Patrick McCrory and A. Grant Whitney, Jr. v. David Harris and Christine Bowers

WAS THE GENERAL ASSEMBLY’S REDISTRICTING PLAN RACIALLY OR POLITICALLY MOTIVATED?

Patrick McCrory and A. Grant Whitney, Jr. argue that the General Assembly sought to maximize political opportunities for the Republican Party with CD12, and acknowledge that the General Assembly intentionally drew CD1 as a majority-minority district. Specifically, McCrory and Whitney argue that there is overwhelming evidence that the General Assembly drew CD12’s lines for political reasons. They claim that, instead of the traditional “unpacking” of voters, the General Assembly tried to concentrate likely Democratic Party voters in certain districts to make others more competitive for the Republican Party. Regarding CD1, McCrory and Whitney argue that the redistricting plans satisfy the factors established by the Court in Thornburg v. Gingles, 478 U.S. 30 (1986), in order to make a successful voter dilution claim under Section II of the Voting Rights Act of 1965 (“VRA”). The Gingles test is satisfied if: (1) a minority group is “sufficiently large and geographically compact to constitute a majority in a single member district,” (2) the group is “politically cohesive,” and (3) the majority votes “as a bloc.” McCrory and Whitney contend that, first, CD1 was a majority-minority district in the past and, by 2001, it had a black voting-age population of 48.63% and a black registered-voter percentage of 50.66%. In support of the second and third factors, McCrory and Whitney claim that the General Assembly had strong evidence of racially polarized voting and majority bloc voting. McCrory and Whitney cite past federal court decisions affecting the district, two expert reports, and testimony from community members in support of their claims. Furthermore, McCrory and Whitney argue that the district court erred by focusing on whether earlier versions of the CD1 were consistent with the VRA, rather than analyzing whether the State had good reasons for thinking that drawing CD1 as a majority-minority district would avoid future VRA liability. Thus, McCrory and Whitney conclude that race was not a predominant factor in the 2011 redistricting of either CD1 or CD12.

By contrast, David Harris and Christine Bowser argue that both direct and circumstantial evidence demonstrates that racial factors influenced the General Assembly’s redistricting plans for CD1 and CD12. Regarding CD1, Harris and Bowser cite testimony from its map drawer that the plan’s architects instructed him to focus primarily on drawing CD1 as a majority black voting-age population district. Furthermore, Harris and Bowser point to the non-compactness of CD1, the splitting of county lines, and the assignment of black voters to CD1 over adjoining districts as evidence that the General Assembly hoped to concentrate a precise racial percentage in CD1. Harris and Bowser also refute the necessity of drawing CD12 as a minority-majority district. Similar to their argument regarding CD1, Harris and Bowser argue that CD12 is a non-compact district and argue that McCrory and Whitney’s claim that politics, not race, motivated their behavior is an ad hoc rationalization. Harris and Bowser also refute the credibility of the appellants’ witness, Dr. Hofeller, by citing inconsistencies in his expert reports. Instead, Harris and Bowser offer testimony from Dr. Ansolabehere that conveys that black registration is a better indicator for voting behavior than the black voting-age population.

DOES CD1 SATISFY STRICT SCRUTINY?

The Court previously determined that, similar to other race-based classifications, race-based redistricting must satisfy strict scrutiny if it was a predominant factor in the legislature’s decision to locate or remove voters from specific districts. Strict scrutiny places the burden on the defendant to demonstrate that the predominant use of race was narrowly tailored to a compelling government interest. Regarding CD1, McCrory and Whitney argue that although the Court has not held that VRA compliance is a compelling government interest, the appellants need only to prove that it had “good reasons” or a “strong basis of evidence” to consider race as it did. Accordingly, they argue that some flexibility and deference should be granted when states engage in good faith efforts to comply with the VRA so that they are not put in an unreasonable position between complying with the VRA and the Constitution.

Harris and Bowser argue that the General Assembly’s use of race in CD1 was not narrowly tailored to a compelling government interest. Rather, Harris and Bowser point to the third factor in the Gingles test to argue that the General Assembly was not facing liability under the VRA. The third Gingles factor requires a defendant to demonstrate that the white majority was voting in a bloc to defeat minority-preferred candidates. Harris and Bowser argue that McCrory and Whitney overlooked minority candidates’ past success at winning elections in the district. Thus, the district did not meet the Gingles condition of bloc voting that would warrant creating a majority-minority district.

DOES CROMARTIE II REQUIRE AN ALTERNATIVE PLAN?

McCrory and Whitney assert that the district court’s decision should be reversed because Harris and Bowser failed to produce an alternative map that achieves the legislature’s goals while also improving racial balance. Regardless of any direct or circumstantial evidence or racial predominance, McCrory and Whitney argue that according to Cromartie II, all gerrymandering plaintiffs must offer an alternative plan where majority-minority districts are considered and where racial make-up strongly correlates with political affiliation in order to satisfy the demanding burden of proof. The district court did not require the Harris and Bowser to submit an alternative map, which McCrory and Whitney argue was error.

Harris and Bowser disagree and argue that an alternative plan is not necessary where other evidence strongly conveys racial predominance. They contend that McCrory and Whitney mistakenly analogize this case to Cromartie II, where the plaintiffs suffered from evidentiary issues. Appellees argue that when a court has compelling direct and circumstantial evidence, as is the case here, an alternative plan is not necessary.

DOES COLLATERAL ESTOPPEL BAR THE APPELLEE’S CLAIMS?

McCrory and Whitney argue that the federal suit should have been barred as a result of collateral estoppel. Collateral estoppel reduces repetitive litigation and produces comity between the federal and state courts because it prohibits litigation of a judgment on the merits by the same parties or their privies. McCrory and Whitney contend that plaintiffs were privies in a previous state action that involved identical claims and that to allow plaintiffs an opportunity to re-litigate their claims in a federal court would disrespect the sovereignty of the states. McCrory and Whitney also argue that, at a minimum, a district court should grant deference to findings of a state court that are directly on point even if a federal suit is not precluded by law.

Harris and Bowser reject McCrory and Whitney’s claims that the suit should be barred by collateral estoppel because they fail to mention that a three-judge panel (“the Panel”) previously denied their motion for summary judgment on these grounds. The Panel ruled that there were factual disputes and unanswered issues of state law, which prohibited dismissal. Harris and Bowser contend that McCrory and Whitney subsequently abandoned their collateral estoppel argument, and thus have not preserved the issue for appeal. In addition, Harris and Bowser note that, even if the issue had been preserved, Harris and Bowser testified that they were not members of the plaintiff’s organization in the state suit, nor did they authorize any party to that case to act on their behalf, thereby permitting the suit to move forward.