.C. 2013); S.B. 155, 2013 Leg., 150th Sess., (N.C. 2013); S.B. 722, 2013 Leg.,

150th Sess., (N.C. 2013); H.B. 49, 2015 Leg., 152nd Sess., (N.C. 2015); S.B. 28, 2015 Leg.,

152nd Sess., (N.C. 2015); H.B. 92, 2015 Leg., 152nd Sess., (N.C. 2015); H.B. 6, 2015 Leg.,

33
152nd Sess., (N.C. 2015); H.B. 200, 2017 Leg., 153rd Sess., (N.C. 2017); S.B. 209, 2017 Leg.,

153rd Sess., (N.C. 2017); H.B. 674, 2017 Leg., 153rd Sess., (N.C. 2017); S.B. 702, 2017 Leg.,

153rd Sess., (N.C. 2017); S.B. 800, 2017 Leg., 153rd Sess., (N.C. 2017); H.B. 69, 2019 Leg.,

154th Sess., (N.C. 2019); H.B. 574, 2019 Leg., 154th Sess., (N.C. 2019); S.B. 641, 2019 Leg.,

154th Sess., (N.C. 2019); H.B. 648, 2019 Leg., 154th Sess., (N.C. 2019); H.B. 827, 2019 Leg.,

154th Sess., (N.C. 2019); S.B. 673, 2019 Leg., 154th Sess., (N.C. 2019); H.B. 436, 2021 Leg.,

155th Sess., (N.C. 2021); H.B. 437, 2021 Leg., 155th Sess., (N.C. 2021); H.B. 542, 2021 Leg.,

155th Sess., (N.C. 2021); S.B. 716, 2021 Leg., 155th Sess., (N.C. 2021).

b. Stated Redistricting Objectives of the General Assembly

in the 2021 Enacted Plans

103. The General Assembly established a detailed record of the stated purposes of

the configurations of the 2021 districts.

(i) The 2021 Congressional Plan

104. The legislative record shows that stated goals achieved by the 2021

Congressional Plan included the following:

a. CD1 is anchored in northeastern North Carolina to incorporate suggestions from

a public hearing in Pasquotank that this region be maintained as a community of
interest. The district was configured to take in the Outer Banks and most of the
State’s shoreline and to keep the finger counties of northeastern North Carolina
together, as well as most of the counties that run along the State’s border with
Virginia. LDTX78 Senate Tr. 3:7–4:3 (Nov. 1, 2021).

b. CD2 was configured to contain most of rural northeastern North Carolina, to

maintain whole counties (16 of 18 are whole), and to avoid splitting municipalities
(none are split). One precinct is split in Pitt County and one in Wayne County for
the purpose of equalizing population. LDTX78 Senate Tr. 4:4–15 (Nov. 1, 2021).

c. CD3 was configured to keep mostly rural counties in southeastern North Carolina
near the coast within the same district and to improve the compactness of the prior
district. Input from a public hearing in New Hanover was incorporated, including
that Cape Fear River Basin be kept in one district, that New Hanover and
Brunswick Counties be kept together, and that Bladen and Columbus Counties be
maintained in single district. LDTX78 Senate Tr. 4:16–5:11 (Nov. 1, 2021).

34
d. CD4 was configured to be a four-county district south of Raleigh. These counties
were chosen because they have similar geography, industry, and proximity to
population base in the region in Fayetteville and Raleigh. An online comment
requested that Cumberland, Harnett, and Sampson Counties be kept together in
a congressional district, and this was accomplished by adding population in
Johnston and one precinct in Wayne County. The district is highly compact and
splits no municipalities. LDTX78 Senate Tr. 5:12–6:7 (Nov. 1, 2021).

e. CD5 was configured to be based entirely in Wake County, comprising Garner,

Knightdale, Raleigh, Rolesville, Wake Forest, Wendell, and Zebulon. These
municipalities are viewed as sharing common interests, given that people live and
work and commute within these municipalities; no municipalities were split. Any
VTDs split were done for the purposes of maintaining municipal boundaries or
equalizing population. LDTX78 Senate Tr. 6:8–20 (Nov. 1, 2021).

f. CD6 was configured to include Durham and Orange Counties and a portion of
Wake County that contains Apex, Cary, and Morrisville, which were all viewed as
a coherent community of interest, and to match the configuration of this district
that has existed in this region, in roughly the same form, for decades. No
municipalities were split. LDTX78 Senate Tr. 6:21–7:11 (Nov. 1, 2021).

g. CD7 runs from the Triangle west through the Central Piedmont region
encompassing four whole counties, to include Alamance, Chatham, Lee, and
Randolph; parts of Davidson, Guilford, and Harnett Counties and a portion of
Wake County to bring together rural areas and smaller cities and towns. VTDs
were only split for the purpose of equalizing population or keeping cities together.
LDTX78 Senate Tr. 7:12–25 (Nov. 1, 2021).

h. CD8 is rooted in the Sandhill region of North Carolina including eight whole
counties and a portion of Mecklenburg County. The configuration was created in
part based on a comment by the Moore County Democratic Chair, who suggested
that Sandhills counties including Moore, Scotland, and Hoke to be kept together
in a Sandhills district. LDTX78 Senate Tr. 8:3–22 (Nov. 1, 2021).

i. CD9 constitutes the General Assembly’s effort to keep the City of Charlotte
together in one district, given its cohesive community. This was not strictly
possible, given that Charlotte is too large for one congressional district, but the
adopted configuration succeeded in keeping 83% of Charlotte in one district that,
in turn, is 97% composed of Charlotte. LDTX78 Senate Tr. 8:23–9:5 (Nov. 1, 2021).

j. CD10 is composed of suburban and exurban areas that stretch between the
population centers of Charlotte and the Triad region, which constitute a
community of interest. The district keeps all of the City of High Point in a single
district, based on a comment at a public hearing in Forsyth. There is one split
municipality in Greensboro. LDTX78 Senate Tr. 9:6–20 (Nov. 1, 2021).

k. CD11 is based in the northwest corner of North Carolina, containing eight whole
counties and two partial counties. This was done out of a desire to maintain the
incumbent in the district. Another key goal was maintaining Greensboro as much

35
 as possible in the district, and the goal was achieved with more than 90% of
Greensboro included. LDTX78 Senate Tr. 9:21–10:6 (Nov. 1, 2021).

l. CD12 was configured to join suburbs outside Charlotte to an area in and around
Winston-Salem, which was achieved by incorporating four whole counties and one
partial county. No municipalities were split. LDTX78 Senate Tr. 10:7–16 (Nov. 1,
2021).

m. CD13 contains municipalities and towns to the west and north of Charlotte based
on an online comment suggesting that towns in North Mecklenburg, including
Cornelius, Huntersville, and Davidson, be joined into a single district. LDTX78
Senate Tr. 10:17–11:5 (Nov. 1, 2021).

n. Finally, CD14 is anchored in western North Carolina to take in the mountain

counties up to the westernmost tip of the State; the General Assembly
implemented a comment at a Jackson County public hearing asking that
McDowell and Polk Counties be removed from the district and that it be drawn
into Watauga County. LDTX78 Senate Tr. 11:6–21 (Nov. 1, 2021).

105. The Committees concluded that the congressional map satisfies the adopted

criteria. LDTX78 Senate Tr. 11:22–12:16 (Nov. 1, 2021). All districts were drawn to zero

population deviation or to one person less than ideal. There was no point contiguity used in

the map and districts are compact. LDTX78 Senate Tr. 11:22–25; 12:10-11 (Nov. 1, 2021).

County, VTD, and community of interest divisions were minimized. The 2021 Congressional

Plan divided 11 counties solely to equalize population. VTDs were split only when necessary

to balance population or keep municipalities whole, and a total of 24 VTDs were split. And

there are districts wholly within Mecklenburg and Wake Counties, the only two counties of

sufficient population to contain a whole Congressional district. Only two municipalities were

split in the entire State, and community consideration was considered to keep cities and

towns together. LDTX78 Senate Tr. 11:22–12:16 (Nov. 1, 2021).

106. The Committee concluded that no racial or political data was used in drawing

the map. Member residence was considered. LDTX78 Senate Tr. 12:6-7; 12:12-16 (Nov. 1,

2021). Senator Daniel stated that, due to the political geography of the state—with

Democrats congregated in the urban areas—the only way to accomplish a roughly equal

36
Republican-Democratic split is with a partisan gerrymander in favor of Democrats. LDTX78

Senate Tr. 18:11–21 (Nov. 1, 2021). Indeed, the largest counties had to be split to satisfy one-

person, one-vote standards. See, e.g., LDTX78 Senate Tr. 24:13–17 (Nov. 1, 2021).

107. One Senator noted that when metropolitan areas are split (as many have to be

because of the population size), the metropolitan areas get more representatives in Congress

who are able to advocate for the municipality as a whole. LDTX78 Senate Tr. 33:21–34:12

(Nov. 1, 2021). The online portal received over 4,000 comments between when they opened

at November 1, 2021. LDTX78 Senate Tr. 39:5–14 (Nov. 1, 2021).

(ii) The 2021 Senate Plan

108. The legislative record shows that stated goals achieved by the 2021 Senate

Plan included the following:

a. SD1 was created out of county groupings in the northeastern corner of the State
that would need to be comprised of 8 or 10 counties. The district includes 4 of the
5 “Finger Counties” together and combines them with the Northern Outer Banks,
a suggestion made by persons at public hearings. About 70% of the counties and
81% of the population are in the Norfolk media market, with the others in the
Greenville and Raleigh market. This district does not split VTDs or municipalities
within the counties, as it comprises only whole counties. LDTX80 Senate Tr. 3:8–
4:5 (Nov. 2, 2021); Trial Tr. 01/05/2022.

b. SD2 follows the Roanoke River from Warren County to Albemarle Sound in
Washington County. This comprises many of the counties on the Sound, including
Chowan County, Hyde County, and Pamlico County. Five of the eight included
counties are in the Greenville media market, with the others split between the
Raleigh and Norfolk media markets. Two-third of the population of the district is
within the Greenville media market. This district does not split VTDs or
municipalities within the counties, as it is comprised only of whole counties.
LDTX80 Senate Tr. 4:7–24 (Nov. 2, 2021).

c. SD3 was created by the base county grouping map. It includes Beaufort, Craven,
and Lenoir Counties. This district does not split VTDs or municipalities within the
counties, as it is comprised only of whole counties. LDTX80 Senate Tr. 4:25–5:4
(Nov. 2, 2021).

d. SD4 was created by the base county grouping map. It includes Green, Wayne, and
Wilson Counties. This district does not split VTDs or municipalities within the

37
 counties, as it is comprised only of whole counties. LDTX80 Senate Tr. 5:5–9 (Nov.
2, 2021).

e. SD5 was created by the base county grouping map. It includes Edgecombe and Pitt
Counties. This district does not split VTDs or municipalities within the counties,
as it is comprised only of whole counties. LDTX80 Senate Tr. 5:11–15 (Nov. 2,
2021).

f. SD6 is a single-county district containing only Onslow County. It was created by

the base county grouping map and, as a single and whole county district, contains
no split VTDs or municipalities. LDTX80 Senate Tr. 5:17–20 (Nov. 2, 2021).

g. SD7 contains the majority of New Hanover County in the southeast corner of the
State. Because New Hanover County’s population was slightly larger than the
maximum allowable population in a single district, the Committee carved out
three precincts and included them in SD7. These three precincts were selected to
keep all municipalities in New Hanover County whole and to keep as much
population as possible in SD7. SD7 contains no split VTDs or municipalities.
LDTX80 Senate Tr. 5:21–6:13 (Nov. 2, 2021).

h. SD8 contains Brunswick and Columbus Counties, in addition to three precincts of

New Hanover County. It contains no split VTDs or municipalities. LDTX80 Senate
Tr. 6:15–19 (Nov. 2, 2021).

i. SD9 and SD12 comprise a two district, seven county cluster created by the base
county groupings in the southeastern part of the State. SD9 contains all of Bladen,
Jones, Duplin, and Pender Counties, as well as the majority of Sampson County.
SD12 contains a small portion of Sampson County, as well as all of Harnett and
Lee Counties. The Committee endeavored to keep as much of Sampson County as
possible in SD9. The Committee considered moving a single precinct from northern
Sampson County into SD12, but that would have split two municipalities and
placed more Sampson County residents in SD12 than the chosen route: splitting
two precincts, but leaving Spivey’s Corner intact in SD9 and Plainview whole in
SD12. Both SD9 and SD12 contain two split VTDs, but no split municipalities.
LDTX80 Senate Tr. 6:21–7:24 (Nov. 2, 2021).

j. SD10 is a single-county district containing only Johnston County. It was created

by the base county grouping map and, as a single and whole county district,
contains no split VTDs or municipalities. LDTX80 Senate Tr. 8:1–4 (Nov. 2, 2021).

k. SD11 was created by the base county grouping map. It includes Franklin, Nash,
and Vance Counties. This district does not split VTDs or municipalities within the
counties, as it is comprised only of whole counties. LDTX80 Senate Tr. 8:5–8 (Nov.
2, 2021).

l. SD13, SD14, SD15, SD16, SD17, and SD18 were created out of the two-county
grouping of Granville and Wake Counties. The Committee attempted to keep
municipalities whole, while splitting as few precincts as possible. Some VTDs had
to be split, however, to comply with one-person, one-vote standards. Raleigh had

38
 to be split between multiple districts; 98% of Raleigh is within 3 Senate districts,
though. Further, Cary and Apex were unable to be contained within a single
district due to their populations and geographic constraints. All other
municipalities (Fuquay-Varina, Holly Springs, Garner, Knightdale, Morrisville,
Rolesville, Wake Forest, Wendell, and Zebulon) were kept whole. All in all, 10
VTDS were split to keep the municipalities whole and to balance out population.
LDTX80 Senate Tr. 8:10–9:13 (Nov. 2, 2021), Trial Tr. 01/05/2022.

a. SD13 contains all of Granville County, unincorporated areas in northern

Wake County, as well as Rolesville, Wake Forest, Zebulon, and 2% of the
population of Raleigh. LDTX80 Senate Tr. 9:14–23 (Nov. 2, 2021). Granville
could be kept whole, so it had to be kept whole. However, it is not large
enough to be a district by itself so it needed to be joined with a part of Wake
County. Trial Tr. 01/05/2022.
b. SD14 contains all of Garner, Knightdale, Wendell, and 21% of the
population of Raleigh, including portions of southeast and downtown
Raleigh. LDTX80 Senate Tr. 10:8–15 (Nov. 2, 2021).
c. SD15 contains the western part of Raleigh, portions of downtown Raleigh,
and portions of east Cary. 36% of the population of Raleigh resides within
the district. The majority of the district’s population is from Raleigh (85%),
with 12% from Cary. SD15 splits two precincts with other districts to
balance population. LDTX80 Senate Tr. 10:24–11:7 (Nov. 2, 2021).
d. SD16 is centered in Cary and contains western Wake County, including
portions of Apex and all of Morrisville. 80% of Cary’s population is in the
District, as well as 45% of Apex’s population. 69% of the district’s
population is from Cary, 15% from Morrisville, and 13% from Apex. There
are two split precincts to balance population. LDTX80 Senate Tr. 11:8–16
(Nov. 2, 2021).
e. SD17 contains Holly Springs and Fuquay-Varina, as well as most of Apex
and a small part of Cary. Three VTDs were split to keep Garner whole in
SD 13, and another VTD was split to balance population between SD 16
and SD 17. LDTX80 Senate Tr. 11:20–25 (Nov. 2, 2021).

m. SD19 and SD21 were created out of Cumberland and Moore Counites. SD19 is
contained entirely within Cumberland County and was drawn to encompass as
much of Fayetteville as possible, although Fayetteville has an irregular shape and
many satellite annexations; indeed, it shares some precincts with other
municipalities, such as Hope Mills. Ultimately, the Committee was unable to keep
all of Fayetteville together but created a district that includes 88% of Fayetteville’s
population and includes nearly 15% of the population of Hope Mills. The district
has no split VTDs. SD21 includes all of Moore County and remainder of
Cumberland County, including the remainder of Fayetteville and Hope Mills’
population. LDTX80 Senate Tr. 12:11–13:11 (Nov. 2, 2021), Trial Tr. 01/05/2022.

n. SD20 and SD22 were created out of Chatham and Durham Counties. SD20
includes all of Chatham County, most of incorporated Durham County—including
the portions of Chapel Hill in Durham County—and several peripheral Durham
City precincts. The bulk of Durham City (70% of its population), which is too large

39
 to comprise its own Senate District, is within SD22. No VTDs were split in either
district. LDTX80 Senate Tr. 13:12–14:7 (Nov. 2, 2021).

o. SD23 was created by the base county grouping map. It includes Caswell, Orange,
and Person Counties. This district does not split VTDs or municipalities within
the counties, as it is comprised only of whole counties. LDTX80 Senate Tr. 14:9–
13 (Nov. 2, 2021).

p. SD24 was created by the base county grouping map. It includes Hoke, Robinson,
and Scotland Counties. This district does not split VTDs or municipalities within
the counties, as it is comprised only of whole counties. LDTX80 Senate Tr. 14:15–
15:8 (Nov. 2, 2021).

q. SD25, SD29, SD34, and SD35 were created out of a seven-county grouping in the
center of the State, including Alamance, Randolph, Cabarrus, Anson,
Montgomery, Richmond, and Union Counties. Due to population disparities,
Randolph, Cabarrus, and Union Counties were split between districts; the
remainder were left whole. LDTX80, Senate Tr. 14:22–15:7 (Nov. 2, 2021).

a. SD25 contains all of Alamance County and eastern Randolph County.

Faced with a choice between splitting VTDs and splitting municipalities,
the Committee chose the former. One precinct was split, then, to keep all
of Randleman in SD25. LDTX80, Senate Tr. 15:8–15:18 (Nov. 2, 2021).
b. SD29 includes all of Anson, Montgomery, and Richmond Counties; the
remainder of Randolph County, including Asheboro; and the eastern half
of Union County. Union County was split so as to keep all precincts whole.
LDTX80, Senate Tr. 15:25–16:12 (Nov. 2, 2021).
c. SD34 contains most of Cabarrus County, minus the southern precincts
which are in SD35. The Committee aimed to keep as much of the population
of the county together as possible, which required splitting a precinct to
avoid the District having a higher-than-allowable population. Another
precinct was split so that all of Midland was kept in the same district.
LDTX80, Senate Tr. 16:15-16-23; 17:14–17:19 (Nov. 2, 2021).
d. SD35 contains the remaining portions of Cabarrus and Union Counties.
LDTX80, Senate Tr. 16:13–16:15 (Nov. 2, 2021).

r. SD26, SD27, and SD28 are comprised of Guilford and Rockingham Counties. Each
contains part of Greensboro, which is itself too large to comprise its own district.
SD26 contains all of Rockingham County, as well as some unincorporated portions
of Guilford County and some of Greensboro’s bedroom communities. While it does
not contain any Greensboro precincts, it includes 4% of the city’s population. SD26
contains one VTD split, to keep the entire population of Kernersville in the district.
SD27 includes southern parts of Greensboro, as well as High Point. SD28 contains
the northern portion (about 2/3) of Greensboro and the majority (68%) of its
population. LDTX80, Senate Tr. 17:20–19:4 (Nov. 2, 2021).

s. SD30 was created by the base county grouping map. It includes Davie and
Davidson Counties. This district does not split VTDs or municipalities within the

40
 counties, as it is comprised only of whole counties. LDTX80, Senate Tr. 19:5–19:9
(Nov. 2, 2021).

t. SD31 and SD32 are comprised of Stokes and Forsyth Counties. The Committee
paired Forsyth with Stokes County, rather than with Yadkin County, because this
pairing led to more compact districts and minimized municipality splitting;
Germantown and King span the Stokes/Forsyth county line. SD31 includes all of
Stokes County as well as suburban municipalities on the outskirts of Winston-
Salem, such as Bethania, Clemons, Germantown, Kernersville, King, Lewis, Rural
Hall, Tobaccoville, and Walkertown. Given that Winston-Salem is too large for one
district, SD31 also contains 16% of the city’s population. SD32 contains the vast
majority of the population of Winston-Salem (84%). Neither district contains split
VTDs. LDTX80, Senate Tr. 19:11–21:4 (Nov. 2, 2021). Stokes County could be kept
whole, so it was. Winston Salem is too populous to be a district by itself. Trial Tr.
01/05/2022.

u. SD33 was created by the base county grouping map. It includes Rowan and Stanly
Counties. This district does not split VTDs or municipalities within the counties,
as it is comprised only of whole counties. LDTX80, Senate Tr. 21:19–21:24 (Nov.
2, 2021).

v. SD36 is made up of Alexander, Surry, and Yadkin Counties and is the remainder
of the grouping stemming from the combination of Stokes and Forsyth counties.
This district does not split VTDs or municipalities within the counties, as it is
comprised only of whole counties. LDTX80, Senate Tr. 21:5–21:18 (Nov. 2, 2021).

w. SD37, SD38, SD39, SD40, SD41, and SD42 were created out of the two-county
grouping of Iredell and Mecklenburg Counties. Naturally, Charlotte—the largest
city in the State—is split between 5 of these Mecklenburg-based districts. Senate
Tr. 21:25–22:4 (Nov. 2, 2021).

a. SD37 includes all of Iredell County and the northmost parts of

Mecklenburg County, including Davidson (which spans both counties).
SD37 also contains 33% of the population of Cornelius, which is too large
to fit in SD37 alone; it is the only split municipality in the district. There
are no split VTDs. LDTX80, Senate Tr. 22:5–23:22 (Nov. 2, 2021); Trial Tr.
01/05/2022.
b. SD38 includes much of northern Mecklenburg County, including the
remainder of Cornelius, Huntersville and 14% of Charlotte. There are no
split VTDs. LDTX80, Senate Tr. 23:3–23:14 (Nov. 2, 2021).
c. SD39 includes portions of western Mecklenburg County, including
unincorporated territory along the Gaston County line and border with
South Carolina. It also includes portions of Uptown, Still Creek, and West
Charlotte. Indeed 81% of the district’s population is in Charlotte and the
district contains 20% of the population of Charlotte. There are no split
VTDs in the district. LDTX80, Senate Tr. 23:15–24:4 (Nov. 2, 2021).
d. SD40 includes northeastern Charlotte and unincorporated portions of
Mecklenburg County running along the border with Cabarrus County. 24%

41
 of Charlotte’s population resides in the district. The district contains no
split VTDs. LDTX80, Senate Tr. 24:5–24:13 (Nov. 2, 2021).
e. SD41 includes south Charlotte, Matthews, and Mint Hill, as well as some
unincorporated territory. 18% of Charlotte’s population is in this district,
comprising about 71% of the district’s population. The district contains no
split VTDs. LDTX80, Senate Tr. 24:14–24:25 (Nov. 2, 2021). This district
encompasses Matthews and Mint Hill. Trial Tr. 01/05/2022.
f. SD42 includes portions of Uptown Charlotte, south Charlotte, and east
Charlotte. No other portions of Mecklenburg County are included. 25% of
Charlotte’s population lives in this district no split VTDs. LDTX80, Senate
Tr. 25:1–25:18 (Nov. 2, 2021).

x. SD43 and SD44 include Gaston, Cleveland, and Lincoln Counties. SD43 contains
most of Gaston County, although 5 VTDs (in Cherryville, Landers Chapel, and
Tryon) were placed in SD44 to even out population. SD44 includes these VTDs, as
well as all of Lincoln and Cleveland Counties. LDTX80, Senate Tr. 25:19–26:6
(Nov. 2, 2021).

y. SD45, SD47, and SD50 are drawn from a grouping of 17 western North Carolina
counties. Given the counties’ geographic locations and populations, two of the 17
counties (Caldwell and Haywood) were required to be split. SD45 includes all of
Catawba County, as well as the southeast portion of Caldwell County. SD47
contains the remainder of Caldwell County, including Lenoir. (Two VTDs were
split between SD45 and SD47 to keep Lenoir whole.) SD47 also contains portions
of Haywood County, including Canton, and all of Alleghany, Ashe, Avery, Madison,
Mitchell, Watauga, and Yancey Counties. SD50 includes the remainder of
Haywood County, and all of Cherokee, Clay, Graham, Jackson, Macon, Swain, and
Transylvania Counties. SD50 contains no split precincts or municipalities.
LDTX80, Senate Tr. 27:3–28:18 (Nov. 2, 2021).

z. SD46 includes all of Burke and McDowell Counties, as well as some

unincorporated portions and small towns in Buncombe County. LDTX80, Senate
Tr. 26:13–16 (Nov. 2, 2021). One VTD is split with SD49 to keep all of Woodfin
within that district. SD49 contains the remainder of Buncombe County, including
Asheville, Biltmore Forest, and Weaverville. LDTX80, Senate Tr. 26:21–26:2 (Nov.
2, 2021).

aa. There were two options for how the Buncombe grouping could be formed. They
opted for the one that formed Burke County, McDowell County, and Buncombe
County together because it was the more compact version. The committee
determined that Burke and McDowell counties could be kept whole, so they were.
SD49 was drawn to include the precincts that make up Asheville. Trial Tr.
01/05/2022.

bb. SD48 includes the whole of Henderson, Polk, and Rutherford Counties. LDTX80,
Senate Tr. 26:7–26:12 (Nov. 2, 2021).

42
 109. Ultimately, two amendments were accepted in the Senate Committee: (1) An

amendment offered by Senator Clark changing the Guilford/Rockingham County grouping

(SD26, SD27, and SD28). Senator Hise testified that this amendment was presented at the

behest of Senator Robinson, a Democratic member from Guilford, who, under the version

presented by the chairs, was double-bunked with Senator Garrett. Trial Tr. 01/05/2022.

During debate, Senator Robinson attested in Committee that she understood the amendment

complied with the VRA and considered it a fair draw. Id.; LDTX80, Senate Tr. 104:3–105:4

(Nov. 2, 2021). (2) An amendment offered by Senator Marcus changing the Durham/Chatham

County grouping (SD20 and SD22). Senator Murdock, a Democratic member from Durham,

attested in Committee that she understood the amendment complied with the VRA and

considered it a fair draw. LDTX80, Senate Tr. 98-100 (Nov. 2, 2021).

110. The Committee concluded that the 2021 Senate Plan complies with the

adopted criteria. The Committee determined that the Senate map successfully balances the

criteria considered by Senators, including compliance with Stephenson, refusal to consider

racial and political data, and minimizing the division of municipalities and VTDs. LDTX80,

Senate Tr. 72:21–73:15 (Nov. 2, 2021).

(iii) The 2021 House Plan

111. The legislative record shows that stated goals achieved by the 2021 House Plan

included the following:

a. The mapmakers made every effort to keep previous districts intact. LDTX76,
House Tr. 9:12–15 (Nov. 1, 2021).

b. Rural areas lost immense population in the 2010s and, therefore, changes were
necessary. For instance, House District 23 previously included only Edgecombe
and Martin Counties. But Bertie County had to be added to meet population
requirements. LDTX76, House Tr. 8:14–23 (Nov. 1, 2021).

c. The House Committee Chair endeavored to keep counties whole whenever it was
possible. For instance, although Chatham, Lee, and Polk Counties could have been
split, they were not. LDTX76, House Tr. 9:20–10:4 (Nov. 1, 2021).

43
d. The Chair also sought to minimize the splitting of VTDs. While the 2011 map had
hundreds of split VTDs, the proposed map had only 6 VTD splits. LDTX76, House
Tr. 10:5–11 (Nov. 1, 2021).

e. The Chair honored municipal boundaries and made every effort to keep
municipalities whole. To the extent splits were necessary, the majority of them
were in areas with little to no population. LDTX76, House Tr. 10:12–19 (Nov. 1,
2021).

f. Every district in the map proposed by the Chair is contiguous. LDTX76, House Tr.
10:20–21 (Nov. 1, 2021).

g. The bare minimum number of incumbents were “double-bunked” into the same
districts. LDTX76, House Tr. 10:22–10:25 (Nov. 1, 2021).

112. Goals for certain House districts in certain counties were as follows:

a. Because the Wake county grouping added two house districts during this
redistricting cycle, Representative Hall was unable to keep the districts similar to
the previous redistricting plan. Towns like Wake Forest, Rolesville, and Fuquay-
Varina were sought to be kept whole, with Raleigh in as few districts as possible.
Trial Tr. 01/05/2022.

b. Because Mecklenburg County grouping added one House District and an attempt
was made to keep it similar to the previous redistricting plan for the county. Mint
Hill was unsplit and combined with Matthews because the two communities are
similar. Trial Tr. 01/05/2022.

c. The Guilford County grouping added no seats, and a goal was to change the
districts as little as possible considering past litigation of districts in the county.
Only a few precincts were moved for population balancing. Trial Tr. 01/05/2022.

d. Pitt County was previously paired with Lenoir, and therefore its configuration
could no longer be kept the same. An attempt was made to not split Greenville and
ECU. Trial Tr. 01/05/2022.

e. In the Buncombe County grouping, Asheville had been divided up and a goal was
to keep Asheville entirely within two districts. Trial Tr. 01/05/2022.

f. Districts in New Hanover County were intended to remain largely the same.
Wilmington is kept almost entirely within Districts 18 and 20. Trial Tr.
01/05/2022.

g. The goal for the Cumberland County grouping was to change the districts as little
as possible considering past litigation of districts in the county. A small number of
precincts were changed for population purposes. Trial Tr. 01/05/2022.

44
 h. The Forsyth County cluster districts are largely similar to the districts in the
previous map with the biggest difference being that the county is now paired with
Stokes county instead of Yadkin county. A goal was to not divide schools, including
Wake Forest University. Winston-Salem had to be split because of its population.
Trial Tr. 01/05/2022.

113. No simulated redistricting analysis was presented during the 2021

redistricting. None of the innumerable alternative redistricting plans on the record before

this Court was presented to the General Assembly during the 2021 redistricting.

114. As shown above, although the redistricting process must start anew at the

beginning of each decade, and no prior maps were loaded onto the map-drawing machines for

legislators or other maps allowed into the room, Representative Hall sought to draw districts

as close as possible to districts used in the past and with potential litigation in mind.

c. Plaintiffs’ and Legislative Defendants’ Experts Analysis

of the Enacted Plans

(i) Harper Plaintiffs’ Expert Dr. Jowei Chen

115. Plaintiffs’ expert Jowei Chen, Ph.D., is an Associate Professor in the

Department of Political Science at the University of Michigan, Ann Arbor. PX482 at 2 ¶2.

Dr. Chen is also a Research Associate Professor at the Center for Political Studies of the

Institute for Social Research at the University of Michigan and a Research Associate at the

Spatial Social Science Laboratory at Stanford University. Id.

116. Dr. Chen has extensive experience in redistricting matters. PX482 at 2 ¶4.

Dr. Chen has published academic papers on legislative districting and political geography in

several political science journals, including The American Journal of Political Science and

The American Political Science Review, and Election Law Journal. Id. at 2 ¶3. His academic

areas of expertise include legislative elections, spatial statistics, geographic information

systems (GIS) data, redistricting, racial politics, legislatures, and political geography. Id. He

also has expertise in the use of computer simulations of legislative districting and in

45
analyzing political geography, elections, and redistricting. Id. Dr. Chen has presented expert

testimony regarding his simulation methodology in numerous prior partisan gerrymandering

lawsuits, including Common Cause v. Lewis.

117. Dr. Chen was qualified and accepted as an expert at trial in the fields of

redistricting, political geography, simulation analyses, and geographic information systems.

Trial Tr. 01/03/2022.

118. Dr. Chen analyzed the partisan bias of the enacted congressional plan on a

statewide and district-by-district basis. PX482 at 3 ¶6. Dr. Chen did not analyze the state

legislative districts in the Enacted Plan. Based on his analysis, Dr. Chen concluded that

partisan intent predominated over the 2021 Adopted Criteria in drawing the adopted

congressional plan, and that the Republican advantage in the enacted plan cannot be

explained by North Carolina’s political geography or adherence to the Adopted Criteria.

PX482 at 49 ¶¶77-78, 98, 100.

119. In his academic research on legislative districting, partisan and racial

gerrymandering, and electoral bias, Dr. Chen has developed various computer simulation

programming techniques that allow him to produce a large number of nonpartisan districting

plans that adhere to traditional districting criteria using U.S. Census geographies as building

blocks. PX482 at 4 ¶7. Dr. Chen’s simulation process ignores all partisan and racial

considerations when drawing districts, and the computer simulations are instead

programmed to draw districting plans following various traditional districting goals, such as

equalizing population, avoiding county and Voting Tabulation District (VTD) splits, and

pursuing geographic compactness. Id. By randomly generating a large number of districting

plans that closely adhere to these traditional districting criteria, Dr. Chen assesses an

enacted plan drawn by a state legislature and determines whether partisan goals motivated

the legislature to deviate from these traditional districting criteria. Id. Specifically, by

46
holding constant the application of nonpartisan, traditional districting criteria through the

simulations, he is able to determine whether the enacted plan could have been the product

of something other than partisan considerations. Id.

120. Because Dr. Chen analyzed only the enacted congressional plan, findings based

upon his statewide, regional, and district-level analysis are made in more detail below.

(ii) Harper Plaintiffs’ Expert Dr. Christopher Cooper

121. Christopher A. Cooper, Ph.D., has been a tenured or tenured-track professor

in the field of political science since 2002 and is currently the Robert Lee Madison

Distinguished Professor of Political Science and Public Affairs at Western Carolina

University. PX425 at 1 (Cooper Rep.). Dr. Cooper was previously accepted as an expert in

Common Cause v. Lewis, et al., 18 CVS 014001 (Sept. 3, 2019).

122. Dr. Cooper was qualified and accepted as an expert at trial in the field of

political science with a specialty in the political geography and political history of North

Carolina. Trial Tr. 01/03/2022.

123. Dr. Cooper analyzed the 2021 Congressional Plan the partisan effects of each

district’s boundaries.

124. Although North Carolina gained an additional congressional seat as a result of

population growth that came largely from the Democratic-leaning Triangle (Raleigh-

Durham-Chapel Hill) and the Charlotte metropolitan areas, the number of anticipated

Democratic seats under the enacted map actually decreases, with only three anticipated

Democratic seats, compared with the five seats that Democrats won in the 2020 election.

PX425 at 3. Trial Tr. 01/03/2022.

125. The 2021 Congressional Plan reduces the anticipated number of Democratic

seats, disadvantaging Democratic voters, by splitting the Democratic-leaning counties of

Guilford, Mecklenburg, and Wake among three congressional districts each. PX425 at 3.

47
There was no population-based reason to divide each of these three Democratic-leaning

counties across three districts and in the congressional plan in effect for the 2020 election,

Guilford County fell entirely within one district, while Mecklenburg and Wake counties were

each divided into only two districts. PX425 at 3; Trial Tr. 01/03/2022.

126. Dr. Cooper produced a series of maps showing the congressional district

boundaries in Guilford, Mecklenburg, and Wake counties, displaying the congressional

district boundaries in yellow, the county boundaries in black, and VTD boundaries in gray.

Dr. Cooper also used the combined, two-party vote differential in the results of the 2020

Secretary of Labor and Attorney General elections to measure and display partisanship of

the VTDs on these maps. In each map, darker red shading indicates a larger Republican vote

margin in the VTD, darker blue shading indicates a larger Democratic vote margin in the

VTD, and lighter colors indicate VTDs that were closer to evenly split in Democratic and

Republican vote shares in the 2020 Secretary of Labor and Attorney General elections.

PX425 at 15.

PX436 (Cooper Map 1) PX437 (Cooper Map 2)

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 PX438 (Cooper Map 3)

127. The congressional district map is best understood as a single organism given

that the boundaries drawn for a particular congressional district in one part of the state will

necessarily affect the boundaries drawn for districts elsewhere in the state. PX425 at 15.

Trial Tr. 01/03/2022. Thus, the Court finds that the “cracking and packing” of Democratic

voters in Guilford, Mecklenburg, and Wake counties has “ripple effects throughout the map.”

PX425 at 15.

128. Dr. Cooper produced a map showing the state-wide congressional map with

red-and-blue shading of VTDs based on the two-party vote margin in the results of the 2020

Secretary of Labor and Attorney General elections. PX425 at 15.

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 PX439 (Cooper Map 4)

129. Dr. Cooper calculated the two-party vote margin in the results of the 2020

Secretary of Labor and Attorney General elections for the districts in the 2021 Congressional

Plan in order to estimate the partisan lean of each district. By this measure, the Court finds

that the 2021 Congressional Plan will result in 10 Republican seats, 3 Democratic seats, and

1 competitive seat. PX425 at 20 & Table 1. Other measures of the partisan lean of each

district in the 2021 Congressional Plan, including the Cook Political Report’s Partisan Voter

Index (PVI) and the percentage of the electorate that voted for Donald Trump in the 2020

election, are consistent with the two-party vote margin in the results of the 2020 Secretary

of Labor and Attorney General elections. PX425 at 20 & Table 1.

130. The 2021 Congressional Plan places the residences of an incumbent

Republican representative and an incumbent Democratic representative within a new,

overwhelmingly Republican district, NC-11, “virtually guaranteeing” that the Democratic

incumbent will lose her seat. PX425 at 4. The 2021 Congressional Plan includes one district

where no incumbent congressional representative resides. Id. That district, NC-4,

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“overwhelmingly favors” the Republican candidate based on the district’s partisan lean.

PX425 at 4.

131. The 2021 House and Senate Plans similarly benefit the Republican Party.

PX425 at 49. Although certain county groupings were mandated by the Stephenson county

grouping rule, Legislative Defendants retained discretion over certain county groupings

where there were alternate possibilities. Id. Specifically, Legislative Defendants chose from

between 16 potential different county grouping maps in the Senate and 8 different potential

county grouping maps in the House. Id. In addition, Legislative Defendants retained

discretion over where to draw the district boundaries within each grouping, with the

exception of single district county groupings. Id.

132. Legislative Defendants’ exercise of this discretion in the Senate and House

2021 Plans resulted in Senate and House district boundaries that enhanced the Republican

candidates’ partisan advantage, and this finding is consistent with a finding of partisan

intent.

133. Dr. Cooper also explained how partisan redistricting carried out across the

State has led to a substantial disconnect between the ideology and policy preferences of North

Carolina’s citizenry and their representatives in the General Assembly.

134. Findings based upon Dr. Cooper’s analysis of each district in the 2021

Congressional Plan and State Senate and House Plans are made below.

(iii) Harper Plaintiffs’ and Plaintiff Common Cause’s

Expert Dr. Jonathan Mattingly

135. Jonathan Mattingly, Ph.D., is a North Carolina native, and the James B. Duke

Professor of Mathematics at Duke. PX629; PX630. Dr. Mattingly submitted a report for

Harper Plaintiffs that demonstrates the extent of partisan redistricting in each of the enacted

maps through longstanding statistical methods. PX629. Dr. Mattingly is an expert in applied

51
mathematics, probability, and statistical science. Dr. Mattingly developed his method of

evaluating partisan gerrymandering in his academic research, where he leads a group at

Duke University which conducts non-partisan research to understand and quantify

gerrymandering. Id.; Trial Tr. 01/03/2022. The General Assembly, in fact, used Dr.

Mattingly’s publicly-released findings from his nonpartisan research to determine possible

county clusters. Id. at 6.

136. Dr. Mattingly has testified in two previous cases. In the federal partisan

gerrymandering case relating to North Carolina’s congressional districts and in the 2019

Common Cause case, in which the court found that “Dr. Mattingly’s simulated maps provide

a reliable and statistically accurate baseline against which to compare the 2017 Plans,” that

“[b]y comparing Dr. Mattingly’s simulated plans to the enacted plans, the Court can reliably

assess whether the characteristics and partisan outcomes under the enacted plans could

plausibly have resulted from a nonpartisan process,” and that Dr. Mattingly’s analysis allows

the court to “reliably assess whether the enacted plans reflect extreme partisan

gerrymanders.” Common Cause, 2019 WL 4569584, at *29.

137. Dr. Mattingly was qualified and accepted as an expert at trial in the fields of

applied math, statistical science, and probability. Trial Tr. 01/03/2022.

138. Dr. Mattingly used the Metropolis-Hasting Markov Chain Monte Carlo

(“MCMC”) Algorithm to create a representative set, or “ensemble,” of 100,000 maps for the

state legislative districts and 80,000 maps for congressional districts as benchmarks against

which he could compare the enacted maps. PX629 at 10, 72; Trial Tr. 01/03/2022. The

algorithm produced maps that accorded with traditional districting criteria. Id. at 9, 72; Trial

Tr. 01/03/2022. Dr. Mattingly tuned his algorithm to ensure that the nonpartisan qualities

of the simulated maps were similar to the nonpartisan qualities of the enacted map with

respect to compactness and, for his primary ensembles, municipality splits. Id. Dr. Mattingly

52
also designed the algorithm to develop maps that respected the county clustering

requirement for state legislative maps under Stephenson I. Id. at 5–6. The algorithm did not

incorporate as output requirements any ideas of proportional representation or notions of

fairness. Id. at 2. The MCMC Algorithm that Dr. Mattingly employed ensured that the

collection of maps was a stable, random and representative sample from the distribution of

nonpartisan maps that adhere to the redistricting criteria. Id. at 72; Trial Tr. 01/03/2022.

139. For Congressional Districts, Dr. Mattingly ensured that the total population of

any district was within 1% of the ideal district population; he has verified in his prior work

that the small changes necessary to require perfect population balance, which would require

splitting VTDs, do not affect the results seen in an ensemble of maps where 1% population

deviation is permitted. Id. After generating the sample of maps, Dr. Mattingly used votes

from multiple prior North Carolina statewide elections reflecting a range of electoral

outcomes to compare the partisan performance and characteristics of the 2021 Congressional

Plan to the simulated plans. PX629 at 74; Trial Tr. 01/03/2022.

140. The Court finds, based upon Dr. Mattingly’s analysis, that the Congressional

map is the product of intentional, pro-Republican partisan redistricting. PX629 at 75. The

enacted map sticks at 4 Democrats and 10 Republicans despite large shifts in the statewide

vote fraction across a wide variety of elections, in elections where no nonpartisan map would

elect as few as 4 Democrats and many would elect 7 or 8. PX629 at 75. The Congressional

map is “an extreme outlier” that is “highly non-responsive to the changing opinion of the

electorate.” Id. at 74-75.

141. For State House and Senate Districts, after generating the sample of maps,

Dr. Mattingly used historical elections data to simulate how his nonpartisan maps would

perform under a variety of political climates. Id. at 10; Trial Tr. 01/03/2022. He considered

the following statewide election contest in the years 2016 and 2020: races for Governor,

53
Lieutenant Governor, Attorney General, United States Senate, Commissioner of Insurance,

State Treasurer, Secretary of State, and State Auditor. Id.

142. The Court finds, based upon Dr. Mattingly’s analysis, that the State House and

Senate plans are extreme outliers that “systematically favor the Republican Party to an

extent which is rarely, if ever, seen in the non-partisan collection of maps.” PX629 at 2. The

intentional partisan redistricting in both chambers is especially effective in preserving

Republican supermajorities in instances in which the majority or the vast majority of plans

in Dr. Mattingly’s ensemble would have broken it. Id. at 3, 10. The House map is also

especially anomalous under elections where a non-partisan map would almost always give

Democrats the majority in the House because the enacted map denied Democrats that

majority. Id. The probability that this partisan bias arose by chance, without an intentional

effort by the General Assembly, is “astronomically small.” Id. at 3.

143. For the State House Districts, the enacted plan shows a systematic bias toward

the Republican party, favoring Republicans in every single one of the 16 elections he

considered. PX629 at 11. It is an outlier in its favoring of Republicans in the vast majority

of the elections used in Dr. Mattingly’s analysis. Id. The only three elections where the

enacted map is not an extreme outlier are in elections that have strong Republican vote

fractions (Treasurer 2020, Senate 2016, and Lieutenant Governor 2016) where the

Republicans do not need to gerrymander to keep a supermajority. PX629 at 12; PX634.

144. The North Carolina House maps show that they are the product of an

intentional, pro-Republican partisan redistricting over a wide range of potential election

scenarios. Id. at 10. Elections that under typical maps would produce a Democratic majority

in the North Carolina House give Republicans a majority under the enacted maps. Id.

Likewise, maps that would normally produce a Republican majority under nonpartisan maps

54
produce a Republican supermajority under the enacted maps. Id. Among every possible

election that Dr. Mattingly analyzed, the partisan results were more extreme than what

would be seen from nonpartisan maps. Id. at 11; Trial Tr. 01/03/2022. In every election

scenario, Republicans won more individual seats that they statistically should under

nonpartisan maps. Id. at 11.

145. The 2021 House Plan’s partisan bias creates firewalls protecting the

Republican supermajority and majority in the House, and this effect is particularly robust

when the Republicans are likely to lose the supermajority: the enacted plan sticks at 48

Democratic seats or fewer, even in situations where virtually all of the plans in the

nonpartisan ensemble would elect 49 Democratic seats or more. Id. at 11; PX633 (Mattingly

Figure 5.1.1).

146. For the State Senate Districts, the results are the same: the enacted plan is an

outlier or an extreme outlier in elections where Democrats win a vote share between 47.5%

and 50.5%. PX629 at 21. This range is significant because many North Carolina elections

have this vote fraction, and this is the range where the non-partisan ensemble shows that

Republicans lose the super-majority. Id. But the enacted map in multiple elections used in

Dr. Mattingly’s analysis sticks at less than 21 Democratic seats, preserving a Democratic

supermajority. Notably, the enacted map never favors the Democratic party in comparison

to the non-partisan ensemble in a single one of the 16 elections that Dr. Mattingly considered.

147. Dr. Mattingly demonstrated the supermajority firewall by plotting the results

of the statewide elections using the enacted Senate plan and his nonpartisan simulations in

Figure 5.2.1, which is similar to Figure 5.1.1 for the House. PX629 at 22; PX643.

148. Although the effect is not as significant as in the House, the enacted plan elects

fewer Democrats in each election than the majority or vast majority of plans in the non-

partisan ensemble. Id. And in particular, the Senate plan sticks at 20 Democratic seats

55
across a variety of elections in which the overwhelming majority of non-partisan plans hit 21

and break the supermajority. Id.

149. Dr. Mattingly also performed an analysis to determine the extent of “cracking”

and “packing” in the enacted maps. Id. at 12. In maps that are cracked and packed, it is

expect to see that the concentrations of Democratic voters are outliers as compared to

nonpartisan maps. Id. at 12.

150. For the Congressional maps, Dr. Mattingly ordered the fourteen districts in

the congressional plan in his ensemble of nonpartisan plans from lowest to highest based on

the Democratic vote fraction in each district, using statewide elections. PX629 at 75, Fig.

9.0.2; see also id. at 95-97.

151. The Court finds that cracking Democrats from the more competitive districts

and packing them into the most heavily Republican and heavily Democratic districts is the

key signature of intentional partisan redistricting and it is responsible for the enacted

congressional plan’s non-responsiveness when more voters favor Democratic candidates, as

shown in his charts. Id. at 75-76; Trial Tr. 01/03/2022. Across his 80,000 simulated

nonpartisan plans, not a single one had the same or more Democratic voters packed into the

three most Democratic districts – i.e., the districts Democrats would win no matter what – in

comparison to the enacted plan. Id. And not a single one had the same or more Republican

voters in the next seven districts – i.e., the competitive districts – in comparison to the

enacted plan. Id. That was true across every single statewide election in 2016 and 2020. Id.

152. For the House, the enacted maps, as compared to the sample maps, there is an

overconcentration of Democratic voters in the least Democratic districts and in the most

Democratic districts. Id. at 16; PX637. The Court finds that the districts with the highest

concentration of Democrats have far more Democratic voters than expected in nonpartisan

56
maps, and threshold districts have far fewer Democratic voters than expected in nonpartisan

maps. Id.; Trial Tr. 01/03/2022.

153. In the middle districts—between the 60th most Democratic seat and the 80th

most Democratic seat—the Democratic vote fraction in the enacted plan is far below the boxes

representing the nonpartisan plans. PX629 at 16. These are the seats that determine the

supermajority line and the majority line (if Republicans win the 61st seat, they win the

majority, and if they win the 72nd most Democratic seat, they win the supermajority). The

Court finds that the systematic depletion of Democratic votes in those districts signals

packing, does not exist in the non-partisan ensemble, and is responsible for the map’s

partisan outlier behavior. Id. Those Democrat votes are instead placed in the 90th to 105th

most Democratic district, where they are wasted because those seats are already comfortably

Democratic. Id.

154. For the Senate, the same structure appears where virtually all of the seats in

the middle range that determines majority and supermajority control have abnormally few

Democrats. See PX629 at 24; PX645.

155. While a redistricting plan’s resiliency to electoral environments is an

important indicator of partisan intent, the Court finds that even if a districting plan is the

product of an intentional partisan redistricting, a political gerrymander can still be broken

in a wave election under the intentionally partisan maps. Trial Tr. 01/03/2022.

156. Dr. Mattingly also conducted a secondary analysis for each chamber in which

he only considered plans that preserved the same or fewer incumbents than the enacted

plans. The Court finds that this did not affect his results and that “a desire to prevent the

pairing of incumbents cannot explain the extreme outlier behavior of the enacted plan.”

PX629 at 19, 27.

57
 157. Finally, Dr. Mattingly observed that the enacted Senate plan appeared to split

very few municipalities in comparison to what was possible under a nonpartisan ensemble,

while the enacted House plan split many more municipalities. PX629 at 10. He explored

why the House and Senate plans would have treated municipality splits differently by

creating two entirely new ensembles for the House and Senate – in the House, he created a

new ensemble that prioritized preserving municipalities (as opposed to matching the enacted

plan’s preservation of municipalities), and in the Senate, he created an ensemble that did not

prioritize preserving municipalities. Id.

158. Dr. Mattingly concluded that the choice to preserve municipalities in the

Senate but not in the House appeared to have been a partisan choice. He compared the

partisan properties of the new ensembles to his original ensembles and found that, for the

Senate plan, relaxing the requirement to preserve municipalities leads to an ensemble that

is more favorable to the Democrats, meaning that the enacted plan would be an extreme

outlier in more situations. Compare Figure 5.2.7 with Figure 5.2.1. Put differently,

prioritizing municipality preservation in the Senate plan appears to enable more maps that

favor Republicans. By contrast, for the House plan, where the enacted map does not prioritize

preserving municipalities, he found that his new ensemble prioritizing municipalities would

not have favored the Republican party in comparison. PX629 at 10. The Court finds that the

mapmakers focused on municipalities in the state legislature only when doing so advantaged

Republicans.

159. The partisan bias that Dr. Mattingly identified by comparing the enacted plans

to his nonpartisan ensemble of plans could not be explained by political geography or natural

packing. PX629 at 3. Moreover, Dr. Mattingly’s analysis did not rest on any assumption

about proportional representation. Id.

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 (iv) Harper Plaintiffs’ Expert Dr. Wesley Pegden

160. Wesley Pegden, Ph.D., is Associate Professor in the Department of

Mathematical Sciences at Carnegie Mellon University, and testified as an expert in

probability. PX523 at 1 (Pegden Report). Dr. Pegden has published numerous papers on

discrete mathematics and probability in high-impact, peer-reviewed journals, and has been

awarded multiple prestigious grants, fellowships, and awards. Id.; PX524 (Pegden CV). He

previously served on Pennsylvania’s bipartisan Redistricting Reform Commission under

appointment by the Governor. PX523 at 1.

161. Dr. Pegden’s academic work on redistricting involves Markov Chains. A

Markov Chain is “a sequence of random changes.” PX523 at 1 (Pegden Report). In 2017,

before Dr. Pegden had ever served as an expert in redistricting litigation, he published a

peer-reviewed article (PX628) entitled “Assessing Significance in a Markov Chain Without

Mixing” in the Proceedings of the National Academy of Sciences—a top-ranked, science-wide

journal. PX523 n.1. This article provides a new way to demonstrate that a given object is an

outlier compared to a set of possibilities. PX628.

162. Dr. Pegden was qualified and accepted as an expert at trial in probability. Trial

Tr. 01/03/2022.

163. Dr. Pegden explained that there are three ways to show that a given object is

an outlier. One of these forms of outlier analysis, developed by Dr. Pegden and his co-authors,

begins with the object in question, uses a Markov chain to make a series of small, random

changes to the object, and then compares the objects generated by making the small changes

to the original object. PX628 at 1. Dr. Pegden’s article illustrates this methodology using a

redistricting plan. Id. at 3-5. The article demonstrates that, by using an existing plan as a

starting point and then making small random changes to the district boundaries, one can

prove the extent to which the existing plan is an outlier compared to all possible maps

59
meeting certain criteria. Id. Dr. Pegden’s article proves mathematical theorems showing

that this approach can establish a redistricting plan’s outlier status in a way that is

rigorously grounded in mathematics. PX523 at 4 (Pegden Report). In 2020—before this case

was filed or the 2021 Plans were enacted—Dr. Pegden and three co-authors (including Dr.

Mattingly) published a peer-reviewed article (PX627) titled “Separating Effect from

Significance in Markov Chain Tests” in the journal Statistics and Public Policy.

164. In this case, Dr. Pegden used his form of outlier analysis to evaluate whether

and to what extent the 2021 Plans were drawn with the intentional and extreme use of

partisan considerations. To do so, using a computer program, Dr. Pegden began with the

enacted plans, made a sequence of small random changes to the maps while respecting

certain nonpartisan constraints, and then evaluated the partisan characteristics of the

resulting comparison maps. PX523 at 3-11.

165. Dr. Pegden’s analysis proceeded in several steps. He began with the enacted

map. His computer program then randomly selected a geographic unit on the boundary line

between two districts and attempted to move or “swap” the unit from the district it is in into

the neighboring district. PX523 at 8-9. Dr. Pegden’s method uses two different geographic

units, VTDs and geounits. PX523 at 8. For the congressional plan, Dr. Pegden’s primary

analysis used VTDs, not geounits. Id. But to verify that the choice between VTDs and

geounits did not affect his results, he also repeated his analyses using geounits, which allows

for the splitting of VTDs. Id. at 8, 46. Created by a computer program, geounits are compact

collections of census blocks that lie entirely within one VTD and one district, containing on

average 1000 people. There are roughly four geounits per VTD. Id. at 8.

166. When attempting to swap a randomly selected VTD or geounit from one district

to another, Dr. Pegden allowed the swap to occur only if certain constraints were satisfied.

PX523 at 7 (Pegden Report). These constraints were based on the 2021 Adopted Criteria and

60
included: contiguity, compact districts, county preservation, municipal preservation, VTD

preservation, incumbency protection, and population deviation. Id.

167. Dr. Pegden applied these constraints in a “conservative” way, to “avoid second-

guessing the mapmakers’ choices in how they implemented the districting criteria.” PX523

at 7. For example, his algorithm generated a comparison map only if it included an equal or

lesser number of county splits, municipal splits, and VTD splits as the enacted plan. Id. His

comparison maps could not double-bunk any incumbents that were not double-bunked in the

enacted plan. Id. For compactness, comparison maps needed to have a Polsby-Popper score

within a 5% margin of the enacted plan. And for population deviation, comparison maps

needed to have district populations within 2% of the ideal district population. Id.

168. Dr. Pegden ran several “robustness checks” to ensure that implementing the

criteria differently would not affect the results of his analysis. PX523 at 39-47. For

incumbency, he re-ran his analysis without restricting the double-bunking of incumbents.

Id. at 41. For compactness, he re-ran his analysis allowing for 0% difference between the

compactness of generated maps and the enacted map, and also allowing for a 10% difference.

Id. at 42-43. He also used a different measure of compactness altogether to ensure that using

the Polsby-Popper measure was not affecting his results. Id. at 44. For district population,

Dr. Pegden re-ran his analysis with a 1% threshold for population deviation and a 0.5%

deviation (the latter of which allowed for VTD splits). Id. at 10, 45-46. He also ran a version

of his analysis using, as his baseline map, a version of the enacted map that split no VTDs.

Id. at 10, 47. None of these changes affected Dr. Pegden’s conclusion that the congressional

map is an extreme partisan outlier and is more carefully crafted to ensure Republican

advantage that nearly every possible redistricting plan. Id. at 41-47.

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 169. Because of this conservative implementation of the enacted criteria, Dr.

Pegden’s algorithm does not seek to generate maps better than the enacted plan in terms of

their adherence to non-partisan criteria like compactness. PX523 at 7. Rather, Dr. Pegden’s

approach accepts the decisions the map-maker made and asks whether, “even if we accept

that the mapmakers have made appropriate choices with respect to nonpartisan criteria such

as compactness, population deviation, municipality preservation, incumbency protection, and

so on, does their plan nevertheless stand out with respect to its partisan qualities?” Id.

170. Once Dr. Pegden’s algorithm made a swap satisfying his constraints, his

algorithm evaluated the partisan characteristics of the comparison map that resulted from

the swap. PX523 at 5, 9-10. For his main analysis, Dr. Pegden used data from the 2020

Attorney General race to analyze the congressional plan. Id. at 39. Dr. Pegden also re-ran

his analysis using three additional elections—the 2020 Presidential election, the 2020

Lieutenant Governor election, and the 2020 Governor election. Id. at 39-40. Using these

different historical elections did not alter Dr. Pegden’s conclusions. Id.

171. To evaluate the partisan characteristics of each comparison map, Dr. Pegden’s

algorithm calculates the number of seats Democratic candidates would win, on average, if a

random uniform swing were repeatedly applied to the historical voting data being used.

PX523 at 9-10. This metric captures how a given comparison map would perform over a

range of electoral environments centered around the base election being used (i.e., the 2020

Attorney General’s election for Dr. Pegden’s primary analysis). Id.

172. Dr. Pegden’s algorithm repeats the foregoing steps billions or trillions of times.

The algorithm begins with the enacted map, makes a small random change complying with

certain constraints, and uses historical voting data to evaluate the partisan characteristics

of the resulting map. PX523 at 5. The algorithm then repeats those steps, each time using

the comparison map generated by the previous change as the starting point. Id. By repeating

62
this process many times, Dr. Pegden’s algorithm generates a large number of comparison

maps in sequence, each map differing from the previous map only by one small random

change. Id. at 5, 8.

173. Each sequence of billions or trillions of small changes in Dr. Pegden’s analysis

is one “run.” PX523 at 5. For the congressional plan, a run consisted of approximately one

trillion small changes. Id. His algorithm performs multiple runs for each map being

analyzed, with each run beginning with the enacted plan as the starting point. Id.

174. The comparison maps generated by Dr. Pegden’s algorithm are not intended to

provide a baseline for what neutral, nonpartisan maps of the North Carolina House or Senate

should look like. PX523 at 7, 10. Instead, Dr. Pegden’s comparison maps are intended to be

similar to the enacted map in question with respect their relevant nonpartisan

characteristics, in order to assess how carefully created the enacted plan is to maximize

partisan advantage. Id. Thus, when Dr. Pegden reports the number of Democratic seats

expected under a particular set of generated maps, that does not necessarily reflect the

number of Democratic seats that would be expected under a representative set of neutral,

nonpartisan districting maps. Id. at 10. Nor does Dr. Pegden’s method “evaluate the fairness

of a districting by whether it produces a ‘small’ or ‘large number of seats for one party.” Id.

The number of Democratic seats expected “is merely a metric used to compare one map to

another”—i.e., to determine whether “the enacted map is [an] extreme outlier with respect to

how optimized for partisanship it is compared to the set of alternative comparison districts

of North Carolina satisfying the districting criteria [he] impose[s].” Id.

175. As explained in further detail below, Dr. Pegden found, and the Court so finds,

that the enacted congressional plan is more favorable to Republicans than 99.9999% of the

comparison maps his algorithm generated by making small random changes to the enacted

63
plans. Id. at 13. And based on these results, Dr. Pegden’s theorems prove, and the Court so

finds, that the enacted congressional map is more carefully crafted to favor Republicans than

at least 99.9999% of all possible maps of North Carolina satisfying the nonpartisan

constraints imposed in his algorithm. Id.

176. The Court finds that even without using applying the mathematical theories

developed in his academic papers, Dr. Pegden’s first-level analysis provides evidence that the

2021 congressional plan was “drawn to optimize partisan advantage in the enacted plan.”

PX523 at 5. In every run, the enacted congressional plan was in the most partisan 0.000031%

of the approximately one trillion maps generated making tiny random changes to the

district’s boundaries. PX523 at 13. “[I]f the districting had not been drawn to carefully

optimize its partisan bias, we would expect naturally that making small random changes to

the districting would not have such a dramatic and consistent partisan effect.” Id. at 5. And

the Court also finds that Dr. Pegden’s second-level analysis provides mathematically precise

calculations of how carefully crafted the plan is—that is, how precisely the district boundaries

align with partisan voting patterns so as to advantage Republicans—when compared not just

to the comparison maps generated in each run of his algorithm, but to all possible maps of

North Carolina that satisfy his constraints. PX523 at 6-7.

177. Dr. Pegden conducted analyses of the 2021 House and Senate maps using the

same method underlying his analysis of the congressional map. PX523 at 14-15. The Court

finds, as did Dr. Pegden, that the House and Senate maps are partisan outliers in their

partisan bias and the degree to which they are optimized for partisan advantage. Id.

178. While Dr. Pegden’s overall method for analyzing the House and Senate maps

was the same as for the congressional map, he made certain changes to his criteria to account

for differences in how state legislative maps are drawn in North Carolina. In particular, his

comparison house and Senate maps used the same county clustering as used in the enacted

64
maps. PX523 at 7. And his House and Senate comparison maps needed to have district

populations within 5% of the ideal district population—the same threshold that the General

Assembly permitted in the 2021 Adopted Criteria. Id.; see PX34. All other criteria—

contiguity, compactness, county traversals, municipality preservation, VTD preservation,

and incumbency protection—were the same as for the congressional analysis. PX523 at 7.

And Dr. Pegden performed similar robustness checks to ensure that changes to these criteria

(for example, using a different compactness threshold) did not affect his results, which they

did not. Id. at 48-59.

179. For some county groupings, because of Dr. Pegden’s conservative application

of his constraints, it was impossible for his algorithm to find a swap that satisfied all of the

constraints. PX523 at 8. When this occurred, Dr. Pegden ran a modification of his algorithm

allowing multiple swaps in one step. Id. at 8-9.

180. Although Dr. Pegden found that the House and Senate maps are extreme

partisan outliers on a statewide basis, his primarily analysis was inconclusive as to four

particular House county clusters—Alamance, Brunswick/New Hanover,

Cabarrus/Davie/Rowan/Yadkin, and Cumberland—which are discussed in more detail below.

PX523 at 33. For these clusters, Dr. Pegden also re-ran his analysis using a different partisan

metric—the “wave threshold”—to determine whether they may have been drawn to achieve

“other conceivable partisan goals” besides merely maximizing Republican seat count, “such

as facilitating the re-election of particular representatives in particular districts.” Id. The

wave threshold metric captures, for a given map, the smallest uniform swing in election

results that would be required to give the Democrats an additional seat. Id. Put differently,

this metric captures how large of a Democratic wave election the cluster could withstand

without losing any Republican seats. Id. For multiple of these groupings discussed further

below, the Court finds that the enacted map was an extreme outlier in the degree to which

65
Democratic election performance would need to increase to produce an additional Democratic

seat. Id. at 34-36.

181. The Court finds, as Dr. Pegden shows in his first-level analysis, that—in every

run—the enacted House map was more favorable to Republicans than 99.99999% of the

comparison maps generated by his algorithm making small random changes to the district

boundaries. PX523 at 14. The Court also finds that the enacted Senate map was more

favorable to Republicans than 99.9% of comparison maps. Id. at 15.

182. As with the congressional plan, Dr. Pegden’s second-level analysis provides

mathematically precise calculations of how carefully crafted the 2021 House and Senate

maps are—that is, how precisely the district boundaries align with partisan voting patterns

so as to advantage Republicans—when compared not just to the comparison maps generated

in each run of his algorithm, but to all possible maps of North Carolina that satisfy his

constraints. For the enacted House map, the Court finds that the enacted map is more

carefully crafted for Republican partisan advantage than at least 99.9999% of all possible

maps of North Carolina satisfying his constraints. PX523 at 14. The Court also finds that

the enacted Senate map is more carefully crafted for Republican partisan advantage than at

least 99.9% of all possible maps of North Carolina satisfying Dr. Pegden’s constraints. Id. at

15.

183. These results cannot be explained by North Carolina’s political geography.

PX523 at 4. Dr. Pegden’s algorithm compares the enacted map to other maps of North

Carolina, with the very same political geography. And Dr. Pegden’s theorems do not depend

on any aspect of North Carolina’s political geography. Id.

66
 (v) NCLCV Plaintiffs’ Expert Dr. Moon Duchin

184. Dr. Duchin holds a Ph.D. and an M.S. in Mathematics from the University of

Chicago as well as an A.B. in Mathematics and Women’s Studies from Harvard University.

She is a Professor of Mathematics and a Senior Fellow in the Jonathan M. Tisch College of

Civic Life at Tufts University. PX150 at 2.

185. Dr. Duchin’s general research areas are geometry, topology, dynamics, and

applications of mathematics and computing to the study of elections and voting. Her

redistricting-related work has been published in venues such as the Election Law Journal,

Political Analysis, Foundations of Data Science, the Notices of the American Mathematical

Society, Statistics and Public Policy, the Virginia Policy Review, the Harvard Data Science

Review, Foundations of Responsible Computing, and the Yale Law Journal Forum. Id.

186. Dr. Duchin was qualified and accepted as an expert at trial in the field of

redistricting. Trial Tr. 01/04/2022.

187. Dr. Duchin’s analysis seeks to address how a certain quantitative share of the

vote should be translated to a quantitative share of the seats in a state legislature or

Congressional delegation. Id. at 4. Dr. Duchin uses a Close-Votes-Close-Seats principle,

which is where “an electoral climate with a roughly 50-50 split in partisan preference should

produce a roughly 50-50 representational split.” Id. Close-Votes-Close-Seats is not

tantamount to a requirement for proportionality. Rather, it is closely related to the principle

of Majority Rule, which is where “a party or group with more than half of the votes should be

able to secure more than half of the seats.” Close-Votes-Close-Seats is essentially a corollary

(or byproduct) of Majority Rule; it is not practicable to design a map that always attains these

properties. Id.

188. Dr. Duchin has previously analyzed the impacts of political geography in

Massachusetts and found that even though Republicans tended to typically get over one-third

67
of the statewide vote, it was impossible to draw a single Congressional district with a

Republican majority. Id. In North Carolina, however, Dr. Duchin’s analysis shows, and the

Court so finds, that the political geography of North Carolina today does not lead only to a

district map with partisan advantage given to one political party. Id. at 4-5.

189. The Enacted Plans behave as though they are built to resiliently safeguard

electoral advantage for Republican candidates. Applying a standard technique in the field,

Dr. Duchin overlayed each plan onto historical voting patterns from all 52 partisan elections

since 2012 in order to show how the Enacted Plans would have performed in actual North

Carolina elections. PX150 at 4-5.

190. The results reveal a partisan skew in close elections. PX150 at 4. For instance,

the 2020 vote for Chief Justice of the North Carolina Supreme Court resulted in a virtual tie,

with the Republican candidate winning by 401 votes. PX150 at 6. The Enacted Plans would

have converted that near tie at the ballot box into a resounding Republican victory in seat

share across the board: Republicans would have won 10 (71%) of North Carolina’s

congressional districts, 28 (56%) of North Carolina’s Senate districts, and 68 (57%) of North

Carolina’s House districts. PX150 at 6 (line labeled JS120). Nor is that election unusual.

191. Under this analysis, the Court finds that in every single one of the 52 elections

decided within a 6-point margin, the Enacted Plans give Republicans an outright majority in

the state’s congressional delegation, the State House, and the State Senate. PX150 at 5-6.

This is true even when Democrats win statewide by clear margins. For example, under this

analysis, in the 2020 gubernatorial race, although voters in that election preferred the

Democratic candidate by 4.6 percentage points, the Enacted Plans translate that preference

into a Republican 10-4 (71%) majority in the state’s congressional delegation, a 27-23 (54%)

majority in the state Senate, and a 62-58 (52%) majority in the state House—all when voters

clearly prefer the other party. PX150 at 6.

68
 192. The Enacted Plans resiliently safeguard electoral advantage for Republican

candidates. PX150 at 5. This skewed result is not an inevitable feature of North Carolina’s

political geography.

193. The result of Dr. Duchin’s “overlay” analysis for the Enacted Congressional

Plan is clear: The plan is designed in a way that safeguards Republican majorities in any

plausible election outcome, including those where Democrats win more votes by clear

margins. The Enacted Congressional Plan will almost always yield 10 Republican seats and

4 Democratic seats. PX150 at 6. This includes Democratic victories as well as close elections.

PX150 at 6.

194. The below figure demonstrates the bias the Enacted Congressional Plan

creates across all 52 elections that Dr. Duchin studies by comparing Democratic vote share

(on the x-axis) with Democratic seat share (on the y-axis) for every election. PX150 at 7. A

map that responds to voters’ preferences would roughly track one of the diagonal lines

crossing at the “(50, 50)” point, where a 50% vote share generates a 50% seat share. Along

those lines, as either party wins more votes, it wins more seats. And if either party wins a

majority of votes, it wins a majority of seats. But as the figure shows, the Enacted

Congressional Plan (red dots) does not come near the diagonal lines or pass anywhere close

to the (50, 50) point.

69
PX153 (Figure 2: Vote Shares and Seat Shares in Enacted & NCLCV Congressional Maps)

195. This shows that, under the Enacted Congressional Plan, more Democratic

votes usually do not mean more Democratic seats, reflected in the flat red line near the

bottom of the figure. Indeed, the bulk of the red dots are stuck on that line, where Democrats

carry only 4 of 14 districts. And in each of the 12 statewide contests where the Democratic

candidate won by less than seven percentage points, the winner carried only 4 or 5 of the 14

districts (these are the red dots in the lower-right quadrant, where more than half the votes

generated less than half the seats for Democratic candidates). Under the Enacted

Congressional Plan, a clear majority of Democratic votes does not translate into a majority

of seats. The Court finds that the Enacted Congressional Plan achieves these results by the

familiar means of “packing” and “cracking” Democratic voters across the state, as further

described below.

196. The Enacted Senate Plan effectuates the same sort of partisan advantage as

the Enacted Congressional Plan. The Enacted Senate Plan consistently creates Republican

majorities and precludes Democrats from winning a majority in the Senate even when

Democrats win more votes. Even in an essentially tied election or a close Democratic victory,

the Enacted Senate Plan gives Republicans a Senate majority, and sometimes even a veto-

70
proof 30-seat majority. PX150 at 6. And that result holds even when Democrats win by larger

margins. Id.

197. The below figure demonstrates the bias in the Enacted Senate Plan across all

52 recent partisan elections by comparing Democratic vote share (on the x-axis) with

Democratic seat share (on the y-axis) across the 52 elections that Dr. Duchin used to analyze

the plan. PX150 at 7. A map that responds to voters’ preferences would roughly track one of

the diagonal lines crossing at the “(50, 50)” point, where a 50% vote share generates a 50%

seat share. As with the Enacted Congressional Plan, the Enacted Senate Plan (red dots) does

not come near the diagonal lines or pass anywhere close to the (50, 50) point. Instead, the

Enacted Plan falls well below all of the lines on the y-axis and crosses the x-axis far to the

right of the midpoint, showing a plan that consistently denies Democrats majorities even

when voters clearly prefer Democratic candidates.

PX153 (Figure 2: Vote Shares and Seat Shares in Enacted & NCLCV Senate Maps)

198. As with the Enacted Congressional Plan, the Court finds that the Enacted

Senate Plan achieves its partisan goals by packing Democratic voters into a small number of

Senate districts and then cracking the remaining Democratic voters by splitting them across

other districts, as further described below.

71
 199. Similarly, the Enacted House Plan is also designed to systematically prevent

Democrats from gaining a tie or a majority in the House. In close elections, the Enacted

House Plan always gives Republicans a substantial House majority. That Republican

majority is resilient and persists even when voters clearly express a preference for

Democratic candidates. PX150 at 6.

200. The below figure plots Democratic vote share against Democratic seats across

all 52 recent partisan elections studied by Dr. Duchin. Again, the Enacted House Plan (red

dots) does not pass anywhere close to the (50, 50) point. Instead, the Enacted Plan falls well

below the block trendlines on the y-axis and crosses the x-axis far to the right of the midpoint,

showing a plan that consistently denies Democrats majorities or even a tie.

PX153 (Figure 2: Vote Shares and Seat Shares in Enacted & NCLCV House Maps)

201. As with the Enacted Congressional Plan and the Enacted Senate Plan, the

Court finds that the Enacted House Plan achieves this resilient pro-Republican bias by the

familiar mechanisms of packing and cracking Democratic voters, as further described below.

72
 (vi) Plaintiff Common Cause’s Expert Dr. Daniel
Magleby

202. Dr. Magleby is a professor at Binghamton University, where he holds a

courtesy appointment in the Department of Economics and is the director of the Center for

the Analysis of Voting and Elections. PX1483 at 3.

203. Dr. Magleby was qualified and accepted as an expert at trial in the fields of

political geography and legislative and congressional elections, mathematical modeling and

political phenomena and measurements of gerrymandering. Trial Tr. 01/04/2022.

204. Dr. Magleby used a peer-reviewed algorithm that he developed to generate a

set of unbiased maps against which he compared the enacted House, Senate, and

congressional maps. PX1483 at 6. He designed this algorithm to prioritize maintaining voting

districts and to draw maps that were contiguous and roughly equal in population. Id. Dr.

Magleby then used this algorithm to develop a set of between 20,000 and 100,000 maps, from

which he took a random sample of 1,000 maps that roughly met the North Carolina

Legislature’s 2021 criteria for drawing districts. Id. at 6.

205. Dr. Magleby then aggregated statewide votes from statewide races between

2016 and 2020 to the voting district level in order to determine typical partisan performance

in North Carolina state elections (a “seats carried” analysis). Id. at 8, 9. In order to match up

the vote share to the newly enacted districts, Dr. Magleby determined which simulated

district a precinct would fall in and assigned that precinct’s vote count to the hypothetical

district. Id. at 7. If the precinct fell in more than one simulated district, Dr. Magleby assigned

to the sample district the proportion of the votes as determined by the precinct’s population

that fell in the simulated district. Id. at 7.

73
 206. The Court finds, as Dr. Magleby found, that the level of partisan bias in seats

in the House maps went far beyond expected based on the neutral political geography of

North Carolina. Id. at 10.

207. In the neutral maps drawn using the Adopted Criteria for drawing maps, Dr.

Magleby’s analysis found that Democrats most commonly won 52 seats in the North Carolina

House of Representatives. Id. at 13. In the enacted map, on the other hand, Democrats won

only 48 seats. Id. at 13. Out of 1,000 possible maps that the algorithm drew, only one map

resulted in Democrats winning as few as 48 seats. Id. at 13. That amounts to a 0.1% chance

that Democrats would win as few as 48 seats absent partisan bias under his analysis.

208. Because an analysis of “seats carried” is not sufficient to identify all partisan

redistricting, Dr. Magleby also used median-mean calculations to measure the extent of

partisan advantage—specifically, to understand how dramatically Democratic voters were

treated from Republican voters and how durable that gerrymander is. Id. at 9. To calculate

the median-mean difference, Dr. Magleby first calculated the average Democratic vote share

in the House districts. Id. at 9–10. He then found the median Democratic vote share by lining

up the enacted House districts from least Democratic to most Democratic and identifying the

districts that fell in the middle. Id. at 10. In a nonpartisan map, a low median-mean

difference is expected. Id.

209. The Court finds, as Dr. Magleby found, that the median-mean bias in the

enacted maps was far more extreme than expected in nonpartisan maps. The nonpartisan

House maps that Dr. Magleby drew most commonly had a median-mean difference in the

Democratic vote share of between 0.0225 and -0.025. Id. at 15. The lowest median-mean

difference in the generated maps was -0.034, and the highest was -0.005. Id. The enacted

maps have a median-mean difference in Democratic vote share of -0.04. Id. No randomly

74
generated map had such an extreme median-mean share—meaning that in his analysis, he

saw no simulated map that was as extreme and durable in terms of partisan advantage. Id.

(vii) Legislative Defendants’ Expert Dr. Michael Barber

210. Dr. Barber is an associate professor of political science at Brigham Young

University and faculty fellow at the Center for the Study of Elections and Democracy in

Provo, Utah. He received his PhD in political science from Princeton University in 2014 with

emphases in American politics and quantitative methods and statistical analyses. Dr. Barber

teaches undergraduate courses in American politics and quantitative research methods,

including classes about political representation, Congressional elections, statistical methods,

and research design. LDTX107 at 6. Dr. Barber’s research uses advanced statistical methods

for the analysis of quantitative data, oftentimes in the context of election- and voting-related

topics, and his research has been published numerous times in peer-reviewed journals.

LDTX107 at 7.

211. Dr. Barber was qualified and accepted as an expert at trial in the areas of

political geography, partisanship statistical analysis, and redistricting. Trial Tr. 01/05/2022.

212. Dr. Barber analyzed the Enacted Plans, as well as NCLCV Plaintiffs’

Optimized Maps, in the context of the partisan gerrymandering claims brought by Plaintiffs

challenging the North Carolina Senate and North Carolina House of Representatives

Districts. LDTX107 at 5.

213. Dr. Barber utilized a publicly-available and peer-reviewed redistricting

simulation algorithm to generate 50,000 simulated district maps in each county grouping in

which there are multiple districts in both the North Carolina House of Representatives and

the North Carolina Senate. LDTX107 at 5. In Dr. Barber’s simulations, the model generates

plans that adhere to the restrictions included in the North Carolina Constitution as well as

the Stephenson criteria of roughly equal population, adherence to county cluster boundaries,

75
minimization of county traversals within clusters, and geographic compactness. LDTX107 at

22-23. Only after the simulated district plans are complete is the partisan lean of each district

in each plan computed by utilizing two-party election results from eleven statewide elections

from the past ten years; these results are disaggregated to the level of the VTD and then

reassembled at the district level to compute the proportion of votes. LDTX107 at 23-24.

214. Dr. Barber’s method is not without limitations. Because it is impossible for a

redistricting algorithm to account for all non-partisan redistricting goals—which can be

idiosyncratic and district-specific—differences between the range of his simulated plans and

the 2021 Plans may be the result of non-partisan goals the algorithm failed to account for,

rather than of partisan goals. In Dr. Barber’s opinion, there is no way, then, to be sure that

differences in partisan effects from simulated plans versus legislatively enacted plans result

from partisan intent rather than from non-partisan goals the algorithm was not programmed

to achieve. This means that the simulation method can be indicative on the question of

partisan intent, but not necessarily dispositive, and under Dr. Barber’s analysis, it is

plausible that the 2021 Plans were prepared without partisan data or considerations.

215. Dr. Barber’s definition of a partisan outlier is if the number of Democratic

districts generated by the plan falls outside the middle 50% of simulation results, which he

considers a conservative definition of an outlier rather than the traditional definition of

falling outside the middle 95% or 90% of the comparison distribution. LDTX107 at 29. In the

House of Representatives, one county grouping is a partisan outlier under this analysis, and

in the Senate, two county groupings are partisan outliers under this analysis. LDTX107 at

5; id. at 157 (Guilford House grouping); id. at 227 (Granville and Wake Senate grouping); id.

at 233 (Iredell and Mecklenburg Senate grouping).

216. Supporting Dr. Barber’s finding of limited partisan outliers is the spatial

distribution of voters throughout the state, which can have an impact on the partisan

76
outcomes of elections when a state is, by necessity, divided into a number of legislative

districts. This is largely the case because Democratic-leaning voters tend to cluster in dense,

urban areas while Republican-leaning voters tend to be more equally distributed across the

remainder of the state. This pattern holds true in North Carolina. LDTX107 at 10-13.

217. As a result of the spatial distribution of voters throughout the state, under Dr.

Barber’s analysis there are many more VTDs with efficient Republican majorities than there

are VTDs with efficient Democratic majorities. LDTX107 at 14. And therefore, Dr. Barber

concludes the advantage between the expected Republican seat share in the state legislature

compared to the statewide Republican vote share in the recent past is more due to geography

than partisan activity by Republican map drawers. LDTX107 at 15.

(viii) Legislative Defendants’ Expert Dr. Andrew Taylor

218. Dr. Taylor is a tenured professor of political science at North Carolina State

University and has taught at NC State since receiving his Ph.D. from the University of

Connecticut in 1995. He teaches an array of courses in American politics, served as chair of

the Department of Political Science from 2006 to 2010, and served as President of the North

Carolina Political Science Association in 2012-13. LDTX108 at 2.

219. Dr. Taylor has written four books and published extensively in political science

journals, including authoring twenty-eight peer-reviewed articles and other published work.

His work utilizes a diverse array of methodologies, including different statistical techniques,

and has included research on redistricting and North Carolina politics. Id.

220. Dr. Taylor was qualified and accepted as an expert at trial in the areas of

political science, political history of North Carolina, and its constitutional provisions, and the

comparative laws and Constitutions in other states and jurisdictions. Trial Tr. 01/04/2022.

77
 221. Dr. Taylor analyzed the Enacted Plans deploying his knowledge of North

Carolina political history and legislative politics, comparative politics, and American national

and state politics and policy. LDTX108 at 2-3.

222. There is no recognized baseline of transparency for legislative redistricting,

and the 2021 redistricting was a transparent and participatory process in comparison to

North Carolina’s past redistricting and that by legislative bodies in other states. TR

01/04/2022.

223. Complaints about unfair district lines as removed from the concepts of free

elections, equal protection, and free speech and assembly are different than how those ideas

have historically been understood by political scientists. LDTX108 15–25. A free election is

not generally understood by political scientists to be one without burdens on the right to vote

(since basic regulatory frameworks necessarily place some burden on that right), and a given

districting system is not generally understood as essential to the meaning of free elections

(since even free elections have limited options in all events). Id. at 21–22.

224. Likewise in political science, an election is generally regarded as “equal” so

long as “[e]ach person has one vote to elect one legislator who has one vote in the legislature,”

and departures even from that ideal are tolerated (as in the case of non-citizens, who are

counted towards the baseline of district population even though they are not permitted to

vote). Id. at 23. In political science, equal outcomes are not generally accepted as a necessary

facet of equal elections, administering such a rule would seem to be unworkable, and voting

is not a feature of party participation but of individual participation as a citizen. Id. In this

respect, it makes no sense to refer to citizens as having cast “wasted” votes; it is the parties,

not voters, who are properly viewed as wasting votes.” Id. at 24.

78
 225. Similarly, purportedly “fair” redistricting plans are not understood in the

political-science field as germane to free speech, which can occur regardless of the shapes and

sizes of districts. Id. at 24–25.

226. For many of these reasons, measuring gerrymanders can be elusive,

problematic, and beyond the consensus of political scientists. See id. at 25–32. Measuring an

alleged gerrymander as one that “produce[s] outcomes in which the share of the legislative

body’s seats won by a party is not proportionate with its share of the aggregate statewide

vote and/or . . . produce too many districts where there is little meaningful competition” runs

into the problem that “proportionality was not an objective of the designers of our electoral

system.” Id. at 27. Further, the goals of proportionality and competitiveness are often

incompatible. Id. at 27–29.

227. Prominent political science measures of “fairness” have proven incapable of

commanding consensus because they are all deficient in one or more respects. Id. at 29–38.

Those methods tied to a measure of vote totals and seat totals are too tied into proportionality

to present a meaningful notion of fairness, especially given that avoiding this problem would

require gerrymandering in favor of the party complaining of unfairness. Id. at 34–37. Many

measures of fairness are too subjective to be of use to political scientists. See id. at 38. All

measures require judgment calls like choice of metrics and elections data for measuring

partisan effect, which is a fluid concept that changes year to year. Id. at 37.

228. The Democratic Party’s message is successful only in limited geographic areas,

LDTX108 at 38–41, so any partisan “effect” the Democratic Party or its supporters complain

of could be understood as the natural and probable consequences of neutral factors that

cannot be considered unfair or adverse as a factual matter. There has been a significant

change in North Carolina’s political geography over the past thirty years. Id. at 39-40.

79
Whereas Democrats formerly did well in rural areas, especially in the eastern part of the

state, and Republicans were competitive in urban and suburban areas, that is no longer true.

“The transformation is not the result of redistricting.” Id. at 40. Instead, it is a function of

slow social and economic forces, changes in the state’s citizenry, and party ideology. Id. at 40-

41.

(ix) Legislative Defendants’ Rebuttal Expert Sean

Trende

229. Sean Trende is currently enrolled as a doctoral candidate in political science

at The Ohio State University. His coursework for his Ph.D. and M.A.S. included, among other

things, classes on G.I.S. systems, spatial statistics, issues in contemporary redistricting,

machine learning, non-parametric hypothesis tests and probability theory. He expects to

receive his Ph.D. in May of 2021. His dissertation focuses on applications of spatial statistics

to political questions. LDTX106 at 1-2. Mr. Trende is a Senior Elections Analyst with

RealClearPolitics, where he’s been since January of 2009 after practicing law for 8 years. He

is also a Visiting Scholar at the American Enterprise Institute and has authored or co-

authored books analyzing demographic and political trends as well as the dynamics behind

elections. He has spoken on these topics as well and has taught classes on American Politics

and the Mass Media, Political Participation and Voting Behavior. Id. at 2. He sits on the

advisory panel for the “States of Change: Demographics and Democracy” project, sponsored

by the Hewlett Foundation. The project looks at trends among eligible voters and the overall

population to explain the impact of changes on American politics. Id. at 4.

230. Mr. Trende has authored expert reports in 15 voting rights cases and currently

serves as one of two special masters appointed by the Supreme Court of Virginia to redraw

districts that will elect the commonwealth’s representatives to the House of Delegates, state

Senate, and U.S. Congress. Id. at 7.

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 231. Mr. Trende was qualified and accepted as an expert at trial in the areas of

political science, redistricting, drawing redistricting maps and analyzing redistricting maps.

Trial Tr. 01/05/2022.

232. Mr. Trende created images by examining the Complaints filed by the plaintiffs

in this action. He examined whether the districts were challenged as either partisan

gerrymanders or districts that diluted minority voting power. LDTX106 at 7. He then

downloaded the enacted plans from the legislative redistricting website and used R, a

statistical programming tool, to color-code the districts by plaintiff group, based upon who

challenged which districts. Id. In Exhibit 2 to his affidavit, Mr. Trende submitted 8 maps

identifying the districts challenged by each Plaintiff group in these consolidated cases. Id. He

also created color-coded maps showing each county in North Carolina, noting the number of

counties in which a majority of voters voted for the Republican presidential candidate in the

past decade (between 70 and 76 counties) and whether the Republican candidate performed

better in a county than nationally. Id. at 8.

B. District-by-District Analysis

1. North Carolina Senate Districts

233. Plaintiffs’ experts analyzed specific county groupings in the enacted Senate

plan. Plaintiffs’ experts concluded that partisan redistricting and bias in these groupings

was responsible for the partisan bias that they found in their statewide analysis of the

enacted Senate plan. The results of the analysis conducted by Legislative Defendants’ expert

Dr. Barber reinforce this conclusion.

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 a. Granville-Wake Senate County Grouping

234. The Granville-Wake County Grouping contains Senate District 13 (“SD13”),

Senate District 14 (“SD14”), Senate District 15 (“SD15”), Senate District 16 (“SD16”), Senate

District 17 (“SD17”), and Senate District 18 (“SD18”). SD13 is comprised of Granville County

and portions of Wake County. SD14, SD15, SD16, SD17, and SD18 are comprised of portions

of only Wake County. Plaintiffs challenge these Senate Districts as the product of unlawful

partisan gerrymanders.

PX454 (Cooper Map 19)

235. Harper Plaintiffs challenge this Senate county grouping. Individual Harper

Plaintiff Rebecca Harper resides in SD17. Individual Harper Plaintiff John Anthony Balla

resides in SD18. No Individual Plaintiff resides in SD13, SD14, SD15, or SD16.

Organizational Plaintiff NCLCV challenges every Senate District in this county grouping.

Organizational Plaintiff Common Cause challenges every Senate District in this county

grouping except for SD13 and 18.

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 236. The district lines in this cluster pack Democratic-leaning VTDs into Senate

Districts 14, 15, 16, and 18, in order to make Senate District 13, in the north, and Senate

District 17, in the south, as competitive as possible for Republican candidates. Senate District

13 pairs all of “purple” Granville County with the Republican-leaning VTDs on the northern

and northeastern portions of Wake County, avoiding the Democratic-leaning VTDs in North

Raleigh. Some of the Democratic-leaning VTDs in North Raleigh are packed into Senate

District 18, leading to a “horn-shaped section” of that district that borders Senate District 13.

PX425 at 50.

237. Raleigh is divided into all of the districts in this cluster, with most of Raleigh’s

few Republican-leaning VTDs included in Senate District 13, in the north. PX425 at 50;

PX455.

PX455 (Cooper Map 20)

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 238. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Granville-Wake county grouping is an intentional, pro-

Republican partisan redistricting.

239. Dr. Mattingly analyzed individual county groupings by plotting the Democratic

vote fraction in each district in the grouping, ordered from least to most Democratic. See

PX629 at 29. He conducted this analysis for the enacted plan (represented by a black line in

his county-grouping-level figures) and for his ensemble of nonpartisan plans (represented by

the blue histograms), using 12 prior statewide elections in 2020 and 2016. PX629 at 38;

PX654. If the black line representing the enacted plan is above the dotted black line at 50%,

the Democrats win that district under the enacted plan. Id. If all or the bulk of the blue

histogram representing the ensemble is above the dotted black line at 50%, the Democrats

would expect to win that district under the ensemble. Id. Dr. Mattingly labeled the historical

election whose statewide vote counts he was using at the top of each plot. Black lines that

are at the bottom of the corresponding blue histogram represent districts that Democrats

have been cracked out of, because the enacted plan has many fewer Democrats than would

be expected in the nonpartisan plans; black lines that are at the top of the corresponding blue

histogram represent districts that Democrats have been packed into. Id.

240. Figure 6.2.4 shows Dr. Mattingly’s analysis of this grouping.

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 PX663 (Mattingly Figure 6.2.4)

241. The Court finds that Democrats were cracked out of the two most Republican

districts (District 17 and 13) and packed into the most Democratic districts (Districts 14, 15,

16, and 18). PX629 at 57; PX663. (Page 57 of Dr. Mattingly’s report concerning Granville-

Wake contains a typo that he identified at his deposition: he states that Districts 17 and 18

are cracked, when he meant (and the Figure shows) that districts 17 and 13 are packed. He

correctly states that “districts 14, 15, 16, and 18” are in fact packed.) The effect is that the

Republicans win two out of six districts under the enacted plan in several elections where

they never would under the nonpartisan ensemble, such as the Lieutenant Governor 2020 or

Senate 2020 election. PX629 at 57; PX663. Dr. Mattingly quantified the cracking of

Democrats: Across every election he considered, none of the approximately 40,000 plans in

85
his ensemble had as low a fraction of Democrats in the two most Republican districts in the

Granville-Wake cluster as in the enacted plan. Id.

242. District 13 and District 17 favor Republicans in nearly all elections in Dr.

Duchin’s sample as well. PX201 “SL-173” B14:BA19.

243. The Court finds, as Dr. Pegden’s findings show, that the Granville-Wake

Senate county grouping is the result of intentional, pro-Republican partisan redistricting. In

his first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is

more favorable to Republicans than 99.999989% of the maps that his algorithm encountered

by making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least

99.999969% of all possible districting of this county grouping that satisfy the criteria Dr.

Pegden used. PX523 at 30.

244. Drawing the districts in this manner also reduced compactness: The average

Polsby-Popper score of Districts 13, 14, 15, 16, 17, and 18 is 0.31. PX150 at 15. Drawing

more compact districts in Wake and Granville Counties would have generated more

competitive districts in the cluster.

245. In the Granville-Wake Senate cluster, which Legislative Defendants’ expert

Dr. Barber refers to as “solidly Democratic” and found to be a partisan outlier, see LDTX107

at 221, the enacted map is a partisan outlier under 10 of the 11 elections Dr. Barber analyzed.

Under seven of those 11 elections, Democrats win fewer seats under the enacted map that

they would under 96-100% of his simulations. Id. at 228.

246. The Court finds the districts in the Granville-Wake Senate county grouping,

SD13, SD14, SD15, SD16, SD17, and SD18, to be the result of intentional, pro-Republican

partisan redistricting.

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 b. Cumberland-Moore Senate County Grouping

247. The Cumberland-Moore County Grouping contains Senate District 19 (“SD19”)

and Senate District 21 (“SD21”). SD19 is comprised of portions of Cumberland County. SD21

is comprised of Moore County and portions of Cumberland County. Plaintiffs challenge these

Senate Districts as the product of unlawful partisan gerrymanders.

PX459 (Cooper Map 24)

248. Harper Plaintiffs challenge this Senate county grouping. Individual Harper

Plaintiff Sarah Taber resides in SD19. No Individual Plaintiff resides in SD21.

Organizational Plaintiff Common Cause challenges both Senate Districts in this county

grouping.

249. The district lines pack Democratic voters in and around Fayetteville into

Senate District 19, leaving Senate District 21 as a Republican-leaning district. PX425 at 59;

Trial Tr. 01/03/2022.

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 250. The district lines split the cities of Fayetteville and Hope Mills across both

districts in the cluster, PX460, but the most Democratic-leaning VTDs in those cities are

packed into Senate District 19. PX425 at 59; PX459; Trial Tr. 01/03/2022.

PX460 (Cooper Map 25)

251. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Cumberland-Moore county grouping is an intentional,

pro-Republican partisan redistricting.

252. Figure 6.2.10 shows Dr. Mattingly’s analysis of this grouping.

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 PX665 (Mattingly Figure 6.2.10)

253. The Court finds that Democrats were cracked out of the most Republican

district and packed into the most Democratic district to make the map maximally

nonresponsive, even though this does not affect the number of seats won in the particular 12

elections that Dr. Mattingly considered. PX629 at 61; PX665.

254. The Court finds, as Dr. Pegden’s findings show, that the Cumberland-Moore

Senate county grouping is the result of intentional, pro-Republican partisan redistricting. In

his first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is

more favorable to Republicans than 99.9999949% of the maps that his algorithm encountered

by making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least

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99.999984% of all possible districtings of this county grouping that satisfy the criteria Dr.

Pegden used. PX523 at 28.

255. In the Cumberland-Moore Senate county grouping, under each of the 11

elections that Legislative Defendants’ expert Dr. Barber considered, Democrats win one seat

under the enacted map and in 77% of Dr. Barber’s simulations, LDTX107 at 184, even

though, under one election, Democrats would have won two seats under 93% of Dr. Barber’s

simulations. Id. at 188.

256. The Court finds the districts in the Cumberland-Moore Senate county

grouping, SD19 and SD21, to be the result of intentional, pro-Republican partisan

redistricting.

c. Guilford-Rockingham Senate County Grouping

257. The Guilford-Rockingham County Grouping contains Senate District 26

(“SD26”), Senate District 27 (“SD27”), and Senate District 28 (“SD28”). SD26 is comprised of

Rockingham County and portions of Guilford County. SD27 and SD28 are comprised of

portions of only Guilford County. Plaintiffs challenge these Senate Districts as the product

of unlawful partisan gerrymanders.

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 PX456 (Cooper Map 21)

258. Harper Plaintiffs and Individual NCLCV Plaintiffs challenge this Senate

county grouping. Individual NCLCV Plaintiffs Dandrielle Lewis and Talia Fernos and

Individual Harper Plaintiffs David Dwight Brown, Joshua Perry Brown and Donald M.

MacKinnon reside in SD27. Individual Harper Plaintiff Lily Nicole Quick resides in SD28.

No Individual Plaintiff resides in SD26. Organizational Plaintiff NCLCV challenges all three

Senate Districts in this county grouping. Organizational Plaintiff Common Cause challenges

only SD27 and SD28.

259. Guilford County, which includes Greensboro and High Point, is among the

most Democratic counties in North Carolina, while Rockingham leans toward the

Republicans. The district lines pack Democratic voters into Senate Districts 27 and 28,

allowing for a “safe Republican” Senate District 26 to wrap around those other districts in a

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“C-shape” that connects the northern and southern boundaries of this cluster. House District

26 extends from Rockingham County into the Republican-leaning VTDs in western Guilford

County on one side, and into southern Guilford County on the other, avoiding the most

Democratic-leaning VTDs on the district’s inner borders. PX425 at 53.

260. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Guilford-Rockingham county grouping is an

intentional, pro-Republican partisan redistricting.

261. Figure 6.2.13 shows Dr. Mattingly’s analysis of this grouping.

PX666 (Mattingly Figure 6.2.13)

262. The Court finds that the three districts in the Guilford-Rockingham grouping

are constructed to pack an exceptional number of Democrats in the most Democratic district

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(District 28) to crack Democrats out of the most Republican district (District 26). PX629 at

63. The effect is to ensure a Republican victory in the district 26, when in some elections in

the nonpartisan ensemble that district would go to the Democratic Party. PX629 at 63. None

of the plans in Dr. Mattingly’s nonpartisan ensemble had fewer Democrats in the most

Republican district than the enacted plan – in other words, zero of the plans in his

nonpartisan ensemble cracked Democrats as substantially as the enacted plan. Id.

263. In the 2020 presidential election, 61% of Senate District 27’s major-party

voters voted for President Biden. In Senate District 28, that figure was 76%. PX201 “SL-

173” AO28:AO29. By wasting these surplus Democratic votes, the Enacted Senate Plan

ensures that Senate District 26 will reliably vote for Republican candidates: In the same

race, only 37% of District 26’s major-party voters cast their ballots for President Biden.

PX201 “SL-173” AO27:AO29; PX422 at 53.

264. The Court finds, as Dr. Pegden’s findings show, that the Guilford-Rockingham

Senate county grouping is the result of intentional, pro-Republican partisan redistricting. In

his first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is

more favorable to Republicans than 99.999957% of the maps that his algorithm encountered

by making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least

99.99987% of all possible districtings of this county grouping that satisfy the criteria Dr.

Pegden used. PX523 at 31.

265. This grouping’s formation departs from traditional redistricting principles and

reduces the compactness of these districts: The average Polsby-Popper score of the three

districts is 0.33. PX150 at 15.

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 266. In the Guilford-Rockingham Senate cluster, which Legislative Defendants’

expert Dr. Barber refers to as “solidly Democratic,” the enacted map is in alignment with Dr.

Barber’s simulations by creating two Democratic leaning districts. LDTX107 at 209, 215.

267. The Court finds the districts in the Guilford-Rockingham Senate county

grouping, SD26, SD27, and SD28, to be the result of intentional, pro-Republican partisan

redistricting.

d. Forsyth-Stokes Senate County Grouping

268. The Forsyth-Stokes County Grouping contains Senate District 31 (“SD31”) and

Senate District 32 (“SD32”). SD31 is comprised of Stokes County and portions of Forsyth

County. SD32 is comprised of portions of only Forsyth County. Plaintiffs challenge these

Senate Districts as the product of unlawful partisan gerrymanders.

PX461 (Cooper Map 26)

269. Harper Plaintiffs challenge this Senate county grouping. Individual Harper

Plaintiff Chenita Barber Johnson reside in SD32. No Individual Plaintiff resides in SD31.

Organizational Plaintiff NCLCV challenges both Senate Districts in this county grouping.

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 270. Legislative Defendants decided to pair Forsyth County with Stokes County in

this cluster, rather than pairing Forsyth County with Yadkin County, to the west; since

Yadkin County has a lower Republican vote advantage than Stokes County, Legislative

Defendants’ choice of pairing provided them with a better counter-weight to the heavily-

Democratic VTDs in Winston-Salem. PX425 at 62.

271. Within the chosen cluster, Legislative Defendants packed the Democratic

VTDs in Winston-Salem into Senate District 32, leaving Senate District 31 to wrap around

three sides of the city and remain safely Republican. PX425 at 62-63; PX461.

272. While Winston-Salem is split between both districts, a comparison of Dr.

Cooper’s red-blue map (PX461) and his map showing the municipal boundaries within this

cluster (PX462) illustrates how Senate District 31 captures the more Republican VTDs on

the city’s edges. PX425 at 62.

PX462 (Cooper Map 27)

273. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Forsyth-Stokes county grouping is an intentional, pro-

Republican partisan redistricting.

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 274. Figure 6.2.7 shows Dr. Mattingly’s analysis of this grouping.

PX664 (Mattingly Figure 6.2.7)

275. The Court finds that, even though this does not affect the number of seats won

in the particular elections that Dr. Mattingly considered, the two districts in Forsyth-Stokes

maximize the number of Democrats in the most Democratic district and the number of

Republicans in the most Republican district in a way that is almost never seen in the enacted

map. PX629 at 59; PX664.

276. The Enacted Plan concentrates Forsyth County’s Democratic voters into one

district—District 32—where Democratic candidates will win elections by more than 30-point

margins. PX201 “SL-173” B33:BA33. District 32’s design foreordains electoral outcomes in

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Senate District 31, which is safely Republican and never once elects a Democrat in any of the

52 elections Dr. Duchin studies. PX201 “SL-173” B32:BA32.

277. The Court finds, as Dr. Pegden’s findings show, that the Forsyth-Stokes Senate

county grouping is the result of intentional, pro-Republican partisan redistricting. In his

first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more

favorable to Republicans than 99.9983% of the maps that his algorithm encountered by

making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least 99.9947%

of all possible districtings of this county grouping that satisfy the criteria Dr. Pegden used.

PX523 at 29.

278. The Republican advantage in District 31 was the product of both a clustering

decision and a drawing decision. District 32 is drawn to “pack” all of Winston-Salem’s most

Democratic areas into one district, but Districts 31 and 32 clearly could have been configured

such that Senate District 32 is not “packed” with Democrats.

279. In the Forsyth-Stokes Senate county grouping, a “slightly Democratic”

grouping, 100% of Dr. Barber’s simulations, like the enacted maps, produce one Democratic

leaning district. LDTX107 at 244. Under each of the 11 elections that Legislative Defendants’

expert Dr. Barber considered, Democrats win one seat under the enacted map, even though,

under two of those elections, Democrats would have won two seats under 94% and 98% of Dr.

Barber’s simulations, respectively. Id. at 248.

280. The Court finds the districts in the Forsyth-Stokes Senate county grouping,

SD31 and SD32, to be the result of intentional, pro-Republican partisan redistricting.

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 e. Iredell-Mecklenburg Senate County Grouping

281. The Guilford-Rockingham County Grouping contains Senate District 37

(“SD37”), Senate District 38 (“SD38”), Senate District 39 (“SD39”), Senate District 40

(“SD40”), Senate District 41 (“SD41”), and Senate District 42 (“SD42”). SD37 is comprised of

Iredell County and portions of Mecklenburg County. SD38, SD39, SD40, SD41, and SD42 are

comprised of portions of only Mecklenburg County. Plaintiffs challenge these Senate Districts

as the product of unlawful partisan gerrymanders.

PX457 (Cooper Map 22)

282. Harper Plaintiffs challenge this Senate county grouping. Individual Harper

Plaintiff Virginia Walters Brien resides in SD40. Individual Harper Plaintiff Barbara Proffitt

resides in SD41. No Individual Plaintiff resides in SD37, SD38, SD39, or SD42.

Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause challenge all

six Senate Districts in this county grouping.

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 283. Mecklenburg County is the second most populous county in North Carolina

and a Democratic stronghold. Every member of the current state legislative delegation from

Mecklenburg County is a Democrat, as are all nine of its county commissioners. Democratic

candidates also received the plurality of votes in every 2020 county-wide contest in

Mecklenburg County. Yet Legislative Defendants drew district lines to create four “safe

Democratic” seats, one “safe Republican” seat, and a “toss-up” seat. PX425 at 55.

284. The district lines pack Democratic voters into Senate Districts 38, 39, 40, and

42, allowing for Senate Districts 37 and 41 to be artificially favorable to Republican

candidates. PX457. Senate Districts 39 and 40 do not include a single Republican-leaning

VTD and almost all Republican-leaning VTDs in Mecklenburg County are included in either

Senate District 37, a “safely Republican” seat, or Senate District 41, a “toss-up” seat. PX425

at 55-56.

285. Senate District 37 includes the residence of an incumbent Democrat and

incumbent Republican in the same district, effectively eliminating the incumbent Democrat.

The Democratic incumbent whose residence Legislative Defendants included in the safely

Republican Senate District 37 lives approximately one mile from the Democratic-leaning

district to the south, Senate District 38. PX425 at 55.

286. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Iredell-Mecklenburg county grouping is an intentional,

pro-Republican partisan redistricting.

287. Figure 6.2.1 shows Dr. Mattingly’s analysis of this grouping.

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 PX662 (Mattingly Figure 6.2.1)

288. The Court finds that Democrats were cracked out of the second most

Republican district (District 41), and packed into SD40 and, to a lesser extent, SD39 (the two

most Democratic districts). PX629 at 55; Figure 6.2.1. The effect is that the Republicans win

two out of six districts under the enacted plan in many elections where the majority or vast

majority of plans in the ensemble would elect only one Republican. PX629 at 55. One

example is the President 2016 election. Dr. Mattingly quantified the cracking of Democrats:

Across every election he considered, none of the approximately 80,000 plans in his ensemble

had as low a fraction of Democrats in the two most Republican districts as in the enacted

plan. Id.

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 289. The Enacted Senate Plan’s packing of Democratic voters in Mecklenburg

County, thereby converting District 41 from a swing district into a district that will usually

elect Republican candidates, results in a far lower average compactness score of 0.33, PX150

at 15, as well as a significant improvement in Republican performance. Enacted District 41

elected a Democrat in only 13 of the 52 studied elections. PX201 “SL-173” B42:BA42.

290. Dr. Pegden’s findings show that the Iredell-Mecklenburg Senate county

grouping is the result of intentional, pro-Republican partisan redistricting. In his first-level

analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more favorable

to Republicans than 99.998% of the maps that his algorithm encountered by making small

changes to the district boundaries. In his second-level analysis, Dr. Pegden found that this

grouping is more carefully crafted to favor Republicans than at least 99.9943% of all possible

districtings of this county grouping that satisfy the criteria Dr. Pegden used. PX523 at 32.

291. In the Iredell-Mecklenburg Senate cluster, which Legislative Defendants’

expert Dr. Barber found to be a partisan outlier, see LDTX107 at 229, under two of the 11

elections Dr. Barber considered, Democrats win four seats under the enacted map, even

though Democrats would have won 5 seats under 93% and 95% of Dr. Barber’s simulations,

respectively. Id. at 234.

292. The Court finds the districts in the Iredell-Mecklenburg Senate county

grouping, SD37, SD38, SD39, SD40, SD41, and SD42, to be the result of intentional, pro-

Republican partisan redistricting.

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 f. Northeastern Senate County Grouping

293. The Northeastern County Grouping contains Senate District 1 (“SD1”) and

Senate District 2 (“SD2”). SD1 is comprised of Bertie County, Camden County, Currituck

County, Dare County, Gates County, Hertford County, Northampton County, Pasquotank

County, Perquimans County, and Tyrrell County. SD2 is comprised of Carteret County,

Chowan County, Halifax County, Hyde County, Martin County, Pamlico County, Warren

County, Washington County. Plaintiffs challenge these Senate Districts as the product of

unlawful partisan gerrymanders.

PX463 (Cooper Map 28)

294. Harper Plaintiffs and Individual NCLCV Plaintiffs challenge this Senate

county grouping. Individual Harper Plaintiff Laureen Flood resides in SD1. Individual

NCLCV Plaintiffs Edna Scott, Roberta Scott, Yvette Roberts, Dr. Cosmos George, Jereann

King Johnson, Yarbrough Williams, Jr., and Reverend Dr. Deloris L. Jerman reside in SD2.

Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause challenge both

Senate Districts in this county grouping.

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 295. Legislative Defendants had two potential county grouping options to choose

from for the Northeastern counties when drawing the 2021 Senate Plan. The size of the

counties in each potential cluster is such that each cluster option is large enough for one

Senate district. PX425 at 65.

296. Legislative Defendants’ choice of clusters paired more Republican-leaning

VTDs together in an arrangement that resulted in two Republican-leaning districts. PX425

at 65. The alternative county cluster groupings, which Legislative Defendants chose against,

would have included Carteret, Chowan, Dare, Hyde, Pamlico, Pasquotank, Perquimans, and

Washington counties in one district and Bertie, Camden, Currituck, Gates, Halifax, Hertford,

Martin, Northampton, Tyrrell, and Warren counties in a second district. PX425 at 65; PX464.

PX464 (Cooper Map 29)

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 297. The alternative county cluster groupings that Legislative Defendants chose

against would have created one district on the northern state border that included many of

the more racially diverse counties in the state and that would favor the Democrats, and

another district to the south that would favor Republicans. Such an arrangement would have

been more representative of the counties included in these clusters, most of which include a

large number of competitive VTDs (shown in light, non-colored shading in Dr. Cooper’s

maps). PX425 at 65.

298. The Court finds, as Dr. Mattingly also showed, that their choice significantly

advantaged the Republican Party. PX629 at 65. In the alternative cluster choice that the

General Assembly rejected, Democrats would have won one seat under the results in every

single 2016 and 2020 statewide election. In the cluster choice that the General Assembly

rejected, the Republicans win both seats under the results in every single 2016 and 2020

statewide election. Id.

299. The enacted district configuration has 24 county traversals. District 2’s Polsby-

Popper compactness score is just 0.11, and the average score of both districts is 0.16. PX150

at 15.

300. The Court finds the districts in the Northeastern Senate county grouping, SD1

and SD2, to be the result of intentional, pro-Republican partisan redistricting.

g. Buncombe-Burke-McDowell Senate County Grouping

301. The Buncombe-Burke-McDowell County Grouping contains Senate District 46

(“SD46”) and Senate District 49 (“SD49”). SD46 is comprised of Burke County, McDowell

County, and portions of Buncombe County. SD49 is comprised of portions of only Buncombe

County. Plaintiffs challenge these Senate Districts as the product of unlawful partisan

gerrymanders.

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 PX458 (Cooper Map 23)

302. Harper Plaintiffs challenge this Senate county grouping. Individual Harper

Plaintiff Mark S. Peters resides in SD46. Individual Harper Plaintiff Ann Butzner resides in

SD49. Organizational Plaintiff NCLCV challenges both Senate Districts in this county

grouping.

303. Legislative Defendants had discretion as to the counties included in this

cluster and the adjacent cluster to the south. Rather than pair Buncombe County with

Henderson County, which has become a “bedroom community” of Asheville, Legislative

Defendants grouped Buncombe County with Burke and McDowell counties, to the east.

Burke and McDowell counties include a greater number of heavily-Republican VTDs than

does Henderson County, allowing for Legislative Defendants to neutralize the Democratic

stronghold in and around Asheville to a greater extent than under the alternate potential

grouping.

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 304. Within this county grouping, the mapmakers maximized Republican

advantage by drawing one lopsidedly Democratic district (District 49), leaving the remaining

district (District 46) reliably Republican. Notably, District 46 never elects a Democrat in

any of the 52 elections in Dr. Duchin’s study. PX201 “SL-173” B47:BA47.

305. The Court finds that Legislative Defendants’ chosen county grouping allowed

them to draw a map that packed Democratic voters in Senate District 49, leaving Senate

District 46 to favor the Republican Party. PX425 at 57-58.

306. Grouping Henderson County with Polk and Rutherford counties in the

bordering cluster to the south also allowed for Legislative Defendants to create a single-

district cluster there that heavily favors the Republican candidate. PX425 at 57.

307. Dr. Barber’s analysis reflects that in 100% of his simulations, as with the

enacted map, there is one Democratic district in this “very slightly Democratic” grouping,

LDTX107 at 235, and 100% of his simulations produce 1 Democratic leaning district like the

enacted maps under all 11 elections used in his analysis. Id. at 239.

308. The Court finds the districts in the Buncombe-Burke-McDowell Senate county

grouping, SD46 and SD49, to be the result of intentional, pro-Republican partisan

redistricting.

2. North Carolina House of Representatives Districts

309. Plaintiffs’ experts analyzed specific county groupings in the enacted House

plan. Plaintiffs’ experts concluded that partisan redistricting and bias in these groupings

were responsible for the partisan bias that they found in their statewide analysis of the

enacted House plan. The results of the analysis conducted by Legislative Defendants’ expert

Dr. Barber largely reinforce this conclusion.

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 a. Guilford House County Grouping

310. The Guilford House County Grouping contains House District 57 (“HD57”),

House District 58 (“HD58”), House District 59 (“HD59”), House District 60 (“HD60”), House

District 61 (“HD61”), and House District 62 (“HD62”). All six House Districts are comprised

of portions of only Guilford County. Plaintiffs challenge these House Districts as the product

of unlawful partisan gerrymanders.

PX470 (Cooper Map 35)

311. Harper Plaintiffs challenge this House county grouping. Individual Harper

Plaintiff David Dwight Brown resides in HD58. Individual Harper Plaintiff Lily Nicole Quick

resides in HD59. Individual Harper Plaintiff Joshua Perry Brown resides in HD60.

Individual Harper Plaintiff Donald M. MacKinnon resides in HD62. Individual NCLCV

Plaintiff Talia Fernos resides in HD61. No Individual Plaintiff resides in HD57.

Organizational Plaintiff Common Cause challenges every House District in this county

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grouping. Organizational Plaintiff NCLCV challenges only HD59 and HD62 in this county

grouping.

312. Legislative Defendants packed Democratic-leaning VTDs into House

Districts 57, 58, 60, and 61, allowing House Districts 59 and 62 to be artificially favorable to

Republican candidates. PX425 at 76; TR 01/03/2022.

313. A comparison of Dr. Cooper’s red-blue map (PX470) and his map showing the

municipal boundaries within this cluster (PX471) illustrates how the district boundaries split

Greensboro and High Point in a way that ensures the most Democratic-leaning VTDs in those

municipalities are kept out of House Districts 59 and 62. PX425 at 76.

PX471 (Cooper Map 36)

314. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Guilford county grouping is an intentional, pro-

Republican partisan redistricting.

315. Figure 6.1.10 shows Dr. Mattingly’s analysis of this grouping.

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 PX653 (Mattingly Figure 6.1.10)

316. The Court finds that Democrats were again cracked out of the two least

Democratic (i.e., most-Republican) districts in this grouping (Districts 59 and 62) and packed

into heavily Democratic districts (Districts 57, 58, 60, and 61). PX629 at 36; PX653. The

effect is that the Republicans regularly win two out of six seats in this cluster even in

situations where the Democrats would win all six in the majority or vast majority of plans in

the nonpartisan ensemble. This is seen in the Senate 2020, President 2020, and Attorney

General 2020 races, among others. PX653. Dr. Mattingly quantified the cracking and

packing of Democrats in the Guilford cluster: over all of the elections considered and all of

the around 80,000 plans in the ensemble, none of the plans have a higher Democratic fraction

in the four most Democratic districts or a lower Democratic fraction in the two most

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Republican districts, in comparison to the enacted plan. PX629 at 36. In other words, this

grouping shows more cracking and packing of Democrats than every single plan in the

nonpartisan ensemble. Id.

317. Due to the packing in two districts—Districts 59 and 62—that favor

Republican candidates, District 62 never elected a Democrat in Dr. Duchin’s 52-election

sample, and District 59 did so only once. PX201 “SL-175” B60:BA60, B53:BA63.

318. The Court finds, as Dr. Pegden’s findings show, that the Guilford House county

grouping is the result of intentional, pro-Republican partisan redistricting. In his first-level

analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more favorable

to Republicans than 99.99997% of the maps that his algorithm encountered by making small

changes to the district boundaries. In his second-level analysis, Dr. Pegden found that this

grouping is more carefully crafted to favor Republicans than at least 99.99991% of all possible

districtings of this county grouping that satisfy the criteria Dr. Pegden used. PX523 at 19.

319. The Enacted Plan for this grouping has an average Polsby-Popper score of 0.30.

PX150 at 16.

320. In the Guilford House county grouping—which Legislative Defendants’ expert

Dr. Barber himself labeled a “partisan outlier,” see LDTX107 at 5 (“the Guilford County

grouping in the House of Representative . . . is a partisan outlier”)—the enacted map is a

partisan outlier under each of the 11 elections he considered. Under nine of those 11

elections, the enacted map produces fewer Democratic districts than 93-100% of his

simulations. Id. at 158. Under four of those nine elections, the enacted map produces four

Democratic districts when 100% of his simulations produce a greater number, and under

three more of the nine elections, the enacted map produces four or five Democratic districts

when 99% of his simulations produce a greater number. Id.

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 321. The Court finds the districts in the Guilford House county grouping, HD57,

HD58, HD59, HD60, HD61, and HD62, to be the result of intentional, pro-Republican

partisan redistricting.

b. Buncombe House County Grouping

322. The Buncombe House County Grouping contains House District 114

(“HD114”), House District 115 (“HD115”), and House District 116 (“HD116”). All three House

Districts are comprised of portions of only Buncombe County. Plaintiffs challenge these

House Districts as the product of unlawful partisan gerrymanders.

PX472 (Cooper Map 37)

323. Harper Plaintiffs challenge this House county grouping. Individual Harper

Plaintiff Mark S. Peters and Ann Butzner reside in HD115. No Individual Plaintiff resides

in HD114 or HD 116. Organizational Plaintiffs NCLCV and Common Cause challenge the

House Districts in this county grouping.

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 324. Buncombe County is an overwhelmingly Democratic county and has been

trending more Democratic each year. PX425 at 79. All three House Districts in Buncombe

are currently represented by members of the Democratic Party. Id.

325. Legislative Defendants shifted the district lines where they meet in Asheville

to pack as many Democratic voters as possible into House District 114, thereby creating a

Republican-leaning district in House District 116. Prior to the enactment of these lines in

the 2021 House Plan, the district in the western part of Buncombe County that is now House

District 116 was considered a safely Democratic district. PX425 at 79.

326. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Buncombe county grouping is the result of intentional,

pro-Republican partisan redistricting.

327. Figure 6.1.13 shows Dr. Mattingly’s analysis of the Buncombe House county

grouping:

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 PX654 (Mattingly Figure 6.1.13)

328. The Court finds that Democrats were packed into the most Democratic leaning

district in this grouping (114) and cracked out of the most Republican district (116). PX629

at 38; PX654. In the enacted plan, there is a huge jump in Democratic vote share between

the least Democratic district and the middle Democratic district. Id. This jump means that

elections in the grouping will be nonresponsive to the votes cast and, as the figure above

shows, cost Democrats a seat in multiple electoral environments, because the black line for

District 116 often falls below the 50% line in elections where the majority or overwhelming

majority of the blue histogram rises above it (for example, the Governor 2020, President 2020,

and Senate 2020 race, among other examples). See PX629 at 38; PX654.

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 329. Dr. Mattingly mathematically quantified the cracking and packing across all

the 2020 and 2016 statewide elections he considered. Specifically, Dr. Mattingly calculated

the average Democratic vote share in the two least Democratic districts and the average

Democratic vote share in the three most Democratic districts, for both the enacted plans and

his ensemble plans. PX629 at 16. He found that, across every election, at most 1.2% of the

plans in the nonpartisan ensemble had the same or fewer Democrats in the least Democratic

district as the enacted plan (District 116). PX629 at 38. The Court finds that this signifies

cracking of Democrats to enable Republicans to win a district they would not win under the

nonpartisan ensemble.

330. The Court finds, as Dr. Pegden’s findings show, that the Buncombe House

county grouping is the result of intentional, pro-Republican partisan redistricting. In his

first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more

favorable to Republicans than 99.979% of the maps that his algorithm encountered by

making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least 99.938%

of all possible districtings of this county grouping that satisfy the criteria Dr. Pegden used.

PX523 at 16.

331. HD116 is the least compact district in the entire Enacted House Plan and is

designed such that it never elects a Democrat in the entire set of 52 elections compiled by Dr.

Duchin. PX150 at 16; PX201 “SL-175” B118:BA118.

332. In the Buncombe House county grouping, under each of the 11 elections that

Legislative Defendants’ expert Dr. Barber considered, Democrats win two seats under the

enacted map, even though, under 10 of those 11 elections, Democrats would have won three

districts in the majority of Dr. Barber’s simulations, including in 98% of the simulations

under the 2020 Governor election. LDTX107 at 98.

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 333. The Court finds the districts in the Buncombe House county grouping, HD114,

HD115, and HD116, to be the result of intentional, pro-Republican partisan redistricting.

c. Mecklenburg House County Grouping

334. The Mecklenburg House County Grouping contains House District 88

(“HD88”), House District 92 (“HD92”), House District 98 (“HD98”), House District 99

(“HD99”), House District 100 (“HD100”), House District 101 (“HD101”), House District 102

(“HD102”), House District 103 (“HD103”), House District 104 (“HD104”), House District 105

(“HD105”), House District 106 (“HD106”), House District 107 (“HD107”), and House District

112 (“HD112”). All thirteen House Districts are comprised of portions of only Mecklenburg

County. Plaintiffs challenge these House Districts as the product of unlawful partisan

gerrymanders.

PX465 (Cooper Map 30)

335. Harper Plaintiffs challenge this House county grouping. Individual NCLCV

Plaintiff Timothy Chartier resides in HD98. Individual Harper Plaintiff Mary Elizabeth Voss

resides in HD101. Individual Harper Plaintiff Virginia Walters Brien resides in HD102.

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Individual Harper Plaintiff Barbara Proffitt resides in HD103. No Individual Plaintiff resides

in HD88, HD92, HD99, HD100, HD104, HD105, HD106, HD107, or HD112. Organizational

Plaintiff NCLCV challenges HD98 and HD103 in this county grouping. Organizational

Plaintiff Common Cause challenges the House Districts in this county grouping.

336. Mecklenburg County is the home of Charlotte as well as six other

municipalities. Mecklenburg County is dominated by Democratic voters and is becoming even

more so as the county continues to grow in population. PX425 at 68.

337. The district boundaries in this grouping place no Republican-leaning VTDs in

House Districts 92, 99, 100, 101, 102, 106, 107, and 112, leaving every Republican-leaning

VTD in House Districts 88, 103, 104, and 105. House District 98, in the north, and House

District 103, in the south, are carved out of the pockets of Republican-leaning VTDs in the

north and southeast portions of Mecklenburg County so as to be particularly favorable to

Republican candidates. PX425 at 68.

338. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Mecklenburg county grouping is the result of

intentional, pro-Republican partisan redistricting.

339. Figure 6.1.1 shows Dr. Mattingly’s analysis of this grouping.

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 PX650 (Mattingly Figure 6.1.1)

340. The Court finds that Democrats were again cracked out of the two least

Democratic (i.e., most-Republican) districts in this grouping (Districts 98 and 103), and

packed into heavily Democratic districts (Districts 100, 112, 92, and 88). PX629 at 29; PX650.

The effect is to make those districts competitive, or to turn them into Republican seats, when

in the majority of the nonpartisan plans those two seats safely elect Democrats. PX629 at

29. An example is the Attorney General 2020 election. Dr. Mattingly quantified the cracking

and packing of Democrats in the Mecklenburg cluster: across every election he considered,

the percentage of maps in the ensemble which have more Democrats packed into the most

Democratic districts than the enacted plan is always less than 0.11%. PX629 at 29.

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 341. Although the County is one of the most Democratic in North Carolina, the

Enacted House Map carves out at least two districts that Republicans will ordinarily win.

PX201 “SL-175” B99:BA99, B104:BA105.

342. The Court finds, as Dr. Pegden’s findings show, that the Mecklenburg House

county grouping is the result of intentional, pro-Republican partisan redistricting. In his

first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more

favorable to Republicans than 98.3% of the maps that his algorithm encountered by making

small changes to the district boundaries. In his second-level analysis, Dr. Pegden found that

this grouping is more carefully crafted to favor Republicans than at least 95.0% of all possible

districtings of this county grouping that satisfy the criteria Dr. Pegden used. PX523 at 20.

343. In the Mecklenburg House county grouping, under 4 of the 11 elections that

Legislative Defendants’ expert Dr. Barber considered, Republicans outperform the majority

of Dr. Barber’s simulations, but Democrats never outperform a majority of the simulations.

Under the 2020 Attorney General election, Democrats win 11 seats under the enacted map,

even though Democrats would have won 12 seats under 91% of Dr. Barber’s simulations.

LDTX107 at 168.

344. The Court finds the districts in the Mecklenburg House county grouping,

HD88, HD92, HD98, HD99, HD100, HD101, HD102, HD103, HD104, HD105, HD106,

HD107, HD112, to be the result of intentional, pro-Republican partisan redistricting.

d. Pitt House County Grouping

345. The Pitt House County Grouping contains House District 8 (“HD8”) and House

District 9 (“HD9”). HD8 and HD9 are comprised of portions of only Pitt County. Harper

Plaintiffs and NCLCV Plaintiffs challenge these House Districts as the product of unlawful

partisan gerrymanders.

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 PX473 (Cooper Map 38)

346. Harper Plaintiffs challenge this House county grouping. Individual Harper

Plaintiff Amy Clare Oseroff resides in HD8, and Individual Harper Plaintiff Donald Rumph

resides in HD9. Organizational Plaintiff NCLCV challenges only HD9 in this county

grouping.

347. The two House districts in Pitt County are both currently represented by

Democrats and Pitt County gave 55% of its vote share to President Joe Biden in the 2020

election, making it the 19th most Democratic county in the state according to that metric.

PX425 at 81. But by splitting Greenville “at a particularly consequential location,” the

Legislative Defendants packed the most heavily Democratic VTDs together in House District

8, allowing for House District 9 to lean towards the Republican candidate. Id.

348. The split of Greenville, see PX474, cannot be explained with reference to

communities of interest or natural geography. Some students at East Carolina University

will take classes in House District 9, while living in residence halls that are located in House

District 8. PX425 at 81.

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 PX474 (Cooper Map 39)

349. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Pitt county grouping is an intentional, pro-Republican

partisan redistricting.

350. Figure 6.1.16 shows Dr. Mattingly’s analysis of this grouping.

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 PX655 (Mattingly Figure 6.1.16)

351. The Court finds that Democrats were packed into the most Democratic district

in Pitt County (District 8) and cracked out of the most Republican district (District 9). PX629

at 40; PX655. The effect is that the Republicans regularly win one of the two seats in

situations where in the nonpartisan ensemble plans would not, including in the Attorney

General 2020, Governor 2020, and Secretary of State 2020 elections. Dr. Mattingly

quantified the cracking and packing of Democrats in Pitt County: over all of the elections

considered, the percentage of plans in the non-partisan ensemble that have more Democrats

in District 8 than the enacted plan fluctuates between 1.1% and 5.3%. PX629 at 40.

352. The Court finds, as Dr. Pegden’s findings show, that the Pitt House county

grouping is the result of intentional, pro-Republican partisan redistricting. In his first-level

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analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more favorable

to Republicans than 96.3% of the maps that his algorithm encountered by making small

changes to the district boundaries. In his second-level analysis, Dr. Pegden found that this

grouping is more carefully crafted to favor Republicans than at least 89.1% of all possible

districtings of this county grouping that satisfy the criteria Dr. Pegden used. PX523 at 21.

353. In Dr. Barber’s analysis, in 91% of his simulations there is one Democratic

leaning district and in the remaining 9% of the simulations there are two Democratic leaning

districts. Although the current seats in this county grouping are both held by Democrats, the

Enacted Map aligns with the outcome of his simulations and now creates only one Democratic

district. LDTX107 at 39, 43.

354. The Court finds the districts in the Pitt House county grouping, HD8 and HD9,

to be the result of intentional, pro-Republican partisan redistricting.

e. Durham-Person House County Grouping

355. The Durham-Person House County Grouping contains House District 2

(“HD2”), House District 29 (“HD29”), House District 30 (“HD30”), and House District 31

(“HD31”). HD2 is comprised of Person County and portions of Durham County. HD29, HD30,

and HD31 are comprised of portions of only Durham County. Harper Plaintiffs challenge

these House Districts as the product of unlawful partisan gerrymanders.

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 PX475 (Cooper Map 40)

356. Harper Plaintiffs challenge this House county grouping. Individual Harper

Plaintiff Sondra Stein resides in HD2. No Individual Plaintiff resides in HD29, HD30, or

HD31. No Organizational Plaintiff challenges the House Districts in this county grouping.

357. Durham County is the most Democratic county in North Carolina, having

given 81.6% of its two-party vote share to President Biden in the 2020 election and having

“voted overwhelmingly Democratic candidates in every 2020 county-wide election.” PX425

at 84. But the enacted district lines create an artificially competitive district in this cluster,

HD2, by joining the more competitive VTDs in eastern and northern Durham County with

Person County, to the north. Id.

358. Although the City of Durham is split across all four House districts in this

county grouping, a comparison of Dr. Cooper’s red-blue map (PX475), and his map showing

the municipal boundaries within this cluster (PX476), indicates that Legislative Defendants

packed the most Democratic portions of the City of Durham into House Districts 29, 30, and

31.

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 PX476 (Cooper Map 41)

359. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Durham-Person county grouping is an intentional, pro-

Republican partisan redistricting.

360. Figure 6.1.22 shows Dr. Mattingly’s analysis of this grouping.

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 PX657 (Mattingly Figure 6.1.22)

361. The Court finds that Democrats were again cracked out of the most Republican

district in the Durham-Person grouping. PX629 at 44; PX657. The nonpartisan ensemble

shows that there are typically three highly Democratic districts and one more moderately

Democratic district. Id. But in the enacted plan, the Democrats are cracked out of the

moderately Democratic district, such that in Republican wave elections, the Republicans gain

that seat even though they rarely would under the nonpartisan ensemble. In particular, in

the Lieutenant Governor 2016 and Commissioner of Agriculture 2020 elections, where the

Democrats only get around 46% of the statewide vote fraction, this cracking would be enough

to deny a seat to the Democrats even though they would win the seat in a nonpartisan map.

Not a single map in the non-partisan ensemble across any of the elections Dr. Mattingly

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considered showed a smaller fraction of Democrats in the most Republican district than the

enacted plan. PX629 at 44. In other words, this cluster shows more cracking of Democrats

than every single plan in the nonpartisan ensemble. Id.

362. The Court finds, as Dr. Pegden’s findings show, that the Durham-Person

House county grouping is the result of intentional, pro-Republican partisan redistricting. In

his first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is

more favorable to Republicans than 99.932% of the maps that his algorithm encountered by

making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least 99.79%

of all possible districtings of this county grouping that satisfy the criteria Dr. Pegden used.

PX523 at 25.

363. In the Durham-Person House county grouping, under each of the 11 elections

that Legislative Defendants’ expert Dr. Barber considered, Democrats win four seats under

100% of Dr. Barber’s simulations, but under two of those elections (2016 Senate and 2016 Lt.

Governor), Democrats win only three seats under the enacted map—an outcome never once

encountered in the 37,800 simulations for this cluster generated by Dr. Barber’s algorithm.

LDTX107 at 131.

364. The Court finds the districts in the Durham-Person House county grouping,

HD2, HD29, HD30, and HD31, to be the result of intentional, pro-Republican partisan

redistricting.

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 f. Forsyth-Stokes House County Grouping

365. The Forsyth-Stokes House County Grouping contains House District 71

(“HD71”), House District 72 (“HD72”), House District 74 (“HD74”), House District 75

(“HD75”), and House District 91 (“HD91”). HD71, HD72, HD74, and HD75 are comprised of

portions of only Forsyth County. HD91 is comprised of Stokes County and portions of Forsyth

County. Harper Plaintiffs and Plaintiff Common Cause challenge these House Districts as

the product of unlawful partisan gerrymanders.

PX468 (Cooper Map 33)

366. Harper Plaintiffs challenge this House county grouping. Individual Harper

Plaintiff Chenita Barber Johnson resides in HD72. No Individual Plaintiff resides in HD71,

HD74, HD75, or HD91. Organizational Plaintiff Common Cause challenges the House

Districts in this county grouping.

367. Legislative Defendants created Republican-leaning districts in House Districts

74, 75, and 91 by packing the Democratic voters in and around Winston-Salem into House

Districts 71 and 72. PX425 at 73.

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 368. While the district boundaries in this grouping split Winston-Salem across all

five districts, the district boundaries pack most Democratic voters in Winston-Salem into

House Districts 71 and 72. Id.

PX469 (Cooper Map 34)

369. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Forsyth-Stokes county grouping is an intentional, pro-

Republican partisan redistricting.

370. Figure 6.1.7 shows Dr. Mattingly’s analysis of this grouping.

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 PX652 (Mattingly Figure 6.1.7)

371. The Court finds that Democrats were again cracked out of the three least

Democratic (i.e., most-Republican) districts in this grouping and packed into heavily

Democratic districts (Districts 72 and 71). PX629 at 34; PX652. The effect is that the

Republicans regularly win three out of five seats in this cluster even in situations where the

Democrats would win three in the vast majority of plans in the nonpartisan ensemble. This

is seen in the Senate 2020, President 2020, President 2016, and Attorney General 2020 races,

among others. PX629 at 34. Dr. Mattingly quantified the cracking and packing of Democrats

in the Forsyth-Stokes cluster: across every election he considered, less than 0.02% of the

plans in the ensemble have a lower Democratic fraction in the three most Republican districts

than the enacted plan, signaling extreme cracking. Id.

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 372. To preserve District 74’s Republican lean, District 91—which is heavily

Republican and at no risk of electing a Democrat—cuts into Winston Salem to pick up those

Democratic precincts that cannot be incorporated into Districts 71 and 72. The result is a

district line that cuts to the core of Winston-Salem and preserves Republican advantage in

District 74. PX201 “SL-175” B75:BA75, B80:BA80. This configuration comes at a cost of

compactness; the Enacted House Plan in Forsyth and Stokes Counties has an average Polsby-

Popper score of 0.33. PX150 at 16.

373. The Court finds, as Dr. Pegden’s findings show, that the Forsyth-Stokes House

county grouping is the result of intentional, pro-Republican partisan redistricting. In his

first-level analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more

favorable to Republicans than 99.912% of the maps that his algorithm encountered by

making small changes to the district boundaries. In his second-level analysis, Dr. Pegden

found that this grouping is more carefully crafted to favor Republicans than at least 99.73%

of all possible districtings of this county grouping that satisfy the criteria Dr. Pegden used.

PX523 at 18.

374. In the Forsyth-Stokes House cluster, the enacted map is a partisan outlier

under three of the elections that Legislative Defendants’ expert Dr. Barber considered.

Under the 2020 President election, Democrats win only two seats, even though they would

have won three seats under 50% of Dr. Barber’s simulations and four seats under 35% of the

simulations—a two-seat shift. Under eight of the 11 elections, the enacted map produces

fewer Democratic seats than a majority of Dr. Barber’s simulations—a metric Dr. Barber

himself has relied upon. LDTX107 at 142.

375. The Court finds the districts in the Forsyth-Stokes House county grouping,

HD71, HD72, HD74, HD75, and HD91, to be the result of intentional, pro-Republican

partisan redistricting.

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 g. Wake House County Grouping

376. The Wake House County Grouping contains House District 11 (“HD11”), House

District 21 (“HD21”), House District 33 (“HD33”), House District 34 (“HD34”), House District

35 (“HD35”), House District 36 (“HD36”), House District 37 (“HD37”), House District 38

(“HD38”), House District 39 (“HD39”), House District 40 (“HD40”), House District 41

(“HD41”), House District 49 (“HD49”), and House District 66 (“HD66”). All thirteen House

Districts are comprised of portions of only Wake County. Plaintiffs challenge these House

Districts, with the exception of HD66, as the product of unlawful partisan gerrymanders.

PX466 (Cooper Map 31)

377. Harper Plaintiffs challenge this House county grouping. Individual Harper

Plaintiff Rebecca Harper resides in HD21. Individual Harper Plaintiff John Anthony Balla

resides in HD40. No Individual Plaintiff resides in HD11, HD33, HD34, HD35, HD36, HD37,

HD38, HD39, HD41, or HD49. Organizational Plaintiff NCLCV challenges HD35, HD37, and

131
HD38 in this county grouping. Organizational Plaintiff Common Cause challenges HD35 in

this county grouping.

378. Wake County includes Raleigh and 11 other municipalities. The county is

strongly Democratic, LDTX107 at 169, and there are no Republicans on the county

commission, PX425 at 70. The district boundaries in this grouping pack Democrats into as

few districts as possible, leaving House Districts 11, 33, 36, 38, 41, and 49 without any

Republican-leaning VTDs, House Districts 34 and 66 with only one Republican-leaning VTD,

and House District 40 with only two Republican-leaning VTDs. Packing the majority of

Democratic voters within these districts allows House Districts 35, to the north, and 37, to

the southeast, to favor Republican candidates. Id.

379. House District 66 includes a “spike” that juts north to include a Democratic-

leaning VTD on its boundary, effectively keeping the Democratic voters in that VTD “fenced

off” from the House District 35, where they would otherwise make the election more favorable

for a Democratic candidate. Id.

380. To the extent that Legislative Defendants argue that preserving municipal

boundaries was a governing criterion, the district lines in this cluster split a number of cities,

including Raleigh (split across 10 of the 12 districts), Cary, Garner, Fuquay-Varina, Apex,

Holly Springs, and Morrisville. PX37.

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 PX467 (Cooper Map 32)

381. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Wake county grouping is the result of intentional, pro-

Republican partisan redistricting.

382. Figure 6.1.4 shows Dr. Mattingly’s analysis of this grouping.

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 PX651 (Mattingly Figure 6.1.4)

383. The Court finds that Democrats were cracked out of the two least Democratic

(i.e., most-Republican) districts in this grouping (Districts 37 and 35) and packed into heavily

Democratic districts. PX629 at 32; PX651. The effect is to swing the two most Republican

districts into play in elections where they would not be under the ensemble. For example, in

the Attorney General 2020 election, Republicans win two districts under the enacted plan

and Democrats win 11 even though Democrats would always win 12 under the ensemble and

often win all 13. Dr. Mattingly quantified the cracking of Democrats out of those two most

Republican districts: across every election he considered, the number of maps in the ensemble

which have a lower Democratic vote fraction in the two most Republican districts than they

do in the enacted plan is less than 0.42%, except for the Commissioner of Agriculture 2020

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election, where it is 1.2%. That is, the enacted plan is in the most extreme 0.42% percent of

plans in terms of cracking of Democrats. PX629 at 32.

384. The Court finds, as Dr. Pegden’s findings show, that the Wake House county

grouping is the result of intentional, pro-Republican partisan redistricting. In his first-level

analysis, Dr. Pegden found that the enacted plan’s version of this grouping is more favorable

to Republicans than 99.27% of the maps that his algorithm encountered by making small

changes to the district boundaries. In his second-level analysis, Dr. Pegden found that this

grouping is more carefully crafted to favor Republicans than at least 97.8% of all possible

districtings of this county grouping that satisfy the criteria Dr. Pegden used. PX523 at 22.

385. In the Wake House county grouping, the enacted map is a partisan outlier

under four of the elections that Legislative Defendants’ expert Dr. Barber considered. Under

three of those elections, the enacted map produces fewer Democratic districts than 90-98% of

Dr. Barber’s simulations, and under the fourth election, the enacted map produces fewer

Democratic districts than 85% of Dr. Barber’s simulations. LDTX107 at 173.

386. The Court finds the challenged districts in the Wake House county grouping,

HD11, HD21, HD33, HD34, HD35, HD36, HD37, HD38, HD39, HD40, HD41, and HD49, to

be the result of intentional, pro-Republican partisan redistricting.

h. Cumberland House County Grouping

387. The Cumberland House County Grouping contains House District 42 (“HD42”),

House District 43 (“HD43”), House District 44 (“HD44”), and House District 45 (“HD45”).

Each of these four House Districts are comprised of portions of only Cumberland County. The

Organizational Plaintiffs challenge these House Districts as the product of unlawful partisan

gerrymanders.

388. No Individual NCLCV Plaintiff resides in any House District within this

county grouping. Organizational Plaintiff Common Cause challenges every House District in

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this county grouping. Organizational Plaintiff NCLCV challenges only HD43 and HD45 in

this county grouping.

389. The Enacted Plan sacrifices compactness in order to maximize Republican

advantage in this grouping. It does so by packing Democrats into two Districts 42 and 44.

PX201 “SL-175” AO43, AO45. The result of this packing is that Districts 43 and 45 favor

Republicans. 50.5% of District 43’s major-party voters voted for President Trump in the 2020

election; the same figure in District 45 was 50.8%. PX201 “SL175” AO44, AO46. This result

came at the cost of lowering the average compactness score of the four districts to 0.34. PX150

at 16.

PX181 (Figure 31: Enacted House Districts 42, 43, 44 & 45)

390. Harper Plaintiffs do not challenge the districts in this county grouping;

however, Harper Plaintiffs' experts, as part of their overall analysis in these consolidated

cases, analyzed this county grouping as shown below.

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 PX478 (Cooper Map 43)

391. Cumberland County is a “heavily Democratic county” that provided 58% of its

two-party vote share to Joe Biden in 2020 and that has not provided a plurality of votes to a

Republican Presidential candidate since 2004. PX425 at 89.

392. Despite Cumberland County’s strong Democratic tilt, Legislative Defendants

drew district lines that created two competitive districts, House District 43 in the east and

House District 45 in the south, by packing the most heavily Democratic VTDs in Fayetteville

into House Districts 42 and 44. Id.; TR 01/03/2022.

393. Fayetteville is split among all four districts in this county House District 43

includes almost all of the few Republican-leaning VTDs within Fayetteville, while House

District 45 includes Republican-leaning and more competitive VTDs in the south of the city.

PX425 at 89-90; TR 01/03/2022. These district lines allowed House District 43 to be more

favorable than it otherwise would be for the first-term incumbent Republican candidate in

that district. PX425 at 89.

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 394. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Cumberland county grouping is an intentional, pro-

Republican partisan redistricting.

395. Figure 6.1.28 shows Dr. Mattingly’s analysis of this grouping.

PX659 (Mattingly Figure 6.1.28)

396. The Court finds that Cumberland County is a partisan outlier. Democrats

have been cracked out of the second most Republican district (District 43), which normally is

comfortably Democratic, but under the enacted plan frequently produces a Republican seat.

For each of the elections considered, the number of plans in the ensemble with smaller

fraction of Democrats in the second most Republican district is typically around 1% with, for

a few elections, the percentage reaching as high as 7% or as low as 0.4%. PX629 at 48; PX659.

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 397. The Court finds, as Dr. Pegden’s findings show, that the Cumberland House

county grouping is the result of intentional, pro-Republican partisan redistricting. Dr.

Pegden’s first-level analysis determined that the enacted plan’s version of the Cumberland

county grouping is more favorable to Republicans than 83.5% of maps that his algorithm

encountered by making small changes to the district boundaries. PX523 at 27. This result

was not an unusual enough result to enable a statistically significant second-level analysis.

Id. But Dr. Pegden’s “wave threshold” analysis found the Cumberland county grouping to be

a partisan outlier. Id. at 36. As explained, the wave threshold metric captures, for a given

map, the smallest uniform swing in election results that would be required to give the

Democrats an additional seat. Using this alternative analysis allowed Dr. Pegden to assess

whether this grouping may have been drawn to achieve “other conceivable partisan goals”

besides merely maximizing Republican seat count, “such as facilitating the re-election of

particular representatives in particular districts.” Id. at 33. Dr. Pegden concluded, and the

Court finds, that the enacted plan’s version of this county grouping had a wave threshold

more favorable to Republicans than 99.59% of maps that his algorithm encountered by

making small changes to the district boundaries. Id. at 36.

398. In the Cumberland House county grouping, under six of the individual

elections Legislative Defendants’ expert Dr. Barber considered, Democrats win two seats

under the enacted map. While Dr. Barber notes that in these cases the enacted plans create

one, or occasionally two, competitive districts that could be heavily contested, in each case

Democrats would have won more than two seats in 100% of Dr. Barber’s simulations.

LDTX107 at 116.

399. The Court finds the districts in the Cumberland House county grouping, HD42,

HD43, HD44, and HD45, to be the result of intentional, pro-Republican partisan

redistricting.

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 i. Brunswick-New Hanover House County Grouping

400. The Brunswick-New Hanover House County Grouping contains House District

17 (“HD17”), House District 18 (“HD18”), House District 19 (“HD19”), and House District 20

(“HD20”). HD17 is comprised of portions of only Brunswick County. HD19 is comprised of

portions of Brunswick and New Hanover Counties. HD18 and HD20 are comprised of portions

of only New Hanover County. NCLCV Plaintiffs challenge this county grouping as the

product of an unlawful partisan gerrymander.

401. NCLCV Plaintiffs challenge this House county grouping. No Individual

NCLCV Plaintiff resides in these House Districts. Organizational Plaintiff NCLCV

challenges all House districts in this county grouping.

402. The Enacted House Plan creates three Republican districts in this cluster:

House Districts 17, 19, and 20. PX425 at 96; PX201 “SL175” B18:BA21.

PX181 (Figure 26: Enacted House Districts 17, 18, 19 & 20)

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 403. Harper Plaintiffs do not challenge the districts in this county grouping;

however, Harper Plaintiffs' experts, as part of their overall analysis in these consolidated

cases, analyzed this county grouping as shown below.

PX481 (Cooper Map 46)

404. This grouping is located in the southeastern corner of the state and includes

the heavily Democratic City of Wilmington. The district lines pack Democratic voters in and

around Wilmington into House District 18, allowing the other three districts, particularly

House District 20, to lean more heavily towards the Republican candidate. PX425 at 95.

House District 19 includes a Democratic-leaning VTD south of Wilmington, which has the

effect of keeping those Democratic voters out of House District 20, keeping that district safer

for the Republican candidate. PX425 at 95.

405. The simulations of Drs. Mattingly and Pegden confirm Dr. Cooper’s analysis

and independently establish that the Brunswick-New Hanover county grouping is an

intentional, pro-Republican partisan redistricting.

406. Figure 6.1.34 shows Dr. Mattingly’s analysis of this grouping.

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 PX661 (Mattingly Figure 6.1.34)

407. The Court finds that Democrats were again packed and cracked in the

Brunswick-New Hanover cluster. PX629 at 52; PX661. In particular, they are packed into

the most Democratic district (District 18) and cracked out of the middle-most Republican

districts. PX661. This enables Republicans to safely win three out of four districts, even in

situations where Democrats would almost always win two seats under the nonpartisan

ensemble. PX629 at 42. Examples of this are in the Attorney General 2020, State Auditor

2020, and Secretary of State 2020 elections. Over each of the elections considered, the

fraction of plans in the nonpartisan ensemble where there are fewer Democratic votes in the

second and third most Republican districts than in the enacted plan is always less than 0.5%

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and often much smaller. PX629 at 52. In other words, the enacted plan cracks more

Democrats in those districts than all but 0.5% of plans in the nonpartisan ensemble.

408. The Court finds, as Dr. Pegden’s findings show, that the Brunswick-New

Hanover House county grouping is the result of intentional, pro-Republican partisan

redistricting. Dr. Pegden’s first-level analysis determined that the enacted plan’s version of

the Brunswick-New Hanover county grouping is more favorable to Republicans than 89.4%

of maps that his algorithm encountered by making small changes to the district boundaries.

PX523 at 24. This result was not an unusual enough result to enable a statistically

significant second-level analysis. Id. But Dr. Pegden’s “wave threshold” analysis found this

county grouping to be a partisan outlier. Id. at 34. Dr. Pegden concluded, and the Court

finds, that the enacted plan’s version of the Brunswick-New Hanover county grouping had a

wave threshold more favorable to Republicans than 99.72% of maps that his algorithm

encountered by making small changes to the district boundaries. Id. In particular, for the

enacted map, Democratic performance could increase by 10.1 percentage points in every

district, yet Democrats still would capture only two of the four seats. Id.

409. In 100% of Legislative Defendants’ expert Dr. Barber’s simulations, there is

one Democratic leaning district in this Republican leaning county cluster. Under Dr. Barber’s

analysis, the enacted plans are in alignment with his simulations in creating one Democratic

district. LDTX107 at 132, 136.

410. The Court finds the districts in the Brunswick-New Hanover House county

grouping, HD17, HD18, HD19, and HD20, to be the result of intentional, pro-Republican

partisan redistricting.

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 j. Duplin-Wayne House County Grouping

411. The Duplin-Wayne House County Grouping contains House District 4 (“HD4”)

and House District 10 (“HD10”). HD4 is comprised of Duplin County and portions of Wayne

County. HD10 is comprised of portions of only Wayne County. Plaintiffs challenge these

House Districts as the product of unlawful partisan gerrymanders.

PX477 (Cooper Map 42)

412. Harper Plaintiffs and NCLCV Plaintiffs challenge this House county grouping.

Individual Harper Plaintiffs Bobby Jones and Kristiann Herring reside in HD10. No

Individual Plaintiff resides in HD4. Organizational Plaintiff NCLCV challenges both House

districts in this county grouping.

413. The district boundary that runs through Wayne County ensures that this

cluster will contain two safely-Republican districts. PX425 at 87.

414. Figure 6.1.19 shows Dr. Mattingly’s analysis of this grouping.

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 PX656 (Mattingly Figure 6.1.19)

415. Dr. Mattingly’s analysis did not find that Duplin-Wayne was an outlier,

because the black bars representing the enacted plan fall within the middle of the blue

histograms representing the nonpartisan ensemble. PX629 at 42.

416. Dr. Pegden was unable to generate any comparison districtings of this House

county grouping due do his conservative methodology. PX523 at 17; see id. at 11. The fact

that his algorithm cannot generate comparison maps does not say one way or the other

whether the enacted map of this grouping is the result of intentional, pro-Republican

partisan redistricting. Id. at 11.

417. Under Legislative Defendants’ expert Dr. Barber’s analysis, this county

grouping is moderately Republican and, after discarding simulations for containing more

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county traversals or being less compact, zero simulated maps remained for Dr. Barber to

analyze. After retaining 2,704 of his simulated maps that have the highest compactness

score, the enacted maps match his simulated maps in producing no Democratic leaning

districts in this county grouping for all 11 elections. LDTX107 at 58, 63.

418. The Court finds the districts in the Duplin-Wayne House county grouping,

HD4 and HD10, to not be the result of intentional, pro-Republican partisan redistricting.

k. Onslow-Pender House County Grouping

419. The Onslow-Pender House County Grouping contains House District 14

(“HD14”), House District 15 (“HD15”), and House District 16 (“HD16”). HD14 and HD15 are

each comprised of portions of only Onslow County. HD16 is comprised of Pender County and

portions of Onslow County. NCLCV Plaintiffs challenge this county grouping as the product

of an unlawful partisan gerrymander.

420. No Individual Plaintiff resides in these House Districts. Organizational

Plaintiff NCLCV challenges HD14 and HD15 in this county grouping.

421. Although one of the districts in this cluster—District 15—could have centered

around Jacksonville, Legislative Defendants instead split the Jacksonville area’s Democrats

between two districts—House Districts 14 and 15—in order to create three heavily

Republican districts that prevent Onslow County’s Democratic voters from having any

meaningful say in elections. PX201 “SL-175” B15:BA16. This, again, came at the cost of

compactness: the average compactness score for Districts 14, 15, and 16 is 0.30. PX150 at

16.

422. The Court finds the districts in the Onslow-Pender House county grouping,

HD4 and HD10, to not be the result of intentional, pro-Republican partisan redistricting.

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 3. North Carolina Congressional Districts

423. The analysis and conclusions of Plaintiffs’ experts establishes that the 2021

Congressional Plan is a partisan outlier intentionally and carefully designed to maximize

Republican advantage in North Carolina’s Congressional delegation. Plaintiffs’ experts

employed computer simulations to generate alternative Congressional plans to serve as a

baseline for comparison to the enacted Congressional plan. Even though these experts

employed different methodologies, each expert found that the enacted plan is an outlier that

could only have resulted from an intentional effort to secure Republican advantage.

Plaintiffs’ expert Dr. Christopher Cooper explained how this intentional, pro-Republican

partisan redistricting was carried out in each of the 14 congressional districts and has led to

a substantial disconnect between the ideology and policy preferences of North Carolina’s

citizenry and their representatives in the General Assembly. The Court agrees with the

findings of each of these experts and finds that the 2021 Congressional Plan is an intentional,

and effective, pro-Republican partisan redistricting.

424. Legislative Defendants offered no defense of the 2021 Congressional Plan. No

expert witness opined that it was not the product of an intentional partisan redistricting.

a. Harper Plaintiffs’ Expert Dr. Chen’s Analysis of the

Congressional Plans

(i) Analysis of the Congressional Plan’s Adherence to

the Adopted Criteria

425. In his simulation set, Dr. Chen programmed his algorithm to follow the

traditional districting principles mandated by the General Assembly’s Adopted Criteria.

PX482 at 5 ¶8; PX34. This is the same method Dr. Chen employed in Common Cause v.

Lewis, 2019 WL 4569584, and Harper v. Lewis, No. 19 CVS 012667 (N.C. Super. 2019).

PX482 at 5 ¶8.

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 426. Specifically, Dr. Chen programmed the computer algorithm to create 1,000

independent simulated plans adhering to the following seven districting criteria mandated

by the 2021 Adopted Criteria: (1) population equality (2) contiguity, (3) minimizing county

splits and (4) minimizing VTD splits and prioritizing the other traditional redistricting

principles set forth in the Adopted Criteria of (5) compactness, (6) avoiding incumbent

pairings, and (7) avoiding splitting municipalities. PX482 at 6-9 ¶11; PX34.

427. The Court finds that Dr. Chen’s computer algorithm properly adhered to the

Adopted Criteria, as well as traditional redistricting principles. The Court further finds that

Dr. Chen’s interpretation and application of the Adopted Criteria is fully consistent with

General Assembly’s requirements and guidance. The Court further finds that Dr. Chen’s

application of these criteria is consistent with generally accepted redistricting principles and

practice.

428. First, Dr. Chen compared the number of counties that the simulated and

enacted congressional plans split. The enacted congressional plan splits 14 counties. PX482

at 11-12 ¶17; PX484. Dr. Chen concluded this was one more split than necessary. Id. at 12-

13 ¶17-18. From this, Dr. Chen concluded that the enacted congressional plan does not

comply with the Adopted Criteria’s rule against unnecessary division of counties. Id. at 13

¶18. Dr. Chen also found that counties were only split multiple times in 1.8% of his

simulations, and that within that small percentage Mecklenburg, Wake, and Guilford were

not all split multiple times. Id. at 19; PX485.

429. The Court finds that the enacted congressional plan fails to follow and

subordinates the Adopted Criteria’s requirement that counties be split only for reasons of

population equality or for the protection of incumbents. The Court finds that the enacted

congressional plan splits more counties than is necessary. The Court also finds that the

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enacted congressional plan unnecessarily splits three heavily Democratic counties—

Mecklenburg, Wake, and Guilford Counties—into three districts each.

430. Dr. Chen also compared the number of VTDs split in the enacted congressional

plan to his 1,000 simulations. Dr. Chen found that, in comparison to his simulations, the

enacted congressional plan contains 25 VTD splits, almost double the number of VTDs that

are necessary to split to maintain population equality. PX482 at 15 ¶21-22. From this, Dr.

Chen concluded that the enacted congressional plan violates the Adopted Criteria’s

requirement that VTDs “should be split only when necessary.” Id. at 15 ¶23; PX486.

431. The Court finds that the enacted congressional plan fails to follow, and

subordinates, the Adopted Criteria’s requirement of avoiding the unnecessary splitting of

VTDs. The Court finds that the enacted congressional plan splits more VTDs than is

necessary.

432. Dr. Chen found that the enacted congressional plan is also less compact than

almost all of his 1,000 simulations. Dr. Chen employed the measures of compactness set

forth in the Adopted Criteria, known as Reock and Polsby-Popper scores. PX482 at 17 ¶24.

PX34. For both measures, a higher score indicates that a plan’s districts are more compact.

PX482 at 17-18 ¶¶26-27.

433. Dr. Chen found that, as measured by Polsby-Popper scores, the enacted

congressional plan is far less compact than all 1,000 simulated congressional plans. PX482

at 17 ¶26. He further found, as measured by Reock scores, the enacted congressional plan is

far less compact than almost all 1,000 simulated congressional plans. Id. at 18 ¶27. From

this, Dr. Chen concluded that the enacted congressional plan is significantly less compact

than would have been expected from a districting process adhering to the Adopted Criteria.

Id. at 17-18 ¶¶26-27; PX487.

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 434. The Court finds that the enacted congressional plan fails to follow, and

subordinates, the Adopted Criteria’s requirement to draw compact districts. The Court finds

that the enacted congressional districts are less compact than they would be under a map-

drawing process that adhered to the Adopted Criteria and prioritized the traditional

districting criteria of compactness.

(ii) Analysis of Whether the Congressional Plan is a

Statistical Partisan Outlier

435. To compare the partisanship of his simulated plans to the enacted

congressional plan, Dr. Chen used census block-level election results from recent statewide

elections in North Carolina. PX482 at 21 ¶¶31-32. For his analysis, Dr. Chen used the

following ten elections: 2016 US President, 2016 US Senator, 2016 Governor, 2016

Lieutenant Governor, 2016 Attorney General, 2020 US President, 2020 US Senator, 2020

Governor, 2020 Lieutenant Governor, and 2020 Attorney General. Id. at 21 ¶31. Dr. Chen

aggregated the results of these elections into a single composite, referred to as the “Statewide

Election Composite.” Id. at 22 ¶33.

436. Dr. Chen analyzed these elections because they are the same state and federal

offices whose election results were used by the General Assembly during its 2017 legislative

redistricting process, and the 2017 redistricting process was the most recent one in which the

leadership of the General Assembly’s redistricting committees publicly announced how the

General Assembly would evaluate the partisanship of its own districting plans. PX482 at 21

¶31. Additionally, past voting history in federal and statewide elections is a strong predictor

of future voting. Id. at 20 ¶28.

437. By overlaying these past election results onto the enacted congressional plan,

Dr. Chen calculated the Republican share of the votes cast from within each district in the

enacted congressional plan and in each simulated plan. PX482 at 20 ¶28. Based on these

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calculations, Dr. Chen directly compared the partisanship of the enacted congressional plan

and the simulated plans. Id. Dr. Chen used these comparisons to determine whether the

partisanship of individual enacted districts and the partisan distribution of seats in the

enacted congressional plan could reasonably have arisen from a districting process adhering

to the Adopted Criteria and its explicit prohibition on partisan considerations. Id.

438. The Court finds that the use of statewide elections by Plaintiffs’ experts to

measure the partisanship of simulated and enacted districts to be a reliable methodology.

439. To measure the partisanship of his simulated districts and the enacted

districts, Dr. Chen obtained precinct-level results for the elections in the ten elections in the

Statewide Election Composite and aggregated the census block-level results to the district

level. PX482 at 21 ¶32. In other words, using the census blocks that would comprise a

particular district in a given simulation and the actual election results from those census

blocks, Dr. Chen calculated the percentage total two-party votes in that simulated district

for Republican candidates in the 2016-2020 statewide election contests. Id. at 21-22 ¶32-33.

440. Figure 4 in Dr. Chen’s report compares the partisan distribution of districts in

the enacted congressional plan to the partisan distribution of districts in the 1,000 computer-

simulated plans:

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

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 PX488 (Chen Figure 4)

PX482 at 22 ¶33; id. at 23 ¶35.

441. In Figure 4, the enacted congressional plan’s districts are ordered from the

most to the least-Republican district, as measured by Republican vote share using the

Statewide Election Composite. PX482 at 23 ¶35; PX488. The red stars mark enacted

districts and are labeled with district numbers, while the gray dots represent the

corresponding 1,000 simulated districts. In other words, each row compares one district from

the enacted congressional plan to 1,000 computer-simulated districts based on Republican

vote share. Id. at 23-24 ¶35. The two percentages in parentheses in the right margin of this

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Figure report the percentage of these 1,000 simulated districts that are less Republican than,

and more Republican than, the enacted congressional plan’s district. Id. at 26 ¶36.

442. The Court finds, as the bottom row of Figure 4 illustrates, the most-Democratic

district in the enacted congressional plan (CD-9) is more heavily Democratic than 100% of

the most-Democratic districts in each of the 1,000 computer-simulated plans. PX482 at 26

¶37; PX488. Every single one of the computer-simulated counterpart districts would have

been more politically moderate than CD-9 in terms of partisanship: CD-9 exhibits a

Republican vote share of 27.2%, while all 1,000 of the most-Democratic districts in the

computer-simulated plans would have exhibited a higher Republican vote share and would

therefore have been more politically moderate. Id. at 26 ¶36. Based on this, Dr. Chen

concluded, and the Court so finds, that CD-9 packs together Democratic voters to a greater

extent than the most-Democratic district in 100% of the computer-simulated plans. Id. Dr.

Chen therefore concluded that CD-9 is an extreme partisan outlier when compared to its

1,000 computer-simulated counterparts, using a standard threshold test of 95% for statistical

significance. Id. Dr. Chen uses the standard threshold test of 95% for statistical significance

throughout his analysis.

443. The Court finds that the same pattern observed for CD-9, exists for CD-6.

PX482 at 26-27 ¶38; PX488. Again, CD-6 is more heavily Democratic than 100% of the

corresponding second-most-Democratic districts in each of the 1,000 computer-simulated

plans. Id. Again, every single one of its computer-simulated counterpart districts would have

been more politically moderate than CD-6 in terms of partisanship: CD-6 exhibits a

Republican vote share of 27.5%, while 100% of the second-most-Democratic districts in the

computer-simulated plans would have exhibited a higher Republican vote share and would

therefore have been more politically moderate. Chen Id. The Court finds, like CD-9, CD-6

packs together Democratic voters to a greater extent than the second-most-Democratic

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district in 100% of the computer-simulated plans. Id. at 27 ¶38. From these results, Dr.

Chen identified CD-6 as an extreme partisan outlier when compared to its 1,000 computer-

simulated counterparts, using a standard threshold test of 95% for statistical significance.

Id.

444. The Court finds that CD-5, the next most Democratic district in the enacted

congressional plan, similarly contains more Democratic voters than over 95% of its

counterpart simulated plans. PX488.

445. The Court finds that the same partisan skew exists for the two most-

Republican districts in the enacted congressional plan. As the top row of Figure 4 illustrates,

and the Court so finds, the most-Republican district in the enacted congressional plan (CD-

10) is less heavily Republican and more heavily Democratic than 100% of the most-

Republican districts in each of the 1,000 computer-simulated plans. PX482 at 27 ¶39; PX488.

446. The Court finds that a similar pattern appears in the second-to-top row of

Figure 4, which illustrates that the second most-Republican district in the enacted

congressional plan (CD-13) is less heavily Republican and more heavily Democratic than

99.7% of the second-most-Republican districts in each of the 1,000 computer-simulated plans.

Id.

447. The Court finds that the two most Republican districts (CD-10 and CD-13) and

the three most Democratic districts (CD-9, CD-6, and CD-5), which include more Democratic

voters than virtually all of their counterpart districts in the 1,000 computer-simulated plans,

draw Democratic voters out of the more moderate districts in the enacted congressional plan.

PX482 at 27 ¶40. Having fewer Democratic voters in these more moderate districts enhances

Republican candidate performance in these districts. Id.

448. The Court finds that the middle six rows in Figure 4 confirm this effect. These

rows compare the partisanship of districts in the fifth, sixth, seventh, eighth, ninth, and

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tenth-most Republican districts (CD-1, 3, 4, 11, 12, and 14) within the enacted congressional

plan and the 1,000 computer-simulated plans. For all six districts, the enacted congressional

plan district is a partisan outlier; the enacted congressional plan’s district is more heavily

Republican than over 95% of its counterpart districts in the 1,000 computer-simulated plans,

with three being more heavily Republican than 100% of their counterpart districts. PX482

at 28 ¶41; PX488

449. These six enacted congressional plan districts, CD-1, 3, 4, 11, 12, and 14, are

more heavily Republican than nearly all of their counterpart computer-simulated plan

districts because the five most partisan-extreme districts in the enacted congressional plan,

CD-5, 6, 9, 10, and 13, are more heavily Democratic than nearly all of their counterpart

districts in the computer-simulated plans. Id.

450. Based on these findings, Dr. Chen identified the enacted congressional plan’s

six most moderate districts, CD-1, 3, 4, 11, 12, and 14 as partisan statistical outliers. PX482

at 28-29 ¶¶42-43. Each of these six districts has a Republican vote share that is higher than

over 95% of the computer-simulated districts. Id. He also concluded that the four most

extreme districts in the enacted congressional plan in terms of partisanship, CD-6, 9, 10, and

13, are partisan statistical outliers. Id. Each of these four districts has a Republican vote

share that is lower than at least 99.7% of the computer-simulated districts. Id. CD-5 likewise

is a partisan statistical outlier, containing more Democratic voters than 95.9% of the

computer-simulated districts. PX482 at Figure 4. Dr. Chen thus concluded that overall,

eleven individual districts in the enacted congressional plan are extreme statistical outliers,

exhibiting partisan characteristics that are rarely or never observed in the computer-

simulated plan districts. Id. at 23 ¶34; id. at 29 ¶44.

451. The Court finds that the enacted congressional plan contains 11 districts, CD-

1, 3, 4, 5, 6, 9, 10, 11, 12, 13, and 14, that are partisan outliers, which cannot be explained by

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adherence to the Adopted Criteria. The Court finds that these enacted congressional districts

have partisan compositions that would not have arisen under a map-drawing process that

adhered to the Adopted Criteria. The Court finds this to be evidence that the enacted

congressional plan was intentionally designed to give Republicans a partisan advantage.

452. The enacted congressional plan’s ten most-Republican districts exhibit a

significantly narrower range of partisanship than is exhibited by the ten most-Republican

districts in each of the computer-simulated plans. PX482 at 30 ¶46. Specifically, the enacted

congressional plan’s ten most-Republican districts all have Republican vote shares within

the narrow range of 52.9% to 61.2%. Id. at 29 ¶45. Dr. Chen refers to these districts as “Mid-

Range Republican Districts,” meaning they favor Republican candidates within this narrow

range. Id.

453. The creation of ten Mid-Range Republican Districts is an outcome that never

occurs in the computer-simulated plans and is therefore an extreme statistical outlier. PX482

at 30 ¶46. Instead, virtually all of the simulated plans contain from two to six Mid-Range

Republican Districts, with the most common outcome among the simulations being four such

districts. Id. Based on this, Dr. Chen concluded that the enacted congressional plan is an

extreme partisan outlier in terms of maximizing the number of Mid-Range Republican

Districts, and that the enacted congressional plan did so to an extreme degree far beyond any

of the 1,000 simulated plans created using a partisan-blind computer algorithm that follows

the Adopted Criteria. Id.; see PX489.

454. The enacted congressional plan’s maximization of Mid-Range Republican

Districts necessarily results in fewer competitive districts. PX482 at 30 ¶47. The enacted

congressional plan contains zero districts in which the Republican vote share is within 5% of

the Democratic vote share. Id. Dr. Chen labels districts within this range as “Competitive

Districts.” The enacted congressional plan contains no Competitive Districts as measured

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using the Statewide Election Composite. Id. at 30 ¶48. Only about 5% of the 1,000 simulated

plans fail to have a single Competitive District, and the vast majority of the computer-

simulated plans contain two or more such districts. Id.; see PX490.

455. Dr. Chen’s analysis of Mid-Range Republican and Competitive Districts is

evidence of the intent and effects of Legislative Defendants’ pro-Republican partisan

redistricting. Dr. Chen’s analysis of Mid-Range Republican and Competitive Districts is

evidence that the enacted congressional plan was designed specifically to ensure that

Republicans can efficiently and consistently win at least ten congressional seats and that

Democrats are packed into the remaining districts. The frequency of Mid-Range Republican

and Competitive Districts in the enacted congressional plan would not have occurred under

a map-drawing process that adhered to the Adopted Criteria, and the Court finds this to be

evidence that the enacted congressional plan was intentionally designed to give Republicans

a partisan advantage.

456. Dr. Chen also analyzed the number of total Republican-favoring districts in

the enacted congressional plan, which are defined as a district having greater than 50%

Republican vote share as measured using the Statewide Election Composite. PX482 at 32

¶50; Figure 7. While the enacted congressional plan has 10 Republican districts, only 3% of

the computer-simulated plans create 10 Republican-favoring districts, and no computer-

simulated plan ever creates more than 10 Republican districts. Id.

457. Based on these results, in terms of the total number of Republican-favoring

districts created by the plan, the enacted congressional plan is a statistical outlier when

compared to the 1,000 computer-simulated plans. Id. at 32 ¶51. The enacted congressional

plan creates the maximum number of Republican districts that ever occurs in any computer-

simulated plan, and more Republican districts than 97% of the computer-simulated plans,

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which were drawn using a non-partisan districting process adhering to the Adopted Criteria.

Id.; see PX491.

458. Dr. Chen also measured the number of Republican districts that would exist

under his simulated plans and the enacted congressional plan under a variety of electoral

environments. PX482 at 34 ¶54; id. at 86-95; PX513-522 (Figures B1-B10). The ten

individual elections in the Statewide Election Composite showed a range of different electoral

outcomes, ranging from a Republican vote share of 47.7% to 53.3%. Id. at 86-95, PX513-522.

Across this range of electoral environments, the enacted congressional plan always creates a

10-4 distribution of seats in favor of Republican candidates. Id. at 34 ¶54. Based on this, the

enacted congressional plan’s 10-4 distribution is durable across a range of electoral

conditions. Id.

459. Dr. Chen’s analysis of the enacted congressional plan under various electoral

outcomes is evidence that the enacted congressional plan was designed specifically to ensure

that Democrats cannot win more than four congressional seats under any reasonably

foreseeable electoral environment. The number of Republican-leaning districts in the

enacted congressional plan would be lower under a map-drawing process that adhered to the

Adopted Criteria. The Court finds this to be evidence that the enacted congressional plan

was intentionally designed to give Republicans a partisan advantage.

460. Dr. Chen also examined the enacted congressional plan as compared to the

simulated plans under a variety of methods redistricting scholars commonly use to compare

the relative partisan bias of different districting plans.

461. First, Dr. Chen examined the enacted congressional plan’s mean-median

difference and compared it to the simulated plans. PX482 at 36 ¶59. A plan’s mean-median

difference is calculated as the mean district-level Republican vote share, minus the median

district-level Republican vote share. Id. at 35 ¶57.

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 462. The mean-median difference analysis confirms that the enacted congressional

plan creates an extreme partisan outcome that cannot be explained by North Carolina’s

political geography or by adherence to Adopted Criteria. PX482 at 37 ¶60; PX492.

463. Second, Dr. Chen analyzed another commonly used measure of a districting

plan’s partisan bias called the efficiency gap. PX482 at 39 ¶62. The efficiency gap provides

a measure of the degree to which more Democratic or Republican votes are wasted across an

entire districting plan. Id. at 40 ¶63. The efficiency gap is calculated using the total sum of

surplus votes in districts a party won and lost votes in districts where that party lost. Id. at

39-40 ¶62. Dr. Chen found that the enacted congressional plan exhibits an efficiency gap of

19.5%, indicating that the plan results in far more wasted Democratic votes than wasted

Republican votes. PX482 at 40-41 ¶66; PX493.

464. The efficiency gap analysis confirms that the enacted congressional plan

creates an extreme partisan outcome that cannot be explained by North Carolina’s political

geography or the Adopted Criteria. Id.

465. Third, Dr. Chen analyzed another commonly used measure of a districting

plan’s partisan bias called the lopsided margins test. PX482 at 43 ¶67. The basic premise of

the lopsided margins measure is that a partisan-motivated map-drawer may attempt to pack

the opposing party’s voters into a small number of extreme districts that are won by a

lopsided margin. Id. Dr. Chen compared the enacted congressional plan’s lopsided margins

measure with the computer simulated plans and found that the simulated plans all have a

smaller lopsided margins measure than the enacted congressional plan. PX482 at 44 ¶70;

PX494.

466. The enacted congressional plan is an extreme outlier compared to the

simulated plans on the lopsided margins measure, and the enacted congressional plan’s

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packing of Democrats into Democratic-favoring districts was not simply the result of North

Carolina’s political geography, combined with adherence to the Adopted Criteria. Id. at ¶71.

467. Fourth, Dr. Chen analyzed another common measure of partisan bias in a

districting plan based on the concept of partisan symmetry. PX482 at 46 ¶72. This analysis,

which Dr. Chen calls “partisan symmetry based on uniform swing,” examines what share of

seats a party would win under the enacted congressional plan in a hypothetical tied election.

Id.

468. Based on the results of this analysis, the enacted congressional plan creates a

durable Republican majority for North Carolina’s congressional delegation, such that even

when Democrats win 50% of the statewide vote, Republicans will still be favored in 10 out of

14 (71.4%) of the congressional districts, while Democrats will only be favored in 4 out of the

14 (28.6%) districts. Id. at 47 ¶76; PX495.

469. Based on Dr. Chen’s overall statewide conclusions based on his computer

simulations, the Court adopts these conclusions and finds that the enacted congressional

plan subordinates the Adopted Criteria and traditional redistricting criteria for partisan

advantage.

(iii) Analysis of Whether the Congressional Plan is a

Statistical Partisan Outlier at the Regional Level

470. In addition to the above statewide analyses, Dr. Chen also examined the extent

to which partisan bias affected the map-drawing process within specific cities and regions of

the state. PX482 at 50 ¶79. Dr. Chen found, and the Court so finds, that the enacted

congressional plan’s districts in each region examined exhibit political bias when compared

to the computer-simulated districts in the same regions. Id.

471. Dr. Chen first examined the Piedmont Triad area. The enacted congressional

plan splits Guilford County into three different districts: CD-7, 10, and 11. PX482 at 50 ¶80.

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These three fragments of Guilford County voted solidly Democratic in recent statewide

elections but were each combined with more Republican areas in surrounding counties across

the Piedmont Triad area. Id. This splitting results in CD-7, 10, and 11 being safely

Republican, each with a Republican vote share between 55.9% and 61.2%. Id.

472. The enacted congressional plan cracked Democratic voters in the region to a

greater extent than virtually all of the computer-simulated plans. PX482 at 50 ¶81 - 54 ¶81.

The enacted congressional plan achieved this result by creating districts that are

significantly less compact than virtually all of the Guilford County districts in the computer-

simulated plans. Id.; see PX496. The vast majority (75.6%) of simulated plans did not split

Guilford County a single time, and if the County was split, it was usually split only once.

PX497.

473. The Court finds that the three-way splitting of Guilford County and resulting

creation of three safe Republican districts in the Piedmont Triad area could not have resulted

naturally from the region’s political geography or the districting principles required by the

Adopted Criteria.

474. Dr. Chen next conducted similar analyses of the districts in the Research

Triangle. PX482 at 56 ¶ 88; PX498. In this area of the state, the enacted congressional plan’s

Raleigh-based district (CD-5) and Durham-based district (CD-6) are more heavily packed

with Democrats than almost 100% of the simulated districts containing Raleigh and Durham.

Id. CD-5 and CD-6 are also less geographically compact than nearly 100% of the computer-

simulated districts containing Raleigh and Durham. PX482 at 56 ¶ 89; PX499.

475. Because the enacted congressional plan packs Democratic voters into CD-5 and

CD-6, the surrounding districts are more safely Republican than they would have been in the

absence of such packing. PX482 at 56 ¶ 90; PX499. CD-7 is a partisan outlier that was

enabled by the packing of Democratic voters in CD-5 (Raleigh) and CD-6 (Durham). Id.

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 476. The Court finds that the enacted congressional plan packs Democrats in its

Raleigh-based and Durham-based districts by subordinating geographic compactness in the

drawing of CD-5 and CD-6, and this could not have resulted naturally from the region’s

political geography or the districting principles required by the Adopted Criteria.

477. Finally, Dr. Chen examined Mecklenburg County. PX482 at 60 ¶91; PX500.

The enacted congressional plan’s CD-9 is more heavily Democratic than 100% of the

simulated plans’ districts containing the most of Charlotte. Id. As a result, the surrounding

suburban districts in the enacted congressional plan, including CD-13 in Northern

Mecklenburg County and CD-8 in Eastern Mecklenburg County, are more safely Republican

than their geographic counterparts in all of the computer-simulated plans. PX482 at 60 ¶92-

93.

478. Based on this data, the enacted congressional plan packed Democrats in

Mecklenburg County to an extent greater than what naturally occurs as a result of the area’s

political geography. PX482 at 60 ¶94.

479. The Court finds that the enacted congressional plans created a Charlotte

district that is more heavily Democratic than what could be expected from a partisan-blind

map-drawing process, and this could not have resulted naturally from the region’s political

geography or the districting principles required by the Adopted Criteria.

480. The Court finds that the packing and cracking of Democrats in the Piedmont

Triad Area, the Research Triangle Area, and Mecklenburg County could not have resulted

naturally from the region’s political geography or the districting principles required by the

Adopted Criteria. The enacted congressional map was therefore designed in order to

accomplish the legislature’s predominant partisan goals.

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 (iv) Effect of Political Geography

481. Political geography can create a natural advantage for Republicans in

Republican vote share in suburban and rural districts, where for example, Democratic voters

are clustered in urban areas because of the common districting principle of drawing

geographically compact districts. Id. at 63 ¶95. But Dr. Chen programmed a computer

algorithm that drew simulated plans using North Carolina’s unique political geography. Id

63, ¶96. As Dr. Chen, explained “the entire premise of conducting districting simulations is

to fully account for North Carolina’s unique political geography, its political subdivision

boundaries, and its districting criteria, as mandated by the Adopted Criteria.” Id. Thus, the

simulation analysis allowed Dr. Chen to identify how much of the electoral bias in the enacted

congressional plan is caused by North Carolina’s political geography and how much is caused

by the map-drawer’s intentional efforts to favor one political party over the other. Id. at 63-

64 ¶97.

482. The Court finds that the enacted congressional plan’s partisan bias goes

beyond any “natural” level of electoral bias caused by North Carolina’s political geography or

the political composition of the state’s voters, Id. at 64 ¶98, and this additional level of

partisan bias in the enacted congressional plan can be directly attributed to the map-drawer’s

intentional efforts to favor the Republican Party, Id. at 64 ¶100.

483. Additional, district-specific findings in addition to those made above are as

follows:

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 b. Individual Congressional Districts

(i) Congressional District No. 1 (“CD1”)

484. CD1 is comprised of Beaufort County, Camden County, Carteret County,

Chowan County, Craven County, Currituck County, Dare County, Gates County, Hyde

County, Jones County, Lenoir County, Pamlico County, Pasquotank County, Perquimans

County, Tyrrell County, portions of Onslow County, and portions of Pitt County. Harper

Plaintiffs challenge this congressional district as the product of unlawful partisan

gerrymanders.

485. Individual Harper Plaintiffs Amy Clare Oseroff and Donald Rumph reside in

and challenge CD1.

486. CD1 is in the northeastern corner of the state and includes part of the former

CD1 and CD3. PX425 at 21. As Dr. Cooper’s reported and his map illustrates, Legislative

Defendants included the Democratic-leaning areas of Pitt County within CD1, allowing for a

greater Republican advantage in bordering CD2, to the west. Id.

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 PX440 (Cooper Map 5)

487. CD1 is likely to elect a Republican candidate based on a calculation of the two-

party vote differential in the 2020 Secretary of Labor and Attorney General elections in the

VTDs that are included within CD1, as well as other measures. PX425 at 21.

488. The Court finds this congressional district, CD1, to be the result of intentional,

pro-Republican partisan redistricting.

(ii) Congressional District No. 2 (“CD2”)

489. CD2 is comprised of Bertie County, Caswell County, Edgecombe County,

Franklin County, Granville County, Greene County, Halifax County, Hertford County,

Martin County, Nash County, Northampton County, Person County, Vance County, Warren

County, Washington County, Wilson County, portions of Pitt County, and portions of Wayne

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County. Plaintiffs challenge this congressional district as the product of unlawful partisan

gerrymanders.

490. Individual Harper Plaintiffs Laureen Flood, Bobby Jones, and Kristiann

Herring reside in and challenge CD2. Organizational Plaintiff Common Cause challenges

CD2 as well.

491. CD2 stretches from Albemarle Sound, in the east, to the Raleigh-Durham-

Chapel Hill metropolitan area and includes Caswell County, northeast of Greensboro, to the

west. Washington County and Caswell County have never been paired together in a

congressional map in North Carolina’s history, no matter which political party was in charge.

PX425 at 23; Trial Tr. 01/03/2022.

492. CD2 includes the “core” of former CD1, as well as portions of the former CD4

and CD13. While the former CD1 previously included Pitt County, home to East Carolina

University in Greenville, CD2 does not include Pitt County. PX425 at 21-23.

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 PX441 (Cooper Map 6)

493. CD2 is now a “competitive” district based on a calculation of the two-party vote

differential in the 2020 Secretary of Labor and Attorney General elections in the VTDs that

are included within CD2, as well as other measures. PX425 at 23. CD2 is “the lone

competitive district in the state of North Carolina under the Enacted Maps.” Trial Tr.

01/03/2022.

494. Most of the area that comprises CD2 is represented by Democrat G.K.

Butterfield in a Democratic-leaning district. Representative Butterfield, who is the longest

serving member of North Carolina’s congressional delegation, announced that he will not

seek re-election after the 2021 Congressional Plan was enacted. PX425 at 23.

495. The Court finds this congressional district, CD2, to be the result of intentional,

pro-Republican partisan redistricting.

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 (iii) Congressional District No. 3 (“CD3”)

496. CD3 is comprised of Bladen County, Brunswick County, Columbus County,

Duplin County, New Hanover County, Pender County, portions of Onslow County, and

portions of Robeson County. Plaintiffs challenge this congressional district as the product of

unlawful partisan gerrymanders.

497. Individual Harper Plaintiff Eileen Stephens resides in and challenges CD3.

Organizational Plaintiff NCLCV challenges CD3 as well.

498. CD3 combines portions of the Sandhills, on its western boundary, with the

coastal enclave in and around Wilmington and a piece of Onslow County, in the east. CD3

includes portions of three former districts: CD3, CD7, and CD9. PX425 at 25.

PX442 (Cooper Map 7)

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 499. CD3 is likely to elect a Republican candidate based on a calculation of the two-

party vote differential in the 2020 Secretary of Labor and Attorney General elections in the

VTDs that are included within CD3, as well as other measures. PX425 at 25.

500. The Court finds this congressional district, CD3, to be the result of intentional,

pro-Republican partisan redistricting.

(iv) Congressional District No. 4 (“CD4”)

501. CD4 is comprised of Cumberland County, Johnston County, Sampson County,

portions of Harnett County, and portions of Wayne County. Plaintiffs challenge this

congressional district as the product of unlawful partisan gerrymanders.

502. Individual NCLCV Plaintiff Reverend Reginald Wells and Individual Harper

Plaintiffs Gettys Cohen, Jr. and Sarah Taber reside in and challenge CD4. Organizational

Plaintiff NCLCV and Organizational Plaintiff Common Cause challenge CD4 as well.

503. CD4 contains portions of the Sandhills, including Cumberland and Johnston

counties along with parts of Harnett and Wayne counties. CD4’s boundaries thereby combine

the Democratic-leaning areas in Fayetteville with Republican-leaning areas that were in the

former CD7 and CD8. PX425 at 27.

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 PX443 (Cooper Map 8)

504. CD4 does not contain the residence of an incumbent congressional

representative. CD4 is likely to elect a Republican candidate based on a calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD4, as well as other measures. PX425 at 27.

505. The Court finds this congressional district, CD4, to be the result of intentional,

pro-Republican partisan redistricting.

(v) Congressional District No. 5 (“CD5”)

506. CD5 is comprised of portions of only Wake County. Plaintiffs challenge this

congressional district as the product of unlawful partisan gerrymanders.

507. Individual Harper Plaintiff John Anthony Balla resides in and challenge CD5.

Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause challenge CD5

as well.

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 508. CD5 sits entirely within Wake County and is one of the three districts that

includes a part of that county. Trial Tr. 01/03/2022. It is made up of portions of former CD2

and CD4 and packs the Democratic voters in these heavily-Democratic areas into one district,

increasing the probability that Republican candidates will win in the adjacent districts.

PX425 at 29.

PX444 (Cooper Map 9)

509. CD5 is likely to elect a Democratic candidate based on a calculation of the two-

party vote differential in the 2020 Secretary of Labor and Attorney General elections in the

VTDs that are included within CD5, as well as other measures. PX425 at 29.

510. The Court finds this congressional district, CD5, to be the result of intentional,

pro-Republican partisan redistricting.

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 (vi) Congressional District No. 6 (“CD6”)

511. CD6 is comprised of Durham County, Orange County, and portions of Wake

County. Plaintiffs challenge this congressional district as the product of unlawful partisan

gerrymanders.

512. Individual NCLCV Plaintiffs Henry M. Michaux, Jr. and Katherine Newhall

and Individual Harper Plaintiffs Rebecca Harper and Sondra Stein reside in and challenge

CD6. Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause

challenge CD6 as well.

513. CD6 is another district including parts of Wake County and combines portions

of the former CD4 and CD2.

PX445 (Cooper Map 10)

514. CD6 is a really good example of packing Democratic voters across multiple

counties and adds a greater proportion of Democratic voters into a single district than any

district from the former congressional plan, increasing the probability that Republicans can

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win in the adjacent districts. There are only four marginally Republican-leaning VTDs in

CD6. PX425 at 31; Trial Tr. 01/03/2022.

515. CD6 is likely to elect a Democratic candidate based on his calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD6, as well as other measures. PX425 at 31.

516. The Court finds this congressional district, CD6, to be the result of intentional,

pro-Republican partisan redistricting.

(vii) Congressional District No. 7 (“CD7”)

517. CD7 is comprised of Alamance County, Chatham County, portions of Davidson

County, portions of Guilford County, portions of Harnett County, Lee County, Randolph

County, and portions of Wake County. Plaintiffs challenge this congressional district as the

product of unlawful partisan gerrymanders.

518. Individual Harper Plaintiffs Lily Nicole Quick and Ron Osborne reside in and

challenge CD7. Organizational Plaintiff NCLCV and Organizational Plaintiff Common

Cause challenge CD7 as well.

519. CD7, one of three districts to include parts of Guilford county. is made up of

portions of former CD2, CD4, CD6, and CD13. The boundaries of CD7 split Guilford and

Wake counties but do not include the most Democratic-leaning VTDs in those counties within

the district. PX425 at 33.

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 PX446 (Cooper Map 11)

520. CD7 leans heavily towards the Republican Party and is going to be a

Republican district as a result of how this district is drawn alongside CD6. Trial Tr.

01/03/2022. CD7 is likely to elect a Republican candidate based on a calculation of the two-

party vote differential in the 2020 Secretary of Labor and Attorney General elections in the

VTDs that are included within CD7, as well as other measures. PX425 at 33.

521. Because District 7 is drawn to include several heavily Republican counties

while carefully avoiding concentrations of Democratic voters, the result is a district that will

reliably elect Republicans to office; in Dr. Duchin’s analysis of 52 elections, District 7 never

once elects a Democrat. PX201 “SL-174” A8:BA8.

522. As a result of packing in Congressional District 6, and cracking in Guilford

County, District 7 is less compact. District 7 has a Polsby-Popper compactness score of only

0.20 (on a scale of 0 to 1, where 1 is the most compact). PX150 at 14. It was not necessary to

trisect Wake County in this manner.

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 523. The Court finds this congressional district, CD7, to be the result of intentional,

pro-Republican partisan redistricting.

(viii) Congressional District No. 8 (“CD8”)

524. CD8 is comprised of Anson County, Hoke County, portions of Mecklenburg

County, Montgomery County, Moore County, Richmond County, portions of Robeson County,

Scotland County, Stanly County, and Union County. Plaintiffs challenge this congressional

district as the product of unlawful partisan gerrymanders.

525. Individual Harper Plaintiff Barbara Proffitt resides in and challenges CD8.

Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause challenge CD8

as well.

526. CD8 includes portions of the Sandhills, stretching from the eastern side of

Mecklenburg County, in the west, to include Hoke and Scotland counties, in the east. It is

one of three districts to contain portions of Mecklenburg County and is made up of portions

of former CD8, CD9, and CD12. CD8’s western boundary splits Mecklenburg County in such

a way that the most Democratic-leaning VTDs within that county fall outside of CD8. PX425

at 35.

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 PX447 (Cooper Map 12)

527. CD8 is likely to elect a Republican candidate based on his calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD8, as well as other measures. PX425 at 35.

528. The Court finds this congressional district, CD8, to be the result of intentional,

pro-Republican partisan redistricting.

(ix) Congressional District No. 9 (“CD9”)

529. CD9 is comprised of portions of only Mecklenburg County. Plaintiffs challenge

this congressional district as the product of unlawful partisan gerrymanders.

530. Individual Harper Plaintiff Virginia Walters Brien resides in and challenges

CD9. Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause

challenge CD9 as well.

531. CD9, one of three districts to contain portions of Mecklenburg County, sits

wholly within Mecklenburg County and includes portions of the former CD9 and CD12. CD9

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packs the most-Democratic VTDs in Mecklenburg County within one district, while most

Republican-leaning and competitive VTDs are placed outside its boundaries, in CD13 to the

west and CD8 to the east, allowing those districts to be more favorable to Republican

candidates. PX425 at 37.

PX448 (Cooper Map 13)

532. CD9 is likely to elect a Democratic candidate based on his calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD9, as well as other measures. PX425 at 37.

Mecklenburg County need not have been fractured three times, and District 9 need not have

been “packed.”

533. The Court finds this congressional district, CD9, to be the result of intentional,

pro-Republican partisan redistricting.

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 (x) Congressional District No. 10 (“CD10”)

534. CD10 is comprised of Cabarrus County, portions of Davidson County, Davie

County, portions of Guilford County, portions of Iredell County, and Rowan County. Plaintiffs

challenge this congressional district as the product of unlawful partisan gerrymanders.

535. Individual Harper Plaintiffs Shawn Rush, Joshua Perry Brown, and Donald

M. MacKinnon reside in and challenge CD10. Organizational Plaintiff NCLCV and

Organizational Plaintiff Common Cause challenge CD10 as well.

536. CD10, one of three districts to contain portions of Guilford County, combines

portions of former CD6, CD9, CD10, and CD13. PX425 at 39. CD10 includes heavily-

Democratic VTDs in High Point, within Guilford County, as well as Democratic-leaning VTDs

in Salisbury, Kannapolis, and Concord, in Rowan and Cabarrus counties. Id. at 40. But CD10

separates the Democratic voters in those areas from other pockets of Democratic voters just

across CD10’s boundaries in Guilford, Forsyth, and Mecklenburg counties. Id.

PX449 (Cooper Map 14)

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 537. While North Carolina’s Piedmont Triad (High Point, Winston-Salem, and

Greensboro) was previously kept together in one district (former CD6), the Piedmont Triad—

and the Democratic voters there—are split across three districts, CD10, CD11, and CD12.

PX425 at 39.

538. Because District 10 cuts west to avoid Democratic populations in central

Davidson County and then turns 90 degrees to the south, bringing within its bounds

Republican voters as distant as the suburbs of Charlotte, District 10 has a Polsby-Popper

score of just 0.20. PX150 at 14.

539. The former CD6 is represented by Democrat Kathy Manning, who is now

“double-bunked” with Republican Virginia Foxx in CD11, a Republican leaning district.

PX425 at 4.

540. CD10 is likely to elect a Republican candidate based on a calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD10, as well as other measures. PX425 at 39.

541. Because of the way in which the Enacted Plan divides the county’s Democratic

voters, Districts 7, 10, and 11 do not elect a Democrat in a single one of the 52 elections Dr.

Duchin studied. PX201 “SL-174” A8:BA9, A11:BA11. Just as with Mecklenburg and Wake

Counties, there was no need to trisect Guilford County into CD7, CD10, and CD11 in this

manner.

542. The Court finds this congressional district, CD10, to be the result of

intentional, pro-Republican partisan redistricting.

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 (xi) Congressional District No. 11 (“CD11”)

543. CD11 is comprised of Alexander County, Alleghany County, Ashe County,

Caldwell County, portions of Guilford County, Rockingham County, Stokes County, Surry

County, portions of Watauga County, and Wilkes County. Plaintiffs challenge this

congressional district as the product of unlawful partisan gerrymanders.

544. Individual NCLCV Plaintiffs Dandrielle Lewis and Talia Fernos and

Individual Harper Plaintiff David Dwight Brown reside in and challenge CD11.

Organizational Plaintiff NCLCV and Organizational Plaintiff Common Cause challenge

CD11 as well.

545. CD11, one of three districts to contain portions of Guilford County, is made up

of portions of the former CD5, CD6, and CD10. PX425 at 41.

PX450 (Cooper Map 15)

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 546. Caldwell County, in the west, and Rockingham, in the east, have never shared

a congressional representative in the history of North Carolina. Some of the locations in

CD11—particularly the “high country” areas in Watauga and Ashe counties and Greensboro,

in the Piedmont—sit in different media markets, with different area codes. PX425 at 41;

Trial Tr. 01/03/2022.

547. CD11 includes the Democratic-leaning VTDs in Greensboro in the same

district as heavily-Republican VTDs to the north and the west in an “overwhelmingly

Republican district,” thereby ensuring that Greensboro voters will not be represented by a

Democrat. PX425 at 41.

548. District 11’s boundaries, by bending to avoid Forsyth County and stretching

far west through Republican-majority counties all the way to the Tennessee border, result in

a Polsby-Popper score of just 0.21. PX150 at 14.

549. The portion of CD11 that includes the residence of Republican incumbent

Virginia Fox is a tiny sliver of Watauga County that is connected to Caldwell County by a

narrow passage of land that is roughly three miles wide and requires a traverse of the Daniel

Boone Scout Trail. PX425 at 41-42. This inclusion leads to a double bunking with a

Republican and incumbent Democrat in another current district together in a new district

that leans heavily towards the Republican Party. Trial Tr. 01/03/2022.

550. CD11 is likely to elect a Republican candidate based on a calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD11, as well as other measures. PX425 at 41.

551. The Court finds this congressional district, CD11, to be the result of

intentional, pro-Republican partisan redistricting.

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 (xii) Congressional District No. 12 (“CD12”)

552. CD12 is comprised of Catawba County, Forsyth County, portions of Iredell

County, Lincoln County, and Yadkin County. Plaintiffs challenge this congressional district

as the product of unlawful partisan gerrymanders.

553. Individual Harper Plaintiff Chenita Barber Johnson resides in and challenges

CD12. Organizational Plaintiff NCLCV challenges CD12 as well.

554. CD12 stretches from Lincoln County, in the southwest, through Catawba,

Iredell, Yadkin, and Forsyth counties, in the northeast. PX425 at 43. CD12’s boundaries

separate the Democratic-leaning VTDs in Winston-Salem and the Democratic-leaning VTDs

in High Point (in CD10), combining Winston-Salem with Republican-leaning VTDs further

south. PX425 at 44. Republican incumbent Patrick McHenry currently resides in the

southeast corner of CD12, on the other end of the district from Winston-Salem. PX425 at 43.

PX451 (Cooper Map 16)

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 555. CD12 is likely to elect a Republican candidate based on a calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD12, as well as other measures. PX425 at 43.

556. The Court finds this congressional district, CD12, to be the result of

intentional, pro-Republican partisan redistricting.

(xiii) Congressional District No. 13 (“CD13”)

557. CD13 is comprised of Burke County, Cleveland County, Gaston County,

McDowell County, portions of Mecklenburg County, Polk County, and Rutherford County.

Plaintiffs challenge this congressional district as the product of unlawful partisan

gerrymanders.

558. Individual NCLCV Plaintiff Timothy Chartier and Individual Harper Plaintiff

Mary Elizabeth Voss reside in and challenge CD13. Organizational Plaintiff NCLCV and

Organizational Plaintiff Common Cause challenge CD13 as well.

559. CD13, one of three districts to include portions of Mecklenburg County, is made

up of portions of former CD5, CD10, CD11, and CD12. Id. Until the 2021 Congressional Plan,

Polk County and Mecklenburg County have never been included in the same congressional

district. PX425 at 45.

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 PX452 (Cooper Map 17)

560. CD13 is likely to elect a Republican candidate based on a calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD13, as well as other measures. PX425 at 45.

561. The Court finds this congressional district, CD13, to be the result of

intentional, pro-Republican partisan redistricting.

(xiv) Congressional District No. 14 (“CD14”)

562. CD14 is comprised of Avery County, Buncombe County, Cherokee County,

Clay County, Graham County, Haywood County, Henderson County, Jackson County, Macon

County, Madison County, Mitchell County, Swain County, Transylvania County, portions of

Watauga County, and Yancey County. Harper Plaintiffs challenge this congressional district

as the product of unlawful partisan gerrymanders.

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 563. Individual Harper Plaintiffs Richard R. Crews, Mark S. Peters, Kathleen

Barnes, and Ann Butzner reside in and challenge CD14. Organizational Plaintiff NCLCV

challenges CD14 as well.

564. CD14 sits in the southwestern corner of the state and includes most of the

former CD11, as well as part of Watauga County, to the northeast. PX425 at 47. The former

CD11 also included “Republican strongholds” of Polk and McDowell counties, as well as part

of Rutherford County, which are now placed in CD13. Id. Watauga County has not been in

the same congressional district with the southwestern end of the state since 1871, before

Graham and Swain counties were in existence. Id.

PX453 (Cooper Map 18)

565. CD14 is likely to elect a Republican candidate based on a calculation of the

two-party vote differential in the 2020 Secretary of Labor and Attorney General elections in

the VTDs that are included within CD14, as well as other measures. PX425 at 47.

566. The Court finds this congressional district, CD14, to be the result of

intentional, pro-Republican partisan redistricting.

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 C. Elections are Decided by any Number of Factors

567. All of Plaintiff’s statistical experts, except Dr. Pegden, used as a baseline or

point of comparison nonpartisan maps to determine whether the Enacted Maps are partisan

“outliers.” Even Plaintiffs would have to concede that under Stephenson, the General

Assembly is at least, to some degree, allowed to draw districts for partisan advantage. The

experts’ analysis does not inform the Court of how far the Enacted Maps are from what is

permissible partisan advantage. Accordingly, these analyses do not inform the Court of how

much of an outlier the Enacted Maps are from what is actually permissible.

568. Many of the opinions of the experts at trial were informed by either the vote

share of a party on a single or aggregated statewide race or races. These statewide races

include presidential and gubernatorial races as well as Attorney General, Judicial and

Council of State races. These statewide races have one thing in common, that is, the elected

positions have very little in common with the legislative and congressional races except that

they all occur in North Carolina. The function and responsibilities of our legislature and our

members of congress differ from these statewide and national offices. Also, these races do not

take into account the individual needs and issues that are important to each of the 170

legislative districts and 14 congressional districts at issue. They also treat the candidates as

inanimate objects in that they do not consider the personality or qualifications of each

candidate, any political baggage each candidate may carry, as well as a host of other

considerations that voters use to select a candidate. Moreover, these opinions assume that

voters will vote along party lines. Testimony of the experts that by considering many

statewide races across a significant period of time somehow washes these considerations out

is not persuasive. In effect, they believe the computer can take the human element out of

the human. That is a process we doubt they can do and hope will never happen.

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 569. Notwithstanding these doubts, we conclude based upon a careful review of all

of the evidence that the Enacted Maps are a result of intentional, pro-Republican partisan

redistricting.

IV. Intentional Racial Discrimination and Racial Vote Dilution Claims

A. Intentional Racial Discrimination

1. Direct Evidence

570. There is no express language showing discriminatory intent within the text of

the session laws establishing the Enacted Plans.

571. The Adopted Criteria expressly proscribed the use of data identifying the race

of individuals or voters in the construction or consideration of districts in the Enacted Plans

while also requiring each redistricting committee to draw districts that comply with the

Voting Rights Act.

572. There also is no evidence that the Enacted Plans were evaluated based on

racial considerations after the respective congressional, Senate, and House plans were

selected and prior to enactment. Defendants Expert Dr. Lewis stated that he was only asked

to do the RPV study after he was retained on November 12, 2021. Trial Tr. 01/05/2022.

2. Circumstantial Evidence

a. Recent Race-Based Redistricting Litigation

573. The General Assembly’s intentional racial gerrymandering has been subject to

judicial review in multiple cases over the past decade.

574. First, in Dickson v. Rucho, 367 N.C. 542 (2014), the plaintiffs challenged North

Carolina’s redistricting plans for the North Carolina Senate, House of Representatives, and

Congressional delegation as unconstitutional racial gerrymanders. 367 N.C. at 548.

575. The three-judge panel that heard the challenges concluded that 26 of the

challenged districts were predominately motivated by race, and thus were subject to strict

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scrutiny and determined that these districts were intended by the General Assembly to be

“VRA districts” that necessarily required the drafters to classify residents by race. Id. at 551.

The Supreme Court of North Carolina determined that the consideration of race to the degree

necessary to comply with Section 2 of the VRA does not rise to the level of a “predominate

motive,” though this was not fatal to the order, Id. at 522, because of the three-judge panel’s

determination that compliance with Section 2 and Section 5 of the VRA are compelling state

interests. Id. at 562-563.

576. The Supreme Court of the United States reviewed this decision, vacated the

judgment, and remanded the case for further consideration in light of Alabama Legislative

Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). See Dickson v. Rucho, 368 N.C. 481, 484

(2015). The Supreme Court of North Carolina, again, affirmed the ruling of the three-judge

panel, determining that the trial court did the appropriate district-by-district analysis

without giving improper weight to population equalization. 368 N.C. at 485.

577. Second, in Covington v. North Carolina, 316 F.R.D. 176 (M.D.N.C. 2016), the

plaintiffs challenged North Carolina state legislative redistricting plans as unconstitutional

racial gerrymanders. The court determined that race was the predominate factor motivating

the drawing of all the challenged districts, based on the redistricting committee’s criteria of

creating “VRA districts” that reach a 50%-plus-one BVAP threshold first, Id. at 130-31, and

that the defendants had not shown that their use of race was reasonably necessary to remedy

a violation of Section 2 of the VRA because they had not demonstrated that any of the districts

challenged were based on evidence that the majority votes sufficiently as a bloc, pursuant to

Thornburg v. Gingles, 478 U.S. 30, 51 (1986). 316 F.RD. at 124. The court ordered new maps

be drawn. Id.

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 b. Plaintiff Common Cause’s Expert James Leloudis, II

578. Dr. James Leloudis, a professor of history at the University of North Carolina

at Chapel Hill, submitted an expert report and was accepted as an expert during trial for

Plaintiff Common Cause in the areas of North Carolina history, politics, race relations, and

government policy. Trial Tr. 01/04/2022.

579. Dr. Leloudis received his B.A. and Ph.D. from the University of North Carolina

at Chapel Hill, and M.A. from Northwestern University. PX1486 (Leloudis Report) p. 4.

580. Dr. Leloudis’ primary expertise is in the history of the United States, with

specialization in the history of race, politics, labor, and reform in the 19th and 20th century

American South. Id. Dr. Leloudis conducted qualitative research on the history of race, voting

rights, voter suppression, and redistricting in North Carolina, from the end of the Civil War

to the present. He examined the historical context for recent attempts to limit minority

citizens’ voting rights and ability to elect candidates of their choice. PX1486 (Leloudis Report)

p. 5.

581. North Carolina has had a long and cyclical history of suppressing minority

political participation. Over the last century and a half, there have been numerous instances

where white conservatives have employed a variety of measures to limit the rights of racial

and ethnic minorities. PX1486 (Leloudis Report) p. 77.

582. Dr. Leloudis found that although Republicans may claim that the redistricting

process was conducted race-blind, accepting this contention “asks us to believe that history

has ended and that in a society deeply scarred by slavery and Jim Crow, race no longer

matters; and that politicians vying for public office in the racially polarized America of the

21st century lack an intimate knowledge of where people live and how they vote.” PX1486

(Leloudis Report) p. 77.

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 B. Racial Vote Dilution

583. As noted above, the process in creating the Enacted Plans deviated from past

procedure in not following Stephenson by drawing VRA districts first.

1. The Parties’ Experts

a. NCLCV Plaintiffs’ Expert Dr. Duchin

584. Dr. Moon Duchin, as noted above, submitted an expert report on behalf of

NCLCV Plaintiffs. PX150. During trial, Dr. Duchin was accepted as an expert witness.

585. Dr. Duchin used well-recognized ecological inference statistical tools to assess

racial voting trends in North Carolina and to determine if racial vote polarization persists

today. Id. at 11. She designated 8 elections (4 generals and 4 primaries)—by prioritizing more

recent elections that had a Black candidate on the ballot, that was polarized, and close

enough to produce variation at the district level—to determine the opportunity to elect

Blacks’ candidates of choice. Id. at 11.

586. Dr. Duchin found that there is a consistent pattern of polarization in statewide

general elections. More specifically, the Enacted Congressional districts had two effective

districts for Black voters while the NCLCV map had four effective districts. The Enacted

Senate map had eight effective districts while the NCLCV map had 12 effective districts. The

Enacted House districts were effective for Black voters in 24 districts, while the NCLCV map

had 36 effective districts. Id. at 12.

587. During trial, however, Dr. Duchin was asked about conducting a Gingles

analysis, to which Dr. Duchin stated she did do Gingles two and three, by doing an RPV

analysis, but didn’t do Gingles one. Trial Tr. 01/04/2022. When asked whether a district-by-

district analysis was conducted, Dr. Duchin stated that the EI is run on the statewide basis,

but it makes inferences about every precinct’s preferences. Trial Tr. 01/04/2022.

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 b. Plaintiff Common Cause’s Expert Jonathan Mattingly

588. In his addendum report, Dr. Mattingly examined the correlation between the

fraction of the black voting age population and the partisan makeup of (i) the North Eastern

cluster choices in the North Carolina State Senate, and (ii) the districts within the Duplin-

Wayne county cluster in the North Carolina State House. PX1485 (Mattingly Addendum) at

1.

589. The enacted plan splits the Black voters roughly in half between the two

districts, whereas the other potential clustering would have concentrated Black voters into

one of the two districts. PX1485 (Mattingly Addendum) at 2. Additionally, the enacted plan

leads to two stable Republican districts when measured across a range of historic voting

patterns. Id. In contract, the alternate clustering would have allowed the district with the

larger BVAP (42.33% BVAP) to reliably elect a Democratic candidate. Id. Thus, the chosen

cluster is the choice that favors the Republican Party and significantly fractures Black voters

in that area. Id.

590. In examining the Duplin-Wayne cluster, Dr. Mattingly used the 2020 Governor

race and plotted the relationship between the BVAP and the vote fraction in the ensemble

maps he created and the exacted plan. PX1485 (Mattingly Addendum) at 2. Using this

analysis, it is possible to draw districts with significantly higher BVAPs and raising the

BVAP would likely raise the Democratic vote fraction. Id. Trial Tr. 01/04/2022.

c. Defendants’ Expert Jeffrey Lewis

591. Dr. Jeffery B. Lewis, a Professor of Political Science at UCLA, received a B.A.

in Political Science and Economics from Wesleyan University. He received a Ph.D. in Political

Science from the Massachusetts Institute of Technology. LDTX109 at 1-2 (Lewis Rep.).

592. Dr. Lewis specializes in quantitative political methodology with a focus on

making inferences about preferences and behavior from the analysis of voting patterns in the

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mass public and in legislatures. Id. at 2. He submitted an expert report and was accepted as

an expert witness on behalf of Legislative Defendants in the areas of political methodology

and racial bloc voting analysis. Trial Tr. 01/05/2022.

593. Dr. Lewis presented summaries of the results of North Carolina general and

Democratic primary election contests held in 2014, 2016, 2018, and 2020. He considered how

each contest would have turned out if only the votes of those residing in each current and in

each enacted State House, State Senate, and Congressional district had been counted. This

allowed for the consideration of the voting strength of Black voters in each existing and

proposed legislative district. Id. at 2.

594. For each of the reconstituted elections in each district, Dr. Lewis used weighted

ecological regression (ER) to estimate the degree of Black voter cohesion and non-Black voter

crossover. He omitted contest-district combinations where the number of voting precincts

available for the analysis or Black share of voters was too small. Id. at 3. He evaluated 420

individual contests including over 190 that included a Black candidate. Id. at 5-6. He then

used and relaxed, without endorsing, Dr. Duchin’s definition of effective Black districts

(greater than 75% Black preferred win rate in races with minority candidates combined with

greater than 25% BVAP). Id. at 6.

595. Using Dr. Duchin’s definition of effective Black districts against Dr. Lewis’s

data set and comparing it with more relaxed requirements of this definition, the Court finds

that in no district, enacted or in 2020, does it appear that a majority of BVAP is needed for

that district to regularly generate majority support for minority-preferred candidates in the

reconstituted elections. Id. at 7.

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 2. A District-by-District Analysis of Racial Vote Dilution Is Not
Necessary

596. Plaintiffs failed to set forth racial polarization data supporting a district-by-

district analysis and relied solely on an argument as to the process as a whole.

597. Race was not the predominant, overriding factor in drawing the districts in the

Enacted Plans.

598. The General Assembly did not subordinate traditional race-neutral districting

principles, including compactness, contiguity, and respect for political subdivisions to racial

considerations.

V. Whole-County Provision Claim

599. The Senate Districts in which counties were divided in their formation are as

follows: 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 32, 34, 35, 37, 38,

39, 40, 41, 42, 43, 44, 45, 46, 47, 49, and 50. S.L. 2021-173.

600. Across all fifty Senate Districts, eighty-five (85) counties were kept whole and

fifteen (15) counties were divided in the formation of a Senate District. S.L. 2021-173.

601. In the Senate District County Groupings, there are a total of 97 county

boundary traversals (i.e., the number of times a district crosses between adjacent counties

within a grouping). PX150 at 17.

602. The House Districts in which counties were divided in their formation comprise

107 total House Districts, with the following House Districts being the only districts

comprised solely of whole counties: 5, 12, 22, 23, 27, 48, 65, 67, 86, 97, 118, 119, and 120. S.L.

2021-175.

603. Across all 120 House Districts, sixty-three (63) counties were kept whole and

thirty-seven (37) counties were divided in the formation of a House District. S.L. 2021-175.

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 604. In the House District County Groupings, there are a total of 69 county

boundary traversals. PX150 at 17.

605. The number of persons in each state legislative district must be within plus or

minus 5% of the ideal district population and, as determined under the most recent federal

decennial census, this is a population of 86,995 in the House and 208,788 in the Senate.

PX150 at 12; LDTX107 at 22.

606. NCLCV Plaintiffs present the sole challenge under the Whole County

Provisions of the North Carolina Constitution, N.C. Const. art. II, §§ 3(3) and 5(3), and

challenge Senate Districts 1, 2, 43, 44, 47, 50, 46, 49, and 48, and House Districts 1 and 79

as impermissibly traversing county lines in violation of the respective Whole County

Provisions.

607. The North Carolina Constitution requires that State House and Senate

districts comply with a series of requirements adopted to implement the Constitution’s Whole

County Provisions, including establishing districts within county groupings.

608. In several regions, multiple county groupings were possible under our

Supreme Court’s interpretation of the Whole County Provisions. In such instances, groupings

were chosen from the range of legally possible groupings, as identified in the Duke Academic

Paper.

609. NCLCV Plaintiffs do not bring a VRA claim, and there is on the record before

the Court no evidence that majority-minority districts under Section 2 of the VRA are

required anywhere in North Carolina, such that a deviation from these chosen county

groupings is necessary to comply with the VRA.

610. The face of S.L. 2021-173 shows, and NCLCV Plaintiffs do not offer evidence

to the contrary, that SD1, SD2, and SD 48 do not traverse county lines and are, therefore,

each comprised of only whole counties.

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 611. Within each remaining county grouping containing a district challenged under

the Whole County Provisions, the district line’s traversal of a county line occurs because of

the need to comply with the equal-population rule required by law and memorialized in the

Adopted Criteria.

VI. Individual and Organizational Plaintiffs’ Standing

A. Individual NCLCV Plaintiffs

612. Individual NCLCV Plaintiffs reside in North Carolina Congressional Districts

2, 4, 6, 11, and 13. PX206-211. As shown by the Individual NCLCV Plaintiffs residing in these

Congressional Districts, these districts are the result of partisan packing or cracking, and

there is a plausible alternative that would not create the same partisan composition of the

districts that are the result of partisan packing or cracking.

613. Individual NCLCV Plaintiffs reside in North Carolina Senate Districts 2, 12,

20, 27, and 37. PX206-211. As shown by the Individual NCLCV Plaintiffs residing in these

Senate Districts, these districts are the result of partisan packing or cracking, and there is a

plausible alternative that would not create the same partisan composition of the districts

that are the result of partisan packing or cracking. Furthermore, some are located in counties

that have been divided in the formation of the Senate Districts and which further contribute

to the resulting partisan packing and cracking.

614. Individual NCLCV Plaintiffs reside in North Carolina House of

Representatives Districts 6, 27, 29, 58 and 98. PX206-211. As shown by the Individual

NCLCV Plaintiffs residing in these House Districts, these districts are the result of partisan

packing or cracking, and there is a plausible alternative that would not create the same

partisan composition of the districts that are the result of partisan packing or cracking.

Furthermore, some are located in counties that have been divided in the formation of the

House Districts and which further contribute to the resulting partisan packing and cracking.

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 B. Individual Harper Plaintiffs

615. Individual Harper Plaintiffs reside in all North Carolina Congressional

Districts. PX400-424. As shown by the Individual Harper Plaintiffs residing in these

Congressional Districts, these districts are the result of partisan packing or cracking, and

there is a plausible alternative that would not create the same partisan composition of the

districts that are the result of partisan packing or cracking:

616. Individual Harper Plaintiffs reside in North Carolina Senate Districts 1, 18,

19, 27, 32, 40, 41, 46, and 49. PX400, 405, 407, 408, 410, 412, 413, 414, 415, 416, and 418. As

shown by the Individual Harper Plaintiffs residing in these Senate Districts, these districts

are the result of partisan packing or cracking, and there is a plausible alternative that would

not create the same partisan composition of the districts that are the result of partisan

packing or cracking.

617. Individual Harper Plaintiffs reside in North Carolina House Districts 2, 8, 9,

10, 21, 40, 58, 59, 60, 62, 72, 101, 102, 103, and 115. PX400, 402, 405, 407, 408, 410, 411, 412,

414, 416, 418, 419, 420, 421, 422, 423, and 424. As shown by the Individual Harper Plaintiffs

residing in these House Districts, these districts are the result of partisan packing or

cracking, and there is a plausible alternative that would not create the same partisan

composition of the districts that are the result of partisan packing or cracking.

C. North Carolina League of Conservation Voters

618. Organizational Plaintiff NCLCV is a “nonpartisan nonprofit advocacy

organization whose mission is to protect the health and quality of life for all North

Carolinians, by fighting to build a better world with clean air, clean water, clean energy, and

a safe climate, all protected by a just an equitable democracy.” NCLCV Compl. ¶ 11; PX203

¶ 3. NCLCV attempts to complete this mission by helping to “elect legislators and statewide

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candidates who share it’s values,” and working “to hold elected official accountable for their

votes and actions.” Id.

619. Plaintiff NCLCV has members who reside in every challenged North Carolina

Congressional, North Carolina Senate, and North Carolina House of Representatives district.

PX203 ¶ 5.

620. Plaintiff NCLCV’s interests it seeks to protect in this litigation are its ability

to effectively advocate for candidates who will protect the environment, its ability to build a

pro-environment majority, and its ability to hold legislators accountable, which is frustrated

by the predetermining of elections they allege will occur under the Enacted Plans. NCLCV

Compl. ¶ 12; PX203 ¶ 6.

621. The partisan composition of the North Carolina Congressional, North Carolina

Senate, and North Carolina House of Representatives Districts significantly affect NCLCV’s

ability to fulfill its mission and purpose because pro-environment candidates will often be

unable to win individual elections and will certainly not be able to win individual elections.

Additionally, when incumbent legislators know their seats and their majorities are safe

regardless of their votes on legislation, NCLCV cannot fulfil its mission of “[i]nstill[ing] fear

into NC’s elected leaders of the consequences of taking anti-environment actions.” PX203 ¶

6. Additionally, when potential pro-environment candidates do not believe they can win, they

are less likely to run for office. Id. at ¶ 7. Lastly, it will diminish the effectiveness of NCLCV’s

limited funds and resources and so will require the expenditure of more resources while at

the same time making fundraising more difficult. Id. at 8-9.

622. Plaintiff NCLCV’s interests it seeks to protect in this litigation on behalf of its

members are the ability of its members’ efforts to address environmental harms. NCLCV

Compl. ¶ 13; PX203 ¶ 12.

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 623. Neither the claims asserted, nor the relief requested, by Plaintiff NCLCV

requires the participation of individual members in the lawsuit.

D. Common Cause

624. Organizational Plaintiff-Intervenor Common Cause is “a non-profit

nonpartisan democracy organization with over 1.5 million members and local organizations

in 30 states, including North Carolina.” Common Cause Compl. ¶ 17; PX1480 ¶ 2. Common

Cause is “dedicated to fair elections and making government at all levels more

representative, open, and responsive to the interests of ordinary people.” Id; PX1480 ¶ 5. The

organization attempts to meet this goal by assisting voters in navigating the elections

process, providing resources for voters to determine their districts and their polling locations,

and mobilizing voters to engage in political advocacy. Common Cause also advocates for

redistricting reform. Id.; PX1480 ¶¶ 5-6.

625. Plaintiff-Intervenor Common Cause has members who reside in every

challenged North Carolina Congressional, North Carolina Senate, and North Carolina House

of Representatives district. PX1480 ¶ 9.

626. Plaintiff-Intervenor Common Cause’s interests it seeks to protect in this

litigation are its ability to engage with voters because Common Cause alleges the Enacted

Plans will diminish the voices of these voters, its ability to direct its resources effectively, and

it will be forced to divert these resources toward “combatting the ill effects of unlawful

redistricting,” and its ability to increase voter engagement and holding government officials

accountable, which is allegedly frustrated by “preordained election results.” Common Cause

Compl. ¶ 17; PX1480 ¶ 7. Common Cause also seeks to protect its interest in advocating for

redistricting reform measures. Common Cause Compl. ¶ 17.

627. The partisan composition of the North Carolina Congressional, North Carolina

Senate, and North Carolina House of Representatives Districts significantly affect Common

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Cause’s ability to fulfill its mission and purpose because it frustrates Common Cause’s

organizational mission of increasing democratic engagement and voter participation by

insulating elected officials from the democratic process and, in turn, voters are much less

likely to contact their representatives, vote in elections, or engage in the democratic process.

PX1480 ¶ 7.

628. Plaintiff-Intervenor Common Cause’s interests it seeks to protect in this

litigation on behalf of its members are the members’, registered as Democrats, right to have

representation in the State Legislature in compliance with the North Carolina Constitution,

right to be free from unequal treatment, and right to free association.

629. Neither the claims asserted, nor the relief requested, by Plaintiff Common

Cause requires the participation of individual members in the lawsuit.

E. Standing to Assert Intentional Racial Discrimination and Racial

Vote Dilution Claims

630. Individual NCLCV Plaintiffs have shown that they are Black registered voters.

PX206, 207, 208, 209, and 211. Organizational Plaintiffs NCLCV and Common Cause have

shown that some of its members are Black registered voters. PX203 ¶ 14, PX205; PX1480 ¶

10.

631. However, none of these plaintiffs have shown that the redistricting plan that

affects their Congressional, State Senate, or State House district was the product of

intentional racial discrimination.

632. Additionally, the NCLCV plaintiffs have not shown that the Congressional,

State Senate, and State House redistricting plans provide one racial group with less

opportunity than other members of the electorate to nominate and elect members of their

choice.

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 CONCLUSIONS OF LAW

I. Standing

A. General Principles

1. The North Carolina Constitution provides: “All courts shall be open; every

person, for an injury done him in this lands, goods, person, or reputations shall have remedy

by due course of law; and right and justice shall be administered without favor, denial, or

delay.” N.C. CONST. art. I, § 18. This provision should be read to guarantee standing where

a legal right arising under the North Carolina Constitution has been infringed. Comm. to

Elect Forest v. Employees PAC, 2021-NCSC-6, ¶ 81, 376 N.C. 558 (“Elect Forest”).

2. “[B]ecause North Carolina courts are not constrained by the ‘case or

controversy’ requirement of Article III of the United States Constitution, our State’s standing

jurisprudence is broader than federal law.” Davis v. New Zion Baptist Church, 811 S.E.2d

725, 727 (N.C. Ct. App. 2018) (quotation marks omitted); accord Goldston v. State, 361 N.C.

26, 35, 637 S.E.2d 876, 882 (2006) (“While federal standing doctrine can be instructive as to

general principles. . . and for comparative analysis, the nuts and bolts of North Carolina

standing doctrine are not coincident with federal standing doctrine.”).

3. The “gist of the question of standing” is whether the party seeking relief has

“alleged such a personal stake in the outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of issues upon which the court so largely

depends for illumination of difficult constitutional questions.” Goldston, 361 N.C. at 30, 637

S.E.2d at 879 (quoting Stanley v. Dep’t of Conservation & Dev., 284 N.C. 15, 28, 199 S.E.2d

641, 650 (1973)). “[T]he ‘concrete adverseness’ rationale undergirding our standing doctrine

is grounded on prudential principles of self-restraint in exercise of [the courts’] power of

judicial review for constitutionality[.]” Elect Forest, 2021-NCSC-6, ¶ 65 (internal citations

omitted).

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 4. An action, such as the case at bar, arising under the Declaratory Judgment Act

does require that the plaintiff make a showing of direct injury. Id. at ¶ 61. This is because

“only one with a genuine grievance, one personally injured by a statute, can be trusted to

battle the issue.” Id. at ¶ 64 (quoting Stanley, 284 N.C. at 28). “The ‘direct injury’ required in

this context could be, but is not necessarily limited to, ‘deprivation of a constitutionally

guaranteed personal right or an invasion of his property rights.’” Id. at ¶ 82 (quoting State ex

rel. Summerell v. Carolina-Virginia Racing Ass’n, 239 N.C. 591, 594, 80 S.E.2d 638, 640

(1954)); see also Piedmont Canteen Services, Inc. v. Johnson, 256 N.C. 155, 166, 123 S.E.2d

582, 589 (1962) (holding only persons “who have been injuriously affected . . . in their persons,

property or constitutional rights” may challenge the constitutionality of a statute).

5. “An association may have standing to in its own right to seek judicial relief

from injury to itself and to vindicate whatever rights and immunities the association itself

may enjoy.” River Birch Assoc. v. Raleigh, 326 N.C. 100, 129, 388 S.E.2d 538, 555 (1990)

(quoting Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211 (1975)).

6. A plaintiff association may also assert that it has standing to sue on behalf of

its members. See River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130, 388 S.E.2d 538,

555 (1990); Shearon Farms Townhome Owners Ass’n v. Shearon Farms Dev., LLC, 847 S.E.2d

229, 235 (N.C. Ct. App. 2020). Under North Carolina law, an organization has standing to

bring suit on behalf of its members if: “(a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect are germane to the organization’s

purpose; and (c) neither the claim asserted nor the relief requested requires the participation

of individual members in the lawsuit.” River Birch Assocs., 326 N.C. at 129-30, 3388 S.E.2d

at 555. An associational plaintiff need not show that all of its members would have standing

to sue in their own right when seeking declaratory or injunctive relief; rather, it is sufficient

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if any “one” member would have individual standing. Id.; see also State Employees Ass’n of

N.C., Inc. v. State, 357 N.C. 239, 580 S.E.2d 693 (2003) (reversing lower court decision that

had required every member of association or organization to have standing).

B. Plaintiffs’ Standing

7. As recognized by the Supreme Court of the United States, the right to vote is

individual and unique to each person. Any “interest in the composition of ‘the legislature as

a whole’” is “not an individual legal interest. See Gill v. Whitford, 138 S. Ct. 1916, 1932 (2018).

As such, in federal court, a voter is only injured by specific concerns with that voter’s districts

and has standing to challenge the districts in which the voter lives. Id. The “hope of achieving

a Democratic [or Republican] majority in the legislature” is not a particularized harm. Id. at

1932. Additionally, a district’s partisan composition cannot constitute a cognizable injury if

a similar composition would result “under any plausible circumstance.” Id. at 1924.

8. The Supreme Court of the United States has previously held that individual

voters have standing under the federal Constitution to challenge only their own districts on

gerrymandering grounds, Gill, 138 S. Ct. at 1930-31; however, in light of the different,

prudential standing principles in our State, see Comm. to Elect Forest, 376 N.C. at 563, and

because the unique manner in North Carolina in which one state legislative district is drawn

in a county grouping necessarily is tied to the drawing of some, and possibly all, of the other

districts within that same grouping, a challenge to the entire county grouping by an

individual plaintiff constitutes the necessary “personal stake in the outcome of the

controversy” for a plaintiff to have standing to challenge all districts within a county

grouping. Goldston, 361 N.C. at 30, 637 S.E.2d at 879; see Erfer v. Commonwealth, 794 A.2d

325, 330 (Pa. 2002) (recognizing that a “reapportionment plan acts as an interlocking jigsaw

puzzle, each piece reliant upon its neighbors to establish a picture of the whole” and that an

“allegation that a litigant’s district was improperly gerrymandered necessarily involves a

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critique of the plan beyond the borders of his district”), abrogated on other grounds by League

of Women Voters of Pa. v. Commonwealth, 178 A.3d 737 (Pa. 2018).

9. Individual private citizens and voters of a county have standing to sue to seek

redress from an alleged violation of N.C. Const. art II, §§ 3 and 5. See Pender County v.

Bartlett, 361 N.C. 491, 497 (2007); see also Pender County v. Bartlett, 04-CVS-0696, slip op.

at 139-171 (N.C. Sup. Ct. Dec. 2, 2005).

10. The individual Plaintiffs in these consolidated cases challenging a district as

the product of impermissible extreme partisan gerrymandering reside either in the district

challenged or, in the case of the state legislative districts, the county grouping containing a

challenged district.

11. For those reasons, the Individual NCLCV Plaintiffs challenging a district

based upon the Whole County Provision have standing.

12. The organizational Plaintiffs each seek to vindicate rights enjoyed by the

organization under the North Carolina Constitution.

13. Similarly, the organizational Plaintiffs each have members who would

otherwise have standing to sue in their own right, the interests each seeks to protect are

germane to the organization’s purpose, and neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit.

14. However, as discussed below, Plaintiffs have not stated any cognizable claim

for partisan gerrymandering under the various provisions of the North Carolina

Constitution. As such, Plaintiffs lack standing.

15. “Courts never anticipate a question of constitutional law before the necessity

of deciding it arises.” Chemical Co. v. Turner, 190 N.C. 471, 130 S.E.2d 154 (1925). “They will

not listen to an objection made to the constitutionality of an ordinance by a party whose rights

it does not affect and who therefore as no interest in defeating it.” State v. Trantham, 230

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N.C. 641, 644, 33 S.E.2d 198 (1949). In the equal protection context, “[i]t is not sufficient to

show discrimination. It must appear that the alleged discriminatory provisions operate to

hurt the [plaintiff] or adversely affect his rights or put him to a disadvantage.” Id. “He who

seeks to raise the question as to the validity of a discriminatory statute has no standing for

that purpose unless he belongs to the class which is discriminated against.” Id. See also

Munger v. State, 2002 N.C. App. 404, 410-11 (2010) (using the same standard in the context

of taxpayer standing).

16. NCLCV Plaintiffs and Plaintiff Common Cause assert claims of intentional

racial discrimination and racial vote dilution under the North Carolina Constitution. Because

this Court finds there to be no factual basis underlying these asserted claims, there is a lack

of the requisite “direct injury”—i.e., the deprivation of a constitutionally guaranteed personal

right. Accordingly, these Plaintiffs do not have standing for these claims.

17. Similarly, Plaintiff Common Cause lacks standing for its claim requesting a

declaratory judgment from this Court directing the legislative process to be undertaken in

redistricting.

II. Partisan Gerrymandering Claims

18. These consolidated cases raise important constitutional issues in which we are

asked to strike down, as unconstitutional, redistricting maps enacted by the General

Assembly based in part upon what is termed “extreme partisan gerrymandering.”

19. The function of the judiciary is to faithfully interpret the law through judicial

review and determine whether it is compliant with the constitution. State ex. Rel. McCrory

v. Berger, 368 N.C. 633, 635, 781 S.E.2d 248, 250 (2016) citing N.C. Const. art. IV, § 1; Bayard

v. Singleton, 1 N.C. 5, 6-7, 3 N.C. 42, 1 Martin 48 (1787). While Bayard and Marbury v.

Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed 60 (1803), establish the right of the court to

say what the law is, “sometimes, however, ‘the law is that the judicial department has no

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business entertaining the claim of unlawfulness – because the question is entrusted to one of

the political branches or involves no judicially enforceable rights.’” Rucho v. Common Cause,

____ U.S. ___, 139 S. Ct. 2484, 2494 (2019) (citing Vieth v. Jubelirer, 541 U.S. 267, 277 (2004)).

20. The political power in this State has always been invested in and derived from

its citizens. N.C. Const. of 1776, Decl. of Rights § 2; N.C. Const. of 1868 art. I, § 2; N.C.

Const. of 1971, art. I, § 3. Likewise, the sole and exclusive right to regulate the government

of this State has always been vested in its citizens. N.C. Const. of 1776, Decl. of Rights § 2;

N.C. Const. of 1868, art. I, § 3; N.C. Const. of 1971, art. I, § 3.

21. “The will of the people as expressed in the Constitution is the supreme law of

the land.” State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944) (citing Warrenton v.

Warren County, 215 N.C. 342, 2 S.E.2d 463 (1939)). “The Constitution is a restriction of

powers and those powers not surrendered are reserved to the people to be exercised through

their representatives in the General Assembly; therefore, so long as an act is not forbidden,

the wisdom and expediency of the enactment is a legislative, not a judicial, decision.” Wayne

County Citizens Ass’n for Better Tax Control v. Wayne County Nd of Comm’rs, 328 N.C. 24,

29, 399 S.E.2d 311, 315 (1991)(citing In re Housing Bonds, 307 N.C. 52, 57, 296 S.E.2d 281,

284 (1982)). “[T]he power of the people, through their elected representatives in the General

Assembly, is constrained by the specific limitations imposed by duly adopted constitutional

provisions.” Stephenson v. Bartlett, 355 NC 354, 390, 562 S.E.2d 377, 402 (2002) (Orr, J.

dissenting).

22. It is not the function of the judiciary to express the will of the people or to right

perceived wrongs allowed by laws that public sentiment deems unwise or ill-advised.

Blankenship v. Bartlett, 363 N.C. 518, 523. 681 S.E.2d 759, 763 (2009) (citing Chisom v.

Roemer, 501 U.S. 380, 400 (1991) (”Judges are ‘often called upon to disregard, or even to defy,

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popular sentiment,’ creating a ‘fundamental tension between the ideal character of the

judicial office and the real world of electoral politics’”)); People ex rel Von Bokkelen v. Canady,

73 N.C. 198, 221 (1875) (”Whether [an act of the General Assembly] is wise or unwise, the

Court can give no opinion. Our province is to expound the Constitution and laws as they are

made, and not to make them”).

23. Declaring as unconstitutional, an act of the branch of government that

represents the people is a task that is not to be taken lightly. There is a strong presumption

that enactments of the General Assembly are constitutional. Town of Spruce Pine v. Avery

County, 346 N.C. 787, 792, 488 S.E.2d 144, 147 (1997). Despite the presumption of the

constitutionality of an enactment of the legislature, “[i]t is well settled in this State that the

courts have the power, and it is their duty in proper cases, to declare an act of the General

Assembly unconstitutional—but it must be plainly and clearly the case. If there is any

reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the

representatives of the people.” City of Asheville v. State, 369 N.C. 80, 87-88, 794 S.E.2d 759,

766 (2016) (quoting Glenn v. Bd. of Educ., 210 N.C. 525, 529-30, 187 S.E. 781, 784 (1936));

State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 478 (1989). “An act of the

General Assembly will be declared unconstitutional only when ‘it [is] plainly and clearly the

case,’ . . . and its unconstitutionality must be demonstrated beyond a reasonable doubt.” Town

of Boone v. State, 369 N.C. 126, 130, 794 S.E.2d 710, 714 (2016).

24. Plaintiffs request that this Court strike down the Enacted Maps is based upon

the following clauses of the North Carolina Constitution: (1) Free Elections Clause; (2) Equal

Protections Clause; (3) Freedom of Speech Clause; and (4) Freedom of Assembly Clause.

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 25. In Stephenson, a case cited and relied upon by the Plaintiffs, the North

Carolina Supreme Court explained the framework of the analysis this Court must use in

interpreting and giving meaning to the terms of our state Constitution:

“Issues concerning the proper construction of the Constitution of North

Carolina ‘are in the main governed by the same general principles which
control in ascertaining the meaning of all written instruments.’” Preston, 325
N.C. at 449, 385 S.E.2d at 478 (quoting Perry v. Stancil, 237 N.C. 442, 444, 75
S.E.2d 512, 514 (1953)). . . . .

As part of our constitutional interpretation, it is fundamental “to give effect to

the intent of the framers of the organic law and of the people adopting it.”
Perry, 237 N.C. at 444, 75 S.E.2d at 514. More importance is to be placed upon
the intent and purpose of a provision than upon the actual language used. Id.
“In arriving at the intent, we are not required to accord the language used an
unnecessarily literal meaning. Greater regard is to be given to the dominant
purpose than to the use of any particular words . . . .” Id. This Court will
consider the “history of the questioned provision and its antecedents, the
conditions that existed prior to its enactment, and the purposes sought to be
accomplished by its promulgation” when interpreting the State Constitution in
light of federal requirements. Sneed v. Greensboro City Bd. of Educ., 299 N.C.
609, 613, 264 S.E.2d 106, 110 (1980); see also Perry, 237 N.C. at 444, 75 S.E.2d
at 514.

Stephenson at 370-371, 562 S.E.2d at 389.

26. As our Supreme Court stated in State v. Emery, 224 N.C. 581, 584, 31 S.E. 858,

861 (1944):

It is a cardinal principle, in the interpretation of constitutions, that they should

receive a consistent and uniform construction, so as not to be given one
meaning at one time and another meaning at another time, even
though circumstances may have so changed as to render a different
construction desirable. The will of the people as expressed in the
organic law is subject to change only in the manner prescribed by
them.

Id. (emphasis added).

27. In order to determine the intent of the drafters, “[i]nquiry should be directed

to the old law, the mischief and the remedy.” Perry, 237 N.C. at 444, 75 S.E.2d at 514 (1953).

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The “court should look to the history, general spirit of the times, and the prior and the then

existing law in respect of the subject matter of the constitutional provision under

consideration, to determine the extent and nature of the remedy sought to be provided.” Id.

The circumstances and conditions which existed at the time of the enactment of the

constitutional provision must be given prime consideration in the construction of the

language. Id. at 447, 75 S.E.2d at 516.

28. As Justice Orr stated in his partial dissent in Stephenson,

If the provisions of [an Article of the State Constitution] are obsolete or ill-
adapted to existing conditions, this Court is without power to devise a remedy.
However liberally we may be inclined to interpret the fundamental law, we
should offend every canon of construction and transgress the limitations of our
jurisdiction to review decisions upon matters of law or legal inference if we
undertook to extend the function of the Court to a judicial amendment of the
Constitution.

Stephenson, 355 at 410-411, 562 S.E.2d at 414 (Orr, J. dissenting) citing Elliott v. State Bd.

of Equalization, 203 N.C. 749, 756, 166 S.E. 918, 922 (1932).

29. The principles stated above are bedrock principles of constitutional

construction that have existed in the jurisprudence of this state for at least 150 years. The

Court is not excused or relieved from this analytical framework because we disagree with the

result it brings or even find personally repugnant.

30. Trial judges admonish jurors on an almost daily basis that it is “absolutely

necessary that you understand and apply the law as [we] give it to you, not as you think the

laws is, or as you might like it to be.” (N.C. Pattern Jury Instruction Civil 101.5; Criminal

101.5). It is our duty to apply the law as to the construction of the Constitution as set forth

above. It is not our prerogative to deviate from this long-established analytical framework.

31. To date, no appellate court in North Carolina has examined the specific

question of whether “extreme partisan gerrymandering” is violative of our State Constitution.

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Plaintiffs, in support of their position that extreme partisan gerrymandering is

unconstitutional, rely on two cases decided by a three-judge panel established pursuant to

N.C. Gen. Stat. § 1-267.1(a): Common Cause v. Lewis, Wake County File No. 18CVS 14001

and its Judgment dated September 3, 2019; and (b) Harper v. Hall, Wake County, File No.

19 CVS 12667 (“Harper I”) and the Order on Injunctive Relief entered in that matter on

October 28, 2019. In Common Cause, a prior three judge-panel, empaneled in 2010 pursuant

to N.C. Gen. Stat. § 1-267.1(a), declared the legislative maps enacted in 2017 unconstitutional

as a result of “extreme partisan” gerrymandering. That same panel, in Harper I, found

congressional maps enacted by the N.C Legislature in 2016 unconstitutional as a result of

“extreme partisan gerrymandering.”

32. While instructive and persuasive, the court’s legal analysis and conclusions in

Common Cause and Harper I are not binding on this Court.

33. In reaching a decision, it is necessary for the Court to examine the history of

the geographic areas from which legislators have been elected and the legislative body that

was responsible for creating those districts and any limitations placed upon the same. In

addition, it is necessary to review the history of the four constitutional provisions Plaintiffs

claim are violated by the enactment of the maps at issue.

A. Historical Background

1. Structure of Government, Apportionment and Election of

Members to Legislative Bodies Under the Lord Proprietors
1663-1729

34. North Carolinians have been electing individuals to representative bodies for

approximately 350 years. The original 1663 Charter of Carolina from Charles II to the eight

Lord Proprietors of Carolina and the 1665 Charter of Carolina gave the Lord Proprietors

power to enact laws and constitutions with the “advice, assent and approbation of the

freemen of the said province . . . or of their delegates.” Charter granted by Charles, II, King

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of England to the Lords Propreitors of Carolina, March 24, 1663, The Colonial Records of

North Carolina, Ed. William Sanders, Vol. 1 Raleigh, N.C. P.M. Hale, Printer to the State,

1886, 20-23 at 23, Documenting the South 2007, 2007 University Library, The University of

North Carolina, http://docsouth.edu/csr/. (Colonial Records from docsouth are hereinafter

referred to as C.R.)

35. In 1665 the Concessions and Agreements of the Lord Proprietors of the

Province of Carolina were published. C.R. 1:75-93. The Concessions and Agreements provided

for the election of freemen representatives to a General Assembly. The freemen were to be

elected from certain political subdivisions within each county, with the election occurring

annually on January 1. C.R. 1:81.

36. On March 1, 1669, the Lord Proprietors published the Fundamental

Constitutions of Carolina (C.R. 1:187-206) which divided the province of Carolina into

counties each of which consisted of four precincts. (C.R.1:80, Item Three) There were four

precincts in each county. A parliament, consisting in part of freeholders elected from each

precinct, was created and was required to meet every two years. (C.R. 1:99, Item 71).

Elections for freeholder representatives were to be held on September 1 every two years.

(C.R.1:200, Item 75).

2. Structure of Government, Apportionment and Election of

Members to The General Assembly During Colonial Rule
1729-1996

37. In 1729 the Lord Proprietors sold their interest in the province of Carolina to

the Crown and North Carolina became an official English Colony. See Charles Lee Raper,

NORTH CAROLINA, A STUDY IN ENGLISH COLONIAL GOVERNMENT, P 1-2 (1904). See also, C.R.

3:32-47

38. The Royal Governor, who was appointed by the Crown by way of a commission

(see, C.R. 3:68) and given authority or directives from the Crown by way of instructions (see,

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C.R.3:93), was “the supreme ruler in [North Carolina] and responsible to the crown for all of

his acts, and not to the people whose affairs he was to administer.” Charles S. Cooke, THE

GOVERNOR, COUNSEL AND ASSEMBLY IN ROYAL NORTH CARLINA, Vol. 12, No. 1 The James

Sprunt Historical Publications, (J.G. DeRoulhac Hamilton, Henry McGilbert Wagstaff, Eds.)

p. 13, 23 (1912). See also, Raper at 27.

39. Pursuant to the letters and instructions to each governor, North Carolina was

to be governed by a bicameral General Assembly. The General Assembly consisted of the

upper house, which included the Royal Governor’s Council, and the lower house, also called

the House of Burgesses. Raper at 85-71; See also, C.R. 3:90.

40. The Council was comprised of a set number of individuals recommended by the

Royal Governor and appointed by the Crown and were largely under the control of the Royal

Governor. Cooke at 16-17. The Council was essentially an executive body that advised the

Royal Governor. In the absence or death of the governor, the president of the Council became

the acting governor. Finally, the Council, as the upper house of the legislature, had the

ability to hold up legislation by giving its consent to the same. Raper at 75, Cooke at 19-20.

“[T]he governor and council were practically a unit in their point of view and in their attempt

to maintain the rights and interest of the Crown.” Cooke at 40, see also, Raper at 71.

41. The authority for the existence of a lower house was set forth in commissions

given to each Royal Governor. See C.R. 3:66 Raper at 85. The lower house “stood not merely

for the representative principle in government but also for distinctly local interests.” Cooke

at 23. The House of Burgesses consisted of freeman elected from each county and certain

towns.

42. Beginning in 1774 there were five extralegal provincial congresses that met in

North Carolina culminating in the Fifth Provincial Congress that drafted North Carolina’s

First Constitution in 1776 (1776 Constitution). During the First Provincial Congress the

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concept of voting by counties and towns was established as the best method of deciding any

differences that would arise during the deliberations of the Provincial Congresses. The

membership of the Provincial Congresses mirrored closely the membership of the House of

Burgesses.

3. Structure of Government, Apportionment and Election of

Members to the General Assembly of the State of North
Carolina 1776-Present

43. The 1776 Constitution8 drafted and approved by the Fifth Provincial Congress

provided, in part, as follows:

Wherefore, in our present state, in order to prevent anarchy and confusion,

it becomes necessary that government should be established in this State;
therefore we, the Representatives of the freemen of North-Carolina, chosen
and assembled in Congress, for the express purpose of framing a Constitution,
under the authority of the people, most conducive to their happiness and
prosperity, do declare, that a government for this State shall be established, in
manner and form following, to wit:

I. That the legislative authority shall be vested in two distinct branches

both dependent on the people, to wit, a Senate and House of Commons.

II. That the Senate shall be composed of Representatives annually chosen

by ballot, one for each county in the State.

III. That the House of Commons shall be composed of Representatives

annually chosen by ballot, two for each counts [sic] and one for each of the
towns of Edentown, Newbern, Wilmington, Salisbury, Hillsborough and
Halifax.

IV. That the Senate and House of Commons, assembled for the purpose of
legislation, shall be denominated, The General Assembly.

44. In 1789, and as part of the constitutional convention in North Carolina that

was called for the purpose of ratifying the new U.S. Constitution, the 1776 Constitution was

amended to allow Fayetteville to elect a representative to the House of Commons. John L.

8 The 1776 Constitution was not presented to the people for ratification.

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Sanders, Amendments to the Constitutions of North Carolina, 1776-1996, 1 (1997)

(hereinafter referred to as “Sanders, Amendments to the Constitution of N.C.”).

45. While not expressly provided for in the 1776 Constitution, the power to create

counties and draw their boundaries was necessarily vested in the people of this State,

through their elected representatives. See, Wayne County Citizens Ass’n for Better Tax

Control, 328 N.C. at 29, 399 S.E.2d at 319 (citation omitted).

4. 1835 Amendments to the N.C. Constitution of 1776

46. In 1835 a Constitutional Convention met in Raleigh for the purpose of, again,

amending the 1776 Constitution. The convention was a result of “dissatisfaction with the

legislative representation system, which gave no recognition to population.” John L.

Sanders, Our Constitutions: An Historical Perspective, p. ___, (200_) (hereinafter “Sanders,

Our Constitutions”)(the document available to the Court was not dated and did not include

page numbers).

47. As a result of the 1835 Constitutional Convention, the 1776 Constitution was

amended, in part, to provide one senator per district to be laid out by the General Assembly

based upon public taxes paid by each county into the Treasury of the State. The amendment

also prohibited a county from being divided in the creation of a Senate district. 1776

Constitution, amend. of 1835, art. I, § 1.9 The provision that a county not be divided in the

formation of a district has become known as the “Whole County Provision.”

9 Due to the public interest in this case and the facts that the prior Constitutions of
North Carolina and amendments thereto may not be readily or easily accessible to the public,
the Court has elected to provide the relevant text of the same in footnotes.

Article 1 of the N.C. Const. of 1776 amend. of 1835 provide in relevant part:

§ 1. The Senate of this State shall consist of fifty Representatives, biennially chosen by
ballot, and to be elected by districts; which districts shall be laid off by the General

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 48. The 1835 amendments also provided for 120 seats in the House of Commons,

each county being guaranteed one seat with the remaining seats being distributed among the

counties according to their population. 1776 Constitution, amend. of 1835, art. I, § 2. The

apportionment on population favored the more populous counties. Sanders, Our

Constitutions, 1.

Assembly, at its first session after the year one thousand eight hundred and forty-one;
and afterwards, at its first session after the year one thousand eight hundred and fifty-
one; and then every twenty years thereafter, in proportion to the public taxes paid into
the Treasury of the State, by the citizens thereof; and the average of the public taxes
paid by each county into the Treasury of the State, for the five years preceding the
laying off of the districts, shall be considered as its proportion of the public taxes, and
constitute the basis of apportionment: Provided, That no county shall be divided in the
formation of a Senatorial district. And when there are one or more counties having an
excess of taxation above the ratio to form a Senatorial district, adjoining a county or
counties deficient in such ratio, the excess or excesses aforesaid shall be added to the
taxation of the county or counties deficient, and if, with such addition, the county or
counties receiving it, shall have the requisite ratio, such county and counties each,
shall constitute a Senatorial district.

§ 2. The House of Commons shall be composed of one hundred and twenty

representatives, biennially chosen by ballot, to be elected by counties according to their
federal population, that is, according to their respective numbers, which shall be
determined by adding to the whole number of free persons, including those bound to
service for a term of years, and excluding Indians not taxed, three fifths of all other
persons, and each county shall have at least one member in the House of Commons,
although it may not contain the requisite ratio of population.

§ 3. This apportionment shall be made by the General Assembly, at the respective

times and periods when the districts for the Senate are hereinbefore directed to be laid
off; and the said apportionment shall be made according to an enumeration to be
ordered by the General Assembly, or according to the census which may be taken by
order of Congress, next preceding the period of making such apportionment.

§ 4. In making the apportionment in the House of Commons, the ratio of

representation shall be ascertained by dividing the amount of Federal population in
the State, after deducting that comprehended within those counties which do not
severally contain the one hundred and twentieth part of the entire Federal population
aforesaid, by the number of Representatives less than the number assigned to the said
counties. To each county containing the said ratio, and not twice the said ratio, there
shall be assigned one Representative; to each county containing twice, but not three
times the said ratio, there shall be assigned two Representatives, and so on
progressively, and then the remaining Representatives shall be assigned severally to
the counties having the largest fractions.

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 49. The 1835 Amendments also provided, for the first time, for the popular election

of the Governor. 1776 Constitution, amend. 1835, art. 2, §1.

5. The North Carolina Constitution of 1868

50. In 1868, a constitutional convention was called at the initiative of the Federal

Government in order to provide for a constitution that would allow North Carolina to rejoin

the Union after the Civil War. While Article I largely became what had previously been

known as the Declaration of Rights, Article II now set forth those provisions related to the

Legislature.

51. Under the 1868 Constitution, the number of and apportionment of members of

the newly renamed House of Representative remained relatively the same as set forth in the

1776 Constitution, amend. of 1835, art. I, § 2. However, apportionment of the Senate was

now based upon population. The Whole County Provision remained and for the first time

Senate districts drawn by the General Assembly were required to be contiguous, and once

drawn could not be redrawn until the next statewide “enumeration” or census. 1868

Constitution, art. II, § 5. As the census was required every 10 years, the provision against

redrawing districts until the next census has become known as the Mid-Decade Provision.10

10 Article II of the 1868 Constitution provides in relevant part:

Sec. 1. The Legislative authority shall be vested in two distinct branches, both
dependent on the people, to wit: a Senate and House of Representatives.
Sec. 2. The Senate and House of Representatives shall meet annually on the third
Monday in November and when assembled shall be denominated the General
Assembly. Neither House shall proceed upon public business, unless a majority of all
the members are actually present.
SEC. 3. The Senate shall be composed of fifty Senators biennially chosen by ballot.
. . .
Sec. 5. An enumeration of the inhabitants of the State shall be taken under the
direction of the General Assembly in the year one thousand eight hundred and seventy-
five, and at the end of every ten years thereafter; and the said Senate districts, shall
be so altered by the General Assembly, at the first session after the return of every

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 6. Amendments to the North Carolina Constitution of 1868

52. In 1962, the voters of this State ratified a proposed Constitutional Amendment

amending the apportionment of members of the House of Representatives by giving the

Speaker of the House the authority of apportionment. 1868 Constitution, amend. of 1962, art.

II, § 5.11 The apportionment of the members of the Senate remained unchanged.

enumeration taken as aforesaid, or by order of Congress, that each Senate district shall
contain, as nearly as may be, an equal number of inhabitants, excluding aliens and
Indians not taxed, and shall remain unaltered until the return of another enumeration,
and shall at all times consist of contiguous territory; and no county shall be divided in
the formation of a Senate district, unless such county shall be equitably entitled to two
or more Senators.
Sec. 6. The House of Representatives shall be composed of one hundred and twenty
Representatives, biennially chosen by ballot, to be elected by the counties respectively,
according to their population, and each county shall have at least one Representative
in the House of Representatives, although it may not contain the requisite ratio of
representation. This apportionment shall be made by the General Assembly at the
respective times and periods when the districts for the Senate are hereinbefore
directed to be laid off.
Sec. 7. In making the apportionment in the House of Representatives, the ratio of
representation should be ascertained by dividing the amount of the population of the
State, exclusive of that comprehended within those counties which do not severally
contain the one hundred and twentieth part of the population of the State, by the
number of Representatives, less the number assigned to such counties; and in
ascertaining the number of the population of the State, aliens and Indians not taxed,
shall not be included. To each county containing the said ratio and not twice the said
ratio, there shall be assigned one representative; to each county containing twice but
not three times the said ratio, there shall be assigned two representatives, and so on
progressively, and then the remaining representatives shall be assigned severally to
the counties having the largest fractions.

11 The amendment of 1962 to art. II, § 5, reads in part:

The House of Representatives shall be composed of 120 Representatives, biennially
chosen by ballot, to be elected by the counties respectively, according to their
population, and each county shall have at least one Representative in the House of
Representatives, although it may not contain the requisite ratio of representation. This
apportionment shall be made by the Speaker of the House of Representatives at the
first regular Session of the General Assembly convening after the return of every
enumeration by order of Congress. The formula set out in Section 6 of this Article shall
be applied by the Speaker and the new apportionment entered on the Journal of the
House of Representatives on or before the 60th calendar day of the Session. When so
entered, the new apportionment shall have the same force and effect as an Act of the

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 53. In 1968, the voters of this State ratified a proposed Constitutional Amendment

which amended the apportionment of members in both the Senate and House. 1868

Constitution, amend. of 1968, art. II, §§ 4-512: In the Senate the provisions remained almost

the same with certain exclusions from the population omitted. 1868 Constitution, amend. of

1968, art. II, §§ 4-5. The 1968 Amendment had the greatest impact on the apportionment of

seats in the House of Representatives. While keeping the membership of the House at 120

General Assembly, and shall become effective at the next election for members of the
General Assembly.

12 The amendment of 1968 to art. II, § 5, reads in part:

Sec. 4. Senate Districts; Apportionment of Senators. The Senators shall be elected

from districts. The General Assembly shall, at the first regular Session convening after
the return of every decennial enumeration taken by order of Congress, 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 which each Senator represents being
determined for this purpose by dividing the population of the district 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 enumeration taken by order of
Congress

Sec. 5. Number of Representatives. The House of Representatives shall be composed

of 120 Representatives, biennially chosen by ballot.

Sec. 6. Representative Districts; Apportionment of Representatives. The

Representatives shall be elected from districts. The General Assembly shall, at the
first regular Session convening after the return of every decennial enumeration taken
by order of Congress, revise the Representative Districts and the apportionment of
Representatives among those districts, subject to the following requirements:
(1) Each Representative shall represent, as nearly as may be, an equal number
of inhabitants, the number of inhabitants which each Representative represents being
determined for this purpose by dividing the population of the district he represents by
the number of Representatives apportioned to that district;
(2) Each Representative District shall at all times consist of contiguous
territory;
(3) No county shall be divided in the formation of a Representative District;
(4) When established, the Representative Districts and the apportionment of
Representatives shall remain unaltered until the return of another decennial
enumeration taken by order of Congress.

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members, representatives were no longer apportioned by county, but instead by districts to

be drawn by the General Assembly with apportionment based upon equal population. In

addition, districts had to be contiguous, were subject to the While County Provision and Mid-

Decade Provision. N.C. Const. of 1868, amend. of 1968, art. II, §§ 4-5.

7. The North Carolina Constitution of 1971

54. In March, 1968, the North Carolina State Constitution Study Commission

(“Study Commission”) was “created by the North Carolina State Bar and North Carolina Bar

Association, acting concurrently on the recommendation of His Excellency Governor Dan K.

Moore . . . to give consideration to the question of whether there is need for either rewriting

or amending the Constitution . . . .” Report of the North Carolina State Constitution

Commission, p. iii (December 16, 1968) (hereinafter referred to as “Report of Study Comm’n”).

The Study Commission made recommendations to change certain language in the 1868

Constitution. Changes to the 1868 Constitution were made in two ways: to the body of the

constitution itself in the form of a “proposed constitution; and proposed amendments to the

“proposed constitution” once it had been ratified. The changes to be effected in the “proposed

constitution” were typically grammatical or stylistic changes. Those substantive changes

contained in the “proposed constitution” were not calculated “to bring about any fundamental

change in the power of state and local government or the distribution of that power.” Report

of Study Comm’n at 10. Any substantive change reflected in the “proposed constitution itself

[was] not of significant magnitude” to justify their treatment in separate proposed

amendments. Id. Those proposed changes that were significant in magnitude or in which

citizens of the State would strongly differ were recommended to be voted on through separate

proposed amendments. Id. at 9-10.

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 55. In 1971, a new constitution was ratified by the voters of this state. The 1971

Constitution did not modify Article II of the 1868 Constitution as it pertains to apportionment

in any substantive manner.

56. Table 1 below reflects a summary of the progression of how districts for state

legislative seats were to be created and the requirements, if any, for those districts from 1776

to the present.

TABLE 1
Senate
Year Method for creating districts
1776 One senator per county
1835 50 districts with one senator per district to be laid out by General Assembly,
apportionment based on the amount of public taxes paid into the Treasury;
includes a whole-county provision
1868 50 districts with one senator per district to be laid out by General Assembly,
apportionment based on equal population; includes mid-decade provision, a
contiguous territory provision, and whole-county provision (with only exception
being if a county’s population was large enough, then the county was entitled
to two senators)
1968 50 districts with one senator per district to be laid out by the General
Assembly, apportionment based on equal population; includes mid-decade
provision, a contiguous territory provision, and whole-county provision
1971 Only slight grammatical changes to 1968 amendment
House of Representatives (initially referred to as House of Commons)
Year Method for creating districts
1776 Two representatives per county with six towns receiving an additional
representative
1835 120 representatives elected by the counties and each county must have at least
one representative, apportionment based on population
1868 120 representatives elected by the counties and each county must have at least
one representative, apportionment based on population
1962 Apportionment now made by the Speaker of the House of Representatives
1968 120 representatives now elected in districts with one representative per
district to be laid out by General Assembly, apportionment based on equal
population; includes mid-decade provision, a contiguous territory provision,
and whole-county provision
1971 Only slight grammatical changes to 1968 amendment

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 8. The Governor’s Power to Veto Acts of the General Assembly

57. As noted above, neither the 1776 Constitution, the 1868 Constitution, nor the

1971 Constitution as originally enacted, gave the Governor veto power over acts of the

legislature.

58. 1n 1968, the Study Commission recommended nine separate amendments to

the proposed constitution that provided such substantial changes that they believed the

voters should have a chance to act upon them individually. Report Of Study Comm’n at 11-

12. One proposed amendment would have granted the Governor the right to veto legislation

passed by the General Assembly. Id. at 10, 102. In its commentary to the proposed

amendment giving the Governor veto power, the Study Comm’n stated, “[i]t is intended to

add to the legislative process one participant who is responsible to a state wide constituency,

and who is in a position to consider the impact of a bill on the state as a whole and in the

light of considerations perhaps not known to the majority of the General Assembly.” Id. at

104 While the General Assembly, at that time, proposed 5 amendments to the Constitution,

it did not submit the proposed amendment giving the Governor the power to veto acts passed

by the General Assembly.

59. Finally, in 1995, the General Assembly placed a proposed amendment to the

1971 Constitution on the ballot in the 1996 general election to provide the Governor the power

to veto ordinary statewide legislation enacted by the General Assembly. N.C. Sess. Laws.

1995, Chapter 5. The act placing the proposed amendment on the ballot was passed by a

House of Representatives controlled by the Republican Party and a Senate controlled by the

Democratic Party. This amendment was ratified on November 5, 1996, by a vote of 1,652,294

to 544,335. John L. Sanders, Amendments to the Constitution of N.C., 24 (1997). Notably

excepted from the Governor’s veto power, as proposed by the General Assembly and approved

by the people of this State, was the authority of the Governor to veto legislative or

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congressional redistricting maps enacted by the General Assembly. 1971 Constitution,

amend. of 1995, art. II, § 22(5)(b)-(d).

60. Over the last twenty years numerous bills have been submitted to the

approximately 11 different General Assemblies in North Carolina which would require

bipartisan or nonpartisan redistricting. Each party has had the ability to pass redistricting

reform, yet each party has failed to take advantage of these opportunities.

9. Power to Draw Congressional Districts.

61. While Congress has the ability to regulate districting with respect to

congressional maps, it has largely left the redistricting of congressional districts to the state

legislatures or other bodies. League of Latin Am. Citizens v. Perry, 548 U.S. 399, 414 (2006)

(citations omitted). Despite having this ability and the repeated public outcry concerning

partisan gerrymandering, Congress has not taken any action to address the problem. The

lack of will to address the problem is not limited to a single political party as the Republicans

had an opportunity to address the issue between 2017 and 2018 when they controlled both

houses of Congress as well as the Presidency. Likewise, with the results of the 2020 census

and redistricting of congressional districts looming, Democrats have had an opportunity in

2021 to address the issue as it has control over both chambers of Congress as well as the

Presidency. Congress’ inaction has left the Equal Protection Clauses in both our State and

Federal Constitution as they relate to racial gerrymandering, the Voting Rights Act of 1965,

and the one person one vote requirement set forth in Baker v. Carr, 369 U.S. 186 (1962) and

Reynolds v. Sims, 377 U.S. 533 (1964) as the only constraints placed on our General Assembly

in the drawing of congressional districts.

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 B. The Constitutional Provisions Plaintiffs Claim Have Been Violated

1. Free Elections Clause

62. The 1776 Constitution provided that “[t]he election of members, to serve as

representatives, ought to be free.” N.C. Const. of 1776, Decl. of Rights §, IV. This has become

known as the Free Elections Clause. With the ratification of the 1868 Constitution, the Free

Elections Clause was restated as “[a]ll elections ought to be free.” 1868 Const. art. I, § 10.

Finally, the Free Elections Clause was again amended as part of the 1971 Constitution and

now states “[a]ll Elections shall be free.” “[O]ught was changed to shall throughout the

Declaration of Rights to make clear the rights are commands.” Report of Study Comm’n at

74-75). The change to the Free Elections Clause was not meant as a substantive change that

was intended to “bring about a fundamental change” to the power of the General Assembly.

Id.

2. Equal Protection Clause

63. The Equal Protection Clause came into existence as part of the ratification of

the 1971 Constitution and provided “[n]o person shall be denied equal protection of the laws,

nor shall any person be subjected to discrimination because of race, color, religion or national

origin.” 1971 Const. art. I, § 19. The addition of the Equal Protection Clause, while a

substantive change, was not meant to “bring about a fundamental change” to the power of

the General Assembly. Report of Study Comm’n at 10.

3. Free Speech Clause

64. Like the Equal Protection Clause, the Free Speech Clause was added to the

Freedom of the Press Clause as part of the 1971 Constitution and now reads “freedom of

speech and of the press are two of the great bulwarks of liberty and therefore shall never be

restrained, but every person shall be held responsible for their abuse.” 1971 Const. art. I, §

14. The addition of the Free Speech Clause, while a substantive change, was not meant to

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“bring about a fundamental change” to the power of the General Assembly. Report of Study

Comm’n at 10.

4. Freedom of Assembly Clause

65. The Freedom of Assembly Clause first appeared in the Declaration of Rights

set forth in the 1776 Constitution and provided that “the people have a right to assemble

together, to consult for their common good, to instruct their Representatives, and to apply to

the Legislature, for redress of grievances.” 1776 Const. Decl. of Rights XVII. The Freedom

of Assembly Clause was modified by the 1868 Constitution by deleting the first word of the

clause “that.” 1868 Const. art. I, § 26. Amendments were again made to the Freedom of

Assembly Clause with the ratification of the 1971 Constitution which now reads “The people

have a right to assemble together to consult for their common good, to instruct their

representatives, and to apply to the General Assembly for redress of grievances; but secret

political societies are dangerous to the liberties of a free people and shall not be tolerated.”

1971 Const. art. I, § 12. The change to the Freedom of Assembly Clause was not meant as a

substantive change, nor was it meant to “bring about a fundamental change” to the power of

the General Assembly. Rept. of Study Comm’n at 10.

C. Redistricting is an Inherently Political Process

66. Under our State Constitution, redistricting of Senate and House Districts is

left to the General Assembly. As stated above, the drawing of congressional maps has been

left to the discretion of state legislative bodies. League of Latin Am. Citizens v. Perry, 548

U.S. 399, 414 (2006) (citations omitted). In that redistricting is left to legislative bodies,

bodies which are inherently political in nature, the United State Supreme Court has

indicated that a State may engage in “constitutional political gerrymandering.” Rucho, ___

U.S. ___, 139 S. Ct. at 2947. Likewise, the North Carolina Supreme Court has stated:

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 [t]he General Assembly may consider partisan advantage and incumbency
protection in the application of its discretionary redistricting decisions, see
Gaffney v. Cummings, 412 U.S. 735, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973),
but it must do so in conformity with the State Constitution. To hold otherwise
would abrogate the constitutional limitations or “objective constraints” that
the people of North Carolina have imposed on legislative redistricting and
reapportionment in the State Constitution.
Stephenson I, 355 N.C.at 371-372, 562 S.E.2d at 390.
67. Indeed, redistricting “inevitably has and is intended to have substantial

consequences” as it is part of the American political process. Rucho, ____ U.S. at ___, 139 S.

Ct. at 2497. While the United States Supreme Court has attempted to address partisan

gerrymandering on a number of occasions, in Rucho it determined that claims for partisan

gerrymandering were not justiciable because they:

present political questions beyond the reach of the federal courts. Federal
judges have no license to reallocate political power between the two major
political parties, with no plausible grant of authority in the [Federal]
Constitution, and no legal standards to limit and direct their decisions.

Id. at __, 139 S. Ct. at 2506-07.

68. While determining that political gerrymandering claims were beyond the reach

of the federal courts, the U.S. Supreme Court noted that “[t]he States . . . are actively

addressing the issue on a number of fronts,” and “[p]rovisions in state statutes and state

constitutions can provide standards and guidance for state courts to apply.” Id. at 2507.

69. In Rucho, the U.S. Supreme Court pointed to examples of how the States are

specifically addressing the issue and how statutes and constitutions can provide standards

and guidance for the state courts to apply. In Florida, the Fair Districts Amendment to the

Florida Constitution was adopted in 2010 and specifically provides that in creating

congressional or legislative districts “[n]o apportionment plan or district shall be drawn with

the intent to favor or disfavor a political party or an incumbent . . . .” Fla. Const. Art. III, §§

20-21. In Michigan, the state constitution was amended in 2018 to provide for an

independent citizens redistricting commission. Mich. Const. Art. IV, §6. Missouri has added

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language to its constitution that requires that “[d]istricts be drawn in a manner that achieves

both partisan fairness, and secondarily, competitiveness. . . .” Mo. Const. Art. III, § 3(b)(5).

Other states identified by the Supreme Court, Iowa and Delaware, have elected to address

the issue through their state statutes. All of the states identified and the manner in which

they are addressing the problem have one thing in common: the problem was addressed by

the people, their legislatures, or both—not the judiciary.

D. The Enacted Maps Are Not Unconstitutional as a Result of Partisan

Gerrymandering.

1. The Enacted Maps Do Not Violate the Free Elections Clause

70. While the Free Elections Clause has been part of our constitutional

jurisprudence since the 1776 Constitution, there are very few reported decisions that

construe the clause. In Clark v. Meyland, 261 N.C. 140, 136 S.E.2d 168 (1964), the plaintiff,

a registered Democrat sought to change his party affiliation to that of a Republican in order

to vote in the next Republican primary. Id. at 141, 136 S.E.2d at 169. At the time, the then

existing N.C.G.S. § 106-50, required a person changing their party affiliation to take an oath

in which they agreed to support the nominees to their new party in all elections until such

time as they change their party again. Id. The Court found that the provision of the oath

requiring the plaintiff to vote for the candidate of his new party operated as a “deterrant [sic]

to his exercising a free choice among available candidates at the election ---even by casting a

write-in ballot.” Id. at 142-143, 136 S.E.2d at 170. The Court found this to be violative of the

Free Elections Clause. Id. at 143, 134 S.E.2d 170.

71. In Swaringen v. Poplin, 211 N.C. 700, 191 S.E. 746 (1937) the Supreme Court

found that an allegation of fraud in an election was contrary to the Free Elections Clause and

thus could serve as a basis to try title to an office through the quo warranto procedure. Id.

at 701-02; 191 S.E. at 746.

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 72. In Obie v. North Carolina State Board of Elections, 762 F. Supp. 119 (E.D.N.C.

1991), the United States District Court for the Eastern District of North Carolina found that

a requirement that an unaffiliated voter obtain the signature of 10% of the registered voters

in the district in which they were running for office impeded the ability to gain access to the

ballot and thus, among other things, violated the Free Elections Clause. Id. at 121.

73. None of the aforementioned cases deal with redistricting for partisan

advantage. However, as noted above, “[t]he General Assembly may consider partisan

advantage and incumbency protection in the application of its discretionary redistricting

decisions, but it must do so in conformity with the State Constitution.” Stephenson, 355

N.C.at 371-72, 562 S.E.2d at 390. (citations omitted).

74. The Court must now seek to construe the Free Elections Clause as well as the

redistricting provisions of the North Carolina Constitution within the analytical framework

dictated by our Supreme Court, as set forth above and in light of the language of Stephenson.

75. The Free Elections Clause was first set forth as part of the North Carolina

Declaration of Rights which was specifically incorporated as part of the 1776 Constitution.

N.C. Const. of 1776, § XLIV. The Free Elections clause plainly and simply provided “[t]he

election of members, to serve as representatives, ought to be free.” N.C. Const. of 1776, Decl.

of Rights, § IV. “The word ‘free’ originally derives by way of Section 3 of the Virginia

Declaration of Rights13, and from the English Bill of Rights (1689)14.” John V. Orth, The North

Carolina State Constitution: A Reference Guide, 56 (1993). ‘The meaning is plain: free from

interference or intimidation.” Id.

13 [E]lections of members to serve as representatives of the People, in assembly, ought to be

free . . . .” Va. Decl. of Rights, §3.

14 [E]lections of members of Parliament ought to be free.”

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 76. In addition to the clear meaning of the words found in our Free Elections

Clause, we are directed to also consider the circumstances and conditions which existed at

the time of the enactment of the same. Perry, at 447, 75 S.E.2d at 516.

77. As Plaintiffs correctly point out, the words as originally used in the English

Bill of Rights (1869) were crafted in response to abuses and interference by the Crown in

elections for members of parliament which included changing the electorate in different areas

to achieve electoral advantage. J.R. Jones, The Revolution of 1688 in England, 148 (1972).

However, that is where the Plaintiffs’ analysis ends. Examining the North Carolina Free

Elections Clause in a greater context gives a complete understanding to its meaning.

78. At the time of the Glorious Revolution, King James II embarked on a campaign

to pack Parliament with members sympathetic to him in an attempt to have laws that

penalized Catholics and criminalized the practice of Catholicism repealed.15 After failing in

his attempt to pack parliament, King James II was ultimately overthrown and fled England,

paving the way for King William and Queen Mary to rule together. As a condition of King

William and Queen Mary’s assumption of the throne, they were required to sign the English

Declaration of Rights which resulted in limiting the powers of the Crown and an increase in

power to Parliament, most notably in the House of Commons.

79. The Glorious Revolution and the resulting English Bill of Rights were the

beginning of a constitutional monarchy. While the English Bill of Rights, in part, sought to

address the Crown’s interference with the affairs of Parliament, there is no indication that

the English Free Election Clause was directed at anyone but the Crown, much less a

restriction on the power of Parliament. In fact, the opposite seems true. The English Bill of

Rights reflected a shift in power from the Crown, who generally acted to protect its own

15 In 1669, and prior to his ascension to the throne, King James, II converted to Catholicism.

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interest, to the House of Commons in Parliament, whose members were elected by the people.

Because the English Bill of Rights did not abolish the monarchy, provisions were necessary

to provide protection to the elected members of parliament from interference by the Crown.

80. By the time the Virginia Declaration of Rights and the North Carolina

Declaration of Rights and Constitution were passed, the Glorious Revolution had been over

for almost a century. It is safe to say that none of the drafters of the 1776 Constitution were

alive during the Glorious Revolution or the establishment of the English Bill of Rights and

their experiences and concerns did not arise from direct interactions with the Crown, but

instead from direct interactions with the Royal Governors and their Council who represented

the interests of the Crown. Moreover, the Royal Governors were representatives of a

constitutional monarch, unlike the monarchs who claimed the throne through divine right

before and up to the signing of the English Bill of Rights.

81. Under colonial rule, the North Carolina Royal Governor had veto power, as no

law could be passed without his consent. While his instructions did not allow him to

determine the manner of electing members to the House of Burgesses or set the number of

members, they did allow him to dissolve the House of Burgesses. Raper at 35. The

instructions to the Royal Governor also allowed him to issue charters of incorporation for

towns and counties from which representatives would be elected.

82. No doubt there were tensions between the House of Burgesses and the

Governor from 1729 to 1776. In 1746, in an effort to give equal representation to each county,

as the newer counties were given fewer representatives in the House of Burgesses, the Royal

Governor moved the legislature to Wilmington where representatives of the larger counties

would not travel, giving the smaller counties effective control of the lower house. As a result,

the legislature passed legislation giving each county two representatives in the assembly.

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This remained in effect until 1754 when the legislation was repealed by the Crown. Raper

90-91.

83. Disputes also arose as to whether the Governor could require counties and

towns to obtain charters of incorporation prior to being able to elect representative to the

legislature. As this was specifically allowed in his instructions from the Crown, the colonists

did not continually press this particular issue. Raper at 69.

84. At times, the House of Burgesses refused to seat new members from counties

created by the Governor. The dispute was not necessarily that the Governor did not have the

authority, but the House believed they had a role in the process in the creation of counties.

Raper at 89-90.

85. The House of Burgesses fought the Royal Governor over the right to establish

a quorum for the legislature to act - the governor desiring a smaller number, feeling they

would be easier to influence. Raper at 216-217.

86. The House of Burgesses and Governor also had disputes regarding land, quit-

rents and the form of payment thereof, (Cooke at 35, Raper at 191-193), the nomination of

public treasurers, (Raper at 205), the appointment of agents to England, (Raper at 26), and

disposition of public revenue, Raper at 197-199; Cooke at 37.

87. The most serious disputes between the Royal Governor and the House of

Burgesses arose over fiscal matters, the courts and appointment of judges. Raper at 208-209;

Cooke at 38.

88. At the time of the adoption of the 1776 Constitution, North Carolina was:

much more democratic than many of her sister states, such as Virginia and
Maryland. There was an absence of any landed aristocracy as found in Virginia
and the absence of any large ports had hindered the development on an
influential commercial class. Lastly, the Church of England with its
aristocratic tendencies, was weaker in North Carolina that in her sister
colonies directly north and south.

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Ketcham at 216.

89. Upon the adoption of the 1776 Constitution, the Royal Governor, who

represented and protected the interest of the Crown, was replaced by a Governor chosen by

the General Assembly. N.C. Const. of 1776, § XV. Unlike Parliament, who after the passage

of the Declaration of English Rights continued to have to deal with the Crown as part of the

constitutional monarchy, North Carolinians and their General Assembly were no longer

subservient to parliament, the Crown, or its representatives: the Royal Governor and his

Council.

90. The circumstances under which the English Free Election Clause was written

were far different than those which caused the same language to be used in the 1776

Constitution.

91. It was the experience of the people of the State of North Carolina that was the

most important source for the creation of the 1776 Constitution. Ketcham at 230. By far, the

greatest change in the structure of North Carolina's government, other than elimination of

the parliament and the Crown, was the vast reduction in the powers of the Governor and the

substantial increase in the powers of the General Assembly. These changes were made to

make “the governor that figurehead in law which in fact the colonial legislature had long

sought to make him.” Id. Turning the Governor into a figurehead was a result of the

experience of the colonists with “the overbearing colonial governors who presided over North

Carolina.” John V. Orth, North Carolina Constitutional History, 70 North Carolina Law

Review, 1759, 1764 (Sept. 1, 1992).

92. Any argument that the Free Elections Clause placed limits on the authority of

the General Assembly to apportion seats flies in the face of the overwhelming authority given

to the General Assembly in the 1776 Constitution. First, apportionment was by county and

town. As past disputes between the Royal Governor and the House of Burgesses dealt

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primarily with what role the lower house had in creation of counties, that dispute was

eliminated with the severance of ties with the Monarch and the Royal Governor. The General

Assembly, and only the General Assembly, had the right to create counties.

93. In addition to having authority to create counties and towns, the legislature

had the exclusive power to: (1) elect the Governor (N.C. Const. of 1776, § XV); (2) appoint the

Attorney General; (3) appoint Judges of the Supreme Court of Law and Equity and Judges of

Admiralty (id. at § XIII); (4) appoint the general and field officers of the militia (id. at § XIV);

(5) elect the council of State (id. at. XVI); (6) appoint a treasurer or treasurers of the State

(id. at §. XXII); (7) appoint the Secretary of State (id. at § XXXIII); and (8) recommend the

appointment of Justice of the Peace to the Governor who shall commission them accordingly.

(id. at § XXXIII). Moreover, unlike the Royal Governor, the Governor of the State of North

Carolina was not given the power to veto acts of the legislature. The lack of veto and the

sweeping powers granted to the legislature caused the governor’s “executive authority to be

hemmed in on every side.” John v. Orth, Constitutional History of North Carolina, 70 North

Carolina Law Review, 1759, 1764 (Sept 1, 1992). Much like the English Bill of Rights, the

1776 Constitution shifted power to the elected representatives of the people.

94. The drafters of the 1776 Constitution discussed how to place a check on

legislative excess. See, C.R. 10:498-99, Letter from Samuel Johnston to James Iredell dated

April 20, 1776. Their solution was simple and direct: have elections often.

95. The check on any excesses of the legislature was embodied in Section XX of the

Declaration of Rights of the 1776 Constitution which states “[t]hat for redress of grievances

and for amending and strengthening the laws, elections ought to be often held.” Further

solidifying the check on legislative excesses was the requirement that Senators and

Representatives be elected annually. N.C. Const. of 1776, arts. II & III. “Annual elections

231
ensured accountability” to the people of North Carolina. The North Carolina State

Constitution, John V. Orth, Paul Martin Newby, 2nd Ed., p. 6 (2013).

96. While the legislature did not specifically draw districts from 1776 to 1835, they

did create counties. In 1776 there were approximately 35 counties in North Carolina and by

1835 that number exceeded 60. There were no constitutional checks on the legislature’s

ability to create counties, the basis of representation during that time, nor is there any

evidence of the need for any constraints on that authority. As the General Assembly was

given the authority to lay out Senate districts in 1835, objective constraints were placed on

the General Assembly starting with a Whole County Provision. N.C. Const. of 1776, amended

1835, art. I, §1. Over time, additional objective constitutional constraints have been placed

on the General Assembly so as today there are four objective constraints delineated in the

North Carolina Constitution: (1) apportionment of the district by population such that the

representative or senators in each district shall represent, as nearly as may be, an equal

number of inhabitants; (2) A contiguity requirement; (3) a Whole County Provision; and (4)

a Mid-Decade Provision.16 At no point has restriction of redistricting for partisan advantage

ever been made part of any North Carolina Constitution.

97. Further evidence that the North Carolina Free Elections Clause was not

intended to operate as a restriction on the authority of the General Assembly to redistrict is

how the framers of the English Bill of Rights and Virginia Declaration of Rights understood

how the provisions applied at the time they were enacted and immediately thereafter.

98. Before, during and after the Glorious Revolution, and the signing of the

English Bill of Rights, there existed in England what were known as Rotten Boroughs. These

16 These are in addition to constraints/requirements imposed by the Fourteenth Amendment

to the U.S. Constitution and the Voting Rights Act of 1965.

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were Boroughs where there were very few residents but that elected the same number of

members of parliament as heavily populated districts.

99. Thomas Paine in The Rights of Man explained:

The County of York, which contains nearly a million of souls, sends two county
members; and so does the county of Rutland, which contains not an hundredth
part of that number. The old town of Sarum, which contains not three houses,
sends two members; and the town of Manchester, which contains upwards of
sixty thousand souls, is not admitted to send any.

Thomas Paine, The Rights of Man, Part, the First, Being an Answer to Mr. Burke’s Attack

on the French Revolution.

100. Old Sarum was once the site of a cathedral and a fort, but when the cathedral

moved, the population dwindled. Despite this, it continued to send two members to

parliament. This allowed whoever controlled the land to elect the members. Old Sarum was

just one of many Rotten Boroughs and it and others existed as such before, at the time of and

after the signing of the English Bill of Rights.

101. Rotten Boroughs allowed fathers to pass on a constituency to their sons

ensuring their son or a person of their choosing would have the power of a member of

Parliament. https://www.historylearningsite.co.uk/british-electoral-history-since-

1832/rotten-boroughs/ (last visited 01/07/2022)

102. Despite the Free Elections Clause in the English Bill of Rights, the Rotten

Boroughs were allowed to continue to exist until the Reform Act of 1832.17 At the time of the

passage of the reform Act of 1832 more than 140 parliamentary seats out of a total of 658 or

21%of members of parliament came from Rotten Boroughs. Of those Rotten Boroughs, 50

had fewer than 50 voters.18

17 Parliament.uk/about/living-
heritage/evolutionofparliament/reformacts/overview/reformactof 1832/

18 http://www.britannica.com/topic/rotten-borough (last visited January 7, 2022).

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 103. Given the existence of these Rotten Boroughs at the time of the signing of the

English Bill of Rights, and their continued unopposed use of the same until 1832, it is

doubtful that such boroughs maintained by or for members of parliament were subject to the

English Free Elections Clause.

104. North Carolina’s Free Election Clause is modeled and taken from a similar

clause in the Virginia Declaration of Rights written by George Mason and approved by the

Fourth Virginia Convention in 1775. Members of the convention who approved the Virginia

Declaration of Rights included Patrick Henry and James Madison.

105. In Rucho, the United States Supreme Court noted that

During the very first congressional elections, George Washington and his
Federalist allies accused Patrick Henry of trying to gerrymander Virginia’s
districts against their candidates—in particular James Madison, who
ultimately prevailed over fellow future President James Monroe. Hunter, The
First Gerrymander? 9 Early Am. Studies 792-794, 811 (2011). See 5 Writings
of Thomas Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9, 1789))
(“Henry has so modelled the districts for representatives as to tack Orange
[county] to counties where he himself has great influence that Madison may
not be elected into the lower federal house”).

Rucho, ___ U.S. at ___, 139. S. Ct. at 2494.

106. What is telling is that Patrick Henry, who was responsible in part for the Free

Elections Clause in the Virginia Declaration of Rights, was attempting to partisan

gerrymander districts to the detriment of James Madison, who was also responsible in part

for the Free Elections Clause in the Virginia Declaration of Rights. If the Virginia Free

Elections Clause applied to partisan gerrymandering, two of the men responsible for the

clause did not seem to think it applied. It did not stop Patrick Henry from his actions, nor

did Madison or his supporters assert the Free Election Clause to stop Patrick Henry. If the

two men who were responsible or approving the clause did not think it applied to partisan

gerrymandering, this Court is certainly hesitant to do so. In fact, it was not until 2020 that

Virginia addressed the issue of partisan gerrymandering, not by judicial fiat, but buy a

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constitutional amendment providing for a bipartisan districting commission. Va. Const. of

1971, amend. 2020, art. II, § 6-A. The Virginia General Assembly also passed legislation

setting standards and criteria for redistricting. One of these standards specifically prohibits

maps “when considered on a statewide basis from unduly favoring or disfavoring a political

party.” Va. Code § 24.2-304.4 (8).

107. Given the history and factors described above, this Court concludes that the

Free Elections Clause does not operate as a restraint on the General Assembly’s ability to

redistrict for partisan advantage.

2. The Incorporation of the Free Speech Clause and the Equal

Protection Clause to the North Carolina Constitution of 1971
Was Not Intended to Bring About a Fundamental Change to
the Power of the General Assembly

108. In determining whether the Equal Protection Clause and Free Speech Clause

were intended to apply to the political question of partisan gerrymandering, it is necessary

to examine the intent of the framers and citizens who adopted it. Sneed, 299 N.C. at 613,

264 S.E.2d at 110. This necessarily entails an examination of “history, general spirit of the

times, and the prior and the then existing law in respect of the subject matter of the

constitutional provision under consideration” Perry, 237 N.C. at 444, 75 S.E.2d at 514.

109. The Equal Protection Clause was incorporated into our State constitution in

1971 as part of the Law of the Land Clause. N.C. Const. of 1971, art. I, § 19. The Free Speech

Clause was incorporated into our State constitution in 1971 as part of Free Press Clause.

N.C. Const. of 1971, art. I, § 14. Prior to the adoption of the “proposed constitution” in 1971,

no version of an Equal Protection Clause or Free Speech Clause was found in any of our

State’s prior Constitutions. See N.C. Const. of 1776, as amended; N.C. Const. of 1868 as

amended. At the time the Equal Protection Clause and Free Speech Clause were added to

the State Constitution, the North Carolina legislature had been dominated by the Democratic

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Party since the end of Reconstruction, a period of over 90 years representing 45 legislative

elections.

110. In 1967, and just three years prior to the addition of the Equal Protection

Clause and Free Speech Clause to the State Constitution, the Legislature placed on the ballot

for ratification a constitutional amendment setting forth the objective constraints placed on

the legislature in the drawing of legislative districts. 1967 Sess. Laws ch. 640. This

amendment was ratified on November 8, 1968, by a vote of 582,633 to 373,395. John L.

Sanders, Amendments to the Constitution of North Carolina 1776-1996, 15 (1997). N.C.

Const. of 1868, amend. 1968, art. II, §§ 4 & 6. The objective constraints listed in the amended

Article II of the 1868 Constitution are the only objective constraints that the framers of the

North Carolina Constitution and amendments thereto saw fit to place on the legislature in

drawing legislative maps. Id. The constraints are overall consistent with the progression of

constraints placed upon the legislature in the two prior constitutions. See Table 1.

111. Plaintiffs would have this Court infer that it was the intent of the framers of

the 1971 Constitution, by including the Equal Protection Clause and Free Speech Clause in

the State Constitution, to limit the legislature’s ability to redistrict for partisan advantage to

some degree. As previously stated, the addition of the Equal Protection Clause and Free

Speech Clause, while a substantive change, was not meant to “bring about a fundamental

change” to the power of the General Assembly. Rept. of Study Comm’n at 10. If the framers

did intend to limit the partisan advantage that could be obtained through redistricting, “it is

reasonable to presume it would have been declared in direct terms and not be left as a matter

of inference.” Sneed, 299 N.C. at 616, 264 S.E.2d at 112. We will not “assume that, whatever

the intent of the framers, the citizens intended by their adoption at the polls of the 1970

constitutional changes” that the Equal Protection Clause and Free Speech Clause impose

new restrictions on the political process of redistricting. See Id; Perry v. Stancil, 237 N.C.

236
442, 447, 75 S.E.2d 512, 516 (1953) (“In the absence of an express provision to that effect, we

should be slow in adopting the conclusion that it was the intention of the framers of the

Constitution to enact so radical a change in the law; because if such was the intention, it is

reasonable to presume it would have been declared in direct terms and not left to a matter of

inference.”)

112. Perhaps most probative of the intent of the framers and citizens of 1971 was

the refusal of the legislature, as the representative of the people, to accept the

recommendation of the Study Commission to give the Governor, as a person elected on a

Statewide basis by the majority of the voters of this State, the power of the veto as a check

on the excesses of the Legislature.

a. The Enacted Maps Do Not Violate the Equal Protection

Clause

113. Plaintiffs also ask this Court to strike down the enacted maps as

unconstitutional as a violation of our State Constitution’s Equal Protection Clause.

114. As an initial matter, this Court notes that the United States declined to strike

the partisan gerrymandered maps in Rucho as unconstitutional under the Equal Protection

Clause of the Fourteenth Amendment of the United States Constitution. ___ U.S. at ___, 139

S.Ct. at 2504. It is true that in some instances greater protection has been afforded to citizens

of North Carolina under our State Constitution than under the Federal Constitution.

However, those occasions are rare. Stephenson, 355 N.C. at 397-98, 398 S.E.2d at 406-07

(Orr, J. concurring in part, dissenting in part).

115. It is also true that our Courts have found on several occasions that certain

circumstances involving elections or the right to vote may give rise to equal protection claims

under our state Constitution. In Common Cause, the court relied upon Stephenson,

Blankenship v. Bartlett, 363 N.C. 518, 681 S.E.2d 759 (2007), and Northampton County

237
Drainage District No. One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990), to justify application

of the equal protection clause to strike down the 2017 redistricting plan as unconstitutional

based upon extreme partisan gerrymandering.

116. In Stephenson, the North Carolina Supreme Court held that “[t]he

classification of voters into both single-member and multi-member districts within plaintiffs'

proposed remedial plans necessarily implicates the fundamental right to vote on equal terms

. . . .” Stephenson, 355 N.C. at 378, 562 S.E.2d at 393-94. The Court went on to reason that

members in multi-member districts had greater representation, in terms of members, than

those voters in a single member district. Id.

117. In Blankenship, the Court held that the Equal Protection Clause was

implicated and that the legislature’s actions were examined with heightened scrutiny when

judicial districts created by the General Assembly represented a great disparity of residents

to judge when one such district had five times the voting power of another district.

Blankenship, 363 N.C. at 527-28, 681 S.E.2d at 766.

118. In Northampton County Drainage No. One, commissioners of the drainage

district could assess members for maintenance or improvements in the district. 326 N.C. at

745-46, 392 S.E.2d at 355. The commissioners were appointed by the Northampton County

Clerk of Court. Id. Because the drainage district encompassed land in Hertford County, the

landowners within the Hertford County district were unable to vote for the Clerk of Court of

Northampton County. Id. This gave Northampton County members voting rights that

member in Hertford County lacked. Id. The North Carolina Supreme Court found that this

deprived the Hertford County residents of Equal Protection under the law. 326 N.C. at 747,

392 S.E.2d at 356.

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 119. Blankenship and Stephenson are cases dealing with the ratio between the

voters in a district and the elected representatives in that district. Northampton deals with

the right to vote on equal terms with other members of the voting district.

120. In analyzing Plaintiffs’ Equal Protection Claims as it relates to redistricting

for partisan advantage, Plaintiffs are not denied the right to vote, nor are they in a district

where they have less voting power than those in other districts. Plaintiffs are not part of a

suspect class. Plaintiffs cite no appellate case where a person’s membership in a political

party is a suspect classification. The opposite seems to be true. See Libertarian Party of

North Carolina v. State, 365 N.C. 41, 51, 707 S.E.2d 199, 206 (2011). To find as such would

subject any person affected by a political decision of the state to heightened scrutiny.

121. It is true that there is a fundamental right to vote. However, if “no individual

minority voter has a right to be included in a majority-minority district,” League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 504, 126 S. Ct. 2594, 2659 (2006) (Roberts, C.J.,

concurring in part, concurring in the judgment in part, and dissenting in part) (citing

Shaw v. Hunt, 517 U.S. 899, 917, and n. 9, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) (Shaw

II); id., at 947, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (Stevens, J., dissenting)), then an individual

voter would not be entitled to be included in a district that is more likely to elect a candidate

from their own party.

122. Moreover, there is no requirement that each party must be influential in

proportion to its number of supporters. Rucho, 139 S.Ct. at 951.

123. Redistricting and the political considerations that are part of that process do

not impinge on the right to vote. Nothing about redistricting affects a person’s right to cast

a vote. Any impingement is limited and distant and as such is subject to a rational basis

review. “Under the rationality standard of review, ‘[s]tate legislatures are presumed to have

239
acted within their constitutional power despite the fact that, in practice, their laws result in

some inequality.’” See Beech Mountain v. County of Watauga, 324 N.C. 409, 414, 378 S.E.2d

780, 783 (1989) (citations omitted). The Court finds that the plans are amply supported by a

rational basis and thus do not violate the Equal Protection Clause.

b. The Enacted Plans Do Not Violate the Free Speech

Clause.

124. As stated above, the incorporation of the Free Speech Clause into the 1971

Constitution was not intended to bring about a fundamental change to the power of the

General Assembly.

125. Our appellate courts have interpreted the rights to free speech in alignment

with cases interpreting the First Amendment to the United States Constitution. State v.

Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993); State v. Shackelford, 264 N.C. App.

542, 552, 825 S.E.2d 689, 696 (2019); Feltman v. City of Wilson, 283 N.C. App. 246, 252, 767

S.E.2d 615, 620 (2014). The United States Supreme Court addressed the issue of whether

partisan gerrymandering impinged upon free speech and other rights protected by the First

Amendment to the United States Constitution. Their analysis was direct and to the point:

“To begin, there are no restrictions on speech, association, or any other First Amendment

activities in the districting plans at issue. The plaintiffs are free to engage in those activities

no matter what the effect of a plan may be on their district.” Rucho, 139 S. Ct. at 2504. The

same is true with the enacted plans. Plaintiffs are free to engage in speech no matter what

the effect the Enacted Plans have on their district.

126. Plaintiffs’ claims based upon the Free Speech Clause fail.

c. The Enacted Plans Do Not Violate the Right of Assembly

Clause.

127. The 1971 Constitution, art. I, § 14 provides: “The people have a right to

assemble together to consult for their common good, to instruct their representatives, and to

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apply to the General Assembly for redress of grievances; but secret political societies are

dangerous to the liberties of a free people and shall not be tolerated.” With the exception of

the provision relating to the “right to instruct,” the language of the Freedom of Assembly

Clause closely resembles the language in the First Amendment to the United States

Constitution which guarantees, in part, the right of the people “to assemble and petition the

government for a redress of grievances.”

128. In Libertarian Party, our Supreme Court

[J]oin[ed] a growing number of federal courts applying the Supreme Court’s

associational rights analysis to equal protection challenges in the context of
ballot access restrictions on political parties and candidates. [They did] so
because the interests of equal protection bear a strong relationship to the
associational rights protected by our state constitution’s free speech and
assembly provisions.

(citations omitted) Libertarian Party, 365 NC. at 48, 707 S.E.2d at 204. See Feltman, 238

N.C. App. at 253, 767 S.E.2d at 620 (recognizing that “[t]he right to freedom of assembly is

similar to the right of freedom of association embodied within the federal constitution” and

analyzing a claim based upon freedom of assembly in light of federal case law).

129. Given our appellate courts’ adoption of the United States Supreme Court’s

associational rights analysis and other federal precedent, we find no reason not to adopt the

United States Supreme Court’s analysis and findings on the effect of redistricting plans to

the right of assembly and petition as set forth in Rucho, 139 S.Ct. at 2504. Plaintiffs remain

free to engage in their associational rights and rights to petition no matter what effect the

Enacted Plans have on their district.

130. There is absolutely no evidence that the Plaintiffs’ right to instruction was

violated during the redistricting process or that the Enacted Maps somehow inhibit the right

to instruct.

131. Plaintiffs’ claims based upon the Right of Assembly Clause fail.

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 132. As the North Carolina Supreme Court has stated:

[t]he General Assembly may consider partisan advantage and incumbency

protection in the application of its discretionary redistricting decisions, see
Gaffney v. Cummings, 412 U.S. 735, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973),
but it must do so in conformity with the State Constitution. To hold otherwise
would abrogate the constitutional limitations or “objective constraints” that
the people of North Carolina have imposed on legislative redistricting and
reapportionment in the State Constitution.

Stephenson I, 355 N.C.at 371-372, 562 S.E.2d at 390.

133. The objective constitutional constraints that the people of North Carolina have

imposed on legislative redistricting are found in Article II, Sections 3 and 5 of the 1971

Constitution and not in the Free Elections, Equal Protection, Freedom of Speech or Freedom

of Assembly Clauses found in Article I of the 1971 Constitution.

134. Therefore, the Court concludes that our Constitution does address limitations

on considering partisan advantage in the application of its discretionary redistricting

decisions and Plaintiffs' claims on the basis of “extreme partisan advantage” fail.

E. Plaintiffs’ Claims Are Nonjusticiable

135. In North Carolina, our Supreme Court has had an opportunity on a number of

occasions to address whether the creation of boundaries is a question that presents a

justiciable controversy. In those instances, the Supreme Court has found that they were

political questions and thus non-justiciable. See e.g., Howell v. Howell, 151 N.C. 575, 66 S.E.

571 (1909) (rejecting partisan-gerrymandering challenge to a special-tax district); Norfolk &

S.R. Co. v. Washington County, 154 N.C. 333, 335-36, 70 S.E. 634, 635 (1911) (holding the

General Assembly’s authority to “declare and establish what it deemed the true boundary

between . . . counties . . . is a political question, and the power to so declare is vested in the

General Assembly.”); see also Carolina-Virginia Coastal Highway v. Coastal Tpk. Auth., 237

N.C. 52, 62, 74 S.E.2d 310, 317 (1953) (“[T]he power to create or establish municipal

corporations . . . is a political function which rests solely in the legislative branch of the

242
government.”); State ex. Rel. Tillett v. Mustain, 243 N.C. 564, 569, 91 S.E.2d 696, 699 (1956)

(“The power to create and dissolve municipal corporations, being political in character, is

exclusively a legislative function.”); Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 7, 269

S.E.2d 142, 147 (1980) (“Annexation by a municipal corporation is a political question which

is within the power of the state legislature to regulate.”).

136. In Hoke County Bd. of Educ. v. State, 358 N.C. 605, 599 S.E.2d 365 (2004), in

adopting the United States Supreme Court’s definition on what constitutes a nonjusticiable

claim, the North Carolina Supreme Court held that “any trial court rulings that infringed on

the legislative prerogative of establishing school-age eligibility were in error.” Id. at 639, 599

S.E.2d at 391. The North Carolina Supreme Court stated:

the United States Supreme Court has defined issues as nonjusticiable when
either of the following circumstances are evident: (1) when the Constitution
commits an issue, as here, to one branch of government; or (2) when
satisfactory and manageable criteria or standards do not exist for judicial
determination of the issue.

Id. (citing Baker v. Carr, 369 U.S. 186, 210, 7 L. Ed. 2d 663, 682, 82 S. Ct. 691 (1962)).

137. The constitutional provisions relevant to the issue before the Court establish

that redistricting is in the exclusive province of the legislature. N.C. Const. of 1971, amend

1996, art. II §§ 3, 5, and 20. Moreover, redistricting of congressional districts is largely left

to the legislatures of the individual states. League of Latin Am. Citizens v. Perry, 548 U.S.

399, 414, 126 S. Ct. 2594, 2607 (2006).

138. As to whether satisfactory and manageable criteria or standards exist for

judicial determination of the issue, the United States Supreme Court’s analysis in Rucho is

instructive. See Rucho 139 S. Ct. at 2498-2506.

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 139. As the role apportionment plays is critical and a traditional part of American

politics, “[a]ny standard for resolving such claims must be grounded in a ‘limited and precise

rationale’ and be ‘clear, manageable, and politically neutral.’” Id. at 2498.

140. This Court has not been asked to eliminate all partisan gerrymandering, only

“extreme” partisan gerrymandering. In short, we are asked to decide how much partisanship

is “extreme.” In attempting to do so, we necessarily require “especially clear standards”

because “[w]ith uncertain limits [we] – even when proceeding with the best intentions –

would risk assuming political, not legal, responsibility for a process that often produces ill

will and distrust.” Id. (citing Vieth, v. Jubelirer, 541 U.S. 267, 307 (2004)).

141. “Partisan gerrymandering claims rest on an instinct that groups with a certain

level of political support should enjoy a commensurate level of political power and influence.

. . . But such a claim is based on a ‘norm that does not exist’ in our electoral system—

'statewide elections for representatives along party lines.’” Id. at 2499. (citations omitted.)

142. In order to avoid repeating the entirety of Rucho, it is safe to say that all of the

arguments as to justiciability in the present case were made before the United States

Supreme Court in Rucho and after an exhaustive analysis, the United States Supreme Court

determined that:

Excessive partisanship in districting leads to results that reasonably seem

unjust. But the fact that such gerrymandering is “incompatible with
democratic principles,” Arizona State Legislature, 576 U. S., at ___, 135 S. Ct.
2652, 192 L. Ed. 2d 704, 716, does not mean that the solution lies with the
federal judiciary. We conclude that partisan gerrymandering claims present
political questions beyond the reach of the federal courts. Federal judges have
no license to reallocate political power between the two major political parties,
with no plausible grant of authority in the Constitution, and no legal standards
to limit and direct their decisions. “[J]udicial action must be governed by
standard, by rule,” and must be “principled, rational, and based upon reasoned
distinctions” found in the Constitution or laws. Vieth, 541 U. S., at 278, 279,
124 S. Ct. 1769, 158 L. Ed. 2d 546 (plurality opinion). Judicial review of
partisan gerrymandering does not meet those basic requirements.

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Id. at 2506-07

143. In essence we are asked to apportion political power as a matter of fairness.

This is no different than what our Supreme Court was asked to determine in Dickson v.

Rucho, 367 N.C. 542, 766 S.E.2d 238 (2014). In that case, the North Carolina Supreme Court

stated:

Finally, plaintiffs argue that the enacted plans violate the “Good of the Whole”
clause found in Article I, Section 2 of the Constitution of North Carolina. We
do not doubt that plaintiffs' proffered maps represent their good faith
understanding of a plan that they believe best for our State as a whole.
However, the maps enacted by the duly elected General Assembly also
represent an equally legitimate understanding of legislative districts that will
function for the good of the whole. Because plaintiffs' argument is not based
upon a justiciable standard, and because acts of the General Assembly enjoy
“a strong presumption of constitutionality,” Pope v. Easley, 354 N.C. 544, 546,
556 S.E.2d 265, 267 (2001) (per curiam) (citation omitted), plaintiffs’ claims
fail.

Id. at 575, 766 S.E.2d at 260, vacated and remained on other grounds Dickson v. Rucho, ___

U.S. ___ 135 S. Ct. 1843 (2015).

144. Utilizing the test for determining whether a claim is nonjusticiable as adopted

in Hoke County Bd. Of Education, and following the extensive analysis of the nonjusticiability

of partisan gerrymandering claims in Rucho, this Court determines that satisfactory and

manageable criteria or standards do not exist for judicial determination of the issue and thus

the partisan gerrymandering claims present a political issue beyond our reach.

145. We agree with the United States Supreme Court that excessive partisanship

in districting leads to results that are incompatible with democratic principles. Rucho, 139

S.Ct, at 2504. Furthermore, it has the potential to violate “the core principle of republican

government . . . that the voters should choose their representatives, not the other way

around.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 567 U.S. 787, 824, 135

S. Ct. 2652, 2658 (2015). Also, it can represent “an abuse of power that, at its core, evinces a

245
fundamental distrust of voters, serving the self-interest of the political parties at the expense

of the public good.” LULAC v. Perry, 548 U.S. 399, 456, 126 S.Ct. 2594, 2631 (2006) (Stevens,

J. concurring in part and dissenting in part) (quotation and citation omitted)).

146. In addition, excessive partisan gerrymandering can subject the State to

unwanted attention, ridicule and derision. As this Court mentioned at the hearing on

Plaintiffs' Motions for Preliminary Injunction, the Supreme Court in Stephenson pointed out:

Since Cavanagh, many North Carolina legislative districts have been

increasingly gerrymandered to a degree inviting widespread contempt and
ridicule. See, e.g., “Red-Light District: It’s time to draw the line on
gerrymandering,” John Fund's Political Diary, WSJ.com Opinion Journal from
the Wall Street Journal Editorial Page, at http://www.opinionjournal.com/
diary/?id=105001756 (Mar. 13, 2002) (“elections in many semi-free Third
World nations routinely offer more choices than many North Carolina
residents will have” under the 2001 legislative redistricting plans); How to Rig
an Election, The Economist, Apr. 27, 2002, at 29, 30 (“In a normal democracy,
voters choose their representatives. In America, it is rapidly becoming the
other way around” and asserting that “North Carolina [has been] long
notorious for outrageous reapportionment.”)

Stephenson, 355 N.C. at 375, 562 S.E.2d at 392.

147. Over 19 years have elapse since Stephenson was decided. The political party

drawing North Carolina’s legislative maps has changed, yet the ridicule has continued. See,

“Gerrymandering Puts Partisanship in Overdrive; Can California Slow It” Gerald F. Seib,

WSJ.com from the Wall Street Journal Politics Page at

https://www.wsj.com/articles/gerrymandering-puts-partisanship-in-overdrive-can-california-

reverse-it-11638198550 (November 29, 2021).

148. This Court neither condones the enacted maps nor their anticipated potential

results. Despite our disdain for having to deal with issues that potentially lead to results

incompatible with democratic principles and subject our State to ridicule, this Court must

remind itself that these maps are the result of a democratic process.

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 149. The drafters of the 1776 Constitution were elected from eligible males to the

Fifth Provincial Congress who were responsible for drafting and approving the 1776

Constitution. Beginning with the 1835 Amendments to the 1776 Constitution, every

proposed change since then relating to the drawing of legislative districts was proposed by

elected representatives of the people of this State and ratified by the eligible voters. This

democratic process left redistricting solely in the province of the legislature subject to only

four objective restraints and accountability through frequent elections.

150. The decision of the voters of this State to approve an amendment to the

Constitution giving the Governor the right to veto acts of the General Assembly, which

excepted the right to veto redistricting maps, by an almost 3-1 margin, put out of reach any

control over redistricting by a person elected by the majority of the citizens of this State.

151. The Enacted Maps comply with the objective constraints contained in the

North Carolina Constitution of 1971, art. II, §§ 3 & 5., and were thereafter approved by a

majority of the elected members of the General Assembly, all of whom were elected pursuant

to maps that had previously been determined constitutional by the courts of North Carolina.

152. The people of this State enacted this political process and specifically declined

to place any checks on their representatives, other than the objective constraints set forth in

the North Carolina Constitution of 1971, art. II, §§ 3 & 5. Some of these people, perhaps even

a majority, now ask this Court to undo what they have allowed to be done through the

democratic processes of this State. To do so would require us to act outside the bounds of our

constitutional authority.

153. Redistricting is a political process that has serious political consequences. It is

one of the purest political questions which the legislature alone is allowed to answer. Were

we as a Court to insert ourselves in the manner requested, we would be usurping the political

power and prerogatives of an equal branch of government. Once we embark on that slippery

247
slope, there would be no corner of legislative or executive power that we could not reach.

Indeed, under Plaintiffs’ rationale, we could require the Governor to ensure that the partisan

makeup of his political appointees matched or closely resembled the percentage of votes that

his political opponent received.

154. We are aware of the effects of partisan gerrymandering. This Court is not

without power remedy some of those effects. If partisan gerrymandering dilutes the vote of

minorities, remedies under Section 2 of the Voting Rights Act are available. However, either

for strategic reasons or a lack of evidence, Plaintiffs have repeatedly informed the Court that

they are not pursing a Voting Rights Act claim, but rather, are only pursuing a State

Constitutional claim for racial gerrymandering. This is true despite the fact that it

potentially would be easier to prove a violation of the Voting Rights Act, as one only need

prove effect and need not prove intent.

155. Plaintiffs’ theory of extreme partisan gerrymandering necessarily entails a

calculation of the number of seats a party is expected to win in any given election. Seats that

are deemed outliers based upon certain calculations are the result of “extreme partisan

gerrymandering.”

156. In a scenario where a party is expected to win 65 seats and the legislatively

approved extreme partisan gerrymandered maps would result in a win of 75 seats, those

seats in excess of 65 would be outliers and under plaintiffs’ theories, are the product of

extreme partisan gerrymandering. The Court would be required to order the mapmakers to

redraw the maps so that they are consistent with the number of seats a party would expect

to win. Given that the party could reach the 65 seat projection through the use of allowable

partisan gerrymandering, some of the voters in the 65 permitted districts would suffer the

same effects from partisan gerrymandering that the voters in the 10 excessively

gerrymandered districts would have suffered had the maps not been withdrawn. To accept

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the Plaintiffs’ arguments that the maps are unconstitutional on the theories advanced would

necessarily mean that no partisan gerrymandering is allowed as no voter should suffer from

the effects of the same. This is contrary to the established precedent of the United States

Supreme Court and the North Carolina Supreme Court. Rucho, 139 S. Ct. at 2504;

Stephenson, 355 N.C.at 371-372, 562 S.E.2d at 390.

III. Intentional Racial Discrimination and Racial Vote Dilution Claims

A. Intentional Discrimination and Voter Dilution in Violation of the

Equal Protection Clause

157. NCLCV Plaintiffs and Plaintiff Common Cause have asserted a claim that the

Enacted Plans unnecessarily dilute the voting strength of Black North Carolinians and

intentionally discriminate against Black North Carolinians in violation of the Equal

Protection Clause of the North Carolina Constitution. The Court concludes that based upon

the record before the Court, Plaintiffs have failed to prove the merit of their claim.

158. Under North Carolina’s Equal Protection Clause, North Carolina’s citizens—

including its minority voters—have “a constitutionally protected right to participate in

elections on an equal basis with other citizens in the jurisdiction.’” White v. Pate, 308 N.C.

759, 768, 304 S.E.2d 199, 205 (1983). In particular, North Carolina’s minority voters have a

right to “substantially equal voting power” and “substantially equal legislative

representation.” Stephenson I, 355 N.C. at 379.

159. The North Carolina Constitution’s guarantees of “substantially equal voting

power” and “substantially equal legislative representation” are violated when a redistricting

plan deprives minority voters of “a fair number of districts in which their votes can be

effective,” measured based on “the minority’s rough proportion of the relevant population.”

Bartlett v. Strickland, 556 U.S. 1, 28-29 (2009) (Souter, J., dissenting)

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 160. An act of the General Assembly can violate North Carolina’s Equal Protection

Clause if discriminatory purpose was “a motivating factor.” Holmes v. Moore, 270 N.C. App.

7, 16, 840 S.E.2d 244, 254 (quoting N.C. State Conference of NAACP v. McCrory, 831 F.3d

204, 220-21 (4th Cir. 2016)); see also Stephenson I, 355 N.C. at 377, 562 S.E.2d at 393 (quoting

White, 308 N.C. at 766, 304 S.E.2d at 204) (strict scrutiny is triggered under North Carolina’s

Equal Protection Clause when it creates a “classification” that “operates to the peculiar

disadvantage of a suspect class”)). And whether discriminatory purpose was a motivating

factor can be “inferred from the totality of the relevant facts, including the fact, if it is true,

that the law bears more heavily on one race than another.” Holmes, 270 N.C. App. at 17. To

determine whether this is true, the court may weigh the law’s historical background, the

sequence of events leading up to the law, departures from normal procedure, legislative

history, and the law’s disproportionate impact. Id. at 17.

161. The Supreme Court has observed that “courts must exercise extraordinary

caution in adjudicating claims that a State has drawn district lines on the basis of race.”

Dickson v. Rucho, 368 N.C. 481, 506, 781 S.E.2d 404, 423 (2015), cert. granted, judgment

vacated on other grounds. The Court considers three factors:

First, in light of the interplay detailed below between the Fourteenth

Amendment, which virtually forbids consideration of race, and the VRA, which
requires consideration of race, the Supreme Court has acknowledged that the
existence of legislative consciousness of race while redistricting does not
automatically render redistricting plans unconstitutional.

Second, the Supreme Court has recognized the importance of the states' own
traditional districting principles, holding that states can adhere to them
without being subject to strict scrutiny so long as those principles are not
subordinated to race.

Finally, the Supreme Court has accepted that some degree of deference is due
in light of the difficulties facing state legislatures when reconciling conflicting
legal responsibilities.

Id. (internal citations omitted).

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 162. North Carolina’s Equal Protection Clause is treated the same as the Equal

Protection Clause of the United States Constitution. “No person shall be denied the equal

protection of the laws; nor shall any person be subjected to discrimination by the State

because of race, color, religion, or national origin.”

N.C. Const. art. I, § 19.

163. “[A] finding that race was the predominant motive in drawing a district does

not automatically render that district unconstitutional. Nor does it signify that the

legislature acted in bad faith or with discriminatory intent in its redistricting.” Covington v.

N.C., 316 F.R.D. 117, 129 (2016). Further, a legislatures knowledge of racial demographics is

most certain, “but that sort of race consciousness does not lead inevitably to impermissible

race discrimination.” Id. (quoting Shaw v. Reno, 509 U.S. 630, 646 (1993)).

164. If a plaintiff shows “that race predominated over traditional race-neutral

redistricting principles, [then the court is to] apply strict scrutiny,” and the government

defendants then “have the burden of show[ing] not only that [their] redistricting plan was in

pursuit of a compelling state interest, but also that [their] redistricting legislation is narrowly

tailored to achieve [that] compelling interest.” Id. (quoting Shaw v. Hunt, 517 U.S. 899, 908

(1996)) (internal quotations omitted).

165. A “discriminatory purpose may often be inferred from the totality of the

relevant facts,” even when no discriminatory purpose is “express or appear[s] on the face of

the statute.” Washington v. Davis, 426 U.S. 229, 241-42, 96 Ct. 2040, 2048 (1976).

166. The relevant framework for analyzing whether an official action was motivated

by discriminatory purpose is set forth in Village of Arlington Heights v. Metro. House. Dev.

Corp., 429 U.S. 252 (1977). Courts must undertake “a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available.” Id. at 266; State v. Jackson,

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322 N.C. 251, 261, 318 S.E.2d 838, 843-44 (1988) (Frye, J., concurring). The Supreme Court

of the United States in Arlington Heights laid out a non-exhaustive list of factors for courts

to consider. Holmes v. Moore, 270 N.C. App. 7, 18 (2020). Those factors include: (1) the law’s

historical background, (2) the specific sequence of events leading to the law’s enactment,

including any departures from the normal procedural sequence, (3) the legislative history of

the decision, and (4) the impact of the law and whether it bears more heavily on one race

than another.” Arlington Heights, 429 U.S. at 266-68.

167. NCLCV Plaintiffs and Plaintiff Common Cause have failed to satisfy their

burden of establishing that race was the predominant motive behind the way in which the

Enacted Plans were drawn.

168. First, Plaintiffs have failed to show a predominant racial motive through direct

evidence. The Adopted Criteria proscribed the use of racial considerations in the drawing of

the Enacted Plan, nor did the General Assembly consider race by, for instance, conducting a

racially polarized voting study on the selected plans prior to their enactment.

169. Plaintiffs have also failed to show a predominant racial motive through

circumstantial evidence. Though the testimony elicited from Plaintiff’s expert, Dr. Leloudis,

provided a contextual backdrop for the way redistricting maps have been drawn, litigated,

and accordingly struck down in the past, it is incumbent upon this Court to afford the

legislature a presumption of good faith. N.C. State Conference of the NAACP v. Raymond,

981 F.3d 295, 303 (4th Cir. 2020). “A legislature’s past acts do not condemn acts of a later

legislature, which we must presume acts in good faith.” Id. at 298 (citing Abbot v. Perez, 138

S. Ct. 2305, 2324 (2018)). Plaintiffs have failed to link past, impermissible race-based

redistricting to the current legislature and have failed to provide sufficient circumstantial

evidence in accordance with the requirements of the Arlington Heights analysis.

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 170. Second, Plaintiffs have failed to establish that the General Assembly failed to

adhere to traditional districting principles on account of racial considerations. Plaintiffs

provide insufficient evidence that the instances in which traditional districting principles

were not adhered to was because of racial considerations. Instead, as discussed above, the

General Assembly consistently acted with an intent to redistrict for partisan advantage, and

nothing in the record shows that to be a pretext for underlying racial considerations.

171. Third, giving deference to the redistricting process as conducted by the General

Assembly, Plaintiffs have failed to make the requisite evidentiary showing that the General

Assembly sought to dilute the voting strength of Blacks based upon their race, or that Blacks

have less of an opportunity to vote for or nominate members of the electorate less than those

of another racial group. Plaintiffs have shown, and the Court agrees, that a substantial

number of Black voters are affiliated with the Democratic Party. What Plaintiffs have not

shown, however, is how the General Assembly targeted this group on the basis of race instead

of partisanship. Black voters who also happen to be Democrats have therefore been grouped

into the partisan intent of the General Assembly. There is nothing in the evidentiary record

before this Court showing that race and partisan gain were coincident goals predominating

over all other factors in the redistricting.

172. Plaintiffs, for the same reasons, have failed to satisfy their burden of showing

that the General Assembly was motivated by discriminatory purpose with regard to violating

the Equal Protection Clause. Plaintiffs have presented no direct evidence as to

discriminatory purpose, and the circumstantial evidence presented is insufficient to sustain

their burden pursuant to Arlington Heights.

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 B. Voter Dilution in Violation of the Free Elections Clause

173. NCLCV Plaintiffs’ claim that the Enacted Plan unnecessarily dilutes the

voting power of citizens on account of race in violation of the Free Elections Clause of Art. I,

§ 10 is without an evidentiary or legal basis.

174. Under North Carolina’s Free Elections Clause, “the object of all elections is to

ascertain, fairly and truthfully the will of the people.” Hill v. Skinner, 169 N.C. 405, 415, 86

S.E.351, 356 (1915).

175. As explained above, the Free Elections Clause has been interpreted narrowly,

and Courts have upheld violations of the Free Elections Clause infrequently. “The meaning

[of the word free] is plain: free from interference or intimidation.” John V. Orth, The North

Carolina State Constitution: A Reference Guide, 56 (1993). The Free Elections Clause is

inapplicable to NCLCV Plaintiffs’ voter dilution claim.

176. Further, Plaintiffs failed to assert a claim under the Voting Rights Act of 1965

(“VRA”), and their application of the Gingles analysis, even if used in support of a VRA claim,

is insufficient—Plaintiffs failed to conduct a complete Gingles analysis. While Dr. Duchin

conducted an analysis and made findings concerning the “effective” districts for Black voters,

admittedly, she did not conduct step 1 of the Gingles analysis.

IV. Whole-County Provision Claims

177. NCLCV Plaintiffs claim that certain state legislative districts violate the

Whole County Provision of the North Carolina Constitution. While the boundaries for these

districts, noted in the findings of fact, cross county lines, the Court concludes that the

counties grouped and then divided in the formation of the specific districts at issue for this

claim were the minimum necessary, and contained the minimum number of traversals and

maintained sufficient compactness, to comply with the one-person-one-vote standard in such

254
a way that it met the equalization of population requirements set forth in Stephenson v.

Bartlett, 355 N.C. 354, 383,84, 562 S.E.2d 377, 397 (2002).

178. The Court further concludes that the manner by which the counties at issue

for this specific claim were traversed was not unlawful because it was predominantly for

traditional and permissible redistricting principles, including for partisan advantage, which

are allowed to be taken into account in redistricting.

V. Declaratory Judgment Claim Regarding the Redistricting Process Laid Out

in Stephenson I and Dickson.

179. Intervenor-Plaintiff Common Cause, in its First Claim for Relief requests that

this Court declare that

Plaintiff and its members and the voters it serves are entitled to, and
Legislative Defendants have a duty to undertake, a redistricting process that
adheres to the requirements of Article II, Sections 3 and 5 of the North
Carolina Constitution as set forth in Stephenson v. Bartlett, including a
requirement to undertake the analysis of racial data necessary to ascertain
what districts are required by the VRA.

Common Cause Complaint, ¶ 157.

180. Plaintiff Common Cause further seeks injunctive relief requiring

the North Carolina General Assembly to adhere to the requirements of Article

II, Sections 3 and 5, as set forth in Stephenson v. Bartlett, and specifically to
perform a meaningful attempt to determine whether there are any districts
compelled by the VRA, which, at a minimum, requires the consideration of
racial data to understand changing demographics and performing a racially
polarized voting analysis where the racial demographics indicate potential
VRA problems before designating county clusters required in Senate and
House legislative maps.

Common Cause Complaint, ¶ 159.

181. At the outset, the Court notes that in Stephenson v. Bartlett, 355 N.C. 354, 562

S.E.2d 377 (2002), the Supreme Court of North Carolina was asked to address whether the

legislative plans enacted in 2001 violated the Whole County Provision (WCP) of the State

Constitution. Id. 355 N.C. at 360, 520 S.E.2d at 383. The Supreme Court stated “the

255
expanded question before this Court, in light of the VRA, is whether the WCP is now entirely

unenforceable . . . or, alternatively, whether the WCP remains enforceable throughout the

State to the extent not preempted or otherwise superseded by federal law.” Id. at 369, 562

S.E.2d at 388.

182. The Court then embarked on an analysis to harmonize the WCP and VRA. The

Stephenson Court, in reconciling the VRA and WCP, required the formation of single-member

legislative districts to ensure compliance with the VRA according to the following criteria:

[L]egislative districts required by the VRA shall be formed prior to creation of

non-VRA districts. … To the maximum extent practicable, such VRA districts
shall also comply with the legal requirements of the WCP, as herein
established for all redistricting plans and districts throughout the State.

In forming new legislative districts, any deviation from the ideal population
for a legislative district shall be at or within plus or minus five percent for
purposes of compliance with federal "one-person, one-vote" requirements.

In counties having a 2000 census population sufficient to support the formation

of one non-VRA legislative district falling at or within plus or minus five
percent deviation from the ideal population consistent with "one-person, one-
vote" requirements, the WCP requires that the physical boundaries of any such
non-VRA legislative district not cross or traverse the exterior geographic line
of any such county.

When two or more non-VRA legislative districts may be created within a single
county, which districts fall at or within plus or minus five percent deviation
from the ideal population consistent with "one-person, one-vote" requirements,
single- member non-VRA districts shall be formed within said county. Such
non-VRA districts shall be compact and shall not traverse the exterior
geographic boundary of any such county.

In counties having a non-VRA population pool which cannot support at least

one legislative district at or within plus or minus five percent of the ideal
population for a legislative district or, alternatively, counties having a non-
VRA population pool which, if divided into districts, would not comply with the
at or within plus or minus five percent "one- person, one-vote" standard, the
requirements of the WCP are met by combining or grouping the minimum
number of whole, contiguous counties necessary to comply with the at or within

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 plus or minus five percent "one-person, one-vote" standard. Within any such
contiguous multi-county grouping, compact districts shall be formed,
consistent with the at or within plus or minus five percent standard, whose
boundary lines do not cross or traverse the "exterior" line of the multi-county
grouping; provided, however, that the resulting interior county lines created
by any such groupings may be crossed or traversed in the creation of districts
within said multi-county grouping but only to the extent necessary to comply
with the at or within plus or minus five percent "one-person, one-vote"
standard. The intent underlying the WCP must be enforced to the maximum
extent possible; thus, only the smallest number of counties necessary to comply
with the at or within plus or minus five percent "one- person, one-vote"
standard shall be combined, and communities of interest should be considered
in the formation of compact and contiguous electoral districts.

Id. at 355 N.C. at 381-84, 520 S.E.2d at 396-97.

183. The requirement in Stephenson that districts required by the VRA be drawn

first was put in place to alleviate the conflict and tension between the WCP and VRA. There

is nothing in Stephenson that requires any particular analysis prior to making a decision as

to whether VRA districts are necessary. In this case, having just been involved in multiple

redistricting lawsuits, the Legislative Defendants determined, based on their prior

experience, that no VRA districts were required. FOF 41-50, 52, 72. The Legislative

Defendants were open to considering any VRA analysis submitted. While counsel for

Common Cause “raised concerns,” no VRA analysis was provided to Legislative Defendants

that contradicted the Legislative Defendant’s perception of the need, or lack thereof, for VRA

districts. Whether the decision to rely on prior experience rather than an expert analysis

was prudent or wise, that is not for the Court to decide and would impermissibly intrude on

the internal decision-making processes of the Legislature. The fact is, whether correct or not,

the Legislative Defendants made a decision that no VRA Districts are required.

184. What Plaintiff Common Cause asks of this Court is to impose a judicially-

mandated preclearance requirement. Such a requirement does not exist in Stephenson.

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 185. If the Legislative Defendants are incorrect that no VRA Districts are required,

Plaintiff Common Cause has an adequate remedy at law and that is to bring a claim under

Section 2 of the VRA. Plaintiff Common Cause has made it abundantly clear that it has not

made such a claim and have presented no evidence to support such as claim.

186. For the reasons stated above, the Court concludes, as a matter of law, that

Plaintiff Common Cause is not entitled to a Declaratory Judgment or Injunctive Relief

pursuant to its First Claim for Relief.

DECREE

Having considered all of the evidence, the memoranda and arguments of counsel,

and the record proper, and based upon the foregoing Findings of Fact and Conclusions of

Law, the Court ORDERS the following:

I. Plaintiffs’ requests for Declaratory Judgment are DENIED.

II. Plaintiffs’ requests for Permanent Injunctive Relief are DENIED.

III. This Judgment fully and finally resolves all claims of all Plaintiffs raised in the
consolidated cases and Judgment is hereby entered in favor of Legislative Defendants,
and Plaintiffs Claims are hereby dismissed with prejudice.

IV. The candidate filing period for the 2022 primary and municipal elections is hereby set
and shall resume at 8:00 A.M. on Thursday, February 24, 2022 and shall continue
through and end at 12:00 noon on Friday, March 4, 2022.
SO ORDERED, this the 11th day of January, 2022.

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 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served on the persons

indicated below via e-mail transmission addressed as follows:

Burton Craige
Narendra K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
100 Europa Dr., Suite 420
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com
Counsel for Harper Plaintiffs

Stephen D. Feldman
Adam K. Doerr
Erik R. Zimmerman
ROBINSON, BRADSHAW & HINSON, P.A.
434 Fayetteville Street, Suite 1600
Raleigh, NC 27601
sfeldman@robinsonbradshaw.com
adoerr@robinsonbradshaw.com
ezimmerman@robinsonbradshaw.com
Counsel for NCLCV Plaintiffs

Allison J. Riggs
Hilary H. Klein
Mitchell Brown
Katelin Kaiser
Jeffrey Loperfido
SOUTHERN COALITION FOR
SOCIAL JUSTICE
1415 W. Highway 54, Suite 101
Durham, NC 27707
allison@southerncoalition.org
hilaryhklein@scsj.org
mitchellbrown@scsj.org
katelin@scsj.org
jeffloperfido@scsj.org
Counsel for Common Cause Plaintiff-Intervenor

1
 Phillip J. Strach
Thomas A. Farr
Alyssa M. Riggins
John E. Branch, III
NELSON MULLINS RILEY &
SCARBOROUGH LLP
4140 Parklake Avenue, Suite 200
Raleigh, NC 27612
Phillip.strach@nelsonmullins.com
Tom.farr@nelsonmullins.com
Alyssa.riggins@nelsonmullins.com
John.Branch@nelsonmullins.com
Counsel for Legislative Defendants

Terence Steed
Amar Majmundar
Stephanie A. Brennan
NORTH CAROLINA DEPARTMENT
OF JUSTICE
Post Office Box 629
Raleigh, NC 27602
tsteed@ncdoj.gov
amajmundar@ncdoj.gov
sbrennan@ncdoj.gov
Counsel for State Board Defendants

Service is made upon local counsel for all attorneys who have been granted pro hac vice

admission, with the same effect as if personally made on a foreign attorney within this state.

This the 11th day of January 2022.

/s/ Kellie Z. Myers

Kellie Z. Myers
Trial Court Administrator
10th Judicial District
Kellie.Z.Myers@nccourts.org