Harper v. Hall

• Court: Supreme Court of North Carolina
• Decided: February 14, 2022
• Docket: 413PA21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-17

No. 413PA21

Filed 14 February 2022

REBECCA HARPER; AMY CLARE OSEROFF; DONALD RUMPH; JOHN ANTHONY BALLA; RICHARD R. CREWS; LILY NICOLE QUICK; GETTYS COHEN, JR.; SHAWN RUSH; JACKSON THOMAS DUNN, JR.; MARK S. PETERS; KATHLEEN BARNES; VIRGINIA WALTERS BRIEN; and DAVID DWIGHT BROWN

v. REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; SENATOR RALPH HISE, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; SENATOR PAUL NEWTON, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, TIMOTHY K. MOORE; PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE, PHILIP E. BERGER; THE NORTH CAROLINA STATE BOARD OF ELECTIONS; and DAMON CIRCOSTA, in his official capacity

NORTH CAROLINA LEAGUE OF CONSERVATION VOTERS, INC.; HENRY M. MICHAUX, JR.; DANDRIELLE LEWIS; TIMOTHY CHARTIER; TALIA FERNÓS; 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

v.

REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; SENATOR RALPH E. HISE, JR., in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; SENATOR PAUL NEWTON, in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting and Elections; REPRESENTATIVE TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of HARPER V. HALL

Opinion of the Court

Representatives; SENATOR PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA STATE BOARD OF ELECTIONS; DAMON CIRCOSTA, in his official capacity as Chairman of the North Carolina State Board of Elections; STELLA ANDERSON, in her official capacity as Secretary of the North Carolina State Board of Elections; JEFF CARMON III, in his official capacity as Member of the North Carolina State Board of Elections; STACY EGGERS IV, in his official capacity as Member of the North Carolina State Board of Elections; TOMMY TUCKER, in his official capacity as Member of the North Carolina State Board of Elections; and KAREN BRINSON BELL, in her official capacity as Executive Director of the North Carolina State Board of Elections

Appeal pursuant to N.C.G.S. § 7A-27(b)(1) from the unanimous decision of a

three-judge panel of the Superior Court in Wake County, denying plaintiffs’ claims

and requests for Declaratory Judgment and Permanent Injunctive Relief. On 8

December 2021, pursuant to N.C.G.S. § 7A-31 and Rule 15(e) of the North Carolina

Rules of Appellate Procedure, the Supreme Court allowed plaintiffs’ petitions for

discretionary review prior to determination by the Court of Appeals. Heard in the

Supreme Court on 2 February 2022.

Patterson Harkavy LLP, by Narendra K. Ghosh, Burton Craige, and Paul E. Smith; Elias Law Group LLP, by Abha Khanna, Lalitha D. Madduri, Jacob D. Shelly, and Graham W. White; and Arnold and Porter Kaye Scholer LLP, by Elisabeth S. Theodore, R. Stanton Jones, and Samuel F. Callahan, for Harper plaintiff-appellants.

Robinson, Bradshaw & Hinson, P.A., by Stephen D. Feldman, John R. Wester, Adam K. Doerr, and Erik R. Zimmerman; and Jenner & Block LLP, by Sam Hirsch, Jessica Ring Amunson, Zachary C. Schauf, Karthik P. Reddy, and Urja HARPER V. HALL

Mittal, for North Carolina League of Conservation Voters, Inc. plaintiff- appellants.

Southern Coalition for Social Justice, by Hilary H. Klein, Allison J. Riggs, Mitchell Brown, Katelin Kaiser, Jeffrey Loperfido, and Noor Taj; and Hogan Lovells US LLP, by J. Tom Boer and Olivia T. Molodanof, for Common Cause plaintiff-appellant.

North Carolina Department of Justice, by Amar Majmundar, Senior Deputy Attorney General, and Terence Steed, Mary Carla Babb, and Stephanie A. Brennan, Special Deputy Attorneys General, for State defendant-appellees.

Nelson Mullins Riley & Scarborough, LLP, by Phillip J. Strach, Alyssa M. Riggins, John Branch, and Thomas A. Farr; and Baker & Hostetler LLP, by Katherine L. McKnight and E. Mark Braden, for Legislative Defendants defendant-appellees.

Abraham Rubert-Schewel, Chris Lamar, and Orion de Nevers, for Campaign Legal Center, amicus curiae.

Haynsworth Sinkler Boyd, P.A., by William C. McKinney, Jonathan D. Klett and Sara A. Sykes; and States United Democracy Center, by Christine P. Sun and Ranjana Natarajan, for former governors, amici curiae.

Poyner Spruill LLP, by Edwin M. Speas Jr. and Caroline P. Mackie, for Buncombe County Board of Commissioners, amicus curiae.

Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, and Zachary W. Ezor, Solicitor General Fellow, for Governor Roy A. Cooper II and Attorney General Joshua H. Stein, amici curiae.

Phelps Dunbar LLP, by Nathan A. Huff and Jared M. Burtner, for National Republican Congressional Committee, amicus curiae.

Forward Justice, by Kathleen E. Roblez, Caitlin A. Swain, Daryl V. Atkinson, Ashley M. Mitchell, and Aviance Brown; and Irving Joyner for NC NAACP, amicus curiae. HARPER V. HALL

Poyner Spruill LLP, by Caroline P. Mackie, for Professor Charles Fried, amicus curiae.

HUDSON, Justice.

¶1 Today, we answer this question: does our state constitution recognize that the

people of this state have the power to choose those who govern us, by giving each of

us an equally powerful voice through our vote? Or does our constitution give to

members of the General Assembly, as they argue here, unlimited power to draw

electoral maps that keep themselves and our members of Congress in office as long

as they want, regardless of the will of the people, by making some votes more powerful

than others? We hold that our constitution’s Declaration of Rights guarantees the

equal power of each person’s voice in our government through voting in elections that

matter.

¶2 In North Carolina, we have long understood that our constitution’s promise

that “[a]ll elections shall be free” means that every vote must count equally. N.C.

Const. art. I, § 10. As early as 1875, this Court declared it “too plain for argument”

that the General Assembly’s malapportionment of election districts “is a plain

violation of fundamental principles.”1 People ex rel. Van Bokkelen, v. Canaday, 73

N.C. 198, 225 (1875). Likewise, this Court has previously held that judicial review

1 Even earlier, in 1787, this Court held that the courts must interpret the constitution

and invalidate laws that violate it. Bayard v. Singleton, 1 N.C. (Mart.) 5, 7 (1787). HARPER V. HALL

was appropriate in legislative redistricting cases to enforce the requirements of the

state constitution, even when doing so means interpreting state constitutional

provisions more expansively than their federal counterparts. See Stephenson v.

Bartlett, 355 N.C. 354, 379–82 (2002).

¶3 “A system of fair elections is foundational to self-government.” Comm. to Elect

Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 86 (Newby,

C.J., concurring in the result). While partisan gerrymandering is not a new tool,

modern technologies enable mapmakers to achieve extremes of imbalance that, “with

almost surgical precision,”2 undermine our constitutional system of government.3

Indeed, the programs and algorithms now available for drawing electoral districts

have become so sophisticated that it is possible to implement extreme and durable

partisan gerrymanders that can enable one party to effectively guarantee itself a

supermajority for an entire decade, even as electoral conditions change and voter

2 We note this expression was coined to describe the precision with which the North

Carolina General Assembly targeted African American voters through the identification and exclusion of various forms of voter photo identification. N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016). We believe it is equally apt as a description of the technical proficiency with which legislators across the country dilute the power of votes through the drawing of district lines. 3 In fact, the term “gerrymander” was coined in 1812 after the redrawing of

Massachusetts Senate election districts to ensure the advantage of the Democratic- Republican Party under then-Governor Elbridge Gerry, in reference to a district drawn in a manner so contrived that it was said to resemble a salamander. The gerrymander was successful, as although the Federalist Party ousted Governor Gerry and flipped the Massachusetts House in the 1812 election, the Democratic-Republicans retained control of the state senate under this map. See Elmer C. Griffith, The Rise and Development of the Gerrymander 73–77 (1907). HARPER V. HALL

preferences shift. Fortunately, the technology that makes such extreme

gerrymanders possible likewise makes it possible to reliably evaluate the partisan

asymmetry of such plans and review the extent to which they depart from and

subordinate traditional neutral redistricting principles.

¶4 Partisan gerrymandering creates the same harm as malapportionment, which

has previously been held to violate the state constitution: some peoples’ votes have

more power than others. But a legislative body can only reflect the will of the people

if it is elected from districts that provide one person’s vote with substantially the

same power as every other person’s vote. In North Carolina, a state without a citizen

referendum process and where only a supermajority of the legislature can propose

constitutional amendments, it is no answer to say that responsibility for addressing

partisan gerrymandering is in the hands of the people, when they are represented by

legislators who are able to entrench themselves by manipulating the very democratic

process from which they derive their constitutional authority. Accordingly, the only

way that partisan gerrymandering can be addressed is through the courts, the branch

which has been tasked with authoritatively interpreting and enforcing the North

Carolina Constitution.

¶5 Here, the General Assembly enacted districting maps for the United State

Congress, the North Carolina House of Representatives, and the North Carolina

Senate that subordinated traditional neutral redistricting criteria in favor of extreme HARPER V. HALL

partisan advantage by diluting the power of certain people’s votes.4 Despite finding

that these maps were “extreme partisan outliers[,]” “highly non-responsive” to the

will of the people, and “incompatible with democratic principles[,]” the three-judge

panel below allowed the maps to stand because it concluded that judicial action

“would be usurping the political power and prerogatives” of the General Assembly.

¶6 We emphatically disagree. Although the task of redistricting is primarily

delegated to the legislature, it must be performed “in conformity with the State

Constitution.” Stephenson, 355 N.C. at 371. It is thus the solemn duty of this Court

to review the legislature’s work to ensure such conformity using the available

judicially manageable standards. We will not abdicate this duty by “condemn[ing]

complaints about districting to echo into a void.” Rucho v. Common Cause, 139 S. Ct.

2484, 2507 (2019). Today, we hold that the enacted maps violate several rights

guaranteed to the people by our state constitution. Accordingly, we reverse the

judgment of the trial court below and remand this case back to that court to oversee

the redrawing of the maps by the General Assembly or, if necessary, by the court.

¶7 Our dissenting colleagues have overlooked the fundamental reality of this case.

Rather than stepping outside of our role as judicial officers and into the policymaking

realm, here we are carrying out the most fundamental of our sacred duties: protecting

4 The 2021 enacted plans for Congress, the North Carolina House of Representatives,

and the North Carolina Senate have been attached in an appendix for ease of reference. HARPER V. HALL

the constitutional rights of the people of North Carolina from overreach by the

General Assembly. Rather than passively deferring to the legislature, our

responsibility is to determine whether challenged legislative acts, although presumed

constitutional, encumber the constitutional rights of the people of our state. Here, our

responsibility is to determine whether challenged apportionment maps encumber the

constitutional rights of the people to vote on equal terms and to substantially equal

voting power. This role of the courts is not counter to precedent but was one of the

earliest recognized. In 1787, in Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787), in a

passage quoted by the dissenters, the Court held that it must step in to keep the

General Assembly from taking away the state constitutional rights of the people, and

“if the members of the General Assembly could do this, they might with equal

authority . . . render themselves the Legislators of the State for life, without any

further election of the people[,]” id. at 7. This we cannot countenance.

¶8 The dissenters here do not challenge in any way, as Legislative Defendants

presented no evidence at trial to disprove, the extensive findings of fact of the trial

court, to the effect that the enacted plans are egregious and intentional partisan

gerrymanders, designed to enhance Republican performance, and thereby give a

greater voice to those voters than to any others. Instead, they attempt at some length

to justify our taking no action to correct the constitutional violations or to ignore them

altogether. For example, while acknowledging that the “right to vote on equal terms HARPER V. HALL

is a fundamental right,” citing Northampton Cnty. Drainage Dist. No. One v. Bailey,

326 N.C. 742, 747 (1990) (emphasis by the dissent), the dissent asserts, contrary to

the findings and the extensive evidence at the trial and with no citation to the record

or other authority, that “partisan gerrymandering has no significant impact upon the

right to vote on equal terms.”

¶9 Our contrary view is the beating heart of this case. Accordingly, we must act

as a Court to make sure that the rights of the people are treated with proper respect.

In so doing, we are protecting the individual rights of voters to cast votes that matter

equally, as guaranteed by our constitution in article I, sections 10, 12, 14, and 19:

Sec. 10. Free elections. All elections shall be free.

Sec. 12. Right of assembly and petition. 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; . . . .

Sec. 14. Freedom of speech and press. 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.

Sec. 19. Law of the land; equal protection of the laws. . . . No person shall be denied the equal protection of the laws; . . . .

N.C. Const. art. I, §§ 10, 12, 14, 19. We ground our decision in the text, structure,

history, and intent of these provisions from the Declaration of Rights. HARPER V. HALL

¶ 10 Despite the dissenters’ repeated assertions, we seek neither proportional

representation for members of any political party, nor to guarantee representation to

any particular group. We are only upholding the rights of individual voters as

guaranteed by our state constitution. As the dissenters have noted, in Deminski and

Corum, this Court has recently recognized and even expanded the role of the Court

to interpret and protect individual rights enumerated in the state constitution.

¶ 11 In this opinion, we give as much direction as appropriate to the General

Assembly while fully respecting their authority to proceed first in the effort to draw

maps that meet constitutional standards. Should they be unable to do so or if they

produce maps that fail to protect the constitutional rights of the people, the trial court

may select maps by the process it deems best, subject to our review, in accordance

with the timeline already set out in our order of 4 February 2022.

I. Factual and Procedural Background

A. Redistricting Process

¶ 12 Article II, sections 3 and 5 of the North Carolina Constitution require that

“[t]he General Assembly, at the first regular session convening after the return of

every decennial census of population taken by order of Congress, shall revise the

[legislative] districts and the apportionment of Senators [and Representatives]

among those districts, subject to [certain] requirements[.]” N.C. Const. art. II § 3, 5.

This redistricting authority is subject to limitations contained in the North Carolina HARPER V. HALL

Constitution, including both in the provisions allocating the initial redistricting

responsibility to the General Assembly and in other provisions which have been

interpreted by this Court to be applicable to the redistricting process. See, e.g.,

Stephenson, 355 N.C. 354; Blankenship v. Bartlett, 363 N.C. 518 (2009). Additionally,

the General Assembly must comply with all applicable provisions of federal law,

including federal one-person-one-vote requirements and the Voting Rights Act, under

Article I, sections 3 and 5 of the North Carolina Constitution. See id.

¶ 13 On 12 February 2021, the United States Census Bureau announced that its

release of the 2020 census data would be delayed by the COVID-19 pandemic and

would not be released until the fall of 2021. On 24 February 2021, North Carolina

State Board of Elections Executive Director Karen Brinson Bell recommended to the

House Elections Law and Campaign Finance Reform Committee that the 2022

primary elections be delayed to a 3 May primary, 12 July second primary, and 8

November general election. The Committee, however, “did not follow the Board’s

recommendations to delay the primaries and provide more time for the redistricting

cycle.” The full census data was ultimately released to the states on 12 August 2021.

¶ 14 On 5 August 2021, the General Assembly’s Senate Committee on Redistricting

and Elections and House Redistricting Committee convened a Joint Meeting to begin

the discussion on the redistricting process. On 9 August 2021, the chairs of the Joint

Redistricting Committee released its “2021 Joint Redistricting Committee Proposed HARPER V. HALL

Criteria.” During the subsequent public comment period and committee debate,

several citizens (including counsel for plaintiff Common Cause) and legislators

(including Senate Minority Leader Dan Blue Jr.) urged the committee to change the

criteria, which mandated a “race-blind” approach, to allow for the consideration of

racial data in order to ensure compliance with the Voting Rights Act (VRA). The Joint

Committee rejected these proposals. On 12 August 2021, the Joint Committee

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 HARPER V. HALL

lines shall not be traversed except as authorized by Stephenson I, Stephenson II, Dickson I, and Dickson II.

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. HARPER V. HALL

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.

¶ 15 On 5 October 2021, after thirteen public hearings across the state during the

month of September, the House and Senate redistricting committees convened

separately to begin the redistricting process. The committee chairs announced that

beginning on 6 October 2021, computer stations would be available in two rooms for

legislators to draw potential maps. These stations would be open during business

hours, and both the rooms and the screens of the station computers would be live-

streamed and available for public viewing while the stations were open. In an

apparent effort to show transparency and instill public confidence in the redistricting

process, Legislative Defendants “requir[ed] legislators to draw and submit maps

using software on computer terminals in the redistricting committee hearing rooms.

That software did not include political data, and the House and Senate Committees

would only consider maps drawn and submitted on the software.” “According to

Representative [Destin] Hall, [Chair of the House Standing Committee on

Redistricting,] 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.’ ” HARPER V. HALL

¶ 16 However, “[w]hile 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.”

For instance, between sessions at the public computer terminals, Representative

Hall, who “personally drew nearly all of the House map [later] enacted[,] . . . met with

his then-General Counsel . . . and others about the map-drawing in a private room

adjacent to the public map-drawing room.” During these meetings, and sometimes

while sitting at the public terminals, Representative Hall viewed “concept maps”

created on an unknown computer and using unknown software and data.5 Further,

“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.”

¶ 17 Proposed versions of the congressional and House maps were filed on 28 and

29 October 2021 and then passed several readings in each chamber without

alteration. A proposed version of the Senate map was filed on 29 October 2021. On 1

November 2021 the Senate Redistricting Committee adopted a substitute map. On 2

5 On 21 December 2021, during trial, the court ordered Legislative Defendants to

produce these “concept maps” and related materials. Legislative Defendants never did so. Instead, Legislative Defendants asserted in verified interrogatory responses that “the concept maps that were created were not saved, are currently lost[,] and no longer exist.” HARPER V. HALL

November 2021, the Committee adopted two amendments offered by Senator

Natasha Marcus and Senator Ben Clark, respectively. On 3 and 4 November 2021,

the final versions of each map passed several readings in each chamber without

further alteration.

¶ 18 On 4 November 2021, the congressional, House, and Senate reapportionment

maps were ratified into law as S.L. 2021-174, S.L. 2021-175, and S.L. 2021-173,

respectively. Each map passed along strict party-line votes in each chamber.

B. Litigation

¶ 19 On 16 November 2021, 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 (NCLCV

Plaintiffs) filed a complaint against Legislative Defendants (Civil Action No. 21 CVS

015426) contemporaneously with a Motion for Preliminary Injunction pursuant to

Rules 7(b) and 65 of the North Carolina Rules of Civil Procedure. NCLCV Plaintiffs’

complaint alleged

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 HARPER V. HALL

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).

¶ 20 On 18 November 2021, 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 (Harper Plaintiffs) filed a complaint against Legislative Defendants (Civil

Action No. 21 CVS 500085) and a Motion for Preliminary Injunction pursuant to Rule

65 and N.C.G.S. § 1-485. On 13 December 2021, Harper Plaintiffs amended their

complaint. Harper Plaintiffs’ complaint “allege[d] 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.”

¶ 21 On 19 and 22 November 2021, “the NCLCV and Harper actions, respectively,

were assigned to [a] three-judge panel of Superior Court, Wake County, pursuant to

N.C.G.S. § 1-267.1.” On 3 December 2021, the panel consolidated the two cases HARPER V. HALL

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

Plaintiffs’ and Harper Plaintiffs’ motions for preliminary injunction. On 3 December

2021, “after considering the extensive briefing and oral arguments on the motions,

the [panel] denied [the parties’] Motion for Preliminary Injunction.”

¶ 22 NCLCV Plaintiffs and Harper Plaintiffs subsequently filed a notice of appeal

with the North Carolina Court of Appeals. On 6 December 2021, “[a]fter 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.”

NCLCV Plaintiffs and Harper Plaintiffs subsequently filed several items with this

Court: two petitions for discretionary review prior to determination by the Court of

Appeals; a motion to suspend appellate rules to expedite a decision; and a motion to

suspend appellate rules and expedite schedule. On 8 December 2021, this Court

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.” “The Order

further directed [the panel] to hold proceedings on the merits of NCLCV Plaintiffs’

and Harper Plaintiffs’ claims and provide a written ruling on or before [11 January

2022].”

¶ 23 On 13 December 2021, the panel “entered a scheduling order . . . expediting

discovery and scheduling [a] trial to commence on [3 January 2022].” That same day, HARPER V. HALL

“Common Cause moved to intervene in the[ ] 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 15 December 2021, the panel

granted plaintiff Common Cause’s motion. On 16 December 2021, plaintiff Common

Cause filed its complaint, alleging

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.

¶ 24 On 17 December 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.” Legislative Defendants asserted numerous affirmative

defenses, including, inter alia, that: (1) granting the requested relief will violate the HARPER V. HALL

VRA and the Constitution of the United States; (2) granting the requested relief will

violate the rights of Legislative Defendants, Republican voters, and Republican

candidates under the United States and North Carolina Constitutions; (3) the court

cannot lawfully prevent the General Assembly from considering partisan advantage

and incumbency protection; (4) plaintiffs seek to require districts where Democratic

candidates are elected where such candidates are not currently elected; (5) plaintiffs’

claims are barred by the doctrine of laches; (6) plaintiffs have failed to state claims

upon which relief can be granted; (7) plaintiffs seek a theory of liability that will act

to impose a judicial amendment to the North Carolina Constitution; (8) the only

limitations on redistricting legislation are found in article II, sections 2, 3, 4, and 5 of

the North Carolina Constitution; (9) plaintiffs’ request for a court-designed

redistricting plan violates the separation of powers doctrine; (10) plaintiffs’ claims

are nonjusticiable and fail to provide judicially manageable standards; (11) plaintiffs

lack standing; and (12) plaintiffs have unclean hands and therefore are not entitled

to equitable relief.

¶ 25 On 17 December 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 HARPER V. HALL

Plaintiffs’ amended complaint. That same day, 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.

¶ 26 “Throughout the intervening and expedited two-and-a-half-week period

reserved for discovery, the parties filed and the [c]ourt expeditiously ruled upon over

ten discovery-related motions . . . .” “Plaintiffs collectively designated eight

individuals as expert witnesses and submitted accompanying reports[, and]

Legislative Defendants designated two individuals as expert witnesses and

submitted accompanying reports.” The parties’ discovery period closed on 31

December 2021, and a three-and-one-half day trial commenced on 3 January 2022.

C. Trial Court’s Judgment

1. Findings of Fact

¶ 27 First, the trial court made extensive factual findings based on the evidence

presented at trial. In short, these factual findings confirmed plaintiffs’ assertions that

each of the three enacted maps were “extreme partisan outliers” and the product of

“intentional, pro-Republican partisan redistricting.”

a. Plaintiffs’ Extreme Partisan Gerrymandering Claims

¶ 28 After reviewing the factual and procedural history summarized above, the trial

court made factual findings regarding plaintiffs’ constitutional claims of extreme HARPER V. HALL

partisan gerrymandering. First, the court considered whether the evidence presented

showed partisan intent and effects. Addressing direct evidence, the court found that

“[t]here is no express language showing partisan intent within the text of the session

laws establishing the Enacted Plans” and noted that “[t]he Adopted Criteria

expressly forbade partisan considerations and election results data from being used

in drawing districts in the Enacted Plans.” Further, the court noted that “[n]o

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.” However,

the lack of direct evidence of intent did not stop the trial court from determining that

the enacted plans were intentionally constructed to yield a consistent partisan

advantage for Republicans in a range of electoral environments.

¶ 29 Instead, the trial court turned to circumstantial evidence of partisan intent

and effects. After surveying the recent history of partisan redistricting litigation and

legislation and the neutral districting criteria Legislative Defendants claimed they

had adhered to, the court reviewed plaintiffs’ and Legislative Defendants’ expert

analyses of the enacted plans. The court’s extensive factual findings regarding each

expert’s analysis are summarized below.

¶ 30 Harper Plaintiffs’ Expert Dr. Jowei Chen. “Dr. Chen was qualified and

accepted as an expert at trial in the fields of redistricting, political geography,

simulation analyses, and geographic information systems.” “Dr. Chen analyzed the HARPER V. HALL

partisan bias of the enacted congressional plan on a statewide and district-by-district

basis.” Specifically, Dr. Chen analyzed the congressional plans using

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. 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. 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. Specifically, by 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.

¶ 31 “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.”

¶ 32 Harper Plaintiffs’ Expert Dr. Christopher Cooper. “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.” Using HARPER V. HALL

statewide voting data from the 2020 election, “Dr. Cooper analyzed the 2021

Congressional Plan [and] the partisan effects of each district’s boundaries.” Based on

Dr. Cooper’s analysis, the court observed that “[a]lthough 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.” This decrease, the court

observed, is enacted “by splitting the Democratic-leaning counties of Guilford,

Mecklenburg, and Wake among three congressional districts each.” The court further

noted that “[t]here was no population-based reason” for these splits.

¶ 33 After reviewing Dr. Cooper’s maps showing these redistricted congressional

lines as compared to county boundaries and VTD boundaries, the court noted that

“[t]he 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 the districts elsewhere in the state.”

Accordingly, the court found “that the ‘cracking and packing’ of Democratic voters in

Guilford, Mecklenburg, and Wake counties has ‘ripple effects throughout the map.’ ”

¶ 34 Reviewing Dr. Cooper’s analysis of a few specific congressional districts within

the new map as exemplars, the court noted that “[t]he 2021 Congressional Plan places HARPER V. HALL

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.” Similarly,

the court observed that “[t]he 2021 Congressional Plan includes one district where no

incumbent congressional representative resides . . . [which] ‘overwhelmingly favors’

the Republican candidate based on the district’s partisan lean.”

¶ 35 The court then found that the 2021 North Carolina House and Senate Plans

“similarly benefit the Republican party.” The court noted that “Legislative

Defendants’ exercise of . . . 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.”

Finally, the court noted Dr. Cooper’s finding that the “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.”

¶ 36 Harper Plaintiffs and Plaintiff Common Cause’s Expert Dr. Jonathan Mattingly.

Dr. Mattingly was qualified and accepted as an expert at trial in the fields of applied math, statistical science, and probability.

. . . 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 HARPER V. HALL

state legislative districts and 80,000 maps for congressional districts as benchmarks against which he could compare the enacted maps. The algorithm produced maps that accorded with traditional districting criteria. 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.

“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.”

¶ 37 The trial court found, “based upon Dr. Mattingly’s analysis, that the

Congressional map is the product of intentional, pro-Republican partisan

redistricting.” The court further determined that “[t]he Congressional map is ‘an

extreme outlier’ that is ‘highly non-responsive to the changing opinion of the

electorate.’ ”

¶ 38 Regarding the North Carolina legislative districts, the court likewise found,

“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.’ ” The court found that

“[t]he intentional partisan redistricting in both chambers is especially effective in HARPER V. HALL

preserving Republican supermajorities in instances in which the majority or the vast

majority of plans in Dr. Mattingly’s ensemble would have broken it.”

¶ 39 Regarding the North Carolina House map, the court further found that “the

enacted plan shows a systematic bias toward the Republican party, favoring

Republicans in every single one of the 16 elections [Dr. Mattingly] considered.” The

court determined that the North Carolina 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. The

probability that this partisan bias arose by chance, without an intentional effort by

the General Assembly, is ‘astronomically small.’ ” The court determined that

[t]he 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. Elections that under typical maps would produce a Democratic majority in the North Carolina House give Republicans a majority under the enacted maps. Likewise, maps that would normally produce a Republican majority under nonpartisan maps produce a Republican supermajority under the enacted maps. Among every possible election that Dr. Mattingly analyzed, the partisan results were more extreme than what would be seen from nonpartisan maps. In every election scenario, Republicans won more individual seats tha[n] they statistically should under nonpartisan maps. . . . 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 HARPER V. HALL

nonpartisan ensemble would elect 49 Democratic seats or more.

¶ 40 Regarding the North Carolina Senate, the court found that

the results are the same: the enacted plan is an outlier or extreme outlier in elections where Democrats win a vote share between 47.5% and 50.5%. 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. But the enacted map in multiple elections used in Dr. Mattingly’s analysis sticks at less than 21 Democratic seats, preserving a [Republican] 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.

¶ 41 The court then considered Dr. Mattingly’s “cracking and packing” analysis of

the congressional, House, and Senate maps. Here, the court found

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 [Dr. Mattingly’s] charts. 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. 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.

¶ 42 The trial court found similar “cracking and packing” in the House maps, noting

that “the enacted maps, as compared to the sample maps, there is an HARPER V. HALL

overconcentration of Democratic voters in the least Democratic districts and in the

most Democratic districts.” The court found that “the districts with the highest

concentration of Democrats have far more Democratic voters than expected in

nonpartisan maps, and threshold districts have far fewer Democratic voters than

expected in nonpartisan maps.” In contrast, the court found that

[i]n 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 . . . nonpartisan plans. 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 [c]ourt [found] 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. Those Democrat[ic] votes are instead placed in the 90th to 105th most Democratic district[s], where they are wasted because those seats are already comfortably Democratic.

¶ 43 Regarding cracking and packing in the Senate maps, the court found that “the

same structure appears where virtually all of the seats in the middle range that

determines majority and supermajority control have abnormally few Democrats.”

¶ 44 Next, the court determined that “a desire to prevent the pairing of incumbents

cannot explain the extreme outlier behavior of the enacted plan.”

¶ 45 The court also observed that the General Assembly selectively prioritized

preserving municipalities within the maps, choosing to do so “only when doing so

advantaged Republicans.” “Put differently, prioritizing municipality preservation in HARPER V. HALL

the Senate plans appears to enable more maps that favor Republicans. By contrast,

for the House plan, where the enacted map does not prioritize preserving

municipalities, . . . prioritizing municipalities would not have favored the Republican

party in comparison.”

¶ 46 Finally, the court found that “[t]he partisan bias that Dr. Mattingly identified

by comparing the enacted plans to his nonpartisan ensemble could not be explained

by political geography or natural packing.”

¶ 47 Harper Plaintiffs’ Expert Dr. Wesley Pegden. “Dr. Pegden was qualified

and accepted as an expert at trial in probability.”

In this case, Dr. Pegden used . . . 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.

The trial court noted that “Dr. Pegden applied these constraints in a ‘conservative’

way, to ‘avoid second-guessing the mapmakers’ choices in how they implemented the

districting criteria.” The court observed that Dr. Pegden’s algorithm repeated this

process “billions or trillions of times”: “begin[ning] with the enacted map, mak[ing] a

small random change complying with certain constraints, and us[ing] historical

voting data to evaluate the partisan characteristics of the resulting map.” HARPER V. HALL

¶ 48 Based on Dr. Pegden’s analysis, the court found “that the enacted

congressional plan is more favorable to Republicans than 99.9999% of the comparison

maps his algorithm generated.” Accordingly, the court determined 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 [Dr. Pegden’s] algorithm.” In every “run” of the analysis, the

court found, “the enacted congressional plan was in the most partisan 0.000031% of

the approximately one trillion maps generated by making tiny random changes to the

district’s boundaries.” “[I]f the districting had not been drawn to carefully optimize

its partisan bias,” the court stated, “we would expect naturally that making small

random changes to the districting would not have such a dramatic and consistent

partisan effect.”

¶ 49 The court found similar extremes regarding North Carolina’s legislative

districts. Regarding the North Carolina House, the court determined based on Dr.

Pegden’s analysis that “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.” Accordingly, the court found “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 [the nonpartisan]

constraints.” Regarding the North Carolina Senate, the court determined “that the HARPER V. HALL

enacted Senate map was more favorable to Republicans than 99.9% of comparison

maps.” Accordingly, the court found “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 [the nonpartisan] constraints.” “These results,” the court

determined, “cannot be explained by North Carolina’s political geography.”

¶ 50 NCLCV Plaintiffs’ Expert Dr. Moon Duchin. “Dr. Duchin was qualified and

accepted as an expert at trial in the field of redistricting.” The trial court noted that

Dr. Duchin’s analysis “uses a Close-Votes-Close-Seats principle, [in which] ‘an

electoral climate with a roughly 50-50 split in partisan preference should produce a

roughly 50-50 representational split.’ ” The trial court observed that “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.’ ”

¶ 51 Based on Dr. Duchin’s analysis, the trial court found “that the political

geography of North Carolina today does not lead only to a district map with partisan

advantage given to one political party.” Rather, the court determined, “[t]he Enacted

Plans behave as though they are built to resiliently safeguard electoral advantage for

Republican candidates.” The results of Dr. Duchin’s analysis, the court found, “reveal

a partisan skew in close elections.” For instance, the court determined that in a recent HARPER V. HALL

statewide election in which the Republican candidate won by less than 500 total

votes,

[t]he 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. Nor is that election unusual.

In fact, the court found “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.” “This is

true[,]” the court noted, “even when Democrats win statewide by clear margins.” Or,

more plainly, “more Democratic votes usually do not mean more [D]emocratic seats.”

Accordingly, the trial court determined that “[t]he Enacted Plans resiliently

safeguard electoral advantage for Republican candidates. This skewed result is not

an inevitable feature of North Carolina’s political geography.” Rather, the court

found, “[t]he 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.”

¶ 52 Next, the court specified that these findings were consistent across all three of

the enacted maps. First, regarding the enacted congressional plan, the court found

that “a clear majority of Democratic votes does not translate into a majority of seats.” HARPER V. HALL

The court determined “that the Enacted Congressional Plan achieves these results

by the familiar means of ‘packing’ and ‘cracking’ Democratic voters across the state.”

¶ 53 Second, the court found that

[t]he 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- proof 30-seat majority. And that result holds even when Democrats win by larger margins.

“As with the Enacted Congressional Plan, the [c]ourt [found] 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 . . . .”

¶ 54 Third, the court likewise determined that

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.

“As with the Enacted Congressional Plan and the Enacted Senate Plan, the [c]ourt

[found] that the Enacted House Plan achieves this resilient pro-Republican bias by

the familiar mechanisms of packing and cracking Democratic voters . . . .” HARPER V. HALL

¶ 55 Plaintiff Common Cause’s Expert Dr. Daniel Magleby. “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.” Like plaintiffs’ previous experts,

Dr. Magleby “used a peer-reviewed algorithm . . . to generate a set of unbiased maps

against which he compared the enacted House, Senate, and congressional maps.” “Dr.

Magleby . . . 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.” Using voting data from

statewide races between 2016 and 2020, Dr. Magleby compared expected performance

under the enacted maps with performance in the neutral sample maps. More

specifically, Dr. Magleby’s analysis utilized “median-mean” calculations. Median-

mean calculations compare “the average Democratic vote share” in districts statewide

with “the median Democratic vote share” in those districts “by lining up the enacted

. . . districts from least Democratic to most Democratic and identifying the districts

that fell in the middle. In a nonpartisan map, a low median-mean difference is

expected.”

¶ 56 Based on Dr. Magleby’s analysis, the trial court 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.” Specifically, the court determined HARPER V. HALL

“that the median-mean bias in the enacted maps was far more extreme than expected

in nonpartisan maps.” In fact, the court found, “[n]o randomly generated map had

such an extreme median-mean share—meaning that . . . no simulated map . . . was

as extreme and durable in terms of partisan advantage.”

¶ 57 Legislative Defendants’ Expert Dr. Michael Barber.

Dr. Barber was qualified and accepted as an expert at trial in the areas of political geography, partisanship statistical analysis, and redistricting. . . . 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. . . . 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. 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, minimization of county traversals within clusters, and geographic compactness. Only after the simulated district plans are complete is the partisan lean of each district in each plan computed . . . .

¶ 58 Although Dr. Barber was qualified as an expert, the trial court found that “Dr.

Barber’s method is not without limitations.” “Because it is impossible for a

redistricting algorithm to account for all non-partisan redistricting goals[,]” the court

noted, “differences between the range of his simulated plans and the 2021 Plans may HARPER V. HALL

be the result of non-partisan goals the algorithm failed to account for, rather than of

partisan goals.” The court observed that “under Dr. Barber’s analysis, it is plausible

that the 2021 Plans were prepared without partisan data or considerations.” The

court noted Dr. Barber’s subsequent conclusion that “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.” Notably, the court did not adopt Dr. Barber’s

findings as its own as it did for plaintiffs’ experts and later explicitly rejected his

conclusions regarding the impact of political geography on the enacted maps.

¶ 59 Legislative Defendants’ Expert Dr. Andrew Taylor. “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.” The trial court reviewed Dr.

Taylor’s analysis of the enacted maps under political science principles, including

noting that “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.” Likewise, the court noted Dr.

Taylor’s opinion that “[i]n 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 HARPER V. HALL

participation as a citizen.” The court further noted Dr. Taylor’s opinion that

“purportedly ‘fair’ redistricting plans are not understood in the political-science field

as germane to free speech, [because free speech] can occur regardless of the shapes

and sizes of districts.” “For many of these reasons,” the court noted, “measuring

gerrymanders can be elusive, problematic, and beyond the consensus of political

scientists.”

¶ 60 The trial court also noted Dr. Taylor’s opinion that the “significant change in

North Carolina’s political geography over the past thirty years . . . ‘is not the result

of redistricting[,]’ ” but is instead “a function of slow social and economic forces,

changes in the state’s citizenry, and party ideology.” As with Dr. Barber’s similar

conclusion noted above, the trial court again later explicitly rejected Dr. Taylor’s

conclusions regarding the impact of political geography on the enacted maps.

¶ 61 Legislative Defendants’ Rebuttal Expert Sean Trende. “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.” The

trial court noted that Mr. Trende used color-coded maps of North Carolina counties

“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.” It is unclear HARPER V. HALL

how, if at all, the trial court considered Mr. Trende’s testimony. This concluded the

trial court’s review of the expert testimony.

¶ 62 After considering the analysis of each expert, the trial court engaged in a

district-by-district analysis of each of the three enacted maps: those for the North

Carolina Senate, North Carolina House, and Congress, respectively.

¶ 63 North Carolina Senate Districts. The trial court found that the following

North Carolina Senate district groupings minimized Democratic districts and

maximized safe Republican districts through the “packing” and “cracking” of

Democratic voters as the “result of intentional, pro-Republican partisan

redistricting”: the Granville-Wake Senate County Grouping; the Cumberland-Moore

Senate County Grouping; the Guilford-Rockingham Senate County Grouping; the

Forsyth-Stokes Senate County Grouping; the Iredell-Mecklenburg Senate County

Grouping; the Northeastern Senate County Grouping (Bertie County, Camden

County, Currituck County, Dare County, Gates County, Hertford County,

Northampton County, Pasquotank County, Perquimans County, Tyrrell County,

Carteret County, Chowan County, Halifax County, Hyde County, Martin County,

Pamlico County, Warren County, and Washington County); and the Buncombe-

Burke-McDowell Senate County Grouping. The trial court did not find any of the

Senate district groupings to not be the result of intentional, pro-Republican

redistricting through packing and cracking. HARPER V. HALL

¶ 64 North Carolina House of Representatives District. The trial court found

that the following North Carolina House district groupings minimized Democratic

districts and maximized safe Republican districts through the “packing” and

“cracking” of Democratic voters as the “result of intentional, pro-Republican partisan

redistricting”: the Guilford House County Grouping; the Buncombe House County

Grouping; the Mecklenburg House County Grouping; the Pitt House County

Grouping; the Durham-Person House County Grouping; the Forsyth-Stokes House

County Grouping; the Wake House County Grouping; the Cumberland House County

Grouping; and the Brunswick-New Hanover House County Grouping. Notably,

however, the trial court found the Duplin-Wayne House County Grouping and the

Onslow-Pender House County Grouping “to not be the result of intentional, pro-

Republican partisan redistricting.”

¶ 65 North Carolina Congressional Districts. Next, the trial court found “that

the 2021 Congressional plan is a partisan outlier intentionally and carefully designed

to maximize Republican advantage in North Carolina’s Congressional delegation.”

The court found that the enacted congressional map “fails to follow and subordinates

the Adopted Criteria’s requirement[s]” regarding splitting counties and VTDs.

Further, the court found

that the enacted congressional plan fails to follow, and subordinates, the Adopted Criteria’s requirement to draw compact districts. The [c]ourt [found] that the enacted congressional districts are less compact than they would be HARPER V. HALL

under a map-drawing process that adhered to the Adopted Criteria and prioritized the traditional districting criteria of compactness.

Further, “when compared to the 1,000 computer-simulated plans[,]” the court found

that “the enacted congressional plan is a statistical outlier” in regard to the total

number of Republican-favoring districts it creates.

¶ 66 Next, the court noted four types of analyses in particular that confirm the

“extreme partisan outcome” of the congressional map that “cannot be explained by

North Carolina’s political geography or by adherence to Adopted Criteria”: (1) “mean-

median difference” analysis ; (2) “efficiency gap” analysis (“measur[ing] . . . the degree

to which more Democratic or Republican votes are wasted across an entire districting

plan”); (3) “the lopsided margins test”; and (4) “partisan symmetry” analysis. Based

on these methods, the trial court found “that the enacted congressional plan

subordinates the Adopted Criteria and traditional redistricting criteria for partisan

advantage.”

¶ 67 Next, the trial court considered “whether the congressional plan is a statistical

partisan outlier at the regional level.” Here, the court found “that the enacted

congressional plan’s districts in each region examined exhibit[ed] political bias when

compared to the computer-simulated districts in the same regions.” These included

the Piedmont Triad area, the Research Triangle area, and the Mecklenburg County

area. “The [c]ourt [found] that the packing and cracking of Democrats in [these HARPER V. HALL

regions] could not have resulted naturally from the region’s political geography or the

districting principles required by the Adopted Criteria.” “The enacted congressional

map[,]” the court determined, “was therefore designed in order to accomplish the

legislature’s predominant partisan goals.” Later, the court again confirmed “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, and this additional level of partisan bias . . . can be directly attributed

to the map-drawer’s intentional efforts to favor the Republican Party.”

¶ 68 Next, as it did for the North Carolina House and Senate districts, the trial

court engaged in a district-by-district analysis of all fourteen enacted congressional

districts. After individual analysis, the court found all fourteen districts “to be the

result of intentional, pro-Republican partisan redistricting.”

¶ 69 Finally, the trial court noted that “elections are decided by any number of

factors.” Statistical analyses, the court observed, “treat the candidates as inanimate

objects” and “assume that voters will vote along party lines.” In essence, the court

doubted that a computer analysis could ever “take the human element out of the

human.” “Notwithstanding these doubts,” though, the court “conclude[d] based upon

a careful review of all of the evidence that the Enacted Maps are a result of

intentional, pro-Republican partisan redistricting.” This concluded the court’s factual

findings regarding plaintiffs’ partisan gerrymandering claims. HARPER V. HALL

b. Plaintiffs’ Intentional Racial Discrimination and Racial Vote Dilution Claims

¶ 70 Second, the trial court considered plaintiffs’ intentional racial discrimination

and racial vote dilution claims. Beginning with intentional racial discrimination, the

court found that “[t]here is no express language showing discriminatory intent within

the text of the session laws establishing the Enacted Plans.” Next, the court noted

plaintiffs’ circumstantial evidence of racial discrimination, including testimony from

plaintiff Common Cause’s expert James Leloudis II, regarding the historical

connection between North Carolina’s past racial gerrymandering practices and the

current plans.

¶ 71 The trial court then considered plaintiffs’ racial vote dilution claims. After

reviewing the evidence presented by plaintiffs’ and Legislative Defendants’ experts

on this matter, the court found that “[r]ace was not the predominant, overriding factor

in drawing the districts in the Enacted Plans.” The court found that “[t]he General

Assembly did not subordinate traditional race-neutral districting principles,

including compactness, contiguity, and respect for political subdivisions to racial

considerations.” Accordingly, the court found that a district-by-district analysis of

racial vote dilution, as it had previously performed for the extreme partisan

gerrymandering claim, was not necessary. This concluded the trial court’s findings

regarding plaintiffs’ intentional racial discrimination and racial vote dilution claims.

c. Plaintiffs’ Whole County Provision Claims HARPER V. HALL

¶ 72 Finally, the court made findings regarding plaintiffs’ whole county provision

claim. Here, the court noted that under the enacted plans, 35 senate districts and 107

North Carolina House districts split counties. The court observed that the Senate

districts divided 15 total counties, while the House districts divided 37 total counties.

The court noted that in instances where “multiple county groupings were possible

under the Supreme Court’s interpretation of the Whole County Provision[,] . . .

groupings were chosen from the range of legally possible groupings.” “Within each

remaining county grouping containing a district challenged under the Whole County

Provision,” the court found, “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.”

2. Trial Court’s Conclusions of Law

¶ 73 After making these extensive findings of fact, the trial court concluded as a

matter of law that claims of extreme partisan gerrymandering present purely

political questions that are nonjusticiable under the North Carolina Constitution.

Accordingly, the court concluded that the enacted maps are not unconstitutional as a

result of partisan gerrymandering.

a. Standing

¶ 74 First, the court addressed plaintiffs’ standing to bring their various claims.

Because “[i]ndividual private citizens and voters of a county have standing to sue to HARPER V. HALL

seek redress from an alleged violation of N.C. Const. art II, §§ 3 and 5[,]” the court

held, “the Individual NCLCV Plaintiffs challenging a district based upon the Whole

County Provision have standing.” However, based on its legal conclusion that

“Plaintiffs have not stated any cognizable claim for partisan gerrymandering under

the various provisions of the North Carolina Constitution[,]” the court concluded that

all plaintiffs lack standing for these claims.

¶ 75 Finally, the court addressed NCLCV Plaintiffs’ and Common Cause Plaintiffs’

standing to bring claims of intentional racial discrimination and racial vote dilution

under the North Carolina Constitution. Because the court found “there to be no

factual basis underlying these asserted claims,” it concluded that “there is a lack of

the requisite ‘direct injury’—i.e., the deprivation of a constitutionally guaranteed

personal right. Accordingly, [the court concluded that] these Plaintiffs do not have

standing for these claims.” Similarly, the court concluded that “Plaintiff Common

Cause lacks standing for its claim requesting a declaratory judgment . . . directing

the legislative process to be undertaken in redistricting.”

b. Partisan Gerrymandering Claims

¶ 76 Next, the court addressed plaintiffs’ partisan gerrymandering claims under

various provisions of the North Carolina Constitution. Here, the court determined

that plaintiffs’ claims amounted to political questions that are nonjusticiable under

the North Carolina Constitution. Specifically, after surveying the history of the HARPER V. HALL

constitutional provisions under which plaintiffs brought their claims, the court

concluded that “redistricting is an inherently political process” that “is left to the

¶ 77 The court then addressed each of plaintiffs’ constitutional claims. First, the

court held that the enacted maps do not violate the free elections clause, which

mandates that “[a]ll elections shall be free.” N.C. Const. art. I, § 10. The court noted

that “[w]hile 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.” Based on a survey of the clause’s history, the court “conclude[d]

that the Free Elections Clause does not operate as a restraint on the General

Assembly’s ability to redistrict for partisan advantage.”

¶ 78 Second, the trial court addressed plaintiffs’ claims under the free speech clause

and the equal protection clause. After reviewing the historical background of the

addition of these clauses to the constitution in 1971, the court concluded that “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.” Accordingly, the court refused to “assume that

. . . the Equal Protection Clause and Free Speech Clause impose new restrictions on

the political process of redistricting.” HARPER V. HALL

¶ 79 From this historical foundation, the court concluded that “the Enacted Maps

do not violate the Equal Protection Clause.” The court concluded that although “[i]t

is true that there is a fundamental right to vote[,] . . . [r]edistricting 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.” Accordingly, and

because political affiliation is not a suspect class, the court concluded that “[a]ny

impingement is limited and distant and as such is subject to rational basis review.”

The court then concluded “that the plans are amply supported by a rational basis and

thus do not violate the Equal Protection Clause.”

¶ 80 Third, the court likewise concluded that “the Enacted Plans do not violate the

Free Speech Clause.” Specifically, the court concluded that “plaintiffs are free to

engage in speech no matter what the effect the Enacted Plans have on their district.”

¶ 81 Fourth, the trial court concluded that “the Enacted Plans do not violate the

Right of Assembly Clause.” Specifically, the court noted that “Plaintiffs remain free

to engage in their associational rights and rights to petition no matter what effect the

Enacted Plans have on their district.”

¶ 82 In total, the trial court concluded that “[t]he 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 HARPER V. HALL

Clauses found in Article I of the 1971 Constitution.” “Therefore, the [c]ourt

conclude[d] that our Constitution does not 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.”

c. Justiciability

¶ 83 Next, the court again addressed justiciability. First, the court considered

whether the North Carolina Constitution delegates the responsibility and oversight

of redistricting exclusively to the General Assembly. Citing article II, sections 3, 5,

and 20, the court concluded that “[t]he constitutional provisions relevant to the issue

before [it] establish that redistricting is in the exclusive province of the legislature.”

¶ 84 Second, the court considered “whether satisfactory and manageable criteria or

standards exist for judicial determination of the issue.” Here, relying on its analysis

of the Supreme Court of the United States in Rucho, 139 S. Ct. at 2506–07, regarding

the justiciability of partisan gerrymandering claims in federal courts, the trial court

“determine[d] 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.”

¶ 85 In reaching this conclusion, the court noted that it

agree[s] 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 HARPER V. HALL

“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 . . . (2015). Also, it can represent “an abuse of power that, at its core, evinces a 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 . . . (2006) (Stevens, J.[,] concurring in part and dissenting in part) (quotation and citation omitted)).

The Court then added that it “neither condones the enacted maps nor their

anticipated potential results” and that it has a “disdain for having to deal with issues

that potentially lead to results incompatible with democratic principles and subject

our State to ridicule.” Nevertheless, the court concluded that because redistricting “is

one of the purest political questions which the legislature alone is allowed to

answer[,]” judicial action “in the manner requested . . . would be usurping the political

power and prerogatives of an equal branch of government.” Accordingly, the trial

court concluded that plaintiffs’ partisan gerrymandering claims are nonjusticiable.

d. Intentional Racial Discrimination and Racial Vote Dilution

¶ 86 Next, the trial court addressed plaintiffs’ claims of intentional racial

discrimination and racial vote dilution. The court “conclude[d] that based upon the

record before [it], Plaintiffs have failed to prove the merit of their claim.”

¶ 87 Here, the court noted that “[t]he 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 HARPER V. HALL

districts in which their votes can be effective,’ measured based on ‘the minority’s

rough proportion of the relevant population[,]’ ” quoting Bartlett v. Strickland, 556

U.S. 1, 28–29 (2009) (Souter, J., dissenting). The court then stated that “[a]n act of

the General Assembly can violate North Carolina’s Equal Protection Clause if

discriminatory purpose was ‘a motivating factor.’ ” “And whether discriminatory

purpose was a motivating factor[,]” the court observed, “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.’ ” “To determine whether this is true,” the court

stated, “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.”

¶ 88 Based upon these standards, the court then concluded that “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.” The court first reached this conclusion based on plaintiffs’ “fail[ure] to show

a predominant racial motive through direct [or circumstantial] evidence.” Second, the

court concluded, “Plaintiffs have failed to establish that the General Assembly failed

to adhere to traditional districting principles on account of racial considerations.”

Third, the court concluded that “Plaintiffs have failed to make the requisite

evidentiary showing that the General Assembly sought to dilute the voting strength HARPER V. HALL

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.”

Although the court agreed with plaintiffs’ showing “that a substantial number of

Black voters are affiliated with the Democratic Party[,]” it nevertheless concluded

that plaintiffs had not shown

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 th[e] [c]ourt showing that race and partisanship were coincident goals predominating over all other factors in redistricting.

Accordingly, the court rejected plaintiffs’ claims of intentional racial discrimination

within the enacted plans.

¶ 89 Second, the court addressed plaintiffs’ claims of racial vote dilution in violation

of the free elections clause. Having previously concluded that the free elections clause

should be narrowly interpreted to not apply in the redistricting context, the court

concluded that “NCLCV Plaintiffs’ claim that the Enacted Plans unnecessarily dilute

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.” Accordingly, the court rejected

this claim.

e. Whole-County Provision Claims HARPER V. HALL

¶ 90 Next, the trial court addressed plaintiffs’ claims under the whole county

provision of article II, sections 3 and 5 of the North Carolina Constitution. Although

the boundaries of certain legislative districts under the enacted plans indeed crossed

county lines, the court “conclude[d] 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 a way that it

met the equalization of population requirements set forth in Stephenson v. Bartlett,

355 N.C. 354, 383[–]84 . . . (2002).” Accordingly, the court “conclude[d] 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.”

f. Declaratory Judgment Claim

¶ 91 Finally, the trial court addressed plaintiff Common Cause’s declaratory

judgment claim regarding the redistricting process laid out in Stephenson and

Dickson v. Rucho, 368 N.C. 481 (2015). On this issue, the court stated that “[t]he

requirement in Stephenson that districts required by the VRA be drawn first was put

in place to alleviate the conflict and tension between the WPC and VRA.” But, the

court noted, “[t]here is nothing in Stephenson that requires any particular analysis HARPER V. HALL

prior to making a decision as to whether VRA districts are necessary.” Accordingly,

the court concluded that “[t]he fact is, whether correct or not, the Legislative

Defendants made a decision that no VRA Districts are required.” The court then

stated that, in this situation, “[w]hat Plaintiff Common Cause asks of this [c]ourt is

to impose a judicially-mandated preclearance requirement . . . [that] does not exist in

Stephenson.” Therefore, the court concluded as a matter of law “that Plaintiff

Common Cause is not entitled to a Declaratory Judgment or Injunctive Relief.”

3. Trial Court’s Decree

¶ 92 Following these extensive factual findings and conclusions of law, the trial

court issued its ultimate decree. Specifically, the trial court ordered that (1) plaintiffs’

requests for declaratory judgment are denied; (2) plaintiffs’ requests for permanent

injunctive relief are denied; (3) the court’s judgment fully and finally resolves all

claims of plaintiffs, judgment is entered in favor of Legislative Defendants, and

plaintiffs’ claims are dismissed with prejudice; and (4) the candidate filing period for

the 2022 primary and municipal elections is set to resume at 8:00 a.m. on Thursday,

24 February 2022, and shall continue through and end at 12:00 noon on Friday, 4

March 2022.

D. Present Appeal

¶ 93 Pursuant to this Court’s 8 December 2021 order certifying the case for

discretionary review prior to determination by the Court of Appeals, all plaintiffs filed HARPER V. HALL

notices of appeal to this Court from the trial court’s final judgment on 11 and 12

January 2022. The parties’ briefs and arguments before this Court largely echoed the

arguments made before the trial court. Namely, plaintiffs asserted that the enacted

plans constitute extreme partisan gerrymandering in violation of the free elections

clause, equal protection clause, free speech clause, and freedom of assembly clause of

the North Carolina Constitution and that these state constitutional claims were

justiciable in state court. Legislative Defendants argued that plaintiffs’ claims

presented nonjusticiable political questions and therefore did not violate any of the

asserted state constitutional provisions. The Court also accepted amicus briefs from

several interested parties. Due to the time-sensitive nature of this case, oral

arguments were calendared and heard in a special session on 2 February 2022.

II. Legal Analysis

¶ 94 Now, this Court must determine whether plaintiffs’ claims are justiciable

under the North Carolina Constitution and, if so, whether Legislative Defendants’

enacted plans for congressional and state legislative districts violate the free elections

clause, equal protection clause, free speech clause, and freedom of assembly clause of

our constitution. After careful consideration, we conclude that partisan

gerrymandering claims are justiciable under the North Carolina Constitution and

that Legislative Defendants’ enacted plans violate each of these provisions of the

North Carolina Constitution beyond a reasonable doubt. HARPER V. HALL

¶ 95 As a threshold issue, we must determine whether plaintiffs have standing to

bring their claims. As noted above, the trial court ruled that individual NCLCV

Plaintiffs had standing to challenge the enacted plans under the whole county

provision but that plaintiffs lacked standing to bring their partisan gerrymandering

claims because they had “not stated any cognizable claim for partisan

gerrymandering under the various provisions of the North Carolina Constitution.”

The court further determined that NCLCV Plaintiffs and plaintiff Common Cause

likewise lacked standing to bring their intentional racial discrimination and racial

vote dilution claims under the North Carolina Constitution. Specifically, the court

ruled that “[b]ecause . . . there [is] 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.”

¶ 96 We cannot agree. As this Court held in Committee to Elect Dan Forest v.

Employees Political Action Committee, “the federal injury-in-fact requirement has no

place in the text or history of our Constitution.” 376 N.C. 558, 2021-NCSC-6, ¶ 73.

Rather, in the case of direct constitutional challenges to statutes or other acts of

government, we require only the requisite “concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination of

difficult constitutional questions.” Id. ¶ 64 (quoting Stanley v. Dep’t of Cons. and Dev., HARPER V. HALL

284 N.C. 15, 28 (1973)). Accordingly, as a “prudential principle of judicial self-

restraint” and not as a limitation on the judicial power, we have required that a

person challenging government action be directly injured or adversely affected by it.

Id. ¶ 63. This prudential requirement that the person challenging a statute be

directly injured or adversely affected thereby is purely to ensure that the putative

injury belongs to them and not another, and hence that they “can be trusted to battle

the issue.” Id. ¶ 64 (citing Stanley, 284 N.C. at 28). Accordingly, “[t]he ‘direct injury’

required in this context could be, but is not necessarily limited to, ‘deprivation of a

constitutionally guaranteed right or an invasion of his property rights,’ ” id. ¶ 62

(emphasis added), and “[w]hen a person alleges the infringement of a legal

right . . . arising under . . . the North Carolina Constitution, . . . the legal injury itself

gives rise to standing,” id. ¶ 82 (emphasis added). This direct injury requirement does

not require a showing that a party will in fact prevail under the constitutional theory

they advance. Rather, alleging the violation of a legal right which belongs to them,

even if widely shared with others and even if they are not entitled to relief under their

theory of the legal right, is sufficient to show the requisite “concrete adverseness” in

our courts which we, for purely pragmatic reasons, require in the resolution of

constitutional questions. To hold otherwise would resuscitate an injury-in-fact

requirement as a barrier to remedy by the courts in another form. HARPER V. HALL

¶ 97 The trial court contravened the concrete adverseness rationale for the direct

injury requirement by concluding that plaintiffs lacked standing because their

partisan gerrymandering claims, which they contended violated their constitutional

rights under the free elections clause, equal protection clause, free speech clause, and

freedom of assembly clause, were not “cognizable.”6 The allegation of violations of

these constitutional rights was sufficient to generate an actual controversy and hence

concrete adverseness, whether or not their theory of the violation ultimately

prevailed in the courts. For example, in Baker v. Carr, from which this Court in part

derived its concrete adverseness rationale, see Comm. to Elect Dan Forest, ¶ 64, the

Supreme Court of the United States announced for the first time that claims of vote

dilution were cognizable and justiciable under the Equal Protection Clause. See

generally Baker v. Carr, 369 U.S. 186 (1962); see also Comm. to Elect Dan Forest, ¶

46 (“[T]he only injury asserted [in Baker] is the impairment of a constitutional right

broadly shared and divorced from any ‘factual’ harm experienced by the plaintiffs”).

The constitutional right to equal protection of the laws existed although the Baker

Court had not yet extended it to the precise theory the plaintiffs advanced. Similarly,

here, the plaintiffs all had standing to challenge the maps based on their allegation

of violations of their constitutional rights under the free elections clause, equal

6 The trial court also conflated the existence of a “cognizable” claim under the state

constitution with one that is justiciable. A claim may violate the constitution yet not be justiciable because it is a political question. HARPER V. HALL

protection clause, free speech clause, and freedom of assembly clause of our

Declaration of Rights, which are injuries to legal rights that they directly suffered,

irrespective of whether courts previously or the court below determined their

particular theory under those rights ultimately entitled them to prevail.

¶ 98 Finally, the court also determined that “the organizational Plaintiffs each seek

to vindicate rights enjoyed by the organization under the North Carolina

Constitution” and that “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.” We

agree.

¶ 99 Taken together, the trial court’s findings are sufficient to establish that each

individual and organizational plaintiff here meets the standing requirements under

the North Carolina Constitution as summarized above. Accordingly, the trial court

erred in ruling to the contrary.

B. The Political Question Doctrine

¶ 100 We next address Legislative Defendants’ contention that plaintiffs’ claims

present only nonjusticiable political questions. Whether partisan gerrymandering

claims present a nonjusticiable “purely political question” under North Carolina law

is a question of first impression. We have held that certain claims raising “purely HARPER V. HALL

political question[s]” are “nonjusticiable under separation of powers principles.” Hoke

Cnty. Bd. of Educ. v. State, 358 N.C. 605, 618 (2004). Purely political questions are

those questions which have been wholly committed to the “sole discretion” of a

coordinate branch of government, and those questions which can be resolved only by

making “policy choices and value determinations.” Bacon v. Lee, 353 N.C. 696, 717

(2001) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)).

Purely political questions are not susceptible to judicial resolution. When presented

with a purely political question, the judiciary is neither constitutionally empowered

nor institutionally competent to furnish an answer. See Hoke Cnty. Bd. of Educ., 358

N.C. at 638–39 (declining to reach the merits after concluding that “the proper age at

which children should be permitted to attend public school is a nonjusticiable political

question reserved for the General Assembly”).

¶ 101 The trial court and Legislative Defendants rely in part on Rucho and other

federal cases. These cases may be instructive, but they are certainly not controlling.

We have previously held that “[w]hile 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.”

Goldston v. State, 361 N.C. 26, 35 (2006). This principle extends to all justiciability

doctrines. “Federal justiciability doctrines—standing, ripeness, mootness, and the

prohibition against advisory opinions—are not explicit within the constitutional text, HARPER V. HALL

but are the fruit of judicial interpretation of Article III’s extension of the ‘judicial

Power’ to certain ‘Cases’ or ‘Controversies.’ ” Comm. to Elect Dan Forest, 376 N.C.

558, 2021-NCSC-6, ¶ 35. Originally, federal courts showed great reluctance to involve

themselves in policing redistricting practices at all. The result was both the grossly

unequal apportionment of representation of legislative and congressional seats and

the drawing of district lines in pursuit of partisan advantage.7 The judicial

repudiation of any role in redistricting was summarized in Colegrove v. Green, where

the Supreme Court declared a challenge to the drawing of congressional districting

lines in Illinois nonjusticiable under the Fourteenth Amendment. 328 U.S. 549, 556

(1946). Writing for the Court, Justice Frankfurter reasoned that “effective working of

our Government revealed this issue to be of a peculiarly political nature and therefore

not [fit] for judicial determination.” Id. at 552. “Authority for dealing with such

problems resides elsewhere.” Id. at 554. The Court concluded, revealing the

prudential basis of its reasoning, that “[c]ourts ought not to enter this political

7 Before the “reapportionment revolution” of Baker v. Carr and its progeny in the

1960s, “states had much more leeway over when, and even if, to redraw district boundaries. One result was that in many states, district lines remained frozen for decades—often leading to gross inequalities in district populations and substantial partisan biases.” Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 13 (2013). “Connecticut, for instance, kept the exact same congressional district lines for 70 years (1842– 1912).” Id. at 8. Other state legislatures redrew maps whenever they wanted. “In every year from 1862 to 1896, with one exception, at least one state redrew its congressional district boundaries. Ohio, for example, redrew its congressional district boundaries six times between 1878 and 1890.” Id. Moreover, “parties were willing to push partisan advantage to the edge. To do so, partisan mapmakers carved states into districts with narrow, yet winnable, margins.” Id. HARPER V. HALL

thicket.” Id. at 556 (emphasis added).

¶ 102 In the landmark decision of Baker v. Carr, the Supreme Court reversed course

and held in a case involving claims that malapportionment violates the Equal

Protection Clause of the Fourteenth Amendment that such claims are justiciable

since they do not present political questions. 369 U.S. 186, 209 (1962). The Baker

Court began its justiciability analysis by noting that “the mere fact that the suit seeks

protection of a political right does not mean it presents a political question. Such an

objection is little more than a play upon words.” Id. (cleaned up). After reviewing

cases to discern the threads that, in various formulations, comprise a nonjusticiable

political question, the Court identified what has become the standard definition of

the political question doctrine under federal law:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. The Court in Baker held that the plaintiffs’ claim under the Equal

Protection Clause, unlike prior claims under the Guaranty Clause, was justiciable HARPER V. HALL

because it presented, inter alia, “no question decided, or to be decided, by a political

branch of government coequal with th[e] Court” and no “policy determinations for

which judicially manageable standards are lacking,” as “[j]udicial standards under

the Equal Protection Clause are well developed and familiar,” which are “that a

discrimination reflects no policy, but simply arbitrary and capricious action.” Id. at

226. Accordingly, over a dissent written by Justice Frankfurter and joined by Justice

Harlan, the Court entered the political thicket. The Court did not in that decision

announce a remedy for the violation of the Equal Protection Clause but in later cases

held that the principle of “one person, one vote” required as close to mathematical

equality as practicable in the drawing of congressional districts and “substantial

equality” in the drawing of legislative districts. Cf. Wesberry v. Sanders, 376 U.S. 1,

7–8 (1964) (holding that “as nearly as is practicable one man’s vote in a congressional

election is to be worth as much as another’s”); Reynolds v. Sims, 377 U.S. 533, 579

(1964) (“So long as the divergences from a strict population standard are based on

legitimate considerations incident to the effectuation of a rational state policy, some

deviations from the equal-population principle are constitutionally permissible with

respect to the apportionment of seats in either or both of the two houses of a bicameral

state legislature.”).

¶ 103 Although federal courts concluded that malapportionment claims were

justiciable, the Supreme Court of the United States did not expressly hold that a HARPER V. HALL

partisan gerrymandering claim was justiciable until Davis v. Bandemer, where it

held that a partisan gerrymandering claim existed under the Fourteenth Amendment

that did not present a nonjusticiable political question.8 478 U.S. 109, 124 (1986)

(plurality opinion), abrogated by Rucho, 139 S. Ct. 2484. The plurality opinion in

Bandemer identified the claim as being “that each political group in a State should

have the same chance to elect representatives of its choice as any other political

group,” and although the claim was distinct from that in Reynolds involving districts

of unequal size, “[n]evertheless, the issue is one of representation, and we decline to

hold that such claims are never justiciable.” Id. The plurality adopted as a test that

“unconstitutional discrimination occurs only when the electoral system is arranged

in a manner that will consistently degrade a voter’s or a group of voters’ influence on

the political process as a whole.” Id. at 132. Justice O’Connor concurred in the

judgment, arguing in part that the Court’s decision would result in a requirement for

“roughly proportional representation.”9 Id. at 147 (O’Connor, J., concurring in the

judgment).

8 As noted in the plurality opinion in Bandemer, the Supreme Court did address a

partisan gerrymandering claim in Gaffney v. Cummings, by holding that a districting plan which incorporated a “political fairness principle” across the plan did not violate the Equal Protection Clause; however, no concern about justiciability was raised in Gaffney. 412 U.S. 735, 751–52 (1973). 9 The plurality responded that their decision did not reflect “a preference for

proportionality per se but a preference for a level of parity between votes and representation sufficient to ensure that significant minority voices are heard and that majorities are not consigned to minority status.” Davis v. Bandemer, 478 U.S. 109, 125 n.9 (1986). HARPER V. HALL

¶ 104 Eighteen years later the Supreme Court overruled Bandemer in Vieth v.

Jubelirer, 541 U.S. 267 (2004), a challenge to Pennsylvania’s 2001 congressional

redistricting plan on the grounds that it was a political gerrymander. Justice Scalia

wrote the plurality opinion, in which three other justices joined, and would have also

held partisan gerrymandering claims to be nonjusticiable political questions because

they lack a “judicially discernable and manageable standard[,]” id. at 306—“judicially

discernible in the sense of being relevant to some constitutional violation[,]” id. at

288. Justice Kennedy concurred in the judgment but refused to hold partisan

gerrymandering nonjusticiable because “in another case a standard might emerge.”

Id. at 312 (Kennedy, J., concurring in the judgment).

¶ 105 In Rucho, completing its retreat from Bandemer, the Supreme Court of the

United States abandoned the field in policing partisan gerrymandering claims. The

Supreme Court held that claims alleging that North Carolina’s and Maryland’s

congressional districts were unconstitutionally gerrymandered for partisan gain were

nonjusticiable in federal court. Rucho, 139 S. Ct. at 2493–2508. It reached this

conclusion because it could find “no legal standards discernible in the [United States]

Constitution for” resolving partisan gerrymandering claims, “let alone limited and

precise standards that are clear, manageable, and politically neutral.” Id. at 2500.

¶ 106 Three concerns appear to have motivated the Court in Rucho. The first premise

which concerned the Court in Rucho was the absence of a “judicially discernable” HARPER V. HALL

standard, that is, one that is “relevant to some constitutional violation.” Vieth, 541

U.S. at 288; see Rucho, 139 S. Ct. at 2507 (“ ‘[J]udicial action must be governed by

standard, by rule,’ and must be ‘principled, rational, and based upon reasoned

distinctions’ founded in the [United States] Constitution or laws.” (first alteration in

original) (quoting Vieth, 541 U.S. at 278)). In essence, the Supreme Court concluded

that no provision of the United States Constitution supplied a cognizable legal basis

for challenging the practice of partisan gerrymandering. See, e.g., Rucho, 139 S. Ct.

at 2501 (“[T]he one-person, one-vote . . . requirement does not extend to political

parties.”); id. at 2502 (“[O]ur racial gerrymandering cases [do not] provide an

appropriate standard for assessing partisan gerrymandering.”); id. at 2504 (“[T]here

are no restrictions on speech, association, or any other First Amendment activities in

the districting plans at issue.”); id. at 2506 (“The North Carolina District Court

further concluded that the 2016 Plan violated the Elections Clause and Article I, § 2.

We are unconvinced by that novel approach.”).

¶ 107 The second premise underpinning Rucho’s political-question holding was the

absence of a standard that the Court deemed to be “clear, manageable[,] and

politically neutral.” Id. at 2500. This rationale was particularly pressing because,

“while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to

engage in racial discrimination in districting, ‘a jurisdiction may engage in

constitutional political gerrymandering’ ” under federal law. Id. at 2497 (quoting HARPER V. HALL

Hunt v. Cromartie, 526 U.S. 541, 551 (1999)). According to the Court, “the question

is one of degree,” and “it is vital in such circumstances that the Court act only in

accord with especially clear standards.” Id. at 2498. However, the Court held the

plaintiffs had not supplied standards to answer the question, “At what point does

permissible partisanship become unconstitutional?” Id. at 2501. Moreover, the tests

adopted by the lower courts were unsatisfactory because they failed to articulate such

a standard that was sufficiently “clear” and “manageable.” Id. at 2503–05. Finally,

the dissent’s proposed test, using “a State’s own districting criteria as a neutral

baseline” was unmanageable because “it does not make sense to use criteria that will

vary from State to State and year to year.” Id. at 2505.

¶ 108 A third consideration animating the Court’s decision was a prudential

evaluation of the role of federal courts in the constitutional system. Rucho, 139 S. Ct.

at 2494 (framing the question presented as “whether there is an ‘appropriate role for

the Federal Judiciary’ in remedying the problem of partisan gerrymandering”

(emphasis added) (quoting Gill v. Whitford, 138 S. Ct. 1916, 1926 (2018))); id. at 2507

(“Consideration of the impact of today’s ruling on democratic principles cannot ignore

the effect of the unelected and politically unaccountable branch of the Federal

Government assuming such an extraordinary and unprecedented role.”); id.

(advocating action through states, including by state supreme courts on state law

grounds); id. at 2508 (suggesting Congress could act); id. at 2499 (“But federal courts HARPER V. HALL

are not equipped to apportion political power as a matter of fairness, nor is there any

basis for concluding that they were authorized to do so.”).

¶ 109 In summary, federal courts initially forswore virtually any role in the “political

thicket” of apportionment. See Colegrove, 328 U.S. at 556. However, in Baker and its

progeny, the Supreme Court of the United States entered that thicket at least to the

extent of policing malapportionment. See Baker, 369 U.S. 186. The Court’s reasons

for entering the thicket are relevant today: the Supreme Court recognized that absent

its intervention to enforce constitutional rights, our system of self-governance would

be representative and responsive to the people’s will in name only. The Court entered

the political thicket for a time as well to review partisan gerrymandering claims in

Bandemer, but ultimately rejected that decision in Vieth, and in Rucho, the Court

removed such claims from the purview of federal courts altogether. The premises that

animated the Court in Rucho are substantially the same as those that kept it from

policing malapportionment claims in the first place: the perception that there is no

“discernable” right to such claims cognizable in the federal Constitution, a prudential

evaluation that courts are ill-equipped to hear such claims, and a belief that courts

should not involve themselves in “political” matters.

¶ 110 However, simply because the Supreme Court has concluded partisan

gerrymandering claims are nonjusticiable in federal courts, it does not follow that

they are nonjusticiable in North Carolina courts, as Chief Justice Roberts himself HARPER V. HALL

noted in Rucho. Rucho, 139 S. Ct. at 2507 (“Provisions in state statutes and state

constitutions can provide standards and guidance for state courts to apply.”). First,

our state constitution “is more detailed and specific than the federal Constitution in

the protection of the rights of its citizens.” Corum v. Univ. of N.C. Through Bd. of

Governors, 330 N.C. 761, 783 (1992). Second, state law provides more specific neutral

criteria against which to evaluate alleged partisan gerrymanders, and those criteria

would not require our court system to consider fifty separate sets of criteria, as would

federal court involvement. Finally, Rucho was substantially concerned with the role

of federal courts in policing partisan gerrymandering, while recognizing the

independent capacity of state courts to review such claims under state constitutions

as a justification for judicial abnegation at the federal level. The role of state courts

in our constitutional system differs in important respects from the role of federal

courts.

¶ 111 Having canvassed relevant federal decisions, we now consider whether as a

matter of state law plaintiffs’ partisan gerrymandering claims are justiciable under

the North Carolina Constitution. We conclude that they are.

C. The Question Presented Is Not Committed to the “Sole Discretion” of the General Assembly

¶ 112 Under North Carolina law, courts will not hear “purely political questions.”

This Court has recognized two criteria of political questions: (1) where there is “a

textually demonstrable constitutional commitment of the issue” to the “sole HARPER V. HALL

discretion” of a “coordinate political department[,]” Bacon v. Lee, 353 N.C. 696, 717

(2001) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)); and (2) those questions that

can be resolved only by making “policy choices and value determinations[,]” id.

(quoting Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986)).

¶ 113 We first consider the issue of whether there is a textually demonstrable

commitment of the issue to the “sole discretion” of a coordinate branch of government.

The constitution vests the responsibility for apportionment of legislative districts in

the General Assembly under article II of our state constitution. Article II provides:

“The General Assembly . . . shall revise the senate districts and the apportionment of

Senators among those districts.” N.C. Const. art. II, § 3; see N.C. Const. art. II, § 5

(stating the same requirement for the North Carolina House). Legislative Defendants

contend that “a delegation of a political task to a single political branch of government

impliedly forecloses the other branches of government from undertaking that task”

and that these provisions evidence such a textual commitment. They argue that this

Court “has repeatedly acknowledged that this constitutional text is a grant of

unreviewable political discretion to the legislative branch.” This argument—that

gerrymandering claims are categorically nonjusticiable because reapportionment is

committed to the sole discretion of the General Assembly—is flatly inconsistent with

our precedent interpreting and applying constitutional limitations on the General

Assembly’s redistricting authority. We have interpreted and applied both the HARPER V. HALL

expressly enumerated limitations contained in article II, sections 3 and 5, and the

limitations contained in other constitutional provisions such as the equal protection

clause. Stephenson v. Bartlett, 355 N.C. 354, 370–71, 378–81 (2002) (determining

whether the General Assembly’s use of its article II power to apportion legislative

districts complied with federal law in accordance with article I, sections 3 and 5 of

our constitution, and our state’s equal protection clause in article I, section 19);

Blankenship v. Bartlett, 363 N.C. 518, 525–26 (2009) (holding that General

Assembly’s exercise of its power under article IV, section 9 to establish the election of

superior court judges in judicial districts must comport with our state’s equal

protection clause in article I, section 19). Legislative defendants’ argument is,

essentially, an effort to turn back the clock to the time before courts entered the

political thicket to review districting claims in Baker v. Carr. Yet, as the facts of this

case demonstrate, the need for this Court to continue to enforce North Carolinians’

constitutional rights has certainly not diminished in the intervening years.

¶ 114 Relatedly, but more specifically, Legislative Defendants argue that even if

certain gerrymandering claims may be justiciable, claims alleging partisan

gerrymandering in violation of state constitutional provisions are nonjusticiable

because this Court has endorsed the consideration of partisan advantage in the

redistricting process. In support of this proposition, Legislative Defendants cite to our

decision in Stephenson, where we stated the following in full: HARPER V. HALL

The 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, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (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 imposed on legislative redistricting and reapportionment in the State Constitution.

355 N.C. at 371. Legislative Defendants misread this statement. We did not conclude

that the text of our state constitution permits the General Assembly to “consider

partisan advantage and incumbency protection”; we concluded that federal law

permitted that consideration by citing to the decision of Gaffney v. Cummings, 412

U.S. 735 (1973). See Stephenson, 355 N.C. at 371. Moreover, Gaffney in no way

supports Legislative Defendants’ argument that we have endorsed their interest in

securing partisan advantage to any extent and which results in systematically

disfavoring voters of one political party. In Gaffney, the Supreme Court of the United

States rejected a partisan gerrymandering claim to an apportionment plan that

pursued a principle of “political fairness” in order to “allocate political power to the

parties in accordance with their voting strength.” Gaffney, 412 U.S. at 754 (emphasis

added). We expressly reserved the question of whether the General Assembly could

consider such criteria “in conformity with the State Constitution,” while also

affirming the applicability of “constitutional limitations” that the people imposed on

the legislative redistricting process in other provisions of the North Carolina HARPER V. HALL

Constitution, such as the equal protection clause. Stephenson, 355 N.C. at 371.

Simply put, resolving Stephenson did not require us to decide the legality of partisan

gerrymandering under the North Carolina Constitution.

¶ 115 The commitment of responsibility for apportionment to the General Assembly

in article II provides no support for the Legislative Defendants’ argument. First, the

list of criteria the General Assembly is required to consider by that section does not

include “partisan advantage.” See N.C. Const. art. II, § 3. Furthermore, we cannot

infer the non-justiciability of partisan gerrymandering purely from the structural fact

that the decennial apportionment of legislative districts is committed to a “political”

branch. The General Assembly has the legislative power of apportionment under

article II, but exercise of that power is subject to other “constitutional limitations.”

Stephenson, 355 N.C. at 371. Put another way, the mere fact that responsibility for

reapportionment is committed to the General Assembly does not mean that the

General Assembly’s decisions in carrying out its responsibility are fully immunized

from any judicial review. That startling proposition is, again, entirely inconsistent

with our modern redistricting precedents and, on a more fundamental level,

inconsistent with this Court’s obligation to enforce the provisions of the North

Carolina Constitution dating to 1787.

¶ 116 Stephenson itself is incompatible with Legislative Defendants’ argument.

Stephenson was a vote-dilution challenge under the equal protection clause of our HARPER V. HALL

state constitution. If Stephenson concluded that redistricting decisions were

exclusively constitutionally committed to the General Assembly because of article II,

then no other constitutional limitations would be applicable. Plainly they are. See id.

at 379.

¶ 117 This case does not ask us to remove all discretion from the redistricting

process. The General Assembly will still be required to make choices regarding how

to reapportion state legislative and congressional districts in accordance with

traditional neutral districting criteria that will require legislators to exercise their

judgment. Rather, this case asks how constitutional limitations in our Declaration of

Rights limit the General Assembly’s power to apportion districts under article II. It

is thus analogous to Cooper v. Berger, 370 N.C. 392 (2018), in that it “involves a

conflict between two competing constitutional provisions,” and it “involves an issue

of constitutional interpretation, which this Court has a duty to decide.” Id. at 412.

¶ 118 More fundamentally, Legislative Defendants’ argument that the textual grant

of a power to a “political” branch is sufficient to render exercise of that power

unreviewable strikes at the foundation stone of our state’s constitutional caselaw—

Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787). In Bayard, the courts of North Carolina

first asserted the power and duty of judicial review of legislative enactments for

compliance with the North Carolina Constitution, and to strike down laws in conflict

therewith. Id. at 7. In holding that we had the power of judicial review we specifically HARPER V. HALL

reasoned that if “members of the General Assembly” could violate some constitutional

rights, “they might with equal authority, not only render themselves the Legislators

of the State for life, without any further election of the people, [but] from thence

transmit the dignity and authority of legislation down to their heirs male forever.”

Id. It was out of concern for the very possibility that the legislature might intercede

in the elections for their own office, which our constitution delegates the legislature

power over, in contravention of the constitutional rights of the people to elect their

own representatives that led this Court to assert the power of judicial review. To

conclude that the mere commitment of the apportionment power in article II to the

General Assembly renders its apportionment decisions unreviewable would require

us to betray our most fundamental constitutional duty. “It is the state judiciary that

has the responsibility to protect the state constitutional rights of the citizens; this

obligation to protect the fundamental rights of individuals is as old as the State.”

Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992).

¶ 119 The General Assembly has the power to apportion legislative and

congressional districts under article II and state law, but exercise of that power is

subject to other “constitutional limitations,” including the Declaration of Rights. The

question is whether the General Assembly complied with provisions of the

Declaration of Rights in its exercise of the apportionment power. There is no textually

demonstrable commitment of that issue to the legislative branch. HARPER V. HALL

¶ 120 In determining whether plaintiffs’ claims would require the court to make

“policy choices and value determinations,” Bacon, 353 N.C. at 717, we must determine

whether, as plaintiffs argue, the Declaration of Rights of the North Carolina

Constitution prohibits partisan gerrymandering and, if so, whether the application of

those claims would require such determinations. As we long ago established and have

since repeatedly affirmed, “[t]his Court is the ultimate interpreter of our State

Constitution.” Corum, 330 N.C. at 783 (citing Bayard, 1 N.C. (Mart.) 5). So too when

it comes to reapportionment. Stephenson, 355 N.C. at 370–71, 378–81; Blankenship,

363 N.C. at 525–26.

D. Partisan Gerrymandering Violates the Declaration of Rights in the North Carolina Constitution and Is Justiciable

¶ 121 Plaintiffs argue that Legislative Defendants’ districting plans violate the free

elections clause, equal protection clause, free speech clause, and freedom of assembly

clause of our constitution’s Declaration of Rights. Accordingly, we must examine the

text and structure of the Declaration of Rights as well as the intent and history of

these constitutional provisions to determine whether the rights plaintiffs allege are

protected by the Declaration of Rights and whether this Court is empowered by the

constitution to guarantee those rights.

¶ 122 Before examining specific provisions in detail, we make some general

observations about the Declaration of Rights in article I of our constitution. First,

“[t]he Declaration of Rights was passed by the Constitutional Convention on 17 HARPER V. HALL

December 1776, the day before the Constitution itself was adopted, manifesting the

primacy of the Declaration in the minds of the framers.”10 Corum, 330 N.C. at 782.

The Declaration of Rights preceded the constitution, and hence the rights reserved

by the people preceded the division of power among the branches therein. “The

relationship is not that exhibited by the U.S. Constitution with its appended Bill of

Rights, the latter adding civil rights to a document establishing the basic institutions

of government. Instead, North Carolina’s declaration of rights . . . is logically, as well

as chronologically, prior to the constitutional text.” John V. Orth & Paul M. Newby,

The North Carolina Constitution 5–6 (2d ed. 2013). That logical and chronological

primacy is preserved in our present constitution, with the Declaration of Rights now

incorporated in the text of the constitution itself as article I.

¶ 123 Second, early in this Court’s history we “recognized the supremacy of rights

protected in Article I and indicated that [we] would only apply the rules of decision

10 The primacy of the Declaration of Rights over the powers allocated in the constitutional text in the minds of the framers is fitting for a people so opposed to government tyranny coalesced in any source. North Carolinians preceded the Revolution by ten years through the Regulator Movement opposing the Royal Governor William Tryon. They preceded the Declaration of Independence with the Halifax Resolves. After the Revolution they only belatedly approved by convention the federal Constitution because of its failure to include a Bill of Rights, an implicit rejection of the notion that structural protections of rights, like the separation and division of powers, would suffice. It is worth noting that a leading argument for the adoption of a federal Bill of Rights, in the words of Thomas Jefferson, was “the legal check which [such a Bill would put] into the hands of the judiciary,” as “a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity.” Laurence H. Tribe, American Constitutional Law 8 & n.8 (3d ed. 2000) (quoting 14 The Papers of Thomas Jefferson 659 (Julian P. Boyd ed., 1958)). HARPER V. HALL

derived from the common law and such acts of the legislature that are consistent with

the Constitution.” Corum, 330 N.C. at 783 (citing Trs. of the Univ. of N.C. v. Foy, 5

N.C. 57 (1805)). In tying judicial review to the primacy of the Declaration of Rights,

we recognized that

[t]he fundamental purpose for [the Declaration’s] adoption was to provide citizens with protection from the State’s encroachment upon these rights. Encroachment by the State is, of course, accomplished by the acts of individuals who are clothed with the authority of the State. The very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.

Id. at 782–83 (citing State v. Manuel, 20 N.C. 144 (1838)); see also id. at 782 (“The

civil rights guaranteed by the Declaration of Rights in Article I of our Constitution

are individual and personal rights entitled to protection against state action . . . .”).

¶ 124 Finally, the framers of our Declaration of Rights and constitution guarded

against not only abuses of executive power but also the tyrannical accumulation of

power that subverts democracy in the legislative branch. William Hooper, a North

Carolina delegate to the Continental Congress, urged that the state constitution

prevent legislators from making “their own political existence perpetual.” Letter from

William Hooper to the Provincial Congress of North Carolina (Oct. 26, 1776), in 10

Colonial and State Records of North Carolina 867–68, available at

https://docsouth.unc.edu/csr/index.php/document/csr10-0407. John Adams, “already HARPER V. HALL

a renowned authority on constitutionalism,” Orth & Newby at 5, submitted two

letters of advice to the Convention, recommending that to prevent the legislature

from “vot[ing] itself perpetual” the constitution must divide the General Assembly

into two chambers so each could check the other. Essay by John Adams on “Thoughts

on Government” (March 1776), in 11 Colonial and State Records of North Carolina

321, 324, available at https://docsouth.unc.edu/csr/index.php/document/csr11-0189.

And so the framers did create two chambers, and we have maintained that division

to this day. See N.C. Const. of 1776, § 1; N.C. Const. art. II, § 1.

¶ 125 Despite these protections, the primacy of the Declaration of Rights suggests

that our framers did not believe that division of power alone would be sufficient to

protect their civil and political rights and prevent tyranny. Accordingly, they

enshrined their rights in the Declaration of Rights. They also created a state judiciary

invested with the “judicial power.” See N.C. Const. of 1776, § 1; N.C. Const. art. IV,

§ 1. This independent judiciary was another structural protection. In Bayard, we

concluded that our courts have the power, and indeed the obligation, to review

legislative enactments for compliance with the North Carolina Constitution and to

strike down unconstitutional laws. 1 N.C. (Mart.) at 7. The Court reasoned that if we

abdicated this power and obligation, legislators could make themselves “Legislators

of the State for life” and insulate themselves from “any further election of the people.”

Id. Giving effect to the will of the people through popular sovereignty and the rights HARPER V. HALL

protected by the Declaration of Rights, including the rights to free and frequent

elections, were central to our recognition of the necessity of judicial review.

¶ 126 Having reviewed these structural and historical aspects of the Declaration of

Rights, we now turn to the text to analyze whether plaintiffs’ partisan

gerrymandering claims have a discernible basis therein. Indeed, the very text of the

Declaration of Rights calls us back time and again to itself, the source of

constitutional meaning, by providing that “[a] frequent recurrence to fundamental

principles is absolutely necessary to preserve the blessings of liberty.” N.C. Const. art

I, § 35.11 In a leading case from Virginia, construing a cognate provision of the

Virginia Declaration of Rights, Judge Roane defined “fundamental principles” as

those great principles growing out of the Constitution, by the aid of which, in dubious cases, the Constitution may be explained and preserved inviolate; those landmarks, which it may be necessary to resort to, on account of the impossibility to foresee or provide for cases within the spirit, but without the letter of the Constitution.

Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20, 40 (1793); see Orth & Newby at 92

(discussing same). These “landmarks” serve as an important backdrop to aid in

interpreting the “spirit” of the North Carolina Constitution and the scope of the

11 By this text, “[a]ll generations are solemnly enjoined to return ad fontes (to the

sources) and rethink for themselves the implications of the fundamental principles of self- government that animated the revolutionary generation.” John V. Orth & Paul M. Newby, The North Carolina Constitution 91 (2d ed. 2013). HARPER V. HALL

sweeping provisions of its Declaration of Rights.

¶ 127 North Carolina’s Declaration of Rights as it exists today in article I was forged

not only out of the revolutionary spirit of 1776 but also the reconstruction spirit of

1868. See John L. Sanders, Our Constitutions: An Historical Perspective,

https://www.sosnc.gov/documents/guides/legal/North_Carolina_Constitution_Histori

cal.pdf (“Drafted and put through the convention by a combination of native

Republicans and a few carpetbaggers, . . . [f]or its time, [the Constitution of 1868] was

a progressive and democratic instrument of government.”); id. (“The Constitution of

1868 incorporated the 1776 Declaration of Rights into the Constitution as Article I

and added several important guarantees.”); id. (“[T]he Constitution of 1971 brought

forward much of the 1868 language with little or no change.”). Our Declaration of

Rights begins with the declaration of two fundamental principles, the costly fruit paid

in the blood of the Civil War and Revolutionary War, respectively: equality of persons

and the democratic principle of popular sovereignty.12 Article I, sections 1 and 2

provide:

Section 1. The equality and rights of persons. We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.

12 Article I, section 1 originates from the 1868 constitution, while article I, section 2,

originates from the 1776 constitution. HARPER V. HALL

Sec[tion] 2. Sovereignty of the people. All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.

N.C. Const. art. I, §§ 1–2.

¶ 128 Under article I, section 1, equality logically precedes sovereignty, as equality

is “self-evident.” Article I, section 1 recognizes the self-evident fundamental principle

of equality; however, that does not mean it is not a source of cognizable rights by its

own terms as well. See, e.g., Tully v. City of Wilmington, 370 N.C. 527, 533, 536 (2018)

(holding each person’s “inalienable right” to the “enjoyment of the fruits of their own

labor” protects the fundamental right to “pursue his chosen profession free from”

unreasonable government interference). This section deliberately borrowed the

language of the Declaration of Independence, which was quoted and expanded upon

in the Gettysburg Address just a few years prior to the 1868 Reconstruction

Convention. Article I, section 1’s recognition of the first principle that “all persons are

created equal” is universal.

¶ 129 Article I, section 2 locates the source of all “political power” under the

Declaration of Rights in “the people.” N.C. Const. art. I, § 2. It specifies that “all

government of right” can only “originate[ ] from the people.” Id. This “government of

right” is only established when it is “founded upon [the people’s] will only,” and

“instituted solely for the good of the whole.” Id. Section 2 of the Declaration of Rights HARPER V. HALL

can fruitfully be read together with the first clause of section 3. N.C. Const. art. I, §

3, cl. 1 (“The people of this State have the inherent, sole, and exclusive right of

regulating the internal government and police thereof . . . .”). “These two sections

contain both a general and a specific assertion of democratic theory.” Orth & Newby

at 48 (emphasis added). Section 2’s declaration that “[a]ll political power is vested in

and derived from the people” is an “abstract statement of principle.” Id. Meanwhile,

section 3’s declaration that “the people of this State have the inherent, sole, and

exclusive right of regulating the internal government and police thereof,” is “a specific

local application of the general rule.” Id. These sections “now serve as a fuller

theoretical statement” of the core democratic principle: “the revolutionary faith in

popular sovereignty.” Id.; see Thrift v. Bd. of Comm’rs, 122 N.C. 31, 37 (1898) (“Our

theory of government, proceeding directly from the people, and resting upon their will,

is essentially different — at least, in principle — from that of England . . . .” (emphasis

added)). Under popular sovereignty, the democratic theory of our Declaration of

Rights, the “political power” of the people which is “vested in and derives from

[them],” is channeled through the proper functioning of the democratic processes of

our constitutional system to the people’s representatives in government. N.C. Const.

art. I, § 2. Only when those democratic processes function as provided by our

constitution to channel the will of the people can government be said to be “founded

upon their will only.” Id. HARPER V. HALL

¶ 130 The principle of equality and the principle of popular sovereignty are the two

most fundamental principles of our Declaration of Rights. N.C. Const. art. I, §§ 1–2.

The principle of equality, adopted into our Declaration of Rights from the Declaration

of Independence and the Gettysburg Address, provides that “all persons are created

equal.” N.C. Const. art. I, § 1. Meanwhile, under the principle of popular sovereignty,

the “political power” of the people is channeled through the proper functioning of the

democratic processes of our constitutional system to the people’s representatives in

government. N.C. Const. art. I, § 2. While these are two separate fundamental

principles under our present constitutional system, one cannot exist without the

other. Equality, being logically as well as chronologically prior, is essential to popular

sovereignty. See Abraham Lincoln, “On Slavery and Democracy,” I Speeches and

Writings, 484 (1989) (“As I would not be a slave, so I would not be a master. This

expresses my idea of democracy. Whatever differs from this, to the extent of the

difference, is no democracy.”); “Address at Gettysburg, Pennsylvania,” II Speeches

and Writings at 536 (connecting “the proposition that all men are created equal” to

“government of the people, by the people, for the people”). Consequently, sections 1

and 2 of our Declaration of Rights, when read together, declare a commitment to a

fundamental principle of democratic and political equality. The principle of political

equality, from the Halifax Resolves and the Declaration of Independence to Lincoln’s

Gettysburg Address and the Reconstruction Convention to our Declaration of Rights HARPER V. HALL

today, can mean only one thing—to be effective, the channeling of “political power”

from the people to their representatives in government through the democratic

processes envisioned by our constitutional system must be done on equal terms. If

through state action the ruling party chokes off the channels of political change on

an unequal basis, then government ceases to “derive[ ]” its power from the people or

to be “founded upon their will only,” and the principle of political equality that is

fundamental to our Declaration of Rights and our democratic constitutional system

is violated. N.C. Const. art. I, §§ 1, 2; see Bayard, 1 N.C. (Mart.) at 7 (recognizing this

principle in holding that judicial review is needed to prevent legislators from

permanently insulating themselves from popular will); see also John Hart Ely,

Democracy and Distrust 103 (1980) (“In a representative democracy value

determinations are to be made by our elected representatives, and if in fact most of

us disapprove we can vote them out of office. Malfunction occurs when the process is

undeserving of trust, when [ ] the ins are choking of the channels of political change

to ensure that they will stay in and the outs will stay out.”).

¶ 131 In Dickson v. Rucho, we held a partisan gerrymandering challenge that

legislative reapportionment plans violated the “Good of the Whole” clause failed

because that argument “is not based upon a justiciable standard.” 368 N.C. 481, 534

(2015). Of course, the judgment in Dickson was vacated on federal law grounds, 137

S. Ct. 2186 (2017). However, taken as a valid proposition of state law, it does not HARPER V. HALL

follow that sections 1 and 2 in toto provide no guidance for determining the

constitutionality and justiciability of partisan gerrymandering or do not aid in

construing other constitutional provisions. The principle of political equality which

we have articulated is a fundamental principle of our Declaration of Rights. See N.C.

Const. art. I, § 35. Such fundamental principles guide us in part through the light

they throw on other constitutional provisions. Accordingly, interpreting article I,

section 2, we have held that “[t]his is a government of the people, by the people, and

for the people, founded upon the will of the people, and in which the will of the people,

legally expressed, must control” and reasoned that “[i]n construing [other] provisions

of the constitution, we should keep in mind” this fundamental principle. State ex rel.

Quinn v. Lattimore, 120 N.C. 426, 428–29 (1897). While plaintiffs do not contend the

enacted plans constitute partisan gerrymanders in violation of article I, sections 1

and 2, the fundamental principle of political equality underpinning those sections

guides our interpretation of other provisions of the Declaration of Rights.

¶ 132 Plaintiffs allege Legislative Defendants’ enacted plans violate the free

elections clause under section 10, the free speech clause under section 14, the freedom

of assembly clause under section 12, and the equal protection clause under section 19

of the Declaration of Rights as partisan gerrymanders. Along with guidance from the

fundamental principles described above, in construing these provisions in the

Declaration of Rights, we are mindful that: HARPER V. HALL

It is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State. Our Constitution is more detailed and specific than the federal Constitution in the protection of the rights of its citizens. We give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.

Corum, 330 N.C. at 783 (cleaned up). More broadly, “a Constitution should generally

be given, not essentially a literal, narrow, or technical interpretation, but one based

upon broad and liberal principles designed to ascertain the purpose and scope of its

provisions.” Elliott v. Gardner, 203 N.C. 749, 753 (1932). In interpreting these

provisions, we remain mindful of our “duty to follow a reasonable, workable, and

effective interpretation that maintains the people’s express wishes.” Stephenson v.

Bartlett, 355 N.C. 354, 382 (2002).

1. Free Elections Clause

¶ 133 Plaintiffs first argue that partisan gerrymandering violates the free elections

clause in section 10 of our Declaration of Rights. The free elections clause has no

analogue in the federal Constitution and is, accordingly, a provision that makes the

state constitution “more detailed and specific than the federal Constitution in the

protection of the rights of its citizens.” Corum, 330 N.C. at 783. This clause provides,

in laconic terms, “[a]ll elections shall be free.” N.C. Const. art. I, § 10.

¶ 134 We turn to the history of the free elections clause. See Sneed v. Greensboro City HARPER V. HALL

Bd. of Educ., 299 N.C. 609, 613 (1980) (noting in constitutional interpretation we

consider “the history of the . . . provision and its antecedents”). The free elections

clause was included in the 1776 Declaration of Rights. It was modeled on a nearly

identical clause in Virginia’s declaration of rights. See Va. Const. of 1776, Declaration

of Rights, § 6 (1776); Earle H. Ketcham, The Sources of the North Carolina

Constitution of 1776, 6 N.C. Hist. Rev. 215, 221 (1929). The Virginia clause was

derived from a clause in the English Bill of Rights of 1689, a product of the Glorious

Revolution of 1688. Ketcham, The Sources of the North Carolina Constitution of 1776,

6 N.C. Hist. Rev. at 221. That provision provided “election of members of parliament

ought to be free.” Bill of Rights 1689, 1 W. & M. Sess. 2 c. 2 (Eng.). This provision of

the 1689 English Bill of Rights was adopted in response to the king’s efforts to

manipulate parliamentary elections by diluting the vote in different areas to attain

“electoral advantage,” leading to calls for a “free and lawful parliament” by the

participants of the Glorious Revolution. J.R. Jones, The Revolution of 1688 in

England 148 (1972); Gary S. De Krey, Restoration and Revolution in Britain: A

Political History of the Era of Charles II and the Glorious Revolution 241, 247–48,

250 (2007). Avoiding the manipulation of districts that diluted votes for electoral gain

was, accordingly, a key principle of the reforms following the Glorious Revolution.

¶ 135 North Carolina’s free elections clause was enacted following the passage of

similar clauses in other states, including Pennsylvania and Virginia. See John V. HARPER V. HALL

Orth, North Carolina Constitutional History, 70 N.C. L. Rev. 1759, 1797–98 (1992).

Pennsylvania’s free elections clause was enacted in response to laws that

manipulated elections for representatives to Pennsylvania’s colonial assembly.

League of Women Voters of Pa. v. Pennsylvania, 645 Pa. 1, 178 A.3d 737, 804 (2018).

Pennsylvania’s version of the free elections clause was intended to end “the dilution

of the right of the people of [the] Commonwealth to select representatives to govern

their affairs,” League of Women Voters of Pa., 645 Pa. at 108, 178 A.3d 737 at 808,

and to codify an “explicit provision[ ] to establish protections of the right of the people

to fair and equal representation in the governance of their affairs[,]” id. at 104, 178

A.3d 737 at 806.

¶ 136 Under North Carolina law, our free elections clause was also intended for that

purpose. This clause was enacted with the preceding clause requiring “frequent

elections,” which provides that “[f]or redress of grievances and for amending and

strengthening the laws, elections shall be often held.” N.C. Const. art. I, § 9.

Construing these provisions in pari materia, it follows that the “elections” which the

prefatory clause of section 9 calls for must be “free” as well as “frequent.” As a matter

of fundamental principle, these sections “concern[ ] the application of the principle of

popular sovereignty, first stated in Section 2.” Orth & Newby at 55. The free elections

clause, accordingly, provides “free elections” as the most fundamental democratic

process by which the principle of popular sovereignty is applied, and the government HARPER V. HALL

“derive[s]” its power from the people and is “founded upon their will only.” N.C. Const.

art. I, § 2; see also Quinn, 120 N.C. at 426.

¶ 137 The free elections clause reflects the principle of the Glorious Revolution that

those in power shall not attain “electoral advantage” through the dilution of votes

and that representative bodies—in England, parliament; here, the legislature—must

be “free and lawful.” De Krey, Restoration and Revolution in Britain at 250.

Legislative Defendants argue and the trial court concluded that the free elections

clause could not be read to speak on partisan gerrymandering because Patrick Henry,

one of the drafters of the Virginia free elections clause on which ours was based,

engaged in the practice of partisan gerrymandering “to the detriment of James

Madison” at the time of that clause’s drafting.

¶ 138 We are unpersuaded by this evidence. First, the framers of our constitution did

not establish fixed rules preemptively attempting to address every possible

contingency. Thus, Legislative Defendants’ attempt to fix the meaning of these

provisions by sole reference to the practices thought permissible at the time they were

enacted is not only inconsistent with hundreds of years of constitutional development,

but it is also inconsistent with the intent of the people as expressed in their choice to

espouse broad principles rather than narrow rules. Furthermore, the framers of

North Carolina’s constitution repeatedly articulated their intent to make the North

Carolina Constitution responsive to the broader principles of the Glorious HARPER V. HALL

Revolution.13 The framers of North Carolina’s constitution, such as James Iredell,

believed that the American Revolution represented the fulfillment of the same

principles vindicated by England’s Glorious Revolution. See generally Speech by

James Iredell to the Edenton District Superior Court Grand Jury (May 1778), in 13

Colonial and State Records of North Carolina 434–36, available at

https://docsouth.unc.edu/csr/index.php/document/csr13-0498. And in 1775, prior to

the drafting of the state constitution, North Carolina’s delegates to the Continental

Congress urged North Carolina to fight British attempts to infringe “those glorious

Revolution principles.” Circular letter from William Hooper, Joseph Hewes, and

Richard Caswell to the inhabitants of North Carolina, in 10 Colonial and State

Records of North Carolina 23. Finally, North Carolina’s leaders demanded the

election of delegates to the Provincial Congress “be free and impartial.” Minutes of

the North Carolina Council of Safety (Aug. 22, 1776), in 10 Colonial and State Records

of North Carolina 702. These primary sources indicate that our founders did not hold

the limited view that the only requirement for an election to be a “free” election was

that those qualified had access to the ballot box, although that is also within the

13 The trial court concluded the free elections clause in our Declaration of Rights “does

not operate as a restraint on the General Assembly’s ability to redistrict for partisan advantage,” based in part on the history of the free elections clauses in the Virginia Declaration of Rights and the English Bill of Rights. But based on the history we have recounted, the perceived unfairness of drawing of borough lines for partisan advantage was a central concern of the Glorious Revolution, and the framers of the North Carolina Declaration of Rights and Constitution in 1776 expressed a strong commitment to the principles of the Glorious Revolution, including an insistence on elections being “impartial.” HARPER V. HALL

ambit of the clause; rather, they adhered to the broad principles of the Glorious

Revolution—that all attempts to manipulate the electoral process, especially through

vote dilution on a partisan basis, as in the “rotten boroughs” of England, would be

prohibited. Such a reading is consonant with section 2, which adopts the principle of

popular sovereignty in order that the government be “founded upon [the people’s] will

only.” N.C. Const. art. I, § 2.

¶ 139 Moreover, the precise wording of the free elections clause has changed over

time. It originally read, “[E]lections of Members to serve as Representatives in

General Assembly ought to be free.” In 1868, in concert with its adoption of the

equality principle in section 1, the Reconstruction Convention amended the free

elections clause to read “[a]ll elections ought to be free.” In 1971, the present version

was adopted, changing “ought to” to the command “shall.” This change was intended

to “make it clear” that the free elections clause, along with other “rights secured to

the people by the Declaration of Rights[,] are commands and not mere admonitions

to proper conduct on the part of government.” N.C. State Bar v. DuMont, 304 N.C.

627, 639 (1982) (quoting John L. Sanders, “The Constitutional Development of North

Carolina,” in North Carolina Manual 87, 94 (1979)). Accordingly, though those in

power during the early history of our state may have viewed the free elections clause

as a mere “admonition” to adhere to the principle of popular sovereignty through

elections, a modern view acknowledges this is a constitutional requirement. HARPER V. HALL

¶ 140 Finally, from the earliest language, the framers evidenced an intent to

enshrine a broad principle of “free” elections, and this language is a direct application

of the principle of popular sovereignty in section 2. See N.C. Const. art. 1, § 2. Since

the Reconstruction Convention of 1868, it must also be textually read in concord

with—and as giving effect to—the fundamental principle of equality, that “all persons

are created equal,” announced in section 1. See N.C. Const. art. 1, § 1. Therefore, even

if “free” originally meant the electoral process would be available for some, at least

since 1868, it must also mean that voters must not be denied voting power on an

equal basis in harmony with this fundamental principle. Although our understanding

of what is required to maintain free elections has evolved over time, there is no doubt

these fundamental principles establish that elections are not free if voters are denied

equal voting power in the democratic processes which maintain our constitutional

system of government. When the legislature denies to certain voters this

substantially equal voting power, including when the denial is on the basis of voters’

partisan affiliation, elections are not free and do not serve to effectively ascertain the

will of the people. This violates the free elections clause as interpreted against the

backdrop of the fundamental principles in our Declaration of Rights. Accordingly, for

an election to be free and the will of the people to be ascertained, each voter must

have substantially equal voting power and the state may not diminish or dilute that

voting power on a partisan basis. HARPER V. HALL

¶ 141 Thus, partisan gerrymandering, through which the ruling party in the

legislature manipulates the composition of the electorate to ensure that members of

its party retain control, is cognizable under the free elections clause because it can

prevent elections from reflecting the will of the people impartially and by diminishing

or diluting voting power on the basis of partisan affiliation. Partisan gerrymandering

prevents election outcomes from reflecting the will of the people and such a claim is

cognizable under the free elections clause.

2. Equal Protection Clause

¶ 142 Plaintiffs also argue that partisan gerrymandering is cognizable under the

equal protection clause because partisan gerrymandering may violate every

individual voter’s fundamental right to vote on equal terms and the fundamental

right to substantially equal voting power. We agree.

¶ 143 The equal protection clause provides that “[n]o person shall be denied the equal

protection of the laws.” N.C. Const. art. I, § 19. This clause was added to our

Declaration of Rights with the adoption of the 1971 constitution. Although the

language of this provision mirrors the federal Equal Protection Clause, “[i]t is beyond

dispute that this Court ‘ha[s] the authority to construe [the State Constitution]

differently from the construction by the United States Supreme Court of the Federal

Constitution, as long as our citizens are thereby accorded no lesser rights than they

are guaranteed by the parallel federal provision.’ ” Stephenson, 355 N.C. at 381 n.6 HARPER V. HALL

(second alteration in original) (quoting State v. Carter, 322 N.C. 709, 713 (1988)). Our

state constitution provides greater protection of voting rights than the federal

Constitution. Blankenship v. Bartlett, 363 N.C. 518, 522–24 (2009); Stephenson, 355

N.C. at 376, 380–81, 381 n.6.

¶ 144 The equal protection clause in section 19 of our Declaration of Rights requires

that if a government classification “impermissibly interferes with the exercise of a

fundamental right a strict scrutiny must be given the classification.” Northampton

Cnty. Drainage Dist. No. One v. Bailey, 326 N.C. 742, 746 (1990).

¶ 145 We have held that under our equal protection clause, “the right to vote on equal

terms is a fundamental right.” Stephenson, 355 N.C. at 378 (quoting Northampton,

326 N.C. at 747). In Stephenson, we further held that our equal protection clause

protects “the fundamental right of each North Carolinian to substantially equal

voting power.” 355 N.C. at 379. Under our state constitution, the fundamental right

to vote in elections, which is the central democratic process in our constitutional

system through which the “political power” that inheres in the people under the

fundamental principles of our Declaration of Rights is channeled to the people’s

representatives in government, encompasses “the principles of substantially equal

voting power and substantially equal legislative representation.” Id. at 382.

¶ 146 Accordingly, our state constitution’s equal protection clause in article I, section

19 provides greater protections in redistricting cases than the federal constitution. In HARPER V. HALL

Stephenson, we also held that the use of single-member and multi-member districts

in a redistricting plan violated our state’s equal protection clause. It did so because

voters in multi-member districts had a greater opportunity to influence

representatives, as “those living in [multi-member] districts may call upon a

contingent of responsive Senators and Representatives to press their interests, while

those in a single-member district may rely upon only one Senator or Representative.”

Id. at 379. This “classification of voters” between single-member districts and multi-

member districts created an “impermissible distinction among similarly situated

citizens[,]” implicated “the fundamental right to vote on equal terms,” id. at 378, and

restricted the right to “substantially equal voting power and substantially equal

legislative representation[,]” id. at 382. Accordingly, the redistricting plan triggered

strict scrutiny, not because the government drew a distinction on the basis of a

protected classification, but because the distinction the government drew implicated

a fundamental right. Id. at 378. Under Stephenson, the fundamental right to

substantially equal voting power is more expansive than any analogous fundamental

right under the Equal Protection Clause of the Fourteenth Amendment, since that

provision does not prohibit the use of single-member and multi-member legislative

districts in one map. See Fortson v. Dorsey, 379 U.S. 433, 437 (1965) (holding that the

use of multi-member and single-member districts in the same legislative map did not

violate the Equal Protection Clause where there was “no mathematical disparity” HARPER V. HALL

between voters).

¶ 147 Furthermore, the equal protection clause in article I, section 19 applies in

circumstances where the federal Equal Protection Clause is silent. In Blankenship v.

Bartlett, we held that our state’s equal protection clause “requires a heightened level

of scrutiny of judicial election districts,” because it implicates the fundamental “right

to vote on equal terms in representative elections,” although federal courts have held

the one-person, one-vote standard of the federal Equal Protection Clause is

inapplicable to state judicial elections. Blankenship, 363 N.C. at 522–23 (citing

Chisom v. Roemer, 501 U.S. 380 (1991)).

¶ 148 We hold here that partisan gerrymandering claims are cognizable under the

equal protection clause of our Declaration of Rights. “[T]he fundamental right to vote

on equal terms[,]” Stephenson, 355 N.C. at 378, includes the right to “substantially

equal voting power and substantially equal legislative representation[,]” id. at 382.

This necessarily encompasses the opportunity to aggregate one’s vote with

likeminded citizens to elect a governing majority of elected officials who reflect those

citizens’ views. Designing districts in a way that denies voters substantially equal

voting power by diminishing or diluting their votes on the basis of party affiliation

deprives voters in the disfavored party of the opportunity to aggregate their votes to

elect such a governing majority. Like the distinctions at issue in Stephenson, drawing

distinctions between voters on the basis of partisanship when allocating voting power HARPER V. HALL

diminishes the “representational influence” of voters. Id. at 377. Except, in the case

of partisan gerrymandering, the effect on the representational influence is more

severe because those who have been deprived equal voting power lack the same

opportunity as those from the favored party to elect a governing majority, even when

they vote in numbers that would garner voters of the favored party a governing

majority. Accordingly, those voters have far fewer legislators who are “responsive” to

their concerns and who can together “press their interests.” Id. at 379.

¶ 149 Our reading of the equal protection clause is most consistent with the

fundamental principles in our Declaration of Rights of equality and popular

sovereignty—together, political equality. See N.C. Const. art. I, §§ 1, 2. Popular

sovereignty requires that for a government to be “of right” it must be “founded upon

[the people’s] will only.” N.C. Const. art. I, § 2. In a statewide election, ascertaining

the will of the people is straightforward. But in legislative elections, voters only have

equal “representational influence” if results fairly reflect the will of the people not

only district by district, but in aggregate, and on equal terms. See Stephenson, 355

N.C. at 377 (examining the effect of single-member and multi-member districts across

the state). Otherwise, the “will” on which the government “is founded” is not that of

the people of this state but that of the ruling party.

¶ 150 We conclude that when on the basis of partisanship the General Assembly

enacts a districting plan that diminishes or dilutes a voter’s opportunity to aggregate HARPER V. HALL

with likeminded voters to elect a governing majority—that is, when a districting plan

systematically makes it harder for one group of voters to elect a governing majority

than another group of voters of equal size—the General Assembly unconstitutionally

infringes upon that voter’s fundamental rights to vote on equal terms and to

substantially equal voting power. Classifying voters on the basis of partisan

affiliation so as to dilute their votes in this manner is subject to strict scrutiny

because it burdens a fundamental right and is presumed unconstitutional unless

narrowly tailored to a compelling governmental interest. See Northampton, 326 N.C.

at 746 (“[I]f a classification impermissibly interferes with the exercise of a

fundamental right a strict scrutiny must be given the classification. Under the strict

scrutiny test the government must demonstrate that the classification it has imposed

is necessary to promote a compelling governmental interest.”).

3. Free Speech Clause and Freedom of Assembly Clause

¶ 151 Finally, plaintiffs argue that partisan gerrymandering is cognizable under the

free speech clause under section 14 and the freedom of assembly clause under section

12 of our Declaration of Rights. We agree.

¶ 152 Our free speech clause provides that “[f]reedom of speech and of the press are

two of the great bulwarks of liberty and therefore shall never be restrained.” N.C.

Const. art. I, § 14. Our freedom of assembly clause provides, in pertinent part, that

“[t]he people have a right to assemble together to consult for their common good, to HARPER V. HALL

instruct their representatives, and to apply to the General Assembly for redress of

grievances.” Id. § 12. These provisions textually differ from their federal analogues,

and we have construed them to provide greater protection than those provisions.

¶ 153 In Corum, this Court construed the free speech clause in our Declaration of

Rights. 330 N.C. at 781. The plaintiff alleged “retaliation against plaintiff for his

exercise of certain free speech rights.” Id. at 766. He brought a claim for, inter alia, a

direct cause of action under article I, section 14 of the state constitution. Id. We

reasoned that “[t]he words ‘shall never be restrained’ are a direct personal guarantee

of each citizen’s right of freedom of speech[,]” id. at 781; that this provision “is self-

executing[,]” id. at 782; and, accordingly, “the common law, which provides a remedy

for every wrong, will furnish the appropriate action for the adequate redress of a

violation of that right[,]” id. We observed concerning the free speech clause that

[t]his great bulwark of liberty is one of the fundamental cornerstones of individual liberty and one of the great ordinances of our Constitution. Freedom of speech is equal, if not paramount, to the individual right of entitlement to just compensation for the taking of property by the State. Certainly, the right of free speech should be protected at least to the extent that individual rights to possession and use of property are protected. A direct action against the State for its violations of free speech is essential to the preservation of free speech.

Id. (cleaned up). Under the Court’s decision in Corum, government action that

burdens people because of disfavored speech or association violates the free speech

clause. Id. at 766. The retaliation in Corum involved the allegation that government HARPER V. HALL

actors conditioned the plaintiff’s public employment (in that case, through demotion)

on limitations upon the plaintiff’s free speech and expression. See id. at 776. In

essence, by allegedly conditioning a public right or benefit (the plaintiff’s

employment) on speech, the government accomplished indirectly what it could not

have accomplished directly, and it penalized plaintiff’s protected free speech rights

based on his views.

¶ 154 In recognizing a direct cause of action for plaintiff’s retaliation claim under the

free speech clause, we construed the clause more expansively than the Supreme Court

of the United States has construed the Free Speech Clause of the First Amendment,

since that Court has not recognized a comparable direct constitutional claim under

that provision for retaliation. Even when federal free speech principles are

persuasive, we reserve the right to extend the reach of our free speech clause beyond

the scope of the First Amendment. See Libertarian Party v. State, 365 N.C. 41, 47

(2011).

¶ 155 Free speech and freedom of assembly rights are essential to the preservation

of our constitutional system. We have held that the “associational rights rooted in the

free speech and assembly clauses” are “of utmost importance to our democratic

system.” Libertarian Party, 365 N.C. at 49. In Libertarian Party, we reasoned that

“citizens form parties to express their political beliefs and to assist others in casting

votes in alignment with those beliefs.” Id. at 49. HARPER V. HALL

¶ 156 The role of free speech is also central in our democratic system. As one scholar

has noted:

Once one accepts the premise of the Declaration of Independence—that governments derive ‘their just powers from the consent of the governed’—it follows that the governed must, in order to exercise their right of consent, have full freedom of expression both in forming individual judgments and in forming the common judgment.

Thomas I. Emerson, The System of Freedom of Expression 7 (1970). Since 1776, the

people of North Carolina have founded our constitutional system on the premise that

“[a]ll political power is vested in and derived from the people” and that “government

of right” must “originate[ ] from the people” and be “founded upon their will only.”

N.C. Const. art. I, § 2. Since 1868, they have recognized that “all persons are created

equal.” N.C. Const. art. I, § 1. And since 1971, they have recognized that “[f]reedom

of speech” is one “of the great bulwarks of liberty” and therefore “shall never be

restrained.” N.C. Const. art. I, § 14.

¶ 157 Partisan gerrymandering violates the freedoms of speech and association and

undermines their role in our democratic system. In Corum, we recognized that under

the free speech clause, state officials may not penalize people for the exercise of their

protected rights. But partisan gerrymandering does just that. When legislators

apportion district lines in a way that dilutes the influence of certain voters based on

their prior political expression—their partisan affiliation and their voting history—it

imposes a burden on a right or benefit, here the fundamental right to equal voting HARPER V. HALL

power on the basis of their views. When the General Assembly systematically

diminishes or dilutes the power of votes on the basis of party affiliation, it

intentionally engages in a form of viewpoint discrimination and retaliation that

triggers strict scrutiny. See State v. Petersilie, 334 N.C. 169, 182 (1993). This practice

subjects certain voters to disfavored status based on their views, undermines the role

of free speech and association in formation of the common judgment, and distorts the

expression of the people’s will and the channeling of the political power derived from

them to their representatives in government based on viewpoint.

4. The Declaration of Rights and the Law of Partisan Gerrymandering Summarized

¶ 158 In summary, the two most fundamental principles of our Declaration of Rights

are equality and popular sovereignty. N.C. Const. art. I, §§ 1, 2. Together, they reflect

the democratic theory of our constitutional system: the principle of political equality.

The principle of political equality, from the Halifax Resolves and the Declaration of

Independence to Lincoln’s Gettysburg Address and the Reconstruction Convention to

our Declaration of Rights today, can mean only one thing—to be effective, the

channeling of “political power” from the people to their representatives in government

through the democratic processes envisioned by our constitutional system must be

done on equal terms. If through state action the ruling party chokes off the channels

of political change on an unequal basis, then government ceases to “derive[ ]” its

power from the people or to be “founded upon their will only,” and the principle of HARPER V. HALL

political equality that is fundamental to our Declaration of Rights and our

constitutionally enacted representative system of government is violated.

¶ 159 This principle is reflected in various provisions of our Declaration of Rights.

The free elections clause under section 10 guarantees the central democratic process

by which the people’s political power is transferred to their representatives. The equal

protection clause prohibits government from burdening on the basis of partisan

affiliation the fundamental right to equal voting power. And the free speech clause

and the freedom of assembly clause prohibit discriminating against certain voters by

depriving them of substantially equal voting power, which is a form of impermissible

viewpoint discrimination and retaliation for engaging in protected political activity.

¶ 160 Partisan gerrymandering of legislative and congressional districts violates the

free elections clause, the equal protection clause, the free speech clause, and the

freedom of assembly clause, and the principle of democratic and political equality that

reflects the spirits and intent of our Declaration of Rights. To comply with the

constitutional limitations contained in the Declaration of Rights which are applicable

to redistricting plans, the General Assembly must not diminish or dilute on the basis

of partisan affiliation any individual’s vote. The fundamental right to vote includes

the right to enjoy “substantially equal voting power and substantially equal

legislative representation.” Stephenson, 355 N.C. at 382. The right to equal voting

power encompasses the opportunity to aggregate one’s vote with likeminded citizens HARPER V. HALL

to elect a governing majority of elected officials who reflect those citizens’ views.

When, on the basis of partisanship, the General Assembly enacts a districting plan

that diminishes or dilutes a voter’s opportunity to aggregate with likeminded voters

to elect a governing majority—that is, when a districting plan systematically makes

it harder for individuals because of their party affiliation to elect a governing majority

than individuals in a favored party of equal size—the General Assembly deprives on

the basis of partisan affiliation a voter of his or her right to equal voting power.

¶ 161 This diminution or dilution of a voter’s voting power on the basis of his or her

views can be measured either by comparing the number of representatives that a

group of voters of one partisan affiliation can plausibly elect with the number of

representatives that a group of voters of the same size of another partisan affiliation

can plausibly elect, or by comparing the relative chances of voters from each party

electing a supermajority or majority of representatives under various possible

electoral conditions. Similarly, the diminution or dilution of voting power based of

partisan affiliation in this way suffices to show a burden on that voter’s speech and

associational rights. Accordingly, such a plan is subject to strict scrutiny and is

unconstitutional unless the General Assembly can demonstrate that the plan is

“narrowly tailored to advance a compelling governmental interest.” Stephenson, 355

N.C. at 377. Achieving partisan advantage incommensurate with a political party’s

level of statewide voter support is neither a compelling nor a legitimate governmental HARPER V. HALL

interest, as it in no way serves the government’s interest in maintaining the

democratic processes which function to channel the people’s will into a representative

government as secured in the above provisions in the Declaration of Rights.

¶ 162 Here, the partisan gerrymandering violation is based on the redistricting plan

as a whole, not a finding with regard to any individual district. 14 Certainly it is

possible, as the plaintiffs and the trial court demonstrated, to identify which

individual districts in the state legislative maps ignore traditional redistricting

principles to achieve a partisan outcome that otherwise would not occur. It is possible

to identify the most gerrymandered individual districts. But here the violation is

statewide because of the evidence that on the whole, the districts have been drawn

such that voters supporting one political party have their votes systematically

devalued by having less opportunity to elect representatives to seats, compared to an

equal number of voters in the favored party. The effect is stark and even more severe

than what this Court identified in Stephenson as the equal protection clause violation

arising from the use of both single-member and multi-member districts in a

redistricting plan. See Stephenson, 355 N.C. at 379–82.

¶ 163 We do not believe it prudent or necessary to, at this time, identify an

exhaustive set of metrics or precise mathematical thresholds which conclusively

14 This is not to rule out the possibility that under an equal protection theory or a free

speech theory there may be a circumstance where a single district is a partisan gerrymander but that is not the situation here. HARPER V. HALL

demonstrate or disprove the existence of an unconstitutional partisan gerrymander.

Cf. Reynolds v. Sims, 377 U.S. 533, 578 (1964) (“What is marginally permissible in

one [case] may be unsatisfactory in another, depending on the particular

circumstances of the case. Developing a body of doctrine on a case-by-case basis

appears to us to provide the most satisfactory means of arriving at detailed

constitutional requirements in the area of . . . apportionment.”). As in Reynolds,

“[l]ower courts can and assuredly will work out more concrete and specific standards

for evaluating state legislative apportionment schemes in the context of actual

litigation.” Id. However, as the trial court’s findings of fact indicate, there are

multiple reliable ways of demonstrating the existence of an unconstitutional partisan

gerrymander. In particular, mean-median difference analysis; efficiency gap analysis;

close-votes, close-seats analysis; and partisan symmetry analysis may be useful in

assessing whether the mapmaker adhered to traditional neutral districting criteria

and whether a meaningful partisan skew necessarily results from North Carolina’s

unique political geography.15 If some combination of these metrics demonstrates

there is a significant likelihood that the districting plan will give the voters of all

political parties substantially equal opportunity to translate votes into seats across

15 Further, while adherence to neutral districting criteria primarily goes to whether

the map is justified by a compelling governmental interest, the disregarding of neutral criteria such as compactness, contiguity, and respect for political subdivisions, particularly when the effect of the map subordinates those criteria to pursuit of partisan advantage, may also be some evidence a map burdens the fundamental right to equal voting power. HARPER V. HALL

the plan, then the plan is presumptively constitutional.

¶ 164 To be sure, the evidence in this case and in prior partisan gerrymandering

cases provides ample guidance as to possible bright-line standards that could be used

to distinguish presumptively constitutional redistricting plans from partisan

gerrymanders. There is such a thing as a plan that creates a level playing field for all

voters. Indeed, historically, there is evidence indicating that most redistricting plans

actually have provided for partisan fairness instead of partisan advantage. See, e.g.,

Common Cause v. Rucho, 318 F. Supp. 3d 777, 886–87 (M.D.N.C. 2018), rev’d on other

grounds 139 S. Ct. 2484 (2019) (finding that North Carolina’s efficiency gap of 19.4%

was the largest of all states studied and that between 1972 and 2016, the distribution

of efficiency gaps centered on zero “meaning that, on average, the districting plans in

[t]his sample did not tend to favor either party”). Those who deny such standards

exist ignore what the public sees and experiences and what political scientists have

demonstrated.

¶ 165 Several possible bright-line standards have emerged in the political science

literature and in the parties’ briefing before this Court. For example, Dr. Duchin

testified at the trial to having analyzed North Carolina historical election data over

a period of years, by using a simple overlay method, overlaying the maps onto data

from all 52 of the statewide elections since 2012 to determine whether “close votes”

resulted in “close seats,” as one would see in all of the alternative maps to the enacted HARPER V. HALL

plans. Under this method, which Dr. Duchin has written about extensively, a plan

which persistently resulted in the same level of partisan advantage to one party when

the vote was closer than 52%, could be considered presumptively unconstitutional. As

Dr. Duchin noted, “I don’t think you get that large and durable [an effect of partisan

skew] by accident.”

¶ 166 Second, at the trial court below, Dr. Daniel Magleby presented a report in

rebuttal of the testimony of Dr. Barber, in which he proposed using the measurement

of the mean-median difference to determine the degree of partisan skew in a

particular instance. His report described the method as follows:

One of the simplest measures of symmetry we can apply to redistricting scenarios is the median-mean difference (see Katz, King and Rosenblatt 2020; MacDonald and Best 2015; Best et al. 2017) . . . We find [the median-mean difference] by taking the mean (average) of the district- level vote share and comparing it to the median district- level vote-share, the district-level vote share for which there are an equal number of districts with higher vote shares as there are districts with lower vote shares. When the median and mean are equal, the distribution of districts is symmetrical and the map will treat the parties with symmetry. If the median-mean is not zero, it means the map will not treat vote cast for the parties equally.

Thus, based on Dr. Magelby’s testimony, any mean-median difference that is not zero

could be treated as presumptively unconstitutional. However, using the actual mean-

median difference measure, from 1972 to 2016 the average mean-median difference

in North Carolina’s congressional redistricting plans was 1%. Common Cause, 318 F. HARPER V. HALL

Supp. 3d at 893. That measure instead could be a threshold standard such that any

plan with a mean-median difference of 1% or less when analyzed using a

representative sample of past elections is presumptively constitutional.

¶ 167 With regard to the efficiency gap measure, courts have found “that an

efficiency gap above 7% in any districting plan’s first election year will continue to

favor that party for the life of the plan.” Whitford v. Gill, 218 F. Supp. 3d 837, 905

(W.D. Wis. 2016) rev’d on other grounds 138 S. Ct. 1916 (2018). It is entirely workable

to consider the seven percent efficiency gap threshold as a presumption of

constitutionality, such that absent other evidence, any plan falling within that limit

is presumptively constitutional. The efficiency gap, like other measures of partisan

symmetry, “is not premised on strict proportional representation, but rather on the

notion that the magnitude of the winner’s bonus should be approximately the same

for both parties.” Common Cause, 318 F. Supp. 3d at 889.

¶ 168 Other manageable standards appear in the evidence before the trial court as

well. Legislative Defendants’ own expert witness proposed using computer

simulations to draw redistricting plans solely on the basis of traditional redistricting

criteria, with any adopted redistricting plan with a partisan bias that fell within the

middle 50% of simulation results being presumptively constitutional. It was also

suggested that the legislature could be required to draw districts “within 5% of the

median outcome expected from nonpartisan redistricting criteria, at a statewide HARPER V. HALL

level, across a range of electoral circumstances.” The development of such metrics in

this and future cases is precisely the kind of reasoned elaboration of increasingly

precise standards the United States Supreme Court utilized in the one-person, one-

vote context. See, e.g., Brown v. Thomson, 462 U.S. 835, 842–43 (1983) (“Our decisions

have established, as a general matter, that an apportionment plan with a maximum

population deviation under 10% falls within this category of minor deviations. A plan

with larger disparities in population, however, creates a prima facie case of

discrimination and therefore must be justified by the State.” (citations omitted)).

¶ 169 There may be other standards the parties wish to suggest to the trial court.

These are primarily questions of what evidence might be relevant to prove a

redistricting plan’s discriminatory effect under the free elections and equal protection

clauses and a discriminatory burden to a right or benefit on the basis of protected

political activity amounting to viewpoint discrimination and retaliation under the

free speech and freedom of assembly clauses of the state constitution. Because this is

not a strict proportionality requirement, there is no magic number of Democratic or

Republican districts that is required, nor is there any constitutional requirement that

a particular district be competitive or safe. To be clear, the fact that one party

commands fifty-nine percent of the statewide vote share in a given election does not

entitle the voters of that party to have representatives of its party comprise fifty-nine

percent of the North Carolina House, North Carolina Senate, or North Carolina HARPER V. HALL

congressional delegation. But those voters are entitled to have substantially the same

opportunity to electing a supermajority or majority of representatives as the voters

of the opposing party would be afforded if they comprised fifty-nine percent of the

statewide vote share in that same election. What matters here, as in the one-person,

one-vote context, is that each voter’s vote carries roughly the same weight when

drawing a redistricting plan that translates votes into seats in a legislative body.

¶ 170 Once a plaintiff shows that a map infringes on their fundamental right to equal

voting power under the free elections clause and equal protection clause or that it

imposes a burden on that right based on their views such that it is a form of viewpoint

discrimination and retaliation based on protected political activity under the free

speech clause and the freedom of assembly clause, the map is subject to strict scrutiny

and is presumptively unconstitutional and “the government must demonstrate that

the classification it has imposed is necessary to promote a compelling governmental

interest.” Northampton, 326 N.C. at 746. As noted above, partisan advantage—that

is, achieving a political party’s advantage across a map incommensurate with its level

of statewide voter support—is neither a compelling nor a legitimate governmental

interest, as it in no way serves the government’s interest in maintaining the

democratic processes which function to channel the people’s will into a representative HARPER V. HALL

government.16 Rather, compelling governmental interests in the redistricting context

include the traditional neutral districting criteria expressed in article II, sections 3

and 5 of the North Carolina Constitution. Incumbency protection may ordinarily be

a permissible governmental interest if it is applied evenhandedly, is not perpetuating

a prior unconstitutional redistricting plan, and is consistent with the equal voting

power requirements of the state constitution; however, incumbency protection is not

a compelling governmental interest that justifies the denial to a voter of the

fundamental right to substantially equal voting power under the North Carolina

Constitution. Other widely recognized traditional neutral redistricting criteria, such

as compactness of districts and respect for other political subdivisions, may also be

compelling governmental interests. If the General Assembly has created a map that

infringes on individual voter’s fundamental right to equal voting power and cannot

show that the map is narrowly tailored to a compelling governmental interest, courts

must conclude the map is unconstitutional and forbid its use.

¶ 171 The dissent contends that the partisan gerrymandering claims we recognize as

violating both fundamental principles and particular provisions of our Declaration of

Rights are not cognizable claims under that document. Our fundamental

16 Political fairness, or the effort to apportion to each political party a share of seats

commensurate with its level of statewide support, is a permissible redistricting criterion. See Gaffney, 412 U.S. at 736. However, achieving such a goal involves a government’s prioritization of, rather than diminution and dilution of, each person’s right to substantially equal voting power. HARPER V. HALL

disagreement stems in one respect from a difference in method. Here, we have

“recurre[d]” to those “fundamental principles” by which “[a]ll generations are

solemnly enjoined to return ad fontes (to the sources) and [to] rethink for themselves

the implications of the fundamental principles of self-government that animated the

revolutionary generation.” Orth & Newby, at 91. In this light, the dissenters insist

that the only way to discern the meaning of provisions of the North Carolina

Constitution is to adhere to their own assessment of historical practice. In so doing,

they interpret the state constitution in a manner the Framers and the constitution

they enacted firmly rejected. If constitutional provisions forbid only what they were

understood to forbid at the time they were enacted, then the free elections clause has

nothing to say about slavery and the complete disenfranchisement of women and

minorities. In short, the majority’s view compels the conclusion that there is no

constitutional bar to denying the right to vote to women and black people.

Fortunately, the Framers and the people of North Carolina chose to adopt a

constitution containing provisions which “provide[s] the elasticity which ensures the

responsive operation of government.” State ex rel. Martin v. Preston, 325 N.C. 438,

458 (1989).

¶ 172 Second, our disagreement with the dissenting opinion is compelled in part by

our divergent views of the role of the courts in conducting judicial review for

constitutionality. The justification for judicial review in North Carolina is motivated HARPER V. HALL

by the concern for securing both the fundamental rights contained in our Declaration

of Rights and our constitution, and for ensuring the effective functioning of the

democratic system of government established by the same. In North Carolina, we

presume the legislature has complied with the constitution. Where legislation does

not violate a particular constitutional limitation, and particularly where it does not

violate the rights protected by the Declaration of Rights, the presumption that the

issue will be resolved through the ordinary political process is justified, and

legislation will be upheld if there is a rational basis supporting it. However, in Bayard

v. Singleton and since, we have identified two circumstances justifying judicial review

by this Court. First, we will protect constitutional rights and, although they are by

no means the only enforceable provisions of our constitution, the “civil rights

guaranteed by the Declaration of Rights in Article I of our Constitution,” in

particular. Corum, 330 N.C. at 782. “The very purpose of the Declaration of Rights is

to ensure that the violation of these rights is never permitted by anyone who might

be invested under the Constitution with the powers of the State,” including the

General Assembly. Id. at 783. Accordingly, “[w]e give our Constitution a liberal

interpretation in favor of its citizens with respect to those provisions which were

designed to safeguard the liberty and security of the citizens in regard to both person

and property.” Id. Fundamentally, “[i]t is the state judiciary that has the

responsibility to protect the state constitutional rights of [its people]; this obligation HARPER V. HALL

to protect the fundamental rights of individuals is as old as the State.” Id. Indeed, we

have recognized this duty since Bayard, where we held that legislation violated the

right to a trial by jury. 1 N.C. (Mart.) at 7. Bayard justified review of all such rights

on the ground that any erosion of rights endangered other rights. See id. (justifying

review of “right to a decision of his property by a trial by jury” on the grounds that “if

the Legislature could take away this right, and require him to stand condemned in

his property without a trial, it might with as much authority require his life to be

taken away without a trial by jury, and that he should stand condemned to die,

without the formality of any trial at all”).

¶ 173 Further this court has recognized an even greater justification for judicial

review of acts that restrict the democratic processes through which the “political

power” is channeled to the people’s representatives, and which undermine the very

democratic system created by our constitution. In Bayard, this Court justified judicial

review of acts of the coordinate branches not only because without it they might

violate fundamental rights, but also on the grounds of an even greater harm that

without judicial review “the members of the General Assembly . . . might with equal

authority, . . . render themselves the Legislators of the State for life, without any

further election of the people.” Id. Just as it is the duty of this Court under Bayard to

guarantee constitutional rights protecting liberty, person, and property, it is the duty

of this Court under Bayard to protect the democratic processes through which the HARPER V. HALL

“political power” of the people is exercised, and that each person’s voice is heard on

“equal” terms through the vote. N.C. Const. art. I, §§ 2, 1; see, e.g., Stephenson 355

N.C. at 379 (recognizing “the fundamental right of each North Carolinian to

substantially equal voting power”); Northampton, 326 N.C. at 747 (holding the “right

to vote on equal terms is a fundamental right”); People ex rel. Van Bokkelen, 73 N.C.

at 225 (holding it to be “too plain for argument” that the General Assembly’s

malapportionment of election districts “is a plain violation of fundamental

principles”); Ely, Democracy and Distrust at 103 (“Malfunction occurs when the

process is undeserving of trust, when [ ] the ins are choking off the channels of

political change to ensure that they will stay in and the outs will stay out.”).

¶ 174 Partisan gerrymandering claims do not require the making of “policy choices

and value determinations.” Bacon, 353 N.C. at 717. As we have discussed, such claims

are discernable under the North Carolina Constitution and precedent. Moreover, we

have described several manageable standards for evaluating the extent to which

districting plans dilute votes on the basis of partisan affiliation. Accordingly, we hold

partisan gerrymandering claims are justiciable in North Carolina courts under the

free elections clause, equal protection clause, free speech clause, and freedom of

assembly clause of the Declaration of Rights.

E. Legislative Defendants’ Elections Clause Argument

¶ 175 Legislative Defendants also argue that “the federal constitution bars HARPER V. HALL

plaintiffs[’] claims against the congressional plan” under the Elections Clause, U.S.

Const. art. I, § 4, cl. 1, because the word “Legislature” in that clause forbids state

courts from reviewing a congressional districting plan violates the state’s own

constitution. We disagree. This argument, which was not presented at the trial court,

is inconsistent with nearly a century of precedent of the Supreme Court of the United

States affirmed as recently as 2015. It is also repugnant to the sovereignty of states,

the authority of state constitutions, and the independence of state courts, and would

produce absurd and dangerous consequences.

¶ 176 First, this theory contradicts the holding of Rucho, where the Supreme Court

of the United States, in an opinion authored by Chief Justice Roberts, said that

“[p]rovisions in . . . state constitutions can provide standards and guidance for state

courts to apply” in a case addressing the justiciability of partisan gerrymandering

claims in congressional plans. 139 S. Ct. at 2507 (emphases added).

¶ 177 Second, a long line of decisions by the Supreme Court of the United States

confirm the view that state courts may review state laws governing federal elections

to determine whether they comply with the state constitution. See Smiley v. Holm,

285 U.S. 355, 368 (1932) (holding the Elections Clause does not “endow the

Legislature of the state with power to enact laws in any manner other than that in

which the Constitution of the state has provided” (emphasis added)). The state

legislature’s enactment of election laws reflects an exercise of the lawmaking power; HARPER V. HALL

accordingly, the legislature must comply with all of “the conditions which attach to

the making of state laws,” id. at 365, including “restriction[s] imposed by state

Constitutions upon state Legislatures when exercising the lawmaking power,” id. at

369; see also Ariz. State Leg. v. Ariz. State Indep. Redistricting Comm’n, 576 U.S. 787,

817–18 (2015) (“Nothing in [the Elections] Clause instructs, nor has this Court ever

held, that a state legislature may prescribe regulations on the time, place, and

manner of holding federal elections in defiance of provisions of the State’s

constitution.”); Growe v. Emison, 507 U.S. 25, 33–34 (1993) (emphasizing “[t]he power

of the judiciary of a State to require valid reapportionment” of congressional districts

and rejecting the federal district court’s “mistaken view that federal judges need defer

only to the Minnesota Legislature and not at all to the State’s courts”).

F. The 2021 Enacted Plans Violate the Declaration of Rights as Partisan Gerrymanders

¶ 178 Now, we must apply these legal principles to the 2021 enacted plans in order

to determine if the current maps constitute partisan gerrymanders in violation of the

North Carolina Constitution’s Declaration of Rights. We conclude that they do and

therefore enjoin the enacted plans from use in any future elections and, in accordance

with N.C.G.S. § 120-2.4(a), provide the General Assembly the opportunity to submit

new redistricting plans that satisfy all provisions of the North Carolina Constitution.

¶ 179 As discussed above, the General Assembly triggers strict scrutiny under the

free elections clause and the equal protection clause of the North Carolina HARPER V. HALL

Constitution when, on the basis of partisan affiliation, it deprives a voter of his or her

fundamental right to substantially equal voting power. This fundamental right

encompasses the opportunity to aggregate one’s vote with likeminded citizens to elect

a governing majority of elected officials who reflect those citizens’ views. When on the

basis of partisanship the General Assembly enacts a districting plan that diminishes

or dilutes a voter’s opportunity to aggregate with likeminded voters to elect a

governing majority—that is, when a districting plan systematically makes it harder

for one group of voters to elect a governing majority than another group of voters of

equal size—the General Assembly infringes upon that voter’s fundamental right to

vote. Similarly, this action is subject to strict scrutiny under the free speech clause

and freedom of assembly clause because it burdens voters on the basis of protected

political activity.

¶ 180 To trigger strict scrutiny, a party alleging that a redistricting plan violates this

fundamental right must demonstrate that the plan makes it systematically more

difficult for a voter to aggregate his or her vote with other likeminded voters, thus

diminishing or diluting the power of that person’s vote on the basis of his or her views.

Such a demonstration can be made using a variety of direct and circumstantial

evidence, including but not limited to: median-mean difference analysis; efficiency

gap analysis; close-votes-close seats analysis, partisan symmetry analysis; comparing

the number of representatives that a group of voters of one partisan affiliation can HARPER V. HALL

plausibly elect with the number of representatives that a group of voters of the same

size of another partisan affiliation can plausibly elect; and comparing the relative

chances of groups of voters of equal size who support each party of electing a

supermajority or majority of representatives under various possible electoral

conditions. Evidence that traditional neutral redistricting criteria were subordinated

to considerations of partisan advantage may be particularly salient in demonstrating

an infringement of this right.

¶ 181 The right to vote on equal terms is a fundamental right in this state and thus

when a challenging party demonstrates that a redistricting plan, on the basis of

partisan affiliation, infringes upon his or her fundamental right to substantially

equal voting power, strict scrutiny is the appropriate standard for reviewing that act.

See Stephenson, 355 N.C. at 377 (“Strict scrutiny . . . applies when the classification

impermissibly interferes with the exercise of a fundamental right . . . .” (cleaned up)).

Strict scrutiny is “this Court’s highest tier of review.” Id. “Under strict scrutiny, a

challenged governmental action is unconstitutional if the State cannot establish that

it is narrowly tailored to advance a compelling governmental interest.” Id. Within the

redistricting context, compliance with traditional neutral districting principles,

including those enumerated in article II, sections 3 and 5 of the North Carolina

Constitution, may constitute a compelling governmental interest. Partisan

advantage, however, is not a compelling governmental interest. HARPER V. HALL

¶ 182 Here, we apply this standard to each of the three 2021 enacted maps: the

congressional map, the North Carolina House map, and the North Carolina Senate

map. As noted previously, we have adopted in full the extensive and detailed factual

findings of the trial court summarized above and have attached the maps themselves

to this opinion.

1. Congressional Map

¶ 183 First, we apply this constitutional standard to the 2021 congressional map.

Based on the trial court’s factual findings, we conclude that the 2021 congressional

map constitutes partisan gerrymandering that, on the basis of partisan affiliation,

violates plaintiffs’ fundamental right to substantially equal voting power.

¶ 184 Numerous factual findings compel this conclusion. For instance, based on Dr.

Mattingly’s ensemble analysis, the trial court found “that the Congressional Map is

the product of intentional, pro-Republican partisan redistricting. Indeed, the court

found that

[a]cross [the] 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. 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.

¶ 185 Accordingly, the court found that “[t]he Congressional map is ‘an extreme

outlier’ that is ‘highly non-responsive to the changing opinion of the electorate.’ ” The HARPER V. HALL

court found that this high non-responsiveness was a product of “cracking Democrats

from the more competitive districts and packing them into the most heavily

Republican and heavily Democratic districts,” which the court described as “the key

signature of intentional partisan redistricting.”

¶ 186 Based on Dr. Cooper’s analysis, the court observed that “[a]lthough 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.” This

decrease, the court observed, is enacted “by splitting the Democratic-leaning counties

of Guilford, Mecklenburg, and Wake among three congressional districts each.” The

court further noted that “[t]here was no population-based reason” for these splits.

¶ 187 Based on Dr. Pegden’s analysis, the court found “that the enacted

congressional plan is more favorable to Republicans than 99.9999% of the [billions or

trillions of] comparison maps his algorithm generated.” Accordingly, the court

determined 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 [Dr. Pegden’s] algorithm.”

¶ 188 Based on Dr. Duchin’s analysis, the trial court found “that the political HARPER V. HALL

geography of North Carolina today does not lead only to a district map with partisan

advantage given to one political party.” Rather, the court determined, “[t]he Enacted

Plans behave as though they are built to resiliently safeguard electoral advantage for

Republican candidates.”

¶ 189 Based on Dr. Cooper’s close-votes-close-seats analysis, the trial court found

that individual congressional districts were drawn to favor certain current or future

Republican representatives. For instance, the court found that the congressional map

“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.” Similarly,

the court observed that “[t]he 2021 Congressional Plan includes one district where no

incumbent congressional representative resides . . . [which] ‘overwhelmingly favors’

the Republican candidate based on the district’s partisan lean.”

¶ 190 The trial court found that the congressional map constituted a statistical

partisan outlier on the regional level, as well. Specifically, the court found that “that

the enacted congressional plan[s] districts in each region examined exhibit[ed]

political bias when compared to the computer-simulated districts in the same

regions.”

¶ 191 More broadly, though, the trial court found that “[t]he congressional district

map is best understood as a single organism given that the boundaries drawn for a HARPER V. HALL

particular congressional district in one part of the state will necessarily affect the

boundaries drawn for the districts elsewhere in the state.” Accordingly, the court

found “that the ‘cracking and packing’ of Democratic voters in [larger urban] counties

has ‘ripple effects throughout the map.’ ”

¶ 192 The trial court considered several different types of statistical analysis in

confirming that the “extreme partisan outcome” of the congressional map that

“cannot be explained by North Carolina’s political geography or by adherence to

Adopted Criteria.” These included: (1) “mean-median difference” analysis; (2)

“efficiency gap” analysis; (3) “the lopsided margins test”; and (4) “partisan symmetry”

analysis.

¶ 193 In sum, the trial court found “that the 2021 Congressional Plan is a partisan

outlier intentionally and carefully designed to maximize Republican advantage in

North Carolina’s Congressional delegation.” The court found that the enacted

congressional map “fails to follow and subordinates the Adopted Criteria’s

requirement[s]” regarding splitting counties and VTDs. Further, the court found

“that the enacted congressional plan fails to follow, and subordinates, the Adopted

Criteria’s requirement to draw compact districts. The [c]ourt [found] 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.” Ultimately, the court “concluded based upon a HARPER V. HALL

careful review of all the evidence that the [congressional map is] a result of

intentional, pro-Republican partisan redistricting.”

¶ 194 Based on these findings and numerous others, it is abundantly clear and we so

conclude that the 2021 congressional map substantially diminishes and dilutes on

the basis of partisan affiliation plaintiffs’ fundamental right to equal voting power,

as established by the free elections clause and the equal protection clause, and

constitutes viewpoint discrimination and retaliation burdening the exercise of rights

guaranteed by the free speech clause and the freedom of assembly clause of the North

Carolina Constitution. The General Assembly has substantially diminished the

voting power of voters affiliated with one party on the basis of partisanship—indeed,

in this case, the General Assembly has done so intentionally. Accordingly, we must

review the congressional map under strict scrutiny.

¶ 195 Defendants have not shown the 2021 congressional map is narrowly tailored

to a compelling governmental interest, and therefore the map fails strict scrutiny. As

noted above, partisan advantage is neither a compelling nor a legitimate

governmental interest. Rather, given an infringement of plaintiffs’ fundamental right

to substantially equal voting power, the General Assembly must show that the map

is narrowly tailored to meet traditional neutral districting criteria, including those

expressed in article II, sections 3 and 5 of the North Carolina Constitution, those

expressed in the General Assembly’s own Adopted Criteria, or other articulable HARPER V. HALL

neutral principles. Here, the General Assembly has failed to make that showing.

Indeed, the trial court explicitly found that the congressional maps demonstrate a

subordination of traditional neutral criteria, including compactness and minimizing

county and VTD splits, in favor of partisan advantage. We conclude that the General

Assembly has not demonstrated that the congressional map, despite its extreme

partisan bias, is nevertheless carefully calibrated toward advancing some compelling

neutral priority. Accordingly, the congressional map fails strict scrutiny and must be

rejected.

2. State House Map

¶ 196 Next, we apply this constitutional standard to the 2021 North Carolina State

House map. Based on the trial court’s factual findings, we conclude that the 2021

State House map constitutes partisan gerrymandering that, on the basis of partisan

affiliation, violates plaintiffs’ fundamental right to substantially equal voting power.

¶ 197 Numerous factual findings compel this conclusion. For instance, based on Dr.

Mattingly’s ensemble analysis, the trial court found that

[t]he 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. Elections that under typical maps would produce a Democratic majority in the North Carolina House give Republicans a majority under the enacted maps. Likewise, maps that would normally produce a Republican majority under nonpartisan maps produce a Republican supermajority under the enacted maps. Among every possible election that Dr. Mattingly analyzed, the HARPER V. HALL

partisan results were more extreme than what would be seen from nonpartisan maps.

¶ 198 Indeed, the court found that “the enacted plan shows a systematic bias toward

the Republican party, favoring Republicans in every single one of the 16 elections [Dr.

Mattingly] considered.” The court determined that the state 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. The probability that this partisan bias arose by chance, without an

intentional effort by the General Assembly, is ‘astronomically small.’ ” Further, the

court found that the mapmakers’ selective failure to preserve municipalities in the

House map, when they did preserve them in the Senate map, was based solely on

considerations of partisan advantage.

¶ 199 Based on Dr. Pegden’s analysis, the court found that “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.”

Accordingly, the court found “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 [the nonpartisan] constraints.”

¶ 200 Based on Dr. Cooper’s analysis, the trial court found that “Legislative

Defendants’ exercise of . . . discretion in the . . . House 2021 Plans resulted in . . .

House district boundaries that enhanced the Republican candidates’ partisan HARPER V. HALL

advantage, and this finding is consistent with a finding of partisan intent.”

¶ 201 Based on Dr. Duchin’s close-votes-close-seats analysis, the court found that the

House map is “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.”

“As with the Enacted Congressional Plan . . . , the [c]ourt [found] that the Enacted

House Plan achieves this resilient pro-Republican bias by the familiar mechanisms

of packing and cracking Democratic voters . . . .”

¶ 202 Based on Dr. Magleby’s median-mean differential analysis, the trial court

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.” Specifically, the

court determined “that the median-mean bias in the enacted maps was far more

extreme than expected in nonpartisan maps.” In fact, the court found, “[n]o randomly

generated map had such an extreme median-mean share—meaning that . . . no

simulated map . . . was as extreme and durable in terms of partisan advantage.”

¶ 203 Finally, based on all of the evidence presented, the trial court found that the

following North Carolina House district groupings minimized Democratic districts

and maximized safe Republican districts through the “packing” and “cracking” of

Democratic voters as the “result of intentional, pro-Republican partisan HARPER V. HALL

redistricting”: the Guilford House County Grouping; the Buncombe House County

Grouping; the Mecklenburg House County Grouping; the Pitt House County

Grouping; the Durham-Person House County Grouping; the Forsyth-Stokes House

County Grouping; the Wake House County Grouping; the Cumberland House County

Grouping; and the Brunswick-New Hanover House County Grouping. Ultimately, the

court “conclude[d] based upon a careful review of all the evidence that the [House

map is] a result of intentional, pro-Republican partisan redistricting.”

¶ 204 Based on these findings and numerous others, it is abundantly clear and we so

conclude that the 2021 North Carolina House map substantially diminishes and

dilutes on the basis of partisan affiliation plaintiffs’ fundamental right to equal voting

power, as established by the free elections clause and the equal protection clause, and

constitutes viewpoint discrimination and retaliation burdening the exercise of rights

guaranteed by the free speech clause and the freedom of assembly clause of the North

Carolina Constitution. Accordingly, we review the House map under strict scrutiny.

¶ 205 Defendants have not shown the 2021 House map is narrowly tailored to a

compelling governmental interest, and therefore the map fails strict scrutiny. As

noted already, partisan advantage is neither a compelling nor a legitimate

governmental interest. Rather, the General Assembly must show that the map is

narrowly tailored to meet traditional neutral districting criteria, including those

expressed in article II, sections 3 and 5 of the North Carolina Constitution, those HARPER V. HALL

expressed in the General Assembly’s own Adopted Criteria, or other articulable

neutral principles. Here, as with the congressional map above, the General Assembly

has failed to make that showing. Given the breadth and depth of the evidence that

partisan advantage predominated over any traditional neutral districting criteria in

the creation of the House map, the General Assembly has not demonstrated that the

House map, despite its extreme partisan bias, is nevertheless carefully calibrated

toward advancing some neutral priority. Indeed, the evidence establishes that the

General Assembly subordinated these neutral priorities, such as preserving

municipalities, in favor of partisan advantage. Accordingly, the North Carolina

House map fails strict scrutiny and must be rejected.

3. State Senate Map

¶ 206 Third and finally, we apply this constitutional standard to the 2021 North

Carolina State Senate map. Based on the trial court’s factual findings, we conclude

that the 2021 State Senate map constitutes partisan gerrymandering that, on the

basis of partisan affiliation, violates plaintiffs’ fundamental right to substantially

equal voting power.

¶ 207 As with the two previous maps, numerous factual findings compel our

conclusion. For instance, based on Dr. Cooper’s analysis, the court found that

“Legislative Defendants’ exercise of . . . discretion in the Senate . . . Plans resulted in

. . . district boundaries that enhanced the Republican candidates’ partisan advantage, HARPER V. HALL

and this finding is consistent with a finding of partisan intent.”

¶ 208 Based on Dr. Mattingly’s ensemble analysis, the court found “that the State . . .

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.’ ” The

court found that this intentional partisan redistricting in the Senate “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.”

Specifically, the court found that the Senate plan “is an outlier or extreme outlier in

elections where Democrats win a vote share between 47.5% and 50.5%. 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.”

¶ 209 Based on Dr. Pegden’s analysis, the court determined “that the enacted Senate

map was more favorable to Republicans than 99.9% of comparison maps.”

Accordingly, the court found “that the enacted Senate map is more carefully crafted

for Republican partisan advantage than at least 99.9% of all possible maps of North

¶ 210 Based on Dr. Duchin’s close-votes-close-seats analysis, the court found that

[t]he 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 HARPER V. HALL

majority in the Senate even when Democrats win more votes. Even in an essentially tied election or in a close Democratic victory, the Enacted Senate Plan gives Republicans a Senate majority, and sometimes even a veto- proof 30-seat majority. And that result holds even when Democrats win by larger margins.

“As with the Enacted Congressional Plan, the [c]ourt [found] 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

¶ 211 Finally, based on all of the evidence presented at trial, the trial court found

that the following North Carolina Senate district groupings minimized Democratic

districts and maximized safe Republican districts through the “packing” and

“cracking” of Democratic voters as the “result of intentional, pro-Republican partisan

redistricting”: the Granville-Wake Senate County Grouping; the Cumberland-Moore

Senate County Grouping; the Guilford-Rockingham Senate County Grouping; the

Forsyth-Stokes Senate County Grouping; the Iredell-Mecklenburg Senate County

Grouping; the Northeastern Senate County Grouping (Bertie County, Camden

County, Currituck County, Dare County, Gates County, Hertford County,

Northampton County, Pasquotank County, Perquimans County, Tyrrell County,

Carteret County, Chowan County, Halifax County, Hyde County, Martin County,

Pamlico County, Warren County, and Washington County); and the Buncombe-

Burke-McDowell Senate County Grouping. The trial court did not find any of the HARPER V. HALL

Senate district groupings it considered to not be the result of intentional, pro-

Republican redistricting through packing and cracking. Ultimately, the court

“concluded based upon a careful review of all the evidence that the [Senate map is] a

result of intentional, pro-Republican partisan redistricting.

¶ 212 Based on these findings and numerous others, it is abundantly clear and we so

conclude that the 2021 North Carolina Senate map substantially diminishes and

dilutes on the basis of partisan affiliation plaintiffs’ fundamental right to equal voting

power, as established by the free elections clause and the equal protection clause, and

constitutes viewpoint discrimination and retaliation burdening the exercise of rights

guaranteed by the free speech clause and the freedom of assembly clause of the North

Carolina Constitution. Accordingly, we review the Senate map under strict scrutiny.

¶ 213 Conducting that review, we conclude that defendants have not shown the 2021

Senate map is narrowly tailored to a compelling governmental interest and therefore

the map fails strict scrutiny. Partisan advantage is not a compelling governmental

interest. Rather, the General Assembly must show that the Senate map is narrowly

tailored to meet traditional neutral districting criteria, including those expressed in

article II, sections 3 and 5 of the North Carolina Constitution, those expressed in the

General Assembly’s own Adopted Criteria, or other articulable neutral principles.

Here, as with the congressional and House maps above, the General Assembly has

failed to make that showing. Given the breadth and depth of the evidence that HARPER V. HALL

partisan advantage predominated over any traditional neutral districting criteria in

the creation of the Senate map, the General Assembly has not demonstrated that the

Senate map, despite its extreme partisan bias, is nevertheless carefully calibrated

toward advancing some compelling neutral priority. To the contrary, the evidence

demonstrates that the Senate map prioritized considerations of partisan advantage

above traditional neutral districting principles. Accordingly, the North Carolina

Senate map fails strict scrutiny and must be rejected.

G. Compliance with Stephenson requirements

¶ 214 Finally, we further hold that under Stephenson, the General Assembly was

required to conduct a racially polarized voting analysis prior to drawing district lines.

Notably, the General Assembly’s responsibility to conduct a racially polarized voting

analysis arises from our state constitution and decisions of this Court, including

primarily Stephenson, and not from the VRA itself, or for that matter from any federal

law. In Stephenson, this Court sought to harmonize several sections of our state

constitution―namely the whole county provision of article II, sections 3(3) and 5(3)

and the supremacy clause of article I, section 3― in light of the federal requirements

established by Section 5 and Section 2 of the VRA. 355 N.C. at 359. Of course, since

the 2013 decision of the Supreme Court of the United States in Shelby County v.

Holder, 570 U.S. 529 (2013), in which it held that the coverage formula for the

preclearance requirement under Section 5 of the VRA was no longer justified under HARPER V. HALL

the Fourteenth Amendment and held that section was unconstitutional, North

Carolina has not been subject to that preclearance requirement.

¶ 215 Nevertheless, the Stephenson Court ruling relied exclusively on interpretation

of the North Carolina Constitution. Indeed, after the Stephenson defendants initially

removed the case to federal district court, the district court remanded the case,

stating that “the redistricting process was a matter primarily within the province of

the states, that plaintiffs have challenged the 2001 legislative redistricting plans

solely on the basis of state constitutional provisions, that the complaint ‘only raises

issues of state law,’ and that defendants’ removal of th[e] suit from state court was

inappropriate.” Stephenson, 355 N.C. at 358. Further, when the Stephenson

defendants “subsequently filed a notice of appeal from the District Court’s order with

the United States Court of Appeals for the Fourth Circuit[,] . . . [t]he Fourth Circuit

denied defendants’ motion to stay the District Court’s order of remand.” Id.

¶ 216 Here, as in Stephenson, plaintiffs’ claims arise under the same provisions of

the North Carolina Constitution implicated in Stephenson—namely article I, sections

3 and 5 and article II, sections 3 and 5. Here, as in Stephenson, this Court serves as

the highest and final authority in interpreting those state constitutional provisions.

And here, as in Stephenson, we hold that compliance with those provisions, when

read in harmony, requires the General Assembly to conduct racially polarized voting

analysis within their decennial redistricting process in order to assess whether any HARPER V. HALL

steps must be taken to avoid the dilution of minority voting strength.

III. Conclusion

¶ 217 Article I, section 2 of the North Carolina Constitution establishes that “[a]ll

political power is vested in and derived from the people,” that “all government of

rights originates from the people,” and “is founded upon their will only.” N.C. Const.

art I, § 2. Furthermore, article I, section 1 of the constitution provides that “all

persons are created equal.” N.C. Const. art I, § 1. Subsequent constitutional

provisions within the Declaration of Rights, including the free elections clause, the

equal protection clause, the free speech clause, and the freedom of assembly clause,

protect fundamental rights of the people in order to ensure, among other things, that

their government is indeed “founded upon their will only.” See id.

¶ 218 When North Carolinians claim that acts of their government violate these

fundamental rights, and particularly when those acts choke off the democratic

processes that channel political power from the people to their representatives, it is

the solemn duty of this Court to review those acts to enforce the guarantees of our

constitution. See Corum, 330 N.C. at 783. Such judicial review ensures that despite

present day challenges our constitution’s most fundamental principles are preserved.

Indeed, “[a] frequent recurrence to fundamental principles is absolutely necessary to

preserve the blessings of liberty.” N.C. Const. art I, § 35.

¶ 219 Today, this Court recurs to those fundamental principles. Specifically, we have HARPER V. HALL

considered whether partisan gerrymandering claims present a justiciable question,

whether constitutional provisions supply administrable standards, and whether,

having applied these standards, the General Assembly’s 2021 enacted plans

constitute such a violation of plaintiffs’ constitutional rights.

¶ 220 First, we hold that claims of partisan gerrymandering are justiciable under the

North Carolina Constitution. Although the primary responsibility for redistricting is

constitutionally delegated to the General Assembly, this is not a delegation of

unlimited power; the exercise of this power is subject to restrictions imposed by other

constitutional provisions, including the Declaration of Rights. Further, as

demonstrated through our analysis of the constitutional provisions at issue and the

extensive factual findings of the trial court, claims of partisan gerrymandering can

be carefully discerned and governed by manageable judicial standards.

¶ 221 Second, we hold that the General Assembly infringes upon voters’ fundamental

rights when, on the basis of partisan affiliation, it deprives a voter of his or her right

to substantially equal voting power, as established by the free elections clause and

the equal protection clause in our Declaration of Rights. We hold it also constitutes

viewpoint discrimination and retaliation based on protected political activity in

violation of the free speech clause and the freedom of assembly clause in our

Declaration of Rights. When a redistricting plan creates such an infringement of

fundamental rights, strict scrutiny must be applied to determine whether the plan is HARPER V. HALL

nevertheless narrowly tailored to advance a compelling governmental interest.

¶ 222 Here, we hold that the General Assembly’s 2021 enacted plans are partisan

gerrymanders that on the basis of partisan affiliation substantially infringe upon

plaintiffs’ fundamental right to equal voting power. Finally, we hold that the enacted

plans fail strict scrutiny and must therefore be struck down.

¶ 223 We reverse the trial court’s judgment and remand this case to that court to

oversee the redrawing of the maps by the General Assembly or, if necessary, by the

court. In accordance with our 4 February 2022 order and our decision today, the

General Assembly shall now have the opportunity to submit new congressional and

state legislative districting plans that satisfy all provisions of the North Carolina

Constitution.17 It is the sincere hope of this Court that these new maps ensure that

the channeling of “political power” from the people to their representatives in

government through elections, the central democratic process envisioned by our

constitutional system, is done on equal terms so that ours is a “government of right”

that “originates from the people” and speaks with their voice.

REVERSED AND REMANDED.

17 In doing so, we hold they must also conduct racially polarized voting analysis to

comply with the constitutional requirements under Stephenson. As we have reversed the judgment of the trial court based on its conclusions about the partisan gerrymandering claims, we decline to determine whether NCLCV Plaintiffs could also prevail on their minority vote dilution claim or whether plaintiff Common Cause could prevail on its intentional racial discrimination claim at this time. Appendix – Ex. 37 –

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¶ 224 While I fully join my learned colleagues in my agreement with the majority

opinion in this case, in my view the dispositive strength of the Free Elections Clause

warrants additional observations in light of the manner in which it has been postured

and addressed. The substantive construction of the constitutional provision is

buttressed by the contextual construction of the brief, yet potent, directive.

¶ 225 The entirety of article I, section 10 of the North Carolina Constitution states:

“All elections shall be free.” N.C. Const. art. I, § 10. The dissenting view of this Court,

the order of the trial court, and the presentations of Legislative Defendants have

largely declined the opportunity to address the manner in which the term “free”

should be interpreted as compared to plaintiffs’ significant reliance on the

applicability of the Free Elections Clause. In this regard, plaintiffs’ invocation of the

constitutional provision has either been cast as inapplicable to this case or relegable

to a diminished role. To the extent that the word “free” in article I, section 10 has

been construed here by Legislative Defendants, they conflate the right to a free

election with the right to be free to participate in the election process, stating “there

is no barrier between any voter and a ballot or a ballot box, no restriction on the

candidates the voter may select, and no bar on a person’s ability to seek candidacy for

any office” and also citing the proposition that “[t]he meaning [of North Carolina’s

Free Elections Clause] is plain: free from interference or intimidation,” quoting John

V. Orth & Paul Martin Newby, The North Carolina State Constitution 56 (2d ed. HARPER V. HALL

Morgan, J., concurring

2013). And curiously, instead of focusing on how elections must be free, the dissent

chooses to focus on how the General Assembly should be free to create legislative

election maps admittedly based on politically partisan considerations.

¶ 226 In my view, a free election is uninhibited and unconstrained in its ability to

have the prevailing candidate to be chosen in a legislative contest without the stain

of the outcome’s predetermination. Commensurate with the General Assembly’s

constitutional authority to draw legislative maps is one’s constitutional right to

participate in legislative elections which shall be free of actions—such as the General

Assembly’s creation of the legislative redistricting maps here—which are tantamount

to the predetermination of elections and, hence, constitute constitutional

abridgement.

Justice EARLS joins in this concurring opinion. Chief Justice NEWBY dissenting.

¶ 227 How should a constitution be interpreted? Should its meaning be fixed or

changing? If changing, to whom have the people given the task of changing it? When

judges change the meaning of a constitution, does this undermine public trust and

confidence in the judicial process? Traditionally, honoring the constitutional role

assigned to the legislative branch, this Court has stated that acts of the General

Assembly are presumed constitutional and deserving of the most deferential standard

of review: To be unconstitutional, an act of the General Assembly must violate an

explicit provision of our constitution beyond a reasonable doubt. We have recognized

that our constitution allows the General Assembly to enact laws unless expressly

prohibited by its text. This approach of having a fixed meaning and a deferential

standard of review ensures a judge will perform his or her assigned role and not

become a policymaker.

¶ 228 With this decision, unguided by the constitutional text, four members of this

Court become policymakers. They wade into the political waters by mandating their

approach to redistricting. They change the time-honored meaning of various portions

of our constitution by inserting their interpretation to reach their desired outcome.

They justify this activism because their understanding of certain constitutional

provisions has “evolved over time.” They lament that the people have not placed a

provision in our constitution for a “citizen referendum” and use the absence of such a

provision to justify their judicial activism to amend our constitution. The majority HARPER V. HALL

Newby, C.J., dissenting

says courts must protect constitutional rights. This is true. Courts are not, however,

to judicially amend the constitution to create those rights. As explicitly stated in our

constitution, the people alone have the authority to alter our foundational document,

and the people have the final say.

¶ 229 In its analysis, the majority misstates the history, the case law of this Court,

and the meaning of various portions of our Declaration of Rights. In its remedy the

majority replaces established principles with ambiguity, basically saying that judges

alone know which redistricting plan will be constitutional and accepted by this Court

based on analysis by political scientists. This approach ensures that the majority now

has and indefinitely retains the redistricting authority, thereby enforcing its policy

preferences.

¶ 230 Generally, the majority takes a sweeping brush and enacts its own policy

preferences of achieving statewide proportionality as determined by political

scientists and approved by judges. While mentioning traditional, neutral redistricting

criteria, its primary focus is instead on the final partisanship analysis to achieve

statewide parity.

¶ 231 The majority requires the General Assembly to finalize corrected maps within

two weeks of the 4 February 2022 order along with an accompanying political science

analysis. The majority invites others, who have not been elected by the people, to

provide alternative maps without that same required analysis, thus inviting private HARPER V. HALL

parties to usurp legislative authority to make the laws with respect to redistricting

without explanation. The majority forces this directive into an artificial timeline

which could support the majority’s adopting its own maps.

¶ 232 A recent opinion poll found that 76% of North Carolinians believe judges decide

cases based on partisan considerations. N.C. Comm’n on the Admin. of L. & Just.,

Final Report 67 (2017). Today’s decision, which dramatically departs from our time-

honored standard of requiring proof that an explicit provision of the constitution is

violated beyond a reasonable doubt, will solidify this belief.1

¶ 233 The people speak through the express language of their constitution. They

have assigned specific tasks to each branch of government. When each branch stays

within its lane of authority, the will of the people is achieved. When a branch grasps

a task assigned to another, that incursion violates separation of powers and thwarts

the will of the people. This decision, with its various policy determinations, judicially

amends the constitution. Furthermore, it places redistricting squarely in the hands

of four justices and not the legislature as expressly assigned by the constitution. The

1 It does not help public confidence that in an unprecedented act, a member of the

majority used social media to publicize this Court’s initial order when it was released, despite the fact that the case was still pending. See Anita Earls (@Anita_Earls), Twitter (Feb. 4, 2022, 6:28 PM), https://twitter.com/Anita_Earls/status/1489742665356910596 (“Based on the trial court’s factual findings, we conclude that the congressional and legislative maps . . . are unconstitutional beyond a reasonable doubt.” (alteration in original)). HARPER V. HALL

majority’s determinations violate the will of the people, making us a government of

judges, not of the people. I respectfully dissent.

I. Standard of Review

¶ 234 The question presented here is whether the enacted plans violate the North

Carolina Constitution. While the standard of review is significant in all cases, it is

particularly important in cases challenging the constitutionality of a statute.

The idea of one branch of government, the judiciary, preventing another branch of government, the legislature, through which the people act, from exercising its power is the most serious of judicial considerations. See Hoke v. Henderson, 15 N.C. (4 Dev.) 1, 8 (1833) (“[T]he exercise of [judicial review] is the gravest duty of a judge, and is always, as it ought to be, the result of the most careful, cautious, and anxious deliberation.”), overruled in part on other grounds by Mial v. Ellington, 134 N.C. 131, 162, 46 S.E. 961, 971 (1903); Trs. of Univ. of N.C. v. Foy, 5 N.C. (1 Mur.) 58, 89 (1805) (Hall, J., dissenting) (“A question of more importance than that arising in this case [the constitutionality of a legislative act] cannot come before a court. . . . [W]ell convinced, indeed, ought one person to be of another’s error of judgment . . . when he reflects that each has given the same pledges to support the Constitution.”). Since its inception, the judicial branch has exercised its implied constitutional power of judicial review with “great reluctance,” Bayard v. Singleton, 1 N.C. (Mart.) 5, 6 (1787), recognizing that when it strikes down an act of the General Assembly, the Court is preventing an act of the people themselves, see Baker v. Martin, 330 N.C. 331, 336–37, 410 S.E.2d 887, 890 (1991).

State ex rel. McCrory v. Berger, 368 N.C. 633, 650, 781 S.E.2d 248, 259 (2016) (Newby,

J., concurring in part and dissenting in part) (footnote omitted). HARPER V. HALL

¶ 235 All political power resides in the people, N.C. Const. art. I, § 2, and the people

act through the General Assembly, Baker, 330 N.C. at 337, 410 S.E.2d at 891. Unlike

the United States Constitution, the North Carolina Constitution “is in no matter a

grant of power.” McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961)

(quoting Lassiter v. Northampton Cnty. Bd. of Elections, 248 N.C. 102, 112, 102

S.E.2d 853, 861 (1958), aff’d, 360 U.S. 45, 79 S. Ct. 985 (1959)). Rather, “[a]ll power

which is not limited by the Constitution inheres in the people.” Id. at 515, 119 S.E.2d

at 891 (quoting Lassiter, 248 N.C. at 112, 102 S.E.2d at 861). Because the General

Assembly serves as “the agent of the people for enacting laws,” State ex rel. Martin v.

Preston, 325 N.C. 438, 448, 385 S.E.2d 473, 478 (1989), the General Assembly has

plenary power, and a restriction on the General Assembly is in fact a restriction on

the people themselves, Baker, 330 N.C. at 338–39, 410 S.E.2d at 891–92. Therefore,

this Court presumes that legislation is constitutional, and a constitutional limitation

upon the General Assembly must be (1) express and (2) proved beyond a reasonable

doubt. Id. at 334, 410 S.E.2d at 889. When this Court looks for constitutional

limitations on the General Assembly’s authority, it looks to the plain text of the

constitution.2

2 Furthermore, “[i]ssues 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.’ ” State v. Webb, 358 N.C. 92, 97, 591 S.E.2d 505, 510 (2004) (quoting State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d HARPER V. HALL

¶ 236 This standard of review is illustrated by the landmark case of Bayard v.

Singleton, the nation’s first reported case of judicial review. The majority cites Bayard

in an effort to support its contention that judicial interference is necessary here “to

prevent legislators from permanently insulating themselves from popular will.” But

Bayard, rightly understood, was simply about the authority of the Court to declare

unconstitutional a law which violated an express provision of the constitution. It was

not about limiting the General Assembly’s authority to make discretionary political

decisions within its express authority. Bayard involved a pointed assault on a clearly

expressed and easily discernible individual right in the 1776 constitution, the right

to a trial by jury “in all controversies at Law respecting Property.” N.C. Const. of

1776, § XIV. There the court weighed the General Assembly’s ability to enact a

statute that abolished the right to a jury trial for property disputes—for some citizens

in some instances—in direct contradiction of the express text of the constitution, the

fundamental law of the land:

That by the Constitution every citizen had undoubtedly a right to a decision of his property by a trial by jury. For that if the Legislature could take away this right, and require him to stand condemned in his property without a trial, it might with as much authority require his life to be taken away without a trial by jury, and that he should stand condemned to die, without the formality of any trial at all: that if the members of the General

473, 478 (1989)). “In interpreting our Constitution—as in interpreting a statute—where the meaning is clear from the words used, we will not search for a meaning elsewhere.” Id. (quoting Preston, 325 N.C. at 449, 385 S.E.2d at 479). HARPER V. HALL

Assembly could do this, they might with equal authority, not only render themselves the Legislators of the State for life, without any further election of the people, from thence transmit the dignity and authority of legislation down to their heirs male forever.

Bayard, 1 N.C. at 7. Thus, the holding of Bayard v. Singleton is easily understood: A

statute cannot abrogate an express provision of the constitution because the

constitution represents the fundamental law and express will of the people; it is the

role of the judiciary to perform this judicial review. The Bayard holding, however,

does not support the proposition that this Court has the authority to involve itself in

a matter that is both constitutionally committed to the General Assembly and lacking

in manageable legal standards. Thus, plainly stated and as applied to this case, the

uncontroverted standard of review asks whether plaintiffs have shown that the

challenged statutes, presumed constitutional, violate an express provision of the

constitution beyond a reasonable doubt.

II. Justiciability

¶ 237 The Supreme Court of the United States has explained that “as essentially a

function of the separation of powers,” courts must refuse to review issues that are

better suited for the political branches; these issues are nonjusticiable.

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is HARPER V. HALL

found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710 (1962); see also Bacon v. Lee, 353

N.C. 696, 716–17, 549 S.E.2d 840, 854 (2001). Thus, respect for separation of powers

requires a court to refrain from entertaining a claim if any of the following are shown:

(1) a textually demonstrable commitment of the matter to another political

department; (2) a lack of judicially discoverable and manageable standards; (3) the

impossibility of deciding a case without making a policy determination of a kind

clearly suited for nonjudicial discretion; or (4) the impossibility of a court’s

undertaking independent resolution of a matter without expressing lack of the

respect due to a coordinate branch of government. Often the second, third, and fourth

factors are collectively referred to as lacking a manageable standard.

A. Manageable Standards

¶ 238 In addressing the manageable standards analysis, the Supreme Court recently

held that partisan gerrymandering claims present nonjusticiable political questions,

and it warned of the pitfalls inherent in such claims. See Rucho v. Common Cause, HARPER V. HALL

139 S. Ct. 2484, 2506–07 (2019).3 In Rucho “[v]oters and other plaintiffs in North

Carolina and Maryland challenged their States’ congressional districting maps as

unconstitutional partisan gerrymanders.” Id. at 2491. “The plaintiffs alleged that the

gerrymandering violated the First Amendment, the Equal Protection Clause of the

Fourteenth Amendment, the Elections Clause, and Article I, § 2, of the Constitution.”

Id. As such, the Supreme Court was tasked with deciding “whether claims of

excessive partisanship in districting are ‘justiciable’—that is, properly suited for

resolution by the federal courts.” Id.

¶ 239 In seeking to answer this question, the Court provided the following historical

background:

Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. . . .

....

. . . The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over

3 It should be noted that several of the attorneys in Rucho are also litigating this case.

Similar claims are presented here and similar remedies requested, only this time based on our state constitution, not the Federal Constitution. Neither the Federal Constitution nor the state constitution have explicit provisions addressing partisan gerrymandering. Likewise, some of the plaintiffs’ experts in Rucho are the same experts as used here. HARPER V. HALL

elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing.

Id. at 2494–96 (alteration in original). The Court then noted that “[i]n two areas—

[equal voting power defined as] one-person, one-vote and racial gerrymandering—our

cases have held that there is a role for the courts with respect to at least some issues

that could arise from a State’s drawing of congressional districts.” Id. at 2495–96. It

specified, however, that

[p]artisan gerrymandering claims have proved far more difficult to adjudicate. The basic reason is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526 U.S. 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (citing Bush v. Vera, 517 U.S. 952, 968, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II); Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); Shaw [v. Reno], 509 U.S. [630,] 646, 113 S.Ct. 2816[, 125 L.Ed. 2d 511 (1993)]). See also Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (recognizing that “[p]olitics and political considerations are inseparable from districting and apportionment”).

Id. at 2497 (last alteration in original). Thus, the Court reasoned that HARPER V. HALL

[t]o hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.” Vieth [v. Jubelirer], 541 U.S. [267,] 296, 124 S.Ct. 1769 [(2004)] (plurality opinion). See League of United Latin American Citizens v. Perry, 548 U.S. 399, 420, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (LULAC) (opinion of Kennedy, J.) (difficulty is “providing a standard for deciding how much partisan dominance is too much”).

Id. The Court then highlighted its “mindful[ness] of Justice Kennedy’s counsel in

Vieth: Any standard for resolving such claims must be grounded in a ‘limited and

precise rationale’ and be ‘clear, manageable, and politically neutral.’ 541 U.S. at 306–

308, 124 S.Ct. 1769 (opinion concurring in judgment).” Id. at 2498. The Court further

clarified that

[a]n important reason for those careful constraints is that, as a Justice with extensive experience in state and local politics put it, “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” [Davis v.] Bandemer, 478 U.S. [109,] 145, 106 S.Ct. 2797 [(1986)] (opinion of O’Connor, J.). See Gaffney, 412 U.S. at 749, 93 S.Ct. 2321 (observing that districting implicates “fundamental ‘choices about the nature of representation’ ” (quoting Burns v. Richardson, 384 U.S. 73, 92, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966))). An expansive standard requiring “the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,” Vieth, 541 U.S. at 306, 124 S.Ct. 1769 (opinion of Kennedy, J.). HARPER V. HALL

Id. (first alteration in original). As such, the Supreme Court concluded that “[i]f

federal courts are to ‘inject [themselves] into the most heated partisan issues’ by

adjudicating partisan gerrymandering claims, Bandemer, 478 U.S. at 145, 106 S.Ct.

at 2797 (opinion of O’Connor, J.), they must be armed with a standard that can

reliably differentiate unconstitutional from ‘constitutional political

gerrymandering.’ ” Id. at 2499 (second alteration in original) (quoting Cromartie, 526

U.S. at 551, 119 S. Ct. at 1545).

¶ 240 The Court also explained that partisan gerrymandering claims are effectively

requests for courts to allocate political power based upon a principle of

proportionality:

Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O’Connor put it, such claims are based on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” [Bandemer, 478 U.S. at 159, 106 S.Ct. 2797.] “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id., at 130, 106 S.Ct. 2797 (plurality opinion). See Mobile v. Bolden, 446 U.S. 55, 75–76, 100 S.Ct. 1490, 1504, 64 L.Ed.2d 47 (1980) (plurality opinion) (“The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.”).

The Founders certainly did not think proportional representation was required. For more than 50 years after HARPER V. HALL

ratification of the Constitution, many States elected their congressional representatives through at-large or “general ticket” elections. Such States typically sent single-party delegations to Congress. See E. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 43–51 (2013). That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation. The Whigs in Alabama suffered that fate in 1840: “their party garnered 43 percent of the statewide vote, yet did not receive a single seat.” Id., at 48. When Congress required single-member districts in the Apportionment Act of 1842, it was not out of a general sense of fairness, but instead a (mis)calculation by the Whigs that such a change would improve their electoral prospects. Id., at 43–44.

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.

Id. at 2499. The Court thus determined that “federal courts are not equipped to

apportion political power as a matter of fairness, nor is there any basis for concluding

that they were authorized to do so.” Id. (quoting Vieth, 541 U.S. at 291, 124 S.Ct. 1769

(plurality opinion) (stating that: “ ‘Fairness’ does not seem to us a judicially

manageable standard. . . . Some criterion more solid and more demonstrably met

than that seems to us necessary to enable the state legislatures to discern the limits

of their districting discretion, to meaningfully constrain the discretion of the courts,

and to win public acceptance for the courts’ intrusion into a process that is the very

foundation of democratic decisionmaking.”)). HARPER V. HALL

¶ 241 The Court also explained that the Federal Constitution is devoid of any metric

for measuring political fairness:

Appellees contend that if we can adjudicate one- person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support.

Id. at 2501. The Court then turned to the shortcomings of the political science-based

tests that the plaintiffs proposed for determining the permissibility of partisan

gerrymandering:

The appellees assure us that “the persistence of a party’s advantage may be shown through sensitivity testing: probing how a plan would perform under other plausible electoral conditions.” Experience proves that accurately predicting electoral outcomes is not so simple, either because the plans are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time. In our two leading partisan gerrymandering cases themselves, the predictions of durability proved to be dramatically wrong. In 1981, Republicans controlled both houses of the Indiana Legislature as well as the governorship. Democrats challenged the state legislature districting map enacted by the Republicans. This Court in Bandemer rejected that challenge, and just months later the Democrats increased their share of House seats in the 1986 elections. Two years later the House was split 50–50 between Democrats and HARPER V. HALL

Republicans, and the Democrats took control of the chamber in 1990. Democrats also challenged the Pennsylvania congressional districting plan at issue in Vieth. Two years after that challenge failed, they gained four seats in the delegation, going from a 12–7 minority to an 11–8 majority. At the next election, they flipped another Republican seat.

Even the most sophisticated districting maps cannot reliably account for some of the reasons voters prefer one candidate over another, or why their preferences may change. Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations. Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes. For all of those reasons, asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise.

Id. at 2503–04 (citations omitted).

¶ 242 The Supreme Court concluded “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.” Id. at 2506–07. The Court’s discussion in Rucho of its previous

decision in Bandemer, especially its reference to Justice O’Connor’s concurring

opinion, serves as a cautionary tale for the dangers that loom when a court thrusts HARPER V. HALL

itself into the political thicket guided by nothing more than a “nebulous standard.”

Bandemer, 478 U.S. at 145, 106 S. Ct. at 2817 (O’Connor, J., concurring). The

Supreme Court did state that some state constitutions might provide the explicit

guidance necessary to adjudicate partisan gerrymandering claims.

¶ 243 For specific guidance, the Court mentioned a case in which “the Supreme Court

of Florida struck down that State’s congressional districting plan as a violation of the

Fair Districts Amendment to the Florida Constitution.” Rucho, 139 S. Ct. at 2507

(citing League of Women Voters of Florida v. Detzner, 172 So. 3d 363, 416 (Fla. 2015)).

Notably, in Detzner the state court was directed by the following express

constitutional provision:

In establishing congressional district boundaries:

(a) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.

(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection (a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.

(c) The order in which the standards within subsections (a) and (b) of this section are set forth shall not HARPER V. HALL

be read to establish any priority of one standard over the other within that subsection.

Fla. Const. art. III, § 20 (footnotes omitted). When the Supreme Court referenced the

use of state constitutions to address claims of partisan gerrymandering, it was

referring to explicit prohibitions found in state constitutions, not to those created by

judges as this Court does today. When asked by the dissent why the majority did not

follow the Florida court’s lead, the majority said, “The answer is that there is no

‘Fair Districts Amendment’ to the Federal Constitution.” Rucho, 139 S. Ct. at 2507.

¶ 244 Here the majority opinion confirms the truth of all the warnings given by the

Supreme Court that there is no manageable standard for adjudicating claims of

partisan gerrymandering. The will of the people of Florida is fully and clearly

expressed in their constitution. Like the Federal Constitution, there is no provision

in our state constitution remotely comparable to this express provision in the Florida

Constitution. As the Supreme Court said, with an express provision, states are better

“armed with a standard that can reliably differentiate” between constitutional and

unconstitutional political gerrymandering. See Rucho, 139 S. Ct. at 2499. Instead, the

majority inexplicably takes the Court’s statement that the “[p]rovisions in state

statutes and state constitutions can provide standards and guidance for state courts

to apply,” id. at 2507, as an unrestricted license to judicially amend our constitution.

In doing so, the majority wholly ignores the fact that the Court in Rucho identified

several state constitutional provisions and statutes that are clear, manageable, and HARPER V. HALL

express as examples of workable standards for assessing political gerrymandering.

See id. at 2507–08.

¶ 245 The North Carolina Constitution could have a provision like the Florida

Constitution. But, to do so properly requires the amendment process authorized in

the constitution itself, allowing the people to determine the wisdom of this new policy.

Instead of following the constitutionally required process for properly amending the

constitution, the majority now does so by judicial fiat, effectively placing in the

constitution that any redistricting plan cannot “on the basis of partisan affiliation . . .

deprive[ ] a voter of his or her fundamental right to substantially equal voting power”

as determined by certain political science tests. Would the people have adopted this

constitutional amendment? We do not know, and the majority does not care.

¶ 246 The plaintiffs in Rucho presented arguments and evidence similar to what was

presented here—that the use of certain political science theories could provide a

manageable standard. The Supreme Court disagreed. See id. at 2503–04. Here the

majority’s new constitutional standard requires litigants and courts to utilize those

rejected approaches to predict the electoral outcomes that various proposed plans

would produce. In doing so, the majority adopts various policies. First, the majority

makes the initial policy determination that the constitution mandates a statewide

proportionality standard. Next, it determines that the constitution requires the use

of political science tests to adhere to this standard and designates which political HARPER V. HALL

science tests should be used. But, the majority refuses to identity how the standard

can be met: “We do not believe it prudent or necessary to, at this time, identify an

exhaustive set of metrics or precise mathematical thresholds which conclusively

demonstrate or disprove the existence of an unconstitutional partisan gerrymander.”

“[B]asing [its] constitutional holdings on unstable ground outside judicial expertise,”

Rucho, 139 S. Ct. at 2504, the majority’s decision effectively results in the creation of

a redistricting commission comprised of selected political scientists and judges.

¶ 247 The majority simply fails to recognize that its political science-based approach

involves policy decisions and that these are the same policy determinations about

which the Supreme Court warned in Rucho. See id. at 2503–04; id. at 2504 (“For all

of those reasons, asking judges to predict how a particular districting map will

perform in future elections risks basing constitutional holdings on unstable ground

outside judicial expertise.”). Why did the majority choose this approach and these

specific tests instead of others? The expert witnesses in this case looked to selected

past statewide elections results for data, and the majority approves such a practice.

Left unanswered is which past elections’ results are germane to predicting future

ones. Moreover, what if the experts approved by the majority tend to favor one

political party over the other as shown by their trial testimony in various cases? Could

such experts be considered politically neutral? HARPER V. HALL

¶ 248 As found by the trial court, “[t]he 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.” The trial court also found that

the “statewide races [used by plaintiffs’ experts] 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.”

¶ 249 The majority inserts a requirement of “partisan fairness” into our constitution.

Under the majority’s newly created policy, any redistricting that diminishes or dilutes

an individual’s vote on the basis of partisanship is unconstitutional. This outcome

results, as predicted by the Court in Rucho, in a statewide proportionality standard.

According to the majority, when groups of voters of “equal size” exist within a state,

elections should result in an equal amount of representatives. Again, this vague

notion of fairness does not answer how to measure whether groups of voters are of

equal size or how to predict the results an election would produce.

¶ 250 The majority also bases its reasoning on several false assumptions. First,

plaintiffs’ experts and now the majority appear to assume that voters will vote along

party lines in future elections. This assumption is especially troubling considering

that in 2020 over eight percent of North Carolinians voted for both a Republican

candidate for president and a Democratic candidate for governor on the same ballot. HARPER V. HALL

Though individuals self-select their party affiliation, the views can often differ from

one individual to another within that affiliation. Second, in equating partisan

affiliation to an immutable characteristic and then elevating its protection to strict

scrutiny, the majority also fails to consider that party affiliation can change at any

point or be absent altogether. How can the General Assembly forecast the appropriate

protections for the unaffiliated voter, a group growing by rapid number in the state?

What is the standard for that group’s fair representation? The majority certainly

provides no answer for these important questions.

¶ 251 Third, the majority’s policy decision erroneously assumes that a voter’s

interests can never be adequately represented by someone from a different party.

Representative government is grounded in the concept of geographic representation.

Though partisanship may influence the representative’s attention to certain political

issues, the representative is likely to attend to numerous other issues important to

the shared community interests that affect his or her constituents. The constitution

cannot guarantee that a representative will have the same political objectives as a

given constituent because it is an impossible requirement. Representatives are

individuals with their own beliefs and who pursue their own motivations, often in

opposition to other members of their own party. As the trial court correctly found,

plaintiffs’ experts, and now the majority, treat candidates and representatives “as

inanimate objects in that they do not consider the personality or qualifications of each HARPER V. HALL

candidate, any political baggage each candidate may carry, as well as a host of other

considerations that voters use to select a candidate.” Not only does the majority

assume that voters will vote along party lines, but it also likewise transforms the

individual representatives into partisan robots. Such reasoning is divorced from

reality but nonetheless is the expected result when a court involves itself in a “policy

determination of a kind clearly for nonjudicial discretion.” Baker, 369 U.S. at 217, 82

S. Ct. at 710. As in this case, the plaintiffs in Rucho argued that addressing concerns

of partisan gerrymandering was comparable to the process used in the one-person,

one-vote legal analysis. Again, the Supreme Court of the United States disagreed. See

Rucho, 139 S. Ct. at 2501. The one-person, one-vote rule is just “a matter of math.”

Id. But the Constitution does not provide an “objective measure” of how to determine

if a political party is treated “fairly.” Id. Again, rejecting the Supreme Court’s

guidance, the majority holds that one-person, one-vote and partisan gerrymandering

use comparable assessments and even asserts that violations related to partisan

gerrymandering are more egregious than violations of one-person, one-vote. In sum,

there is no judicially discernible manageable standard. As thoroughly discussed in

Rucho, the majority’s approach is replete with policy determinations. Thus, the case

is nonjusticiable. HARPER V. HALL

B. Textual Commitment

¶ 252 In addition to the fact that partisan gerrymandering claims are lacking in

manageable standards, the issue is textually committed to the General Assembly.

Under our state constitution, the General Assembly possesses plenary power as well

as responsibilities explicitly recognized in the text. McIntyre, 254 N.C. at 515, 119

S.E.2d at 891–92. Both the Federal Constitution and the North Carolina Constitution

textually assign redistricting authority to the legislature. The Federal Constitution

commits the drawing of congressional districts to the state legislatures subject to

oversight by the Congress of the United States. “The Times, Places and Manner of

holding Elections for Senators and Representatives, shall be prescribed in each State

by the Legislature thereof; but the Congress may at any time by Law make or alter

such Regulations, except as to the Places of chusing Senators.” U.S. Const. art. I, § 4,

cl. 1. Our constitution also plainly commits redistricting responsibility to the General

Assembly. See N.C. Const. art. II, § 3 (“The General Assembly . . . shall revise the

senate districts and the apportionment of Senators among those districts . . . .”

(emphasis added)); id. § 5 (“The General Assembly . . . shall revise the representative

districts and the apportionment of Representatives among those districts . . . .”

(emphasis added)). The governor has no role in the redistricting process because the HARPER V. HALL

constitution explicitly exempts redistricting legislation from the governor’s veto

power. Id. § 22(5)(b)–(d).

¶ 253 The role of the judiciary through judicial review is to decide challenges

regarding whether a redistricting plan violates the objective limitations in Article II,

Sections 3 and 5 of our constitution or a provision of federal law. Under our historic

standard of review, the Court should not venture beyond the express language of the

constitution. This Court is simply not constitutionally empowered nor equipped to

formulate policy or develop standards for matters of a political, rather than legal,

nature.

¶ 254 Our constitution places only the following four enumerated objective

limitations on the General Assembly’s redistricting authority:

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

(2) Each senate district shall at all times consist of contiguous territory;

(3) No county shall be divided in the formation of a senate district;

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

Id. § 3; see id. § 5 (setting the same limitations for the state House of Representatives).

These express limitations neither restrict nor prohibit the General Assembly’s

presumptively constitutional discretion to engage in partisan gerrymandering. See

Preston, 325 N.C. at 448–49, 385 S.E.2d at 478. The majority seriously errs by

suggesting the General Assembly needs an express grant of authority to redistrict for

partisan advantage. Under our state constitution, the opposite is true; absent an

express prohibition, the General Assembly can proceed.

¶ 255 In a landmark case this Court considered the explicit limitations in Article II,

Sections 3 and 5 and concluded that these objective restraints remain valid and can

be applied consistently with federal law. In Stephenson the plaintiffs challenged the

2001 state legislative redistricting plans as unconstitutional in violation of the Whole

County Provisions (WCP) of Article II, Sections 3 and 5. Stephenson v. Bartlett, 355

N.C. 354, 358, 562 S.E.2d 377, 381 (2002). The defendants argued that “the

constitutional provisions mandating that counties not be divided are wholly

unenforceable because of the requirements of the Voting Rights Act [(VRA)].” Id. at

361, 562 S.E.2d at 383–84. Thus, before addressing whether the 2001 redistricting

plans violated the Whole County Provisions, this Court first had to address “whether

the WCP is now entirely unenforceable, as [the] defendants contend, or, alternatively,

whether the WCP remains enforceable throughout the State to the extent not HARPER V. HALL

preempted or otherwise superseded by federal law.” Id. at 369, 562 S.E.2d at 388. In

doing so, we explained that

an inflexible application of the WCP is no longer attainable because of the operation of the provisions of the VRA and the federal “one-person, one-vote” standard, as incorporated within the State Constitution. This does not mean, however, that the WCP is rendered a legal nullity if its beneficial purposes can be preserved consistent with federal law and reconciled with other state constitutional guarantees.

. . . . The 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, [93 S. Ct. 2321,] 37 L. Ed. 2d 298 (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.

Id. at 371–72, 562 S.E.2d at 389–90. Thus, we referred to the Whole County

Provisions and the other explicit limitations of Article II, Sections 3 and 5 as the

“objective constraints” that the people have imposed upon the General Assembly’s

redistricting authority. We then concluded that “the WCP remains valid and binding

upon the General Assembly during the redistricting and reapportionment process . . .

except to the extent superseded by federal law.” Id. at 372, 562 S.E.2d at 390. Having

decided that the Whole County Provisions remained enforceable to the extent not

preempted or otherwise superseded by federal law, we held that the 2001 HARPER V. HALL

redistricting plans violated the Whole County Provisions because “the 2001 Senate

redistricting plan divide[d] 51 of 100 counties into different Senate Districts,” and

“[t]he 2001 House redistricting plan divide[d] 70 out of 100 counties into different

House districts.” Id. at 371, 562 S.E.2d at 390.

¶ 256 Having found that the maps violated the still valid Whole County Provisions,

out of respect for the legislative branch, we then sought to give the General Assembly

detailed criteria for fashioning remedial maps. The plaintiffs “contend[ed] that

remedial compliance with the WCP requires the formation of multi-member

legislative districts in which all legislators would be elected ‘at-large.’ ” Id. at 376,

562 S.E.2d at 392. As such, we “turn[ed] to address the constitutional propriety of

such districts, in the public interest, in order to effect a comprehensive remedy to the

constitutional violation which occurred in the instant case.” Id. at 377, 562 S.E.2d at

393. In doing so, we noted that “[t]he classification of voters into both single-member

and multi-member districts . . . necessarily implicates the fundamental right to vote

on equal terms.” Id. at 378, 562 S.E.2d at 393. We explained that

voters in single-member legislative districts, surrounded by multi-member districts, suffer electoral disadvantage because, at a minimum, they are not permitted to vote for the same number of legislators and may not enjoy the same representational influence or “clout” as voters represented by a slate of legislators within a multi-member district.

Id. at 377, 562 S.E.2d at 393 (emphasis added). Thus, we concluded that the use of

both single-member and multi-member districts within the same redistricting plan HARPER V. HALL

infringes upon “the fundamental right of each North Carolinian to substantially equal

voting power.” Id. at 379, 562 S.E.2d at 394. In other words, “substantially equal

voting power” meant that each legislator should represent a similar number of

constituents. This is an application of the one-person, one-vote concept. Here the

majority changes the concept of “substantially equal voting power” of one-person, one-

vote to apply now to “party affiliation.”

¶ 257 We did not discuss the political party of the constituents in Stephenson but

provided the following remedial directive:

[T]o ensure full compliance with federal law, legislative districts required by the VRA shall be formed prior to creation of non-VRA districts. The USDOJ precleared the 2001 legislative redistricting plans, and the VRA districts contained therein, on 11 February 2002.[4] This administrative determination signified that, in the opinion of the USDOJ, the 2001 legislative redistricting plans had no retrogressive effect upon minority voters. In the formation of VRA districts within the revised redistricting plans on remand, we likewise direct the trial court to ensure that VRA districts are formed consistent with federal law and in a manner having no retrogressive effect upon minority voters. 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.

4 North Carolina is no longer subject to this requirement of Section 5 of the Voting

Rights Act. N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 215–16 (4th Cir. 2016) (“[I]n late June 2013, the Supreme Court issued its opinion in Shelby County. In it, the Court invalidated the preclearance coverage formula, finding it based on outdated data. Shelby [Cnty. v. Holder], [570 U.S. 529, 556–57,] 133 S. Ct. [2612,] 2631 [(2013)]. Consequently, as of that date, North Carolina no longer needed to preclear changes in its election laws.”). HARPER V. HALL

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 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 HARPER V. HALL

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.

Because multi-member legislative districts, at least when used in conjunction with single-member legislative districts in the same redistricting plan, are subject to strict scrutiny under the Equal Protection Clause of the State Constitution, multi-member districts shall not be used in the formation of legislative districts unless it is established that such districts are necessary to advance a compelling governmental interest.

Finally, we direct that any new redistricting plans, including any proposed on remand in this case, shall depart from strict compliance with the legal requirements set forth herein only to the extent necessary to comply with federal law.

Id. at 383–84, 562 S.E.2d at 396–97.

¶ 258 The majority attempts to analogize the classification of voters in Stephenson

that were placed into both single and multi-member districts to the classification of

voters based upon partisan affiliation. It does so by concluding, without any citation

or other reference to legal support or any explanation, that the right to vote on equal

terms “necessarily encompasses the opportunity to aggregate one’s vote with

likeminded citizens to elect a governing majority of elected officials who reflect those HARPER V. HALL

citizens’ views.” The majority thus reasons that “[l]ike the distinctions at issue in

Stephenson, drawing distinctions between voters on the basis of partisanship when

allocating voting power diminishes the ‘representational influence’ of voters” because

“those voters have far fewer legislators who are ‘responsive’ to their concerns and who

can together ‘press their interests.’ ”

¶ 259 The majority, however, fails to recognize that at least some partisan

considerations are permitted under Stephenson. Id. at 371, 562 S.E.2d at 390 (“The

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.” (internal citation omitted)); Rucho, 139

S. Ct. at 2497 (recognizing that legislators must be permitted to take some “partisan

interests into account when drawing district lines”). Furthermore, our Stephenson

decision thus directs that the Whole County Provisions of Article II, Sections 3 and 5

are still enforceable to the extent that they are compatible with the VRA and one-

person, one-vote principles. When understanding Stephenson in context, it becomes

clear that the Court’s statement—that the General Assembly’s practice of partisan

gerrymandering must still conform with the constitution—refers to the express

objective limitations present in Article II, Sections 3 and 5. The Court in Stephenson

did not identify any other restrictions on the General Assembly’s redistricting HARPER V. HALL

authority arising from the state constitution; the Court only recognized the express

limitations, which deal exclusively with geographic and population-based measures.

¶ 260 The majority’s misunderstanding of Stephenson is further expressed through

its requirement from the 4 February 2022 order that “[t]he General Assembly must

first assess whether, using current election and population data, racially polarized

voting is legally sufficient in any area of the state such that Section 2 of the Voting

Rights Act requires the drawing of a district to avoid diluting the voting strength of

African-American voters.”5 Contrarily, Stephenson in no way requires the General

Assembly to conduct an independent analysis under Section 2 of the VRA before

enacting a redistricting plan. Similarly, federal precedent does not have this

requirement.6

5 Interestingly, the language in the majority’s opinion now attempts to contextualize

this requirement, noting that “the General Assembly’s responsibility to conduct a racially polarized voting analysis arises from our state constitution and decisions of this Court, including primarily Stephenson, and not from the VRA itself, or for that matter from any federal law.” But this attempted contextualization is senseless considering the directive from the majority’s order specifically instructed the General Assembly to apply the federal VRA. 6 “The Equal Protection Clause of the Fourteenth Amendment limits racial gerrymanders in legislative districting plans.” Cooper v. Harris, 137 S. Ct. 1455, 1463 (2017). Thus, absent a “sufficient justification,” a state is prevented from “separat[ing] its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 797 (2017) (alteration in original) (quoting Miller v. Johnson, 515 U.S. 900, 911, 115 S. Ct. 2475, 2486 (1995)). A plaintiff must first “prove that ‘race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.’ That entails demonstrating that the legislature ‘subordinated’ other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to ‘racial considerations.’ ” Cooper, 137 S. Ct. at 1463–64 (citation omitted) (quoting Miller, 515 U.S. at 916, 115 S. Ct. at 2488). HARPER V. HALL

¶ 261 In Stephenson we explained that “Section 2 of the VRA generally provides that

states or their political subdivisions may not impose any voting qualification or

prerequisite that impairs or dilutes, on account of race or color, a citizen’s opportunity

to participate in the political process and to elect representatives of his or her choice.”

Stephenson, 355 N.C. at 363, 562 S.E.2d at 385 (first citing 42 U.S.C. §§ 1973a, 1973b

(1994); and then citing Thornburg v. Gingles, 478 U.S. 30, 43, 106 S. Ct. 2752, 2762

(1986)). We then stated that “[o]n remand, to ensure full compliance with federal law,

legislative districts required by the VRA shall be formed prior to creation of non-VRA

districts.” Id. at 383, 562 S.E.2d at 396–97. We provided this approach to alleviate

the tension between the Whole County Provisions and the VRA because the

legislative defendants in Stephenson argued that “the constitutional provisions

mandating that counties not be divided are wholly unenforceable because of the

requirements of the Voting Rights Act.” Id. at 361, 562 S.E.2d at 383–84. Thus, the

Court in Stephenson was not forcing the legislative defendants to conduct a VRA

analysis. Rather, the Court was merely stating that if Section 2 requires VRA

districts, those districts must be drawn first so that the remaining non-VRA districts

can be drawn in compliance with the Whole County Provisions.

¶ 262 Legislative defendants here made the decision not to draw any VRA districts.

As the trial court correctly noted, “[i]f the [l]egislative [d]efendants are incorrect that

no VRA Districts are required, [p]laintiff Common Cause has an adequate remedy at HARPER V. HALL

law and that is to bring a claim under Section 2 of the VRA.” There is no requirement

under the North Carolina Constitution or federal law that the General Assembly

must conduct a racially polarized voting analysis before enacting a redistricting plan.

Here the trial court found that there was no showing that race was the predominant

factor in drawing the districts. Similarly, the trial court concluded that the state

legislative district plans did not violate the Whole County Provisions because the

plans contained the minimum number of county traversals necessary to comply with

one-person, one-vote principles and because the traversals were done predominantly

in pursuit of traditional redistricting principles. Since the trial court formed these

conclusions based upon findings of fact supported by competent evidence, its

conclusions should be upheld.

¶ 263 Similar to our holding in Stephenson is People ex rel. Van Bokkelen v. Canaday,

73 N.C. 198 (1875). There the General Assembly divided the City of Wilmington into

three wards, with three aldermen elected in each ward. While the first and second

wards each had about 400 voters, the third ward had 2800. Id. at 225. While the first

and second wards each consisted of one precinct for registration and voting, the third

ward had four precincts divided by a “meets and bounds” description which omitted

a portion of the city. Id. at 223. To be eligible to vote, voters needed to register to vote

in their assigned precincts. Lastly, the act required a ninety-day residency in the

ward, whereas the constitution provided for thirty days. Id. at 216, 221. The Court HARPER V. HALL

held that these obstacles to voting amounted to “the disfranchisement of the voters.”

Id. at 223. Furthermore, it observed that the great disparity of voters in the third

ward as compared to the others meant that a third ward voter’s vote was not equal.

Id. at 225. The vote in the two wards “counts as much as seven votes in the third

ward.” Id. This malapportionment was “a plain violation of fundamental principles.”

Id. The “fundamental principle” is that representation shall be apportioned to the

popular vote as near as may be. In other words, the Court recognized a basic one-

person, one-vote principle. This case has no application to partisan gerrymandering.

Notably, for the more than one hundred years since this case was decided, it has never

been cited for the proposition for which the majority seeks to use it here.

¶ 264 Since 1776 this Court has exercised restraint absent an express limitation on

the authority of the General Assembly. Moreover, this Court has long recognized that

responsibilities reserved for the legislature are not reviewable by this Court because

they raise political questions. In Howell v. Howell, 151 N.C. 575, 66 S.E. 571 (1909),

the board of education in Haywood County created a school district and then held a

vote to enable those in the district to determine whether a special tax should be

imposed. Id. at 575–76, 66 S.E. at 572. A majority of the qualified voters in the newly

drawn district voted in favor of the tax. Id. at 576, 66 S.E. at 572. The plaintiffs, who

were taxpayers within that district, brought an action to annul creation of the special-

tax school district and to enjoin collection of the tax. Id. at 575, 66 S.E. at 572. The HARPER V. HALL

plaintiffs argued that the district was neither compact nor convenient, indicating to

them that the district had been gerrymandered based on political views to ensure

that a majority would vote in favor of the tax. Id. at 575–76, 66 S.E. at 572.

¶ 265 This Court, however, recognized that the creation of a special-tax school

district was a legislative task, which at that time the legislature had delegated to

local boards of education by a special act. Id. at 581, 66 S.E. at 572; see also Atwell C.

McIntosh, Special Tax School Districts in North Carolina, 1 N.C. L. Rev. 88, 88–89

(1922). As such, the Court noted that the board’s creation of the district was “no more

subject to review than the act of the Legislature itself.” Howell, 151 N.C. at 581, 66

S.E. at 574. Because “questions of compactness and convenience must be addressed

to somebody’s judgment and discretion,” and because the duty to create districts at

that time was “unequivocally delegate[d] . . . to the county board of education,” the

plaintiffs’ challenge to the district’s creation and composition raised a political

question. Id. at 578, 66 S.E. at 573. The Court also noted that “[f]or the courts to

undertake to pass upon such matters would be manifestly unwise.” Id. at 578, 66 S.E.

at 573. Moreover, the Court stated: “There is no principle better established than that

the courts will not interfere to control the exercise of discretion on the part of any

officer to whom has been legally delegated the right and duty to exercise that

discretion.” Id. at 578, 66 S.E. at 573 (emphasis added). HARPER V. HALL

¶ 266 The Court expressed its concern about the politically motivated

gerrymandering of special-tax districts to produce a favorable result and commented

that perhaps “the overzealous overstep[ped] the limitations of prudence.” Id. at 582,

66 S.E. at 574. Nonetheless, the Court recognized that a question about the creation

of districts, even when a court disagrees with the district’s creation, raises a political

question “to be fought out on the hustings”—or, through the political process—not

through the judiciary. Id. at 581, 66 S.E. at 574. In recognition of the constitutionally

assigned authority to the General Assembly, the Court held it was prohibited from

interfering.

¶ 267 In sum, a matter is nonjusticiable if the constitution expressly assigns

responsibility to one branch of government or there is not a manageable standard by

which to decide it, including whether the matter involves a policy determination. Both

elements are present here. In addition to the legislature’s plenary power, the

constitution expressly assigns the General Assembly redistricting authority subject

only to express limitations. The decision to implement a political fairness

requirement in the constitution without explicit direction from the text inherently

requires policy choices and value determinations and does not result in a neutral,

manageable standard. Here this Court’s intrusion is a violation of separation of

powers. By striking down the enacted plans as unconstitutional partisan

gerrymanders, the majority today wholeheartedly ushers this Court into a new HARPER V. HALL

chapter of judicial activism, severing ties with over two hundred years of judicial

restraint in this area. The majority seizes this opportunity to advance its agenda by

grafting a prohibition of partisan gerrymandering onto several provisions of the

Declaration of Rights. A review of these provisions, however, demonstrates that none

specifically address redistricting. They are designed to protect only “individual and

personal rights” rather than a group’s right to have a party’s preferred candidate

placed in office. The majority seems to concede that there is no express provision of

the constitution which addresses partisan gerrymandering. Undeterred, it untethers

itself from history and case law in this case to apply an evolving understanding to

these rights.

III. Declaration of Rights

¶ 268 To properly understand what the drafters meant when they included various

rights in the Declaration of Rights, and particularly the application, if any, they may

have in structuring voting districts, the historical context of our apportionment and

elections process is significant. As recognized by the trial court, North Carolina has

had some form of elected, representative body since 1665.7 Leading up to the

7 As early as 1663, the Lords Proprietors could enact laws in consultation with the

freeman settled in their province. Charter Granted by Charles II, King of England to the Lords Proprietors of Carolina (Mar. 24, 1663), in 1 Colonial and State Records of North Carolina 23 (William L. Sanders ed., 1886). In 1665 certain “concessions” by the Lords Proprietors allowed for the formation of the predecessor to the General Assembly and the election of freeman representatives. Concessions and Agreement Between the Lords Proprietors of Carolina and William Yeamans, et al. (Jan. 7, 1665), in 1 Colonial and State HARPER V. HALL

enactment of the 1776 constitution, in 1774 the delegates of the First Provincial

Congress were elected by geographic location, by county or town. See Henry G.

Connor & Joseph B. Cheshire, Jr., The Constitution of North Carolina Annotated xii–

xiv (1911). The text of the 1776 constitution established the General Assembly as the

Senate and the House of Commons. N.C. Const. of 1776, § I. Senators were elected

annually by county without regard to the population size of that county, id. § II, and

representatives were also elected annually but with two representatives per county

or specified town, id. § III. Only certain towns were included in the representation,

id. but other towns were later added.8 This apportionment was done at the same time

certain Declaration of Rights provisions, namely the popular sovereignty provision,

N.C. Const. of 1776, Declaration of Rights, § I, the free elections clause, id. at § VI,

Records of North Carolina 81 (William L. Sanders ed., 1886). The 1669 Fundamental Constitutions of Carolina divided those representatives into counties, divided again into precincts. The Fundamental Constitutions of Carolina (Mar. 1, 1669), in 1 Colonial and State Records of North Carolina 188 (William L. Sanders ed., 1886). The assembly met every two years and stood for election every two years. Id. at 199–200. Thus, long before the 1776 constitution, the people in Carolina were electing their representatives in districts. Later under the Royal Governor, the bicameral assembly consisted of an upper house to advise the Royal Governor and a lower house that represented the people and their interests. See Charles Lee Raper, North Carolina, A Study in English Colonial Government 71–100 (1904) [hereinafter English Colonial Government]. The lower house consisted of freeman elected by county and certain towns. Id. at 89–91. 8 The towns represented initially were Edenton, New Bern, Wilmington, Salisbury,

Hillsborough, and Halifax, while others were added over the years. John V. Orth, North Carolina Constitutional History, 70 N.C. L. Rev. 1759, 1769 (1992) (discussing Article III of the 1776 constitution and including that Fayetteville, for example, was added to that list in 1789). HARPER V. HALL

and the right to assembly and petition, id. at § XVIII, were enacted. Given the

apportionment provisions, clearly these clauses did not mean “equal voting power,”

even based on population. Furthermore, partisan gerrymandering was well known to

the framers, yet none of these provisions were crafted to address it. See Rucho, 139

S. Ct. at 2496.

¶ 269 Through the years, the population of the state shifted radically from the east

to the piedmont and west. John V. Orth, North Carolina Constitutional History, 70

N.C. L. Rev. 1759, 1770–71 (1992). Nonetheless, the eastern region received

additional representation. Id. at 1770. The General Assembly created smaller

counties in the east and larger ones in the piedmont and west, tipping the numbers

of representatives in favor of the east despite population growth trends in other areas.

Id. at 1770–71. This county-town approach, combined with the power of the General

Assembly to divide existing counties to create new ones, resulted in superior political

power in the east despite the shift in population. See id. This malapportionment led

to civil unrest and a crisis which culminated with the 1835 constitutional convention.

John V. Orth & Paul Martin Newby, The North Carolina State Constitution 3, 13 (2d

ed. 2013) [hereinafter State Constitution]. No one argued that the provisions of the

Declaration of Rights made the legislative apportionment acts unconstitutional.

¶ 270 In 1835 a constitutional convention met to, among other things, adjust the

representative system to better address differences in population. See id. That HARPER V. HALL

convention resulted in amendments that required senatorial districts to be drawn by

the General Assembly based on the taxes paid by each county, N.C. Const. of 1776,

amends. of 1835, art. I, § 1, and included the predecessor of the Whole County

Provisions, see N.C. Const. art. II, § 3(3), that prohibited a county from being divided

to create the senatorial districts, N.C. Const. of 1776, amends. of 1835, art. I, § 1.

House seats were allotted based on population, allowing the more populated counties

to have additional representatives. Id. art. I, § 2. Like today, the General Assembly

was instructed to reconsider the apportionment of the counties based on population

according to the census taken by order of Congress. Id. art. I, § 3. Each county was

required to have at least one House representative. Id. art. I, § 2. Likewise, the

convention implemented other changes to representation such as lengthening

legislative terms from one year to two years, id. art. I, §§ 1–2, and allowing the voters

to elect the governor, id. art. II, § 1.

¶ 271 The constitutional convention of 1868 placed the Declaration of Rights in

Article I, the forefront of the constitution. See N.C. Const. of 1868, art. I. The

convention added Article I, Section 1, incorporating the provision from the

Declaration of Independence that acknowledged our God-given, equal rights. See id.

art. I, § 1. Significant here, the Senate became apportioned by population. Id. art. II,

§ 5. Along with the express limitation imposed by the Whole County Provisions, the

1868 amendments required senatorial districts to be contiguous and only be redrawn HARPER V. HALL

in connection with the decennial census. Id. The convention lengthened the term of

the governor to four years, id. art. III, § 1, and constitutionally created a separate

judicial branch, see id. art. IV, with judges being elected by the voters for eight-year

terms, id. art. IV, § 26.

¶ 272 For almost one hundred years, apportionment remained unchanged until the

1960s. During that time, the Speaker of the House received the authority to apportion

the House districts. N.C. Const. of 1868, amends. of 1961, art. II, § 5. Also, to comply

with a federal lawsuit and the decision in Baker v. Carr, the constitution was

amended in 1968 to reflect the one-person, one-vote requirement. State Constitution

31. This change affected the structure of the House of Representatives in particular.

Id. Significantly, the number of House members remained at 120, but the

representatives were no longer apportioned by county; instead, the 120

representatives were allotted among districts now drawn based on equal population.

N.C. Const. of 1868, amends. of 1961, art. II, § 5. By the end of the 1960s, the same

criteria for proper districts—equal population, contiguous territory, the Whole

County Provisions, and reapportionment in conjunction with the decennial census—

applied to both Senate and House districts. See N.C. Const. of 1868, amends. of 1967,

art. II, §§ 4, 6.

¶ 273 The current version of our constitution, ratified by the people at the ballot box

in 1971 along with five new amendments, came about as a “good government HARPER V. HALL

measure,” State Constitution 32–33, or, in other words, an attempt to consolidate the

1868 constitution and its subsequent amendments along with editorial and

organizational revisions and amendment proposals. See, e.g., N.C. State Constitution

Study Comm’n, Report of the North Carolina State Constitution Study Commission

8–12 (1968).

¶ 274 Based upon our history and the constitutional structure, when the people had

concerns about ineffective political representation, they addressed those concerns by

amending the constitution itself, rather than relying on judicial amendment through

litigation. Each of the provisions relevant to the claims here have existed since 1971,

with some dating back to the 1776 constitution. They are all housed in Article I of our

constitution, the Declaration of Rights. None of those clauses have been interpreted

as a restriction on partisan considerations in redistricting—even after hundreds of

years of apportionments and decades of redistricting litigation—until today.

¶ 275 The Declaration of Rights is an expressive yet nonexhaustive list of protections

afforded to individual citizens against government intrusion, along with “the

ideological premises that underlie the structure of government.” State Constitution

46. The Declaration of Rights sets out “[b]asic principles, such as popular sovereignty

and separation of powers,” which are “given specific application in later articles.” Id.

As such, each provision within the Declaration of Rights must be considered with the

related, more specific provisions of the constitution that outline the practical HARPER V. HALL

workings for governance. That understanding comports with the general principles

for interpreting all legal documents, treating statutes and constitutional text alike.9

¶ 276 The frequent elections provision provides a classic example of when a general

principle set forth in the Declaration of Rights is practically developed by other

constitutional text. Article I, Section 9 states: “For redress of grievances and for

amending and strengthening the laws, elections shall be often held.” N.C. Const. art.

I, § 9. This provision appeared in the original Declaration of Rights, see N.C. Const.

of 1776, Declaration of Rights, § XX, and in 1776 “often” meant annual elections, see,

e.g., N.C. Const. of 1776, §§ V, VI, XV. The frequency of elections changed in 1835

through amendments providing for biannual legislative elections. N.C. Const. of

1776, amends. of 1835, art. I, §§ 1, 2. Even though it changed the frequency of

elections from one to two years, this constitutional amendment did not violate the

stated goal to have frequent elections as a timely means of holding accountable an

unresponsive elected legislature. The concept of frequent elections remained

embodied in the biannual election cycle.

9 Compare Piedmont Publ’g Co. v. City of Winston-Salem, 334 N.C. 595, 598, 434 S.E.2d 176, 177–78 (1993) (“One canon of construction is that when one statute deals with a particular subject matter in detail, and another statute deals with the same subject matter in general and comprehensive terms, the more specific statute will be construed as controlling.”), with Preston, 325 N.C. at 449, 385 S.E.2d at 478 (“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.’ ” (quoting Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953))). HARPER V. HALL

¶ 277 Similarly, the 1868 constitution for the first time set the three branches on

different election cycles. For example, in recognition of its policymaking authority,

the General Assembly stayed on a biannual election cycle, see N.C. Const. of 1868,

art. II, §§ 3, 6; however, the executive officers received four-year terms, id. art. III,

§ 1, and the Justices of the Supreme Court received eight-year terms, id. art. IV, § 26.

Did this change violate the frequent elections provision? The answer is no—the

principle of “often” elections in the Declaration of Rights is defined by other provisions

of the constitution.

¶ 278 This Court recently read a provision of the Declaration of Rights in Article I,

Section 15 together with a more specific and applicable provision in Article IX, Section

2. Deminski ex rel. C.E.D. v. State Bd. of Educ., 377 N.C. 406, 2021-NCSC-58, ¶ 14.

Article I, Section 15 acknowledges the “right to the privilege of education” and the

State’s duty “to guard and maintain that right.” N.C. Const. art. I, § 15. Placed in the

working articles of the constitution, Article IX, entitled “Education,” see id. art. IX,

actually “implements the right to education as provided in Article I,” Deminski, ¶ 14.

This Court explained that “these two provisions work in tandem,” id. in that

“Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution combine to guarantee every child of this state an opportunity to receive a sound basic education in our public schools.” Leandro [v. State], 346 N.C. [336], 347, 488 S.E.2d [249,] 255 [(1997).] . . . .

Further, Article I, Section 15 places an affirmative duty on the government “to guard and maintain that HARPER V. HALL

right.” N.C. Const. art. I, § 15. Taken together, Article I, Section 15 and Article IX, Section 2 require the government to provide an opportunity to learn that is free from continual intimidation and harassment which prevent a student from learning. In other words, the government must provide a safe environment where learning can take place.

Id. ¶¶ 14–15. Thus, to arrive at a proper and harmonious interpretation of the

constitutional text, the Court read the principles regarding the privilege of education

enshrined in our Declaration of Rights in conjunction with the specific application

given to education in a later article. As done in Deminiski, this Court should construe

the general provisions of the Declaration of Rights in harmony with the more specific

provisions addressing redistricting.

¶ 279 Moreover, “[t]he civil rights guaranteed by the Declaration of Rights in Article

I of our Constitution are individual and personal rights entitled to protection against

state action.” Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992)

(emphasis added); id. at 783, 413 S.E.2d at 290 (“Having no other remedy, our

common law guarantees plaintiff a direct action under the State Constitution for

alleged violations of his constitutional freedom of speech rights.” (emphases added)).

¶ 280 Finding no explicit constitutional provision prohibiting partisan

gerrymandering, the majority creatively attempts to mine the Declaration of Rights

to find or create some protection for a political group’s right to their preferred form of

representation and a “fair” share of the “voting power.” The majority seems to say HARPER V. HALL

that this entitlement is based on the political party registrants associated with that

group. Under a Corum analysis, however, an individual plaintiff has a direct cause

of action against state officials who, acting in their official capacity, violate his

constitutional rights as protected by the Declaration of Rights. Id. at 783–84, 413

S.E.2d at 290; see Deminski, ¶¶ 16–18 (outlining the Corum framework as the legal

mechanism for bringing a proper claim under the Declaration of Rights).10 Even when

considering a self-identified class of individuals, such as self-selection of political

affiliation, the Court has concluded that the Declaration of Rights protects the

individual’s rights, not the political group’s rights. Libertarian Party of N.C. v. State,

365 N.C. 41, 49, 707 S.E.2d 199, 204–05 (2011) (explaining that casting votes in

alignment with political beliefs implicates “individual associational rights”

(emphasis added)). This principle rings true even when alleging a violation of an

associational right such as those implicated in the free speech and assembly clauses.

Id. at 49, 707 S.E.2d at 204–05 (“In North Carolina, statutes governing ballot access

by political parties implicate individual associational rights rooted in the free speech

and assembly clauses of the state constitution.” (emphasis added) (citing N.C. Const.

art. I, §§ 12, 14)). Nonetheless, in the majority’s view, “political equality” based on a

10 The holdings in Corum and Deminiski did not expand the role of the Court in remedying violations of constitutional rights as protected by the Declaration of Rights. Rather, like in Bayard, those cases involved the Court’s interpretation of express provisions within the text of the constitution. HARPER V. HALL

group’s party affiliation is a fundamental, albeit unwritten, principle of the

Declaration of Rights akin to an immutable characteristic that deserves the highest

form of protection under the state constitution.

¶ 281 Contrary to the majority’s assertion, even a cursory review of the applicable

history and case law supports the basic understanding that the Declaration of Rights

protects individual rights such as the freedom of an individual to vote his conscience

in an election which is free from fraud. The individual right to participate in a “free

election” does not include the right to have one’s preferred candidate elected or a

political group’s right to proportional representation. Moreover, because “a

constitution cannot violate itself,” Leandro, 346 N.C. at 352, 488 S.E.2d at 258, this

Court must construe Article II, Sections 3 and 5 and the provisions that the majority

relies upon—Article I, Sections 10, 12, 14, and 19—harmoniously. We address each

provision in turn.

A. Free Elections Clause

¶ 282 Article I, Section 10 states that “[a]ll elections shall be free.” N.C. Const. art.

I, § 10. The clause first appears in the 1776 constitution, providing that “[t]he election

of members, to serve as representatives, ought to be free.” N.C. Const. of 1776,

Declaration of Rights, § VI.11 The 1868 constitution restated the free elections clause

11 Under the 1776 constitution, the members of the General Assembly were the only

elected officials. The General Assembly thus had the exclusive power to: (1) elect the HARPER V. HALL

as “[a]ll elections ought to be free.” N.C. Const. of 1868, art. I, § 10. Even though the

word “ought” in both the 1776 and 1868 constitutions was changed to “shall” in the

1971 constitution, this change is not a substantive revision to the free elections

clause. See Report of the North Carolina State Constitution Study Commission 73–75;

see also Smith v. Campbell, 10 N.C. (3 Hawks) 590, 598 (1825) (declaring that “ought”

is synonymous with “shall,” noting that “the word ought, in this and other sections of

the [1776 constitution], should be understood imperatively”). “Free” means having

political and legal rights of a personal nature or enjoying personal freedom, a “free

citizen,” or having “free will” or choice, as opposed to compulsion, force, constraint, or

restraint. See Free, Black’s Law Dictionary (11th ed. 2019). As a verb, “free” means

to liberate or remove a constraint or burden. Id. Therefore, giving the provision its

plain meaning, “free” means “free from interference or intimidation.” State

Constitution 56.12

¶ 283 While the provision protects the voter, it also protects candidates; however,

there are limits. The terms “elections” and “free,” N.C. Const. art. I, § 10, must be

Governor, N.C. Const. of 1776, § XV; (2) appoint the Attorney-General, id. § XIII; (3) appoint Judges of the Supreme Courts of Law and Equity and Judges of Admiralty, id.; (4) appoint the general and field officers of the militia, id. § XIV; (5) elect the council of State, id. § XVI; (6) appoint a treasurer or treasurers of the State, id. § XXII; (7) appoint the Secretary of State, id. § XXIV; and (8) recommend the appointment of Justices of the Peace to the Governor who shall commission them accordingly, id. § XXXIII. 12 The full text of the Virginia Declaration of Rights, from which the North Carolina

free elections clause was taken, provides a clearer idea of the intention behind the text. HARPER V. HALL

read, for example, in the context of Article VI, entitled “Suffrage and Eligibility to

Office,” see id. art. VI. Even though “elections shall be free,” they are nonetheless

restricted in certain ways in Article VI. See, e.g., N.C. Const. art. VI, § 1 (requiring a

North Carolina voter to be a citizen of the United States and at least 18 years old);

id. § 2(1)–(2) (placing residency requirements on voters); id. § 2(3) (placing

restrictions on felons’ voting rights); id. § 3 (allowing for conditions on voter

registration as prescribed by statute); id. § 5 (requiring that votes by the people be by

ballot); id. § 7 (requiring public officials to take an oath before assuming office); id.

§ 8 (outlining certain disqualifications from holding public office); id. § 9 (prohibiting

dual office holding); id. § 10 (allowing an incumbent to continue in office until a

successor is chosen and qualified).

¶ 284 Based on our constitution’s plain language and history, the framers had a

specific meaning of the free elections clause. With respect to the history of the clause,

the trial court found that inclusion of the clause was intended to protect against

That elections of members to serve as representatives of the people, in Assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the public good. Va. Const. of 1776, Declaration of Rights, § 6. HARPER V. HALL

abuses of executive power, not to protect the people from their representatives who

frequently face election by the people.13 For the same reason, the 1776 constitution

13 The trial court found in part:

. . . [T]he words as originally used in the English Bill of Rights ([1689]) 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). . . . Examining the North Carolina Free Elections Clause in a greater context gives a complete understanding to its meaning. . . . 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. 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. . . . 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 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. HARPER V. HALL

. . . 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. . . . 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. [English Colonial Government], 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. . . . 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. This remained in effect until 1754 when the legislation was repealed by the Crown. [English Colonial Government, at] 90–91. .... . . . 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. [English Colonial Government,] at HARPER V. HALL

allowed the General Assembly to elect the Governor. N.C. Const. of 1776, § XV. The

trial court found in part:

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. . . .

. . . 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.

. . . 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. . . .

. . . Much like the English Bill of Rights, the 1776 Constitution shifted power to the elected representatives of the people.

As noted by the trial court, under the 1776 constitution, voters did not vote for any

executive branch members, including the governor, nor did voters elect judges. The

General Assembly selected the members of the executive and judicial branches. See

N.C. Const. of 1776, §§ XIII, XV, XXII, XXIV. Despite the existence of the free

89–90. As the trial court found, aside from disputes over representation, the lower house fought the Royal Governor over a myriad of issues, including the right to establish a quorum for the legislature and, most seriously, over fiscal matters and the appointment of judges. HARPER V. HALL

elections clause, under this constitutional structure, the voter did not have the right

to vote for these offices at all and certainly was not entitled to see his preferred

candidate in office.

¶ 285 Because of its plain meaning, this Court has issued few opinions interpreting

the free elections clause though it has been part of our constitution since 1776. The

first instance was in State ex rel. Swaringen v. Poplin, 211 N.C. 700, 191 S.E. 746

(1937), in which the plaintiff, a candidate who ostensibly lost an election for the office

of county commissioner of Wilkes County, brought a quo warranto action, alleging

that the Wilkes County Board of Elections fraudulently deprived him of the office by

altering the vote count. Id. at 700–01, 191 S.E. at 746. In response, the defendant

argued the plaintiff’s complaint failed to state facts sufficient to constitute a cause of

action. Id. at 701, 191 S.E. at 746. After the trial court rejected the defendant’s

argument, the defendant appealed, arguing that it was the sole duty of the County

Board of Elections, rather than the judiciary, “to judicially determine the result of the

election from the report and tabulation made by the precinct officials.” Id. at 701, 191

S.E.2d at 747. In affirming the trial court’s decision, we provided the following

rationale:

One of the chief purposes of quo warranto or an information in the nature of quo warranto is to try the title to an office. This is the method prescribed for settling a controversy between rival claimants when one is in possession of the office under a claim of right and in the exercise of official functions or the performance of official duties; and the HARPER V. HALL

jurisdiction of the Superior Court in this behalf has never been abdicated in favor of the board of county canvassers or other officers of an election.

In the present case fraud is alleged. The courts are open to decide this issue in the present action. In Art. I, sec. 10, of the Constitution of North Carolina, we find it written: “All elections ought to be free.” Our government is founded on the consent of the governed. A free ballot and a fair count must be held inviolable to preserve our democracy. In some countries the bullet settles disputes, in our country the ballot.

Id. at 702, 191 S.E. at 747 (internal citations omitted) (quoting N.C. Const. of 1868,

art. I, § 10). Therefore, we interpreted “free” to mean the right to an honest vote count,

free from fraud.

¶ 286 The next time we addressed the merits of a free election claim was in Clark v.

Meyland, 261 N.C. 140, 134 S.E.2d 168 (1964). The plaintiff in Clark challenged a

statute that required voters wishing to change their party affiliation to first take an

oath with the following language: “I will support the nominees of the party to which

I am now changing my affiliation in the next election and the said party nominees

thereafter until I shall, in good faith, change my party affiliation in the manner

provided by law.” Id. at 140, 134 S.E.2d at 169. We held that the provision in the

statute requiring certain provisions of the oath was invalid, explaining that:

Any elector who offers sufficient proof of his intent, in good faith, to change his party affiliation cannot be required to bind himself by an oath, the violation of which, if not sufficient to brand him as a felon, would certainly be sufficient to operate as a deterrent to his exercising a free HARPER V. HALL

choice among available candidates at the election––even by casting a write-in ballot. His membership in his party and his right to participate in its primary may not be denied because he refuses to take an oath to vote in a manner which violates the constitutional provision that elections shall be free. Article I, Sec. 10, Constitution of North Carolina.

When a member of either party desires to change his party affiliation, the good faith of the change is a proper subject of inquiry and challenge. Without the objectionable part of the oath, ample provision is made by which the officials may strike from the registration books the names of those who are not in good faith members of the party. The oath to support future candidates violates the principle of freedom of conscience. It denies a free ballot––one that is cast according to the dictates of the voter’s judgment. We must hold that the Legislature is without power to shackle a voter’s conscience by requiring the objectionable part of the oath as a price to pay for his right to participate in his party’s primary.

Id. at 142–43, 134 S.E.2d at 170 (emphases added) (citing N.C. Const. of 1868, art. I,

§ 10). Thus, we interpreted “free” to mean freedom to vote one’s conscience.

Nonetheless, an inquiry into the sincerity of one’s desire to change parties did not

violate the clause.

¶ 287 The majority judicially amends the free elections clause to read “elections shall

be free from depriving a voter of substantially equal voting power on the basis of party

affiliation” with the voting power to be measured by modern political science analysis.

To believe that the framers of this provision in 1776 or the people who ultimately

adopted it in subsequent constitutions had even a vague notion that the clause had HARPER V. HALL

this unbounded meaning is absurd. The mandated political science methods did not

even exist. Our hundreds of years of constitutional history confirms that this creative

idea has no support in our history or case law.

¶ 288 Based upon this Court’s precedent with respect to the free elections clause, a

voter is deprived of a “free” election if (1) the election is subject to a fraudulent vote

count, see Poplin, 211 N.C. at 702, 191 S.E. at 747, or (2) a law prevents a voter from

voting according to one’s judgment, see Clark, 261 N.C. at 142, 134 S.E.2d at 170.

Therefore, the free elections clause must be read in harmony with other constitutional

provisions such as Article VI, that limits who can vote and run for office. Free

elections must be absent of fraud in the vote tabulation. The free elections clause was

not meant to restrict the General Assembly’s presumptively constitutional ability to

engage in partisan gerrymandering.

B. Equal Protection Clause

¶ 289 Next, the majority claims its decision is supported by the equal protection

clause. Article I, Section 19 provides, in relevant part, that “[n]o 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. With respect to the history of this clause, the trial court found as

follows:

The Equal Protection Clause came into existence as part of the ratification of the 1971 Constitution . . . . The addition HARPER V. HALL

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.

This Court reviews claims brought under the equal protection clause as follows:

Traditionally, courts employ a two-tiered scheme of analysis when an equal protection claim is made.

When a governmental act classifies persons in terms of their ability to exercise a fundamental right, or when a governmental classification distinguishes between persons in terms of any right, upon some “suspect” basis, the upper tier of equal protection analysis is employed. Calling for “strict scrutiny”, this standard requires the government to demonstrate that the classification is necessary to promote a compelling governmental interest.

When an equal protection claim does not involve a “suspect class” or a fundamental right, the lower tier of equal protection analysis is employed. This mode of analysis merely requires that distinctions which are drawn by a challenged statute or action bear some rational relationship to a conceivable legitimate governmental interest.

For strict scrutiny to be properly applied in evaluating an equal protection claim, it is necessary that there be a preliminary finding that there is a suspect classification or an infringement of a fundamental right. It has been held that a class is deemed “suspect” when it is saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command particular consideration from the judiciary. The underlying rationale of the theory of suspect classification is that where legislation or governmental action affects discrete and insular minorities, the presumption of constitutionality fades because the traditional political processes may have broken down. HARPER V. HALL

Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 10–11, 269 S.E.2d 142, 149 (1980)

(internal citations omitted).

¶ 290 Classification based upon affiliation with one of the two major political parties

in the United States—especially the Democratic Party in North Carolina14—does not

trigger heightened scrutiny because neither party has historically been relegated to

a position of political powerlessness. Allegations of partisan gerrymandering likewise

do not trigger heightened scrutiny because the practice of partisan gerrymandering

alone does not constitute “an infringement of a fundamental right.” Id. at 11, 269

S.E.2d at 149.

¶ 291 This Court has explained that “[t]he right to vote on equal terms is a

fundamental right.” Northampton Cnty. Drainage Dist. No. One v. Bailey, 326 N.C.

742, 747, 392 S.E.2d 352, 356 (1990) (emphasis added). The fundamental right to vote

on equal terms simply means that each vote should have the same weight. This is a

simple mathematical calculation. Rucho, 139 S. Ct. at 2501. The historic

understanding of equal voting power is stated in Article II, Sections 3(1) and 5(1),

requiring that legislators “represent, as nearly as may be, an equal number of

inhabitants.” Party affiliation is not mentioned. This understanding of equal voting

14 The trial court found that “[b]etween 1870 and 2010, the Democratic Party at all

times controlled one or both houses of the General Assembly.” This finding, which is binding on appeal, demonstrates that throughout North Carolina’s history, members of the Democratic Party certainly have not been relegated to a position of political powerlessness. HARPER V. HALL

power meaning one-person, one-vote is supported by our cases such as Stephenson

and Canaday. To reach its approved application of the equal protection clause, the

majority begins by radically changing the meaning of the fundamental right to vote.

It takes this individual right and transforms it into a right to “substantially equal

voting power on the basis of party affiliation” and then declares a right to statewide

proportional representation. In its unparalleled distortion of the right to vote, it

singles out equal representation based on political affiliation, i.e., the two major

political parties. What about the unaffiliated voters or voters in “non-partisan,” issue-

focused groups organized for political influence? Of course, nothing about this

approach is supported by the constitutional text or case law.

¶ 292 Only when a redistricting enactment infringes upon the “right to vote on equal

terms for representatives” does heightened scrutiny apply. See Stephenson, 355 N.C.

at 378, 562 S.E.2d at 393 (“The classification of voters into both single-member and

multi-member districts within [the same redistricting plan] necessarily implicates

the fundamental right to vote on equal terms, and thus strict scrutiny is the

applicable standard.”); Blankenship v. Bartlett, 363 N.C. 518, 518, 523–24, 681 S.E.2d

759, 763–64, 766 (2009) (applying heightened scrutiny where the plaintiffs showed a

“gross disparity in voting power” because some judicial districts had five times the

population of others). The “right to vote on equal terms” has been carefully defined in

our case law. HARPER V. HALL

¶ 293 In Stephenson this Court explained that “[t]he classification of voters into both

single-member and multi-member districts [in the same redistricting plan]

necessarily implicates the fundamental right to vote on equal terms.” 355 N.C. at 378,

562 S.E.2d at 393. We reasoned that

voters in single-member legislative districts, surrounded by multi-member districts, suffer electoral disadvantage because, at a minimum, they are not permitted to vote for the same number of legislators and may not enjoy the same representational influence or “clout” as voters represented by a slate of legislators within a multi-member district.

Id. at 377, 562 S.E.2d at 393 (emphasis added).

¶ 294 Likewise, in Blankenship the plaintiffs demonstrated a “gross disparity in

voting power between similarly situated residents of Wake County” by making the

following showing:

In Superior Court District 10A, the voters elect one judge for every 32,199 residents, while the voters of the other districts in Wake County, 10B, 10C, and 10D, elect one judge per every 140,747 residents, 158,812 residents, and 123,143 residents, respectively. Thus, residents of District 10A have a voting power roughly five times greater than residents of District 10C, four and a half times greater than residents of District 10B, and four times greater than residents of District 10D.

363 N.C. at 527, 681 S.E.2d at 766. We explained that the above showing implicated

the fundamental “right to vote on equal terms in representative elections—a one-

person, one-vote standard,” and we thus employed a heightened scrutiny analysis. Id.

at 522, 681 S.E.2d at 762–63. HARPER V. HALL

¶ 295 Unlike the classifications in Stephenson and Blankenship, partisan

gerrymandering has no significant impact upon the right to vote on equal terms under

the one-person, one-vote standard. In other words, an effort to gerrymander districts

to favor a political party does not alter voting power so long as voters are permitted

to (1) vote for the same number of representatives as voters in other districts and (2)

vote as part of a constituency that is similar in size to that of the other districts.

Therefore, because partisan gerrymandering does not infringe upon a fundamental

right, rational basis review applies. As such, read in harmony with Article II, Sections

3 and 5, Article I, Section 19 only prohibits redistricting plans that fail to “bear some

rational relationship to a conceivable legitimate governmental interest.” Texfi, 301

N.C. at 11, 269 S.E.2d at 149.15 Our understanding of the equal protection clause has

been informed by federal case law interpreting the Federal Equal Protection Clause.

See Rucho, 139 S Ct. at 2506–07 (finding no manageable standards for assessing

partisan considerations in redistricting despite claims that the federal Equal

Protection Clause had been violated). The plan here does not violate the equal

protection clause.

15 Here the enacted plans pass rational basis review because they are rationally related to the General Assembly’s legitimate purpose of redrawing the legislative districts after each decennial census. HARPER V. HALL

C. Freedom of Assembly and Freedom of Speech Clauses

¶ 296 The majority also engrafts new meaning into Article I, Sections 12 and 14.

These sections provide as follows:

Sec. 12. Right of assembly and petition. 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.

Sec. 14. Freedom of speech and press. 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.

N.C. Const. art. I, §§ 12, 14. The trial court made the following findings with respect

to the history of these clauses:

Like the Equal Protection Clause, the Free Speech Clause was added to the Freedom of the Press Clause as part of the 1971 Constitution . . . . The addition of the Free Speech 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.

. . . 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 HARPER V. HALL

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 . . . . 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.

¶ 297 The right to free speech is violated when “restrictions are placed on the

espousal of a particular viewpoint,” State v. Petersilie, 334 N.C. 169, 183, 432 S.E.2d

832, 840 (1993), or where retaliation motivated by the contents of an individual’s

speech would deter a person of reasonable firmness from engaging in speech or

association, Toomer v. Garrett, 155 N.C. App. 462, 477–78, 574 S.E.2d 76, 89 (2002)

(explaining that the test for a retaliation claim requires a showing “that the plaintiff

. . . suffer[ed] an injury that would likely chill a person of ordinary firmness from

continuing to engage” in a “constitutionally protected activity,” including First

Amendment activities), appeal dismissed and disc. rev. denied, 357 N.C. 66, 579

S.E.2d 576 (2003); see Evans v. Cowan, 132 N.C. App. 1, 11, 510 S.E.2d 170, 177

(1999) (determining “there was no forecast of evidence” to support a retaliation

claim).

¶ 298 Partisan gerrymandering plainly does not place any restriction upon the

espousal of a particular viewpoint. Rather, redistricting enactments in North

Carolina are subject to the typical policymaking customs of open debate and HARPER V. HALL

compromise. See Berger, 368 N.C. at 653, 781 S.E.2d at 261 (noting that the structure

of the legislature “ensures healthy review and significant debate of each proposed

statute, the enactment of which frequently reaches final form through compromise”).

As such, opponents of a redistricting plan are free to voice their opposition.

¶ 299 Moreover, partisan gerrymandering—and public disdain for the practice—has

been ubiquitous throughout our state’s history. See Rucho, 139 S. Ct. at 2494

(“Partisan gerrymandering is nothing new. Nor is frustration with it. The practice

was known in the Colonies prior to Independence, and the Framers were familiar

with it at the time of the drafting and ratification of the Constitution.”) As such, it is

apparent that a person of ordinary firmness would not refrain from expressing a

political view out of fear that the General Assembly will place his residence in a

district that will likely elect a member of the opposing party. See Toomer, 155 N.C.

App. at 477–78, 574 S.E.2d at 89. It is plausible that an individual may be less

inclined to voice his political opinions if he is unable to find someone who will listen.

Article I, Sections 12 and 14, however, guarantee the rights to speak and assemble

without government intervention, rather than the right to be provided a receptive

audience. See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 286, 104 S. Ct.

1058, 1066 (1984) (stating that individuals “have no constitutional right as members

of the public to a government audience for their policy views”); Johnson v. Wisc.

Elections Comm’n, 967 N.W.2d 469, 487 (Wis. 2021) (“Associational rights guarantee HARPER V. HALL

the freedom to participate in the political process; they do not guarantee a favorable

outcome.” (emphasis added)).

¶ 300 This Court and the Court of Appeals have interpreted speech and assembly

rights in alignment with federal case law under the First Amendment. See Petersilie,

334 N.C. at 184, 432 S.E.2d at 841; Feltman v. City of Wilson, 238 N.C. App. 246,

252–53, 767 S.E.2d 615, 620 (2014); State v. Shackelford, 264 N.C. App. 542, 552, 825

S.E.2d 689, 696 (2019). As discussed at length in Rucho, the Supreme Court of the

United States found no manageable standards for assessing partisan considerations

in redistricting despite having the similar express protections of speech and assembly

rights. Rucho, 139 S. Ct. at 2505–07. Therefore, when interpreted in harmony with

Article II, Sections 3 and 5, it is clear that Article I, Sections 12 and 14 do not limit

the General Assembly’s presumptively constitutional authority to engage in partisan

gerrymandering. As with the prior Declaration of Rights clauses, there is nothing in

the history of the clauses nor the applicable case law that supports the majority’s

expanded use of them.

D. Summary

¶ 301 In summary, none of the constitutional provisions cited by plaintiffs prohibit

the practice of partisan gerrymandering. Each must be read in harmony with the

more specific provisions that outline the practical workings for governance. Notably,

Article II, Sections 3 and 5 outline the practical workings of the General Assembly’s HARPER V. HALL

redistricting authority. These provisions contain only four express limitations on the

General Assembly’s otherwise plenary power, none of which address partisan

gerrymandering. Therefore, because the constitution expressly assigns to the General

Assembly the authority to redistrict, and this Court is without any satisfactory or

manageable standards to assess redistricting decisions by the legislative branch, we

should not and cannot adjudicate partisan gerrymandering claims. The claims here

present a nonjusticiable political question, and this Court’s intrusion violates

separation of powers.

¶ 302 Recognizing that there is no explicit constitutional provision supporting its

position, the majority resorts to an evolving understanding to support its expansive

approach. The majority cites Article I, Sections 1 and 2 as supporting its statewide

proportionality argument. See N.C. Const. art. I, § 1 (“We hold it to be self-evident

that all persons are created equal; that they are endowed by their Creator with

certain inalienable rights; that among these are life, liberty, the enjoyment of the

fruits of their own labor, and the pursuit of happiness.”); id. § 2 (“All political power

is vested in and derived from the people; all government of right originates from the

people, is founded upon their will only, and is instituted solely for the good of the

whole.”). Undoubtedly, Article I, Sections 1 and 2, are bedrock constitutional

principles, recognizing that all are created equal and endowed with God-given rights

and acknowledging that all political power originates and is derived from the people. HARPER V. HALL

Neither provision speaks expressly to limitations on the General Assembly’s

authority to redistrict. Undeterred, however, the majority reads into our constitution

a proportionality requirement which appears to be more akin to the European

parliamentary system, rather than the American system. Furthermore, the “will of

the people” is expressed in the words of our constitution. The best way to honor the

“will of the people” is to interpret the constitution as written and as the drafters

intended. At no point in 1776, 1835, 1868, or 1971 did the drafters or refiners intend

for the selected provisions of the Declaration of Rights to limit the legislature’s

authority to redistrict. The limitations the people placed upon the General Assembly

regarding redistricting are expressly stated in Article II, Sections 3 and 5.

¶ 303 The people expressed their will in the 2020 election, which utilized

constitutionally compliant maps. Knowing that the 2021 General Assembly would be

tasked with redistricting, the people elected them. Nonetheless, the majority says it

is simply “recur[ing] to fundamental principles.” Its analysis and remedies, however,

are new, not fundamental. Judicially modified constitutional provisions and judicial

intrusion into areas specifically reserved for the legislative branch are not a

“recurrence to fundamental principles.” Rather, the decisions of the majority are a

significant departure threatening “the blessings of liberty.” HARPER V. HALL

IV. Remedy

¶ 304 The majority’s remedy mandates its approved political scientists and their

approaches. Apparently, the majority’s policy decisions guide these selections. The

majority’s required timeline is arbitrary and seems designed only to ensure this

Court’s continued direct involvement in this proceeding. Instead of following our

customary process of allowing the trial court to manage the details of a case on

remand, the majority mandates a May 2022 primary. No reason is given, nor does

one exist for not allowing the trial court to manage the remand schedule, including,

if necessary, further delaying the primary.

¶ 305 The majority defines “partisan advantage” as “achieving a political party’s

advantage across a map incommensurate with its level of statewide voter support.”

The majority also defines “political fairness” as “the effort to apportion to each

political party a share of seats commensurate with its level of statewide support.”

These definitions demonstrate the majority’s desire to judicially amend our

constitution to include a requirement of statewide proportional representation. See

Proportional representation, Black’s Law Dictionary (11th ed. 2014) (“An electoral

system that allocates legislative seats to each political group in proportion to its

actual voting strength in the electorate.”) Just as there is no proportionality

requirement in our constitution, there is none in the Federal Constitution: “Our cases,

however, clearly foreclose any claim that the Constitution requires proportional HARPER V. HALL

representation or that legislatures in reapportioning must draw district lines to come

as near as possible to allocating seats to the contending parties in proportion to what

their anticipated statewide vote will be.” Rucho, 139 S. Ct. at 2499 (quoting

Bandemer, 478 U.S. at 130, 106 S. Ct. at 2809).

¶ 306 The majority asserts that

[i]f constitutional provisions forbid only what they were understood to forbid at the time they were enacted, then the free elections clause has nothing to say about slavery and the complete disenfranchisement of women and minorities. In short, the majority’s [sic] view compels the conclusion that there is no constitutional bar to denying the right to vote to women and black people.

This claim is wholly unfounded. Slavery was officially abolished by the Thirteenth

Amendment to the United States Constitution ratified in 1865. Article I, Section 17,

of the 1868 state constitution explicitly prohibits slavery. N.C. Const. of 1868, art. I,

§ 17. Similarly, the Nineteenth Amendment to the United States Constitution gave

women the right to vote. The state constitution was modified accordingly. See N.C.

Const. art. VI, § 1. As discussed elsewhere, the free election and assembly clauses

were enacted in 1776 and were never applied to voter qualifications. Free speech and

equal protection clauses were added to the state constitution in 1971, after equal

voting qualifications were established. In sum, the issues raised by the majority are

specifically addressed in the Federal Constitution and the state constitution. HARPER V. HALL

V. Conclusion

¶ 307 Historically, to prove an act of the General Assembly is unconstitutional we

have required a showing that, beyond a reasonable doubt, an express provision of the

constitution is violated. No express provision of our constitution has been violated

here. Nonetheless, in the majority’s view, it is the members of this Court, rather than

the people, who hold the power to alter our constitution. Thus, the majority by judicial

fiat amends the plain text of Article I, Sections 10, 12, 14, and 19, to empower courts

to supervise the legislative power of redistricting when met with complaints of

partisan gerrymandering. Such action constitutes a clear usurpation of the people’s

authority to amend their constitution. As explicitly stated in our constitution, the

people alone have the authority to alter this foundational document. N.C. Const. art.

I, § 3 (“The people of this State have the inherent, sole, and exclusive right of . . .

altering . . . their Constitution . . . .”); see also id. art. XIII, § 2. Under our

constitution’s expressed process, the people have the final say. Id. art. XIII, §§ 3–4.

¶ 308 The majority asserts that its holding somehow adheres to “the principle of

democratic and political equality that reflects the spirits and intent of our Declaration

of Rights.” It cannot point to any text or case law to support its deciphering of the

“spirits and intent” of the document because there is nothing in the text of the

constitution, its history, or our case law that supports the majority’s position. The

majority simply rules that the North Carolina Constitution now has a statewide HARPER V. HALL

proportionality requirement for redistricting. In doing so, the conclusion magically

transforms the protection of individual rights into the creation of a protected class

consisting of members of a political party, thereby subjecting a redistricting plan to

strict scrutiny review. The majority presents various general views about what

constitutes unconstitutional partisan gerrymandering and provides a variety of

observations about what the constitution requires. Absent from the opinion is what

is meant by “substantially equal voting power on the basis of partisan affiliation.”

Any discretionary decisions constitutionally committed to the General Assembly in

the redistricting process seem to have been transferred to the Court.

¶ 309 The vagaries within the opinion and the order only reinforce the holding of the

Supreme Court in Rucho that there is no neutral, manageable standard. The four

members of this Court alone will approve a redistricting plan which meets their test

of constitutionality. This case substantiates the observations of the Supreme Court

of the United States as to the many reasons why partisan gerrymandering claims are

nonjusticiable. The Court observed that redistricting invariably involves numerous

policy decisions. It noted that “[p]artisan gerrymandering claims invariably sound in

a desire for proportional representation,” Rucho, 139 S. Ct. at 2499, and that

“plaintiffs inevitably ask the courts to make their own political judgment about how

much representation particular political parties deserve—based on the votes of their

supporters—and to rearrange the challenged districts to achieve that end,” id. In HARPER V. HALL

other words, plaintiffs ask the courts “to reallocate political power between the two

major political parties.” Id. at 2507. Despite these well-reasoned warnings, the

majority of this Court proceeds, and in the process, proves the Supreme Court’s point.

¶ 310 The Supreme Court also warned of the need for courts to provide a clear

standard so legislatures could “reliably differentiate unconstitutional from

‘constitutional political gerrymandering.’ ” Id. at 2499 (quoting Cromartie, 526 U.S.

at 551, 119 S. Ct. at 1551). It observed that:

“Fairness” does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.

Id. at 2499–500 (alteration in original) (quoting Vieth, 541 U.S. at 291, 124 S. Ct. at

1784 (opinion of Scalia, J.)). The majority ignores all these warnings, fails to

articulate a manageable standard, and seems content to have the discretion to

determine when a redistricting plan is constitutional. This approach is radically

inconsistent with our historic standard of review, which employs a presumption that

acts of the General Assembly are constitutional, requiring identification of an express

constitutional provision and a showing of a violation of that provision beyond a

reasonable doubt. HARPER V. HALL

¶ 311 The Supreme Court cautioned that embroiling courts in cases involving

partisan gerrymandering claims by applying an “expansive standard” would amount

to an “unprecedented intervention in the American political process.” Id. at 2498

(quoting Vieth, 541 U.S. at 306, 124 S. Ct. at 1793 (opinion of Kennedy, J.)). Sadly,

the majority does just that. I respectfully dissent.

Justices BERGER and BARRINGER join in this dissenting opinion.