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North Carolina
Stephenson v. Bartlett, No. 1 CV 02885 (Superior Court, Johnston Co., Feb. 20, 2002)
On February 15, 2002, four days after the Justice Department told the State that its House and Senate district plans met the requirements of the Voting Rights Act, a state court ruled from the bench that the plans violated a provision of the North Carolina constitution that requires counties to be kept whole when drawing state House and Senate districts. The state court declined to enjoin use of the districts for the 2002 election, for which filings were to open on February 18, suggesting that new plans could be drawn by the General Assembly in 2003 to govern elections in 2004 and beyond.
On February 20, in its written order, the court did not discuss, distinguish, or mention the opinion of the federal district court in Cavanagh v. Brock, 577 F. Supp. 176 (E.D. N.C. 1983), that the North Carolina constitutional provision prohibiting dividing counties was unenforceable under § 5 of the Voting Rights Act in the 40 counties subject to that section because it was not precleared, and unenforceable in North Carolina’s other 60 counties because it was not severable. The court enjoined use of the districts for the 2002 election, but stayed its order unless and until the stay was removed by the North Carolina Court of Appeals or North Carolina Supreme Court, and also until the order was precleared under § 5 of the Voting Rights Act. The court requested the parties to submit a proposed deadline for the General Assembly to redraw the districts and offered to draw a remedial plan for the 2002 election if the deadline were not met and if so directed by the appellate court.
Stephenson v. Bartlett, No. 94P02 (N.C. Feb. 26, 2002)
Without lifting the stay of the Superior Court order holding the North Carolina State House and Senate plans enacted in 2001 to be unconstitutional as dividing too many counties, the North Carolina Supreme Court ordered an expedited appeal schedule. Oral arguments were scheduled for April 4 (candidate filing for the May 7 primary was scheduled to end on March 1, mail-in absentee voting was to be underway by late-March).
Stephenson v. Bartlett (Stephenson I), No. 94PA02, 355 N.C. 354, 562 S.E.2d 377 (Apr. 30, 2002), stay denied 535 U.S. 1301 (May 17, 2002) (Rehnquist, Circuit Justice, in chambers)
The North Carolina Supreme Court affirmed the superior court holding that North Carolina State Senate and State House plans were unconstitutional because of a state constitutional provision saying no counties could be divided, but said that the no-divided-counties provision has limited applicability. First, minority districts must be created to satisfy the Voting Rights Act. Then, counties with enough members for exact multiples of seats must be subdivided into single-member districts while respecting the outer boundary of the county. Then, groups of counties must be assembled and divided into single member districts that respect the outer boundary of the group of counties. The new plan must not cause the opportunities for minorities to regress, using the 2001 precleared plan as the benchmark. The district court was ordered to hold an expedited hearing on whether the General Assembly was capable of redrawing the districts in time for the 2002 election. If not, the district court was authorized to impose a temporary plan of its own for use in the 2002 election, subject to being precleared.
Stephenson v. Bartlett, No. 1 CV 02885 (Superior Court, Johnston Co., May 31, 2002)
After the General Assembly enacted new House and Senate plans on May 17, Superior Court Judge Knox V. Jenkins threw them out and drew maps of his own. The court’s House plan was a modification of the one adopted by the General Assembly. The court’s Senate plan was a modification of one submitted to the court by the plaintiffs.
Stephenson v. Bartlett, No. 94PA02 (N.C. June 4, 2002)
The North Carolina Supreme Court denied the State’s request to stay enforcement of the Superior Court’s order and a motion to expedite hearing the State’s appeal. A hearing on the appeal was not likely until January, meaning that the 2002 election was likely to be run using the plans adopted by the Superior Court May 31, 2002.
Board of Elections v. United States, No. 02-1174 (D.D.C. June 27, 2002)
The complaint sought preclearance of both the North Carolina Supreme Court decision of April 30, 2002, in the Stephenson case and the interim plans adopted by the Superior Court May 31, 2002. In the complaint, the State took no position on whether the opinion in Stephenson or the interim plans should be precleared, but said that the federal court was the best forum to resolve those issues. On June 27, 2002, a three-judge court denied the State's motion for a temporary restraining order and preliminary injunction, saying there was no showing of irreparable harm, since the state court plan would not be implemented without Section 5 preclearance and the federal court for the Eastern District of North Carolina could further compress the election schedule to allow a second primary (presumably buying some time by having less than four weeks between the two primaries). The court declined to decide whether it had jurisdiction to issue the orders, saying that the federal court in two pending cases in the Eastern District of North Carolina, Sample v. Jenkins, No. 20-CV-383 (E.D.N.C. filed June 13, 2002) and Foreman v. Bartlett, No. 01-CV-166 (E.D.N.C. filed Nov. 13, 2001) would have authority to grant relief. The court noted that the Department of Justice would have a decision on the Section 5 submittals of the Stephenson case and the Jenkins plan by the week of July 8, 2002.
Sample v Jenkins, No. 20-CV-383 , (E.D. N.C. July 2, 2002)
A three-judge court unanimously denied the State’s motion for a preliminary injunction to conduct the 2002 state legislative election under the precleared legislatively-enacted 2001 plan, rather than an interim state court ordered plan that was still pending Section 5 preclearance at the Department of Justice.
On July 12, 2002, the Department of Justice precleared both the new interpretation of the North Carolina constitutional requirement to preserve whole counties announced in the Stephenson decision and the new legislative districts drawn by Judge Jenkins.
Stephenson v. Bartlett (Stephenson II), No. 94PA02-2, 357 N.C. 301, 582 S.E.2d 247 (July 16, 2003)
The appeal of the May 31, 2002, decision of the Superior Court holding unconstitutional both the Senate and House plans drawn by the General Assembly was heard on the merits by the North Carolina Supreme Court on March 10, 2003. On March 14, the court certified the matter to the trial court for additional findings of fact. On April 17, 2003, the trial court certified the additional findings of fact to the Supreme Court. On July 16, 2003, the North Carolina Supreme Court affirmed the decision of the trial court holding both Senate and House plans invalid. It noted the trial court had found that the House plan violated § 2 of the Voting Rights Act because it did not create a second “VRA” district in Wake County, which plaintiffs’ plan showed it was possible to do, and that the Senate plan violated § 2 of the Voting Rights Act because it did not create “VRA” districts in Wake, Mecklenburg, and Forsyth counties that were as “effective” as those drawn by plaintiffs. No. 94PA02-2, slip op. at 8-9. The trial court had found that both Senate and House plans violated the requirement of the state constitution that “[e]ach . . . district shall at all times consist of contiguous territory.” N.C Const., art. II, §§ 3(2), 5(2). No. 94PA02-2, slip op. at 10. The trial court had opined that “the mathematical concept of ‘point contiguity’ does not meet the Stephenson criteria for contiguity . . . .” and held that “the term ‘contiguity,’ as used in Stephenson, means that two districts must share a common boundary that touches for a non-trivial distance . . . .” No. 94PA02-2, slip op. at 15. The trial court had found that both the Senate and House plans violated the whole-county provision (WCP) of the state constitution, N.C Const., art. II, §§ 3(3), 5(3), because plaintiffs’ plan showed that it was possible to keep more counties whole without violating federal law. No. 94PA02-2, slip op. at 9. The trial court had found that both the Senate and House plans violated the direction of the North Carolina Supreme Court that “non-VRA districts shall be compact” (referring to Stephenson v. Bartlett, 355 N.C. 354, 383, 562 S.E.2d 377, 397 (2002) (“Stephenson I”)). Finally, the trial court had found that both plans unnecessarily divided communities of interest, No. 94PA02-2, slip op. at 11-15, contrary to the mandate of Stephenson I that “communities of interest should be considered in the formation of compact and contiguous districts.” 355 N.C. at 384, 562 S.E.2d at 397.
Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (Apr. 22, 2004)
On November 25, 2003, along with the new legislative redistricting plan it enacted in compliance with the North Carolina Supreme Court’s decision of July 16, 2003, the General Assembly enacted 2003 N.C. Session Law 434, §§ 7-11, codified at N.C.G.S. §§ 1-81.1, 1-267.1, 120-2.3, and 120-2.4, which provided that venue in any action involving redistricting lies exclusively with the Superior Court, Wake County and that legal challenges to legislative redistricting plans must be heard by a three-judge panel appointed by the Chief Justice of the North Carolina Supreme Court. No judge who had been a member of the General Assembly could serve on the panel. Redistricting actions pending in a court other than Superior Court, Wake County, had to be transferred to that court. If a court were to find a redistricting plan flawed, the General Assembly would have to be given an opportunity to correct any defects before the court imposed a substitute plan. Plaintiffs challenged the constitutionality of the law. The North Carolina Supreme Court held that: (1) the session law establishing three-judge panels for challenges to redistricting plans and placing venue for the challenges in Wake County could be applied to plaintiffs; (2) the three-judge panel requirement did not unconstitutionally create a new court; (3) the venue provision was constitutional; and (4) the three-judge panel requirement did not unconstitutionally infringe on the Chief Justice’s powers.
Pender County v. Bartlett, No. 103A06, 361 N.C. 491, 649 S.E.2d 364 (Aug. 24, 2007), aff’d sub nom. Bartlett v. Strickland, No. 07-689 (Mar. 9, 2009)
The 2003 General Assembly enacted a new legislative redistricting plan, Act of Nov. 25, 2003, ch. 434, 2003 N.C. Sess. Laws (1st Extra Sess. 2003) 1313. Past election results in North Carolina had demonstrated that a legislative district with an African American voting age population of at least 38.37 percent created an opportunity for African Americans to elect a candidate of their choice. In the area that encompassed Pender and New Hanover Counties, it was possible to draw a House district with an African American voting age population in excess of that threshold. In accordance with what the General Assembly said were the requirements of § 2 of the Voting Rights Act, chapter 434 divided Pender County between House District 16 and House District 18, with District 18 having an African American voting age population of 39.36 percent. Pender County sued various officials of the State Board of Elections, the General Assembly, and the executive branch, alleging that chapter 434 violated the whole-county provision (WCP) of the state constitution, N.C Const., art. II, §§ 3(3), 5(3). Defendants responded that the division of Pender County was required by § 2 of the Voting Rights Act, which trumped the State Constitution. The Chief Justice appointed a three-judge panel to consider the case. The panel denied a motion to enjoin use of chapter 434 for the 2004 election. The panel found that House District 18 was a crossover district, where African Americans enjoyed reliable support from some members of the White majority who crossed over racial lines and voted for the minority’s preferred candidate, allowing that candidate to be elected. Therefore, the panel concluded that dividing Pender County was required by § 2 of the Voting Rights Act.
On appeal, the North Carolina Supreme Court reversed. It recognized four distinct types of minority districts: (1) “majority-minority” districts, (2) “coalition” districts, (3) “crossover” districts, and (4) “influence” districts. It observed that the courts of appeals in five federal circuits (4th, 5th, 7th, 10th, and 11th) had held that nothing less than a “majority-minority” district, i.e., a minority population of at least 50 percent of the voting age population, was sufficient to make out a violation of § 2, and that no circuit had held that § 2 could be satisfied by the creation of a coalition, crossover, or influence district. The Court also noted that citizenship must be considered, so that a majority of the voting age population who are citizens is required. It found the use of a “bright line rule” to be more practical than one requiring an assessment of past voting behavior and a prediction of future voting trends. It would provide the General Assembly with a safe harbor when drawing districts and foreclose marginal claims by minority groups with smaller populations. In view of the fact that the General Assembly was not scheduled to reconvene until after the close of filings for the 2008 election, the Court stayed its order requiring the General Assembly to redraw the districts until after the 2008 election.
Bartlett v. Strickland, No. 07-689 (Mar. 9, 2009)
On appeal, a 5-4 majority of the U.S. Supreme Court affirmed the decision of the North Carolina Supreme Court. In an opinion by Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, the Court held that § 2 of the Voting Rights Act does not require creation of a district in which a minority population has a fair opportunity to elect a representative of its choice if the minority would constitute less than a majority of the voting age population in the district. On the other hand, the Court said that “Our holding does not apply to cases in which there is intentional discrimination against a racial minority.” Slip op. at 15. The Court also endorsed the voluntary use of crossover districts to comply with § 2 and to maximize minority voting strength. Slip op. at 19-21. Justices Thomas and Scalia concurred in the judgment. Justices Souter, Stevens, Ginsburg, and Breyer dissented.
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