Filed 30 April 2002
1. Elections — North Carolina — 2001 legislative redistricting plans — constitutionality
The trial court did not err by granting summary judgment in favor of plaintiffs on the claim that the General Assembly enacted its 2001 legislative redistricting plans in violation of the whole county provision (WCP) under Article II, Sections 3(3) and 5(3) of the North Carolina Constitution when the 2001 Senate redistricting plan divided 51 of 100 counties into different Senate districts and the 2001 House redistricting plan divided 70 out of 100 counties into different House districts, because the use of both single-member and multi-member districts within the same redistricting plan violates the Equal Protection Clause of the State Constitution unless it is established that inclusion of multi-member districts advances a compelling state interest, and the trial court is directed to conduct a hearing, on an expedited basis, on: (1) the question of the feasibility of allowing the General Assembly the first opportunity to develop new redistricting plans consistent with the legal requirements set forth by the North Carolina Supreme Court if so doing will not disrupt the timing of the 2002 general election; and (2) in the event defendants are unable to develop new redistricting plans in accordance with the timetable established by the trial court, the trial court is authorized and directed to seek proposed remedial plans, review and adopt temporary or interim remedial plans for the North Carolina Senate and North Carolina House of Representatives, and seek preclearance thereof, for use in the 2002 election cycle.
2. Elections — North Carolina — 2001 legislative redistricting plans — instructions on remand
The trial court, during the remedial stage of the instant proceeding seeking to correct the General Assembly's unconstitutional enactment of its 2001 legislative redistricting plans in violation of the whole county provisions (WCP) under Article II, Sections 3(3) and 5(3) of the North Carolina Constitution, is instructed on remand to comply with the following requirements including: (1) to ensure full compliance with federal law, legislative districts required by the Voting Rights Act of 1965 (VRA) shall be formed prior to creation of non-VRA districts; (2) VRA districts must be formed consistent with federal law and in a manner having no retrogressive effect upon minority voters; and (3) to the maximum extent practicable, such VRA districts shall also comply with the legal requirements of the WCP herein established for all redistricting plans and districts throughout the State.
3. Elections — North Carolina — legislative redistricting plans — general rules
The following general rules shall be used for all redistricting plans and districts throughout North Carolina, including: (1) 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; (2) in counties having a 2000 census population sufficient to support the formation of one non-Voting Rights Act of 1965 (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 whole county provision (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; (3) when two or more non-VRA legislative districts may be created within a single county, which districts fall at or within plus or minor 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, and such non-VRA districts shall be compact and shall not traverse the exterior geographic boundary of any such county; (4) 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; (5) within any such contiguous multi-county grouping, compact districts shall be formed, consistent with the at or within plus or minus five percent standard, whose boundary lines do not cross or traverse the "exterior" line of the multi-county grouping; provided, however, that the resulting interior county lines created by any such groupings may be crossed or traversed in the creation of districts within said multi-county grouping but only to the extent necessary to comply with the at or within plus or minus five percent "one-person, one-vote" standard; (6) 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; and (7) 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.
Justice ORR concurring in part and dissenting in part.
Justice PARKER dissenting.
Justice BUTTERFIELD dissenting.
On appeal pursuant to N.C.G.S. § 7A-31(b) prior to determination by the Court of Appeals from an order allowing summary judgment for plaintiffs and an order for declaratory judgment and injunctive relief holding that the 2001 State legislative redistricting plans violate the North Carolina Constitution, both orders entered 20 February 2002 by Jenkins, J., in Superior Court, Johnston County. Heard in Special Session in the Supreme Court 4 April 2002.
Maupin Taylor Ellis, P.A., by Thomas A. Farr and James C. Dever, III, for plaintiff-appellees. Roy Cooper, Attorney General, by Edwin M. Speas, Jr., Chief Deputy Attorney General, and Tiare B. Smiley, Norma S. Harrell, Alexander McC. Peters, and Susan K. Nichols, Special Deputy Attorneys General, for defendant-appellants; and Jenner Block, LLC, by Donald B. Verrilli, Jr., pro hac vice, co-counsel for defendant-appellants Marc Basnight and James B. Black.
Patterson, Harkavy Lawrence, L.L.P., by Burton Craige; and Neill S. Fuleihan, on behalf of the North Carolina Academy of Trial Lawyers, amicus curiae.
Ferguson Stein Chambers Wallas Adkins Gresham Sumter PA, by Adam Stein and Julius L. Chambers, on behalf of the North Carolina State Conference of Branches of the National Association for the Advancement of Colored People, amicus curiae.
Smith Moore LLP, by James G. Exum, Jr., and Julia F. Youngman, on behalf of Wilbur Gulley, individually and as Senator for the 13th District, N.C. Senate; Luther Jordan, individually and as Senator for the 7th District, N.C. Senate, and as Chairman of the Legislative Black Caucus; David Weinstein, individually and as Senator for the 30th District, N.C. Senate, and as Co-Chairman of the Senate Rural Development Committee; Edd Nye, individually and as Representative for the 96th District, N.C. House of Representatives; and Victor Farah, individually and as resident and registered voter of Wake County, and as candidate for the N.C. House of Representatives, and on behalf of themselves, their constituents, and all other persons similarly situated, amici curiae.
Everett and Everett, by Robinson O. Everett and Seth A. Neyhart, on behalf of Americans for the Defense of Constitutional Rights, Inc., amicus curiae.
Hunter, Elam, Benjamin Tomlin, PLLC, by Robert N. Hunter, Jr., on behalf of Lee McLean Foreman, Marcus D. Kindley, William W. Peaslee, Kenneth Ray Moore, Robert Brewington, William Franklin Mitchell, Kellon D. McMillian, Cecelia Ferguson Taylor, Gilbert Parker, and Henry McKoy, amici curiae. Collier Shannon Scott, PLLC, by Scott A. Sinder, pro hac vice; and Coats Bennett, PLLC, by Anthony Biller, on behalf of the DKT Liberty Project and the Center for Voting and Democracy, amici curiae.
Pender County, by Carl W. Thurman III, Pender County Attorney, amicus curiae.
The instant action presents a state law question of first impression for this Court. The case arises from a challenge to the state legislative redistricting plans adopted by the General Assembly in November 2001, upon the basis that these plans violate provisions of the North Carolina Constitution (the State Constitution).
The Senate redistricting plan, known as Senate Plan 1C, was ratified on 13 November 2001. The House redistricting plan, known as the Sutton House Plan 3, was also ratified on 13 November 2001. We hereinafter refer to the redistricting plans collectively as the "2001 legislative redistricting plans."
Plaintiffs, citizens and registered voters in North Carolina, filed suit on 13 November 2001 contending that, under Article II, Sections 3(3) and 5(3) of the State Constitution, collectively referred to as the "Whole-County Provisions" (the WCP), the General Assembly may not divide counties in creating Senate and House of Representative districts except to the extent necessary to comply with federal law.
On 19 November 2001, defendants removed this case to the United States District Court for the Eastern District of North Carolina. On 20 December 2001, the District Court remanded the case. Stephenson v. Bartlett, 180 F. Supp.2d 779 (E.D.N.C. 2001). In its order of remand, the District Court stated, among other things, that the redistricting process was a matter primarily within the province of the states, that plaintiffs had 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 this suit from state court was therefore inappropriate. Id. at 782-83, 786. Defendants subsequently filed a notice of appeal from the District Court's order with the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit denied defendants' motion to stay the District Court's order of remand.
On 20 February 2002, the trial court granted plaintiffs' motion for summary judgment on the ground that the 2001 legislative redistricting plans violate the State Constitution. That same day, the trial court entered a remedial order granting both declaratory and injunctive relief pursuant to Rules 57 and 65 of the North Carolina Rules of Civil Procedure. The order of the trial court provided in pertinent part:
1. Article I, Section 3 of the North Carolina Constitution provides that every right under North Carolina law "should be exercised in pursuance of laws and consistently with the Constitution of the United States." Article I, Section 5 provides that "no law or ordinance of the State in contravention or subversion" of the United States Constitution "can have any lasting force and effect." . . . [T]he Court concludes that Article I, Sections 2, 3, and 5, require that the North Carolina Constitution should be harmonized with any applicable provisions of federal law, so as to avoid any conflict between the North Carolina Constitution and federal law.
2. Under a harmonized interpretation of Article I, Sections 2, 3, and 5 and Article II, Sections 3(3) and 5(3), the North Carolina Constitution prohibits the General Assembly from dividing counties into separate Senate and House districts, except to the extent that counties must be divided to comply with federal law. Thus, the General Assembly must preserve county lines to the maximum extent possible, except to the extent counties must be divided to comply with Section 5 of the Voting Rights Act, to comply with Section 2 of the Voting Rights Act, and to comply with the U.S. Constitution, including the federal one-person one-vote requirements. . . .
3. The [2001 legislative redistricting plans] divide counties more than are necessary to comply with the Voting Rights Act or the federal one-person one-vote requirements, and therefore violate the North Carolina Constitution.
The trial court permanently enjoined defendants "from conducting any primary or general election under the 1992 Senate and House Plans, the [2001 legislative redistricting plans], or any other plans that divide counties for any reason other than: (a) the creation of districts needed to obtain pre-clearance under Section 5 of the Voting Rights Act; (b) the creation of districts needed to avoid liability under Section 2 of the Voting Rights Act; (c) maintaining the population deviation range between districts within the limits approved [by the United States Supreme Court] for jurisdictions that prohibit the division of counties into separate legislative districts; and (d) any other divisions that are necessary to comply with the United State[s] Constitution and applicable federal law." Finally, the trial court stayed its order and provided that, in fairness to all parties, the voters, and the taxpayers, the present constitutional issues and the outcome of plaintiffs' request for injunctive relief for the 2002 election cycle should be decided by this Court.
On 26 February 2002, this Court allowed plaintiffs' "Emergency Petition for Suspension of the North Carolina Rules of Appellate Procedure," thus setting the stage for expedited direct review by this Court. Thereafter, defendants filed notice of appeal in this Court. By unanimous order dated 7 March 2002, this Court enjoined defendants from conducting primary elections on 7 May 2002 for the office of Senator in the North Carolina Senate and the office of Representative in the North Carolina House of Representatives, pending determination of the constitutional issue by this Court.
On 21 March 2000, the United States Census Bureau released the 2000 population data for the State of North Carolina. From 1990 to 2000, the state's population increased by 21.4 percent, to 8,049,313. Pursuant to its constitutional mandate to redistrict and reapportion legislative districts after each decennial census, N.C. Const. art. II, §§ 3, 5, on 13 November 2001, the General Assembly enacted redistricting and reapportionment plans for the Senate and the House of Representatives, Acts of Nov. 13, 2001, chs. 458, 459, 2001 N.C. Sess. Laws ___, ___. The 2001 Senate Plan divides 51 of 100 counties into different districts (2001 Senate map, Attachment A). Ch. 458, 2001 N.C. Sess. Laws ___. The 2001 House Plan divides 70 of 100 counties into different districts (2001 House map, Attachment B). Ch. 459, 2001 N.C. Sess. Laws ___. Under the 2001 Senate Plan, a number of counties are divided into as many as four to six districts, and under the 2001 House Plan, a number of counties are divided into as many as four to thirteen districts. Chs. 458, 459, 2001 N.C. Sess. Laws ___, ___.
For instance, Pender County has a 2000 census population of 41,082, a number far below the ideal population for a single-member House seat of 67,078. In its amicus curiae brief, Pender County states that it "has no interest in which political party controls the North Carolina General Assembly or the re-election prospects of a particular legislator." Rather, "Pender County simply wants its citizens to have the opportunity to present a cohesive voice to address the particular needs it faces as a low wealth, rapid growth county." Under the 2001 legislative redistricting plans, the citizens of Pender County are distributed among eight legislative districts incorporating fourteen different counties. Chs. 458, 459, 2001 N.C. Sess. Laws ___, ___. As a result, Pender County maintains that the 2001 legislative redistricting plans have "balkanized" the county and muted the voices of its citizens seeking to choose "a" legislator who will be sensitive and responsive to their unique needs.
In the trial court below, plaintiffs presented a forecast of their evidence on the issue of protecting the citizenry's equal right to vote and ensuring the continued vitality of the State's democratic processes. In this regard, plaintiffs submitted deposition testimony of John N. Davis, Executive Director of NC FREE, a nonpartisan organization within this State, who has been forecasting election results in North Carolina since 1992. In 2000, Davis correctly projected 193 out of 200 North Carolina elections. According to Davis, the number of Senate seats competitive for both major political parties has dropped from 14 out of 50 under the 1992 Senate Plan to only 6 out of 50 under the 2001 Senate Plan. Similarly, Davis asserts that the number of competitive House seats has dropped from 32 out of 120 under the 1992 House Plan to only 14 out of 120 under the 2001 House Plan.
The original filing period for legislative offices for the November 2002 elections closed on 1 March 2002. The registration of those who filed for legislative offices for these elections reflects that in the Senate, under the 2001 legislative redistricting plans, 30 out of 50, or sixty percent, of the seats will be uncontested in the November 2002 general election. In the House, 71 out of 120 House seats, or fifty-nine percent, will be uncontested in the November 2002 general election. Overall, out of 170 seats in the General Assembly, 101 members, or fifty-nine percent, will not face opposition in the 2002 general election. Stated differently, voters within districts represented by these 101 members will apparently have no meaningful electoral choices in the 2002 election cycle under the 2001 legislative redistricting plans.
STATE CONSTITUTIONAL ANALYSIS
The primary question for our review is whether the General Assembly, in enacting the 2001 legislative redistricting plans, violated the WCP of the State Constitution. Defendants contend that the constitutional provisions mandating that counties not be divided are wholly unenforceable because of the requirements of the Voting Rights Act. Plaintiffs, on the other hand, assert that the State Constitution requires that counties not be divided when creating state legislative apportionment plans except to the extent required by federal law.
The State Role in Legislative Redistricting
The apportionment of legislative districts is a matter primarily reserved to the respective states. Growe v. Emison, 507 U.S. 25, 34, 122 L.Ed.2d 388, 400 (1993) (stating that "the Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts"); see also Chapman v. Meier, 420 U.S. 1, 27, 42 L.Ed.2d 766, 785 (1975); Reynolds v. Sims, 377 U.S. 533, 586, 12 L.Ed.2d 506, 541 (1964). Moreover, "issues concerning the proper construction and application of . . . the Constitution of North Carolina can . . . be answered with finality [only] by this Court." State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 479 (1989); see also PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 64 L.Ed.2d 741, 752 (1980); Murdock v. Mayor of Memphis, 87 U.S. 590, 626, 22 L.Ed. 429, 441 (1874); State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984). Although there is a strong presumption that acts of the General Assembly are constitutional, it is nevertheless the duty of this Court, in some instances, to declare such acts unconstitutional. Preston, 325 N.C. at 448-49, 385 S.E.2d at 478; see also Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60, 73 (1803) (stating that "[i]t is emphatically the province and duty of the judicial department to say what the law is"); Bayard v. Singleton, 1 N.C. 5, 6-7 (1787). Indeed, within the context of state redistricting and reapportionment disputes, it is well within the "power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan." Scott v. Germano, 381 U.S. 407, 409, 14 L.Ed.2d 477, 478 (1965) (per curiam).
The State Constitution provides 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 senate districts and the apportionment of Senators among those districts" and "shall revise the representative districts and the apportionment of Representatives among those districts." N.C. Const. art. II, §§ 3, 5. The State Constitution specifically enumerates four limitations upon the redistricting and reapportionment authority of the General Assembly, summarized as follows:
(1) Each Senator and Representative shall represent, as nearly as possible, an equal number of inhabitants.
(2) Each senate and representative district shall at all times consist of contiguous territory.
(3) No county shall be divided in the formation of a senate or representative district.
(4) Once established, the senate and representative districts and the apportionment of Senators and Representatives shall remain unaltered until the next decennial census of population taken by order of Congress.
See N.C. Const. art. II, §§ 3, 5. The WCP, the third limitation above, provides that "[n]o county shall be divided in the formation of a senate district," N.C. Const. art. II, § 3(3), and that "[n]o county shall be divided in the formation of a representative district," N.C. Const. art. II, § 5(3).
The Federal Role in Legislative Redistricting
Although the respective state legislatures maintain primary responsibility for redistricting and reapportionment of legislative districts, such procedures must comport with federal law. Interpretation of the federal limitations upon the redistricting process is unnecessary to the resolution of the instant case. Nonetheless, as these requirements necessarily serve as limitations upon the state legislative redistricting process, we find it helpful to describe, at least briefly, the federal law in this area. The applicable provisions include (1) "one-person, one-vote" principles requiring some measure of population equality between state legislative districts as articulated in Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 533, 12 L.Ed.2d 506, and their progeny; and (2) the Voting Rights Act of 1965 (the VRA), as amended, to protect against voting discrimination, as proscribed under the Fifteenth Amendment, 42 U.S.C. § 1973-1973p (1994); Lopez v. Monterey Cty., 525 U.S. 266, 269, 142 L.Ed.2d 728, 734 (1999).
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. 42 U.S.C. § 1973a, 1973b; Thornburg v. Gingles, 478 U.S. 30, 43, 92 L.Ed.2d 25, 42 (1986). The primary purpose underlying section 5 of the VRA is to avoid retrogression, i.e., a change in voting procedures which would place the members of a racial or language minority group in a less favorable position than they had occupied before the change with respect to the opportunity to vote effectively. 28 C.F.R. § 51.54(a) (2001); see also Beer v. United States, 425 U.S. 130, 140-42, 47 L.Ed.2d 629, 638-40 (1976). To effectuate its remedial objectives, the VRA requires jurisdictions "covered" by section 5 that seek to enact or administer any change in a voting standard, practice, or procedure to submit the proposed change to the United States Department of Justice (USDOJ) for preclearance or, alternatively, to obtain a declaratory ruling from the United States District Court for the District of Columbia. 42 U.S.C. § 1973c; see also Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 323, 145 L.Ed.2d 845, 853 (2000).
The State of North Carolina is not a covered jurisdiction for section 5 purposes. See Lopez, 525 U.S. at 280, 142 L.Ed.2d at 741 (noting that "seven states . . . are currently partially covered: California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota"). Forty of this State's one hundred counties, however, are covered jurisdictions and are subject to section 5 requirements. See 42 U.S.C. § 1973c; 28 C.F.R. § 51.4(c) app. to pt. 51, at 96-98 (2001); Shaw v. Reno, 509 U.S. 630, 634, 125 L.Ed.2d 511, 520 (1993). When the State enacts voting changes that affect these counties, the changes must be precleared before they are administered. See Lopez, 525 U.S. at 280, 142 L.Ed.2d at 740-41 (stating that United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 51 L.Ed.2d 229 (1977), and Shaw v. Hunt, 517 U.S. 899, 135 L.Ed.2d 207 (1996), "reveal a clear assumption by this Court that [section] 5 preclearance is required where a noncovered State effects voting changes in covered counties"). The VRA does not command a state to adopt any particular legislative reapportionment plan, but rather prevents the enforcement of redistricting plans having the purpose or effect of diluting the voting strength of legally protected minority groups.
The Historical Role of Counties in Legislative Redistricting
Before we begin our analysis, we briefly review the importance of counties as political subdivisions of the State of North Carolina. Counties are creatures of the General Assembly and serve as agents and instrumentalities of State government. High Point Surplus Co. v. Pleasants, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965); DeLoatch v. Beamon, 252 N.C. 754, 757, 114 S.E.2d 711, 714 (1960). Counties are subject to almost unlimited legislative control, except to the extent set out in the State Constitution. Martin v. Board of Comm'rs of Wake Cty., 208 N.C. 354, 365, 180 S.E. 777, 783 (1935). "[T]he powers and functions of a county bear reference to the general policy of the State, and are in fact an integral portion of the general administration of State policy." O'Berry v. Mecklenburg Cty., 198 N.C. 357, 360, 151 S.E. 880, 882 (1930), quoted in Martin, 208 N.C. at 365, 180 S.E. at 783.
Counties serve as the State's agents in administering statewide programs, while also functioning as local governments that devise rules and provide essential services to their citizens. This Court has long recognized the importance of the county to our system of government:
The counties of this state . . . are . . . organized for political and civil purposes. . . . The leading and principal purpose in establishing them is to effectuate the political organization and civil administration of the state, in respect to its general purposes and policy which require local direction, supervision and control, such as matters of local finance, education, provisions for the poor, . . . and in large measure, the administration of public justice. It is through them, mainly, that the powers of government reach and operate directly upon the people, and the people direct and control the government. They are indeed a necessary part and parcel of the subordinate instrumentalities employed in carrying out the general policy of the state in the administration of government. They constitute a distinguishing feature in our free system of government. It is through them, in large degree, that the people enjoy the benefits arising from local self-government, and foster and perpetuate that spirit of independence and love of liberty that withers and dies under the baneful influence of centralized systems of government.
Counties play a vital role in many areas touching the everyday lives of North Carolinians. For example, each county effects the administration of justice within its borders, and each has a jail and a courthouse where cases arising in the county are usually tried. A. Fleming Bell, II, Warren Jake Wicker, County Government in North Carolina 938-39, 943 (4th ed. 1998). Each county elects a sheriff. Id. at 930. Soil and water conservation districts oversee watershed programs and drainage issues in almost every county. Id. at 682-83. Each county is responsible for administering the public schools by way of a county board of education. Id. at 823-29. Not surprisingly, people identify themselves as residents of their counties and customarily interact most frequently with their government at the county level. See generally id. at vii-xi. Based on the clear identity and common interests that counties provide, the impetus for the preservation of county lines, as reflected within the WCP, is easily understood within the redistricting context.
There is a long-standing tradition of respecting county lines during the redistricting process in this State. Indeed, this custom and practice arose hundreds of years before federal limitations were placed upon state redistricting and reapportionment procedures during the 1960s. North Carolina's initial state constitution, enacted in 1776, provided that representation in both the Senate and the House of Commons was based on "counties." See John V. Orth, The North Carolina State Constitution: A Reference Guide 81 (1993) [hereinafter Orth, State Constitution]. In the enactment of amendments in 1835, the General Assembly provided that "counties" were not to be divided between two or more senate districts and that each "county" was to be guaranteed at least one representative. See id. The 1868 Constitution provided that "no County shall be divided in the formation of a Senate District," unless entitled to two or more Senators, and further provided the House of Representatives shall be composed of 120 members "to be elected by the Counties respectively, according to their population," with each county to have at least one Representative. N.C. Const. of 1868, art. II, §§ 5, 6 (amended 1968).
The Development of a Modern Redistricting Jurisprudence
In Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C. 1965), aff'd per curiam, 383 U.S. 831, 16 L.Ed.2d 298 (1966), a three-judge panel on the United States District Court for the Middle District of North Carolina ruled that the General Assembly's legislative redistricting plans violated the "one-person, one-vote" requirement of the United States Constitution and were therefore void. The District Court enjoined the State from using the unconstitutional plans in the 1966 election cycle. Id. at 881. The General Assembly thereafter enacted revised redistricting plans in compliance with the District Court's mandate but did not divide counties into separate legislative districts. On 18 February 1966, the District Court found the revised plans to be constitutional. Drum v. Seawell, 250 F. Supp. 922, 924 n. 2 (M.D.N.C. 1966). The revised legislative districts were thereafter used in the 1966, 1968, and 1970 elections.
Following the Drum decisions, the General Assembly proposed constitutional amendments in 1967 to the State Constitution's redistricting and reapportionment provisions. See Act of May 31, 1967, ch. 640, 1967 N.C. Sess. Laws 704. The proposed amendments for the Senate and House of Representatives reincorporated a prohibition against the division of counties. Id. Subsequently, the North Carolina State Constitution Study Commission completed a comprehensive review and revision of the State Constitution. See Orth, State Constitution at 20. In November 1968, the voters of North Carolina approved the amendments to the redistricting and reapportionment provisions in the 1868 State Constitution. See John L. Sanders John F. Lomax, Jr., Amendments to the Constitution of North Carolina: 1776-1996, at 15 (Inst. of Gov't, Univ. of N.C. at Chapel Hill, 1997). These 1968 amendments based representation in both the Senate and House of Representatives upon the requirement of "one-person, one-vote." See Orth, State Constitution at 81. These amendments also required the preservation of county lines when forming districts. See id. In 1969, the General Assembly reviewed and approved the proposed revisions of the State Constitution, Act of July 2, 1969, ch. 1258, 1969 N.C. Sess. Laws 1461, and in November 1970, North Carolina voters ratified a revised and amended state constitution known as the 1971 Constitution, see John L. Sanders, Our Constitutions: An Historical Perspective, in Elaine F. Marshall, N.C. Dep't of Sec'y of State, North Carolina Manual 1999-2000, 125, at 134. As University of North Carolina Law Professor John Orth, a highly respected state constitutional scholar, noted, "The 1971 Constitution, the state's third, was not . . . a product of haste and social turmoil. It was instead a good government-measure, long matured and carefully crafted by the state's lawyers and politicians, designed to consolidate and conserve the best features of the past, not to break with it." Orth, State Constitution at 20. The 1971 Constitution included grammatical changes to the 1968 amendments to the Constitution with respect to redistricting and reapportionment, but preserved the language prohibiting the division of counties. N.C. Const. art. II, §§ 3, 5.
Consistent with the 1971 Constitution, the General Assembly enacted a redistricting plan in 1971 that did not divide counties into separate legislative districts. Act of June 1, 1971, ch. 483, 1971 N.C. Sess. Laws 412; Act of July 21, 1971, ch. 1177, 1971 N.C. Sess. Laws 1743. The USDOJ precleared the 1971 legislative reapportionment plans, and those plans were used in the 1972 through 1980 elections.
In 1981, the General Assembly again enacted redistricting plans for the Senate and House of Representatives which did not divide counties. Act of July 3, 1981, ch. 821, 1981 N.C. Sess. Laws 1191; Act of October 30, 1981, ch. 1130, 1981 N.C. Sess. Laws 1657. The USDOJ refused to preclear the 1981 legislative redistricting plans, however, because they contained no majority-minority single-member districts and submerged cognizable minority populations within large multi-member districts. For these reasons, the USDOJ interposed an objection to the use of a "whole-county" criterion by North Carolina, as applied within the plan as then submitted, insofar as it affected the forty counties in North Carolina covered by section 5 of the VRA. The USDOJ made clear, however, that its response to the plans submitted by North Carolina at that time did not preclude the State from preserving county lines whenever feasible in formulating its new districts.
In response to the USDOJ's administrative determination, the General Assembly convened in April 1982 and enacted a revised redistricting plan for the House, creating four African-American single-member districts and one African-American two-member district. The House Plan divided twenty-four counties. Act of February 11, 1982, ch. 4, 1981 N.C. Sess. Laws (1st Extra Sess. 1982) 6; Act of April 27, 1982, ch. 1, 1981 N.C. Sess. Laws (2d Extra Sess. 1982) 15. On 30 April 1982, the USDOJ precleared the House redistricting plan. Similarly, the General Assembly enacted a revised redistricting plan for the Senate, which the USDOJ also precleared, that divided eight counties and created two African-American single-member districts. Act of April 27, 1982, ch. 2, 1981 N.C. Sess. Laws (2d Extra Sess. 1982) 15.
In Cavanagh v. Brock, 577 F. Supp. 176 (E.D.N.C. 1983), a case originally filed in state court, the defendants removed the case to federal court and affirmatively advocated the invalidation of the WCP. The District Court in Cavanagh, purporting to apply a state law severability analysis, determined that the USDOJ's objection to enforcement of the WCP as to the forty covered North Carolina counties also precluded its enforcement in the sixty noncovered counties. Id. at 181.
The District Court in Cavanagh recognized that only a state challenge was asserted and struggled to determine whether abstention would be "most suitably effectuated by allowing defendants to seek a declaratory judgment in state court on that narrow issue." 577 F. Supp. at 180-81 n. 4. The Court, however, ultimately concluded that abstention was inappropriate "in view of the substantial public interest in early resolution of challenges affecting the fundamental electoral processes involved" and the apparent perception that its application of state law was "not sufficiently uncertain." Id.
The WCP and the 2001 Legislative Redistricting Plans
The expanded question before this Court, in light of the VRA, is whether the WCP is now entirely unenforceable, as defendants contend, or, alternatively, whether the WCP remains enforceable throughout the State to the extent not preempted or otherwise superseded by federal law.
When federal law preempts state law under the Supremacy Clause, it renders the state law invalid and without effect. U.S. Const. art. VI, cl. 2 ("This constitution, and the laws of the United States which shall be made in pursuance thereof, . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."); see also Pearson v. C.P. Buckner Steel Erection Co., 348 N.C. 239, 244, 498 S.E.2d 818, 821 (1998).
The primary inquiry in determining whether a state provision is preempted by federal law is to ascertain the intent of Congress. California Fed. Sav. Loan Ass'n v. Guerra, 479 U.S. 272, 280, 93 L.Ed.2d 613, 623 (1987) (noting that "federal law may supersede state law in several different ways"). Congress may state an intention to preempt state law in express terms, id., or congressional intent to preempt may be inferred where a comprehensive federal scheme is imposed on an area occupied by state law, leaving state law "no room" in which to continue operating, id. at 281, 93 L.Ed.2d at 623. As a third alternative, "in those areas where Congress has not completely displaced state regulation, federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law." Id. (emphasis added). "The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field. . . ." Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 10 L.Ed.2d 248, 256-57 (1963) (noting that where federal and state law both operate, a "coexistence" is formed). Because Congress has not preempted the entire field of state legislative redistricting and reapportionment, state provisions in this area of law not otherwise superseded by federal law must be accorded full force and effect. See Growe, 507 U.S. at 34, 122 L.Ed.2d at 400; see also Chapman, 420 U.S. at 27, 42 L.Ed.2d at 785; Reynolds, 377 U.S. at 586, 12 L.Ed.2d at 541.
The State Constitution similarly delineates the interplay between federal and state law: "The people of this State have the inherent, sole, and exclusive right of regulating the internal government and police thereof, . . . but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States." N.C. Const. art. I, § 3. "[N]o law or ordinance of the State in contravention or subversion [of the United States Constitution and government of the United States] can have any binding force." N.C. Const. art. I, § 5. The people of North Carolina chose to place several explicit limitations upon the General Assembly's execution of the legislative reapportionment process. None of these express limitations, including the WCP, are facially inconsistent with the VRA or other federal law. Thus, the State retains significant discretion when formulating legislative districts, so long as the "effect" of districts created pursuant to a "whole-county" criterion or other constitutional requirement does not dilute minority voting strength in violation of federal law.
"Issues concerning the proper construction of the Constitution of North Carolina `are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments.'" Preston, 325 N.C. at 449, 385 S.E.2d at 478 (quoting Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953)). In Sessions v. Columbus Cty., 214 N.C. 634, 638, 200 S.E. 418, 420 (1939), this Court stated that "[r]econciliation is a postulate of constitutional as well as of statutory construction." Thus, reconciliation is a fundamental goal, be it in constitutional or statutory interpretation, and North Carolina courts should make every effort to determine whether State provisions, as interpreted under State law, are inconsistent with controlling federal law before applying a severability analysis to strike State provisions as wholly unenforceable.
As part of our constitutional interpretation, it is fundamental "to give effect to the intent of the framers of the organic law and of the people adopting it." Perry, 237 N.C. at 444, 75 S.E.2d at 514. More importance is to be placed upon the intent and purpose of a provision than upon the actual language used. Id. "[I]n arriving at the intent, we are not required to accord the language used an unnecessarily literal meaning. Greater regard is to be given to the dominant purpose than to the use of any particular words. . . ." Id. This Court will consider the "history of the questioned provision and its antecedents, the conditions that existed prior to its enactment, and the purposes sought to be accomplished by its promulgation" when interpreting the State Constitution in light of federal requirements. Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980); see also Perry, 237 N.C. at 444, 75 S.E.2d at 514.
We observe that the State Constitution's limitations upon redistricting and apportionment uphold what the United States Supreme Court has termed "traditional districting principles." See Shaw, 509 U.S. at 647, 125 L.Ed.2d at 528. These principles include factors such as "compactness, contiguity, and respect for political subdivisions." Id. (emphasis added). The United States Supreme Court has "emphasize[d] that these criteria are important not because they are constitutionally required — they are not — but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines." Id. at 647, 125 L.Ed.2d at 528-29 (citation omitted). We recognize that, like the application or exercise of most constitutional rights, the right of the people of this State to legislative districts which do not divide counties is not absolute. See, e.g., Laurence H. Tribe, American Constitutional Law § 12-2 (2d ed. 1988); John E. Nowak Ronald D. Rotunda, Constitutional Law § 16.7 (5th ed. 1995) (noting that although the provisions of the First Amendment appear absolute, they are subject to a balancing of interests). In reality, 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 2001 legislative redistricting plans violate the WCP for reasons unrelated to compliance with federal law. Although the WCP demonstrates a clear intent to keep county boundaries intact whenever possible during the legislative redistricting process, the 2001 Senate redistricting plan divides 51 of 100 counties into different Senate districts. The 2001 House redistricting plan divides 70 out of 100 counties into different House districts. 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, 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. Accordingly, the WCP remains valid and binding upon the General Assembly during the redistricting and reapportionment process, as more fully explained below, except to the extent superseded by federal law.
We note that other states have faced similar issues under their respective state constitutions and, where possible, have concluded that county lines should be maintained. See In re Reapportionment of Colo. Gen. Assembly, ___ P.3d ___, ___, 2002 WL 100555, *___ (Colo. Jan. 28, 2002) (No. 01SA386); Hellar v. Cenarrusa, 106 Idaho 571, 574-75, 682 P.2d 524, 527-28 (1984); Fischer v. State Bd. of Elections, 879 S.W.2d 475, 479 (Ky. 1994); State ex rel. Lockert v. Crowell, 631 S.W.2d 702, 714-15 (Tenn. 1982).
Effect of 1981 USDOJ Objection to Redistricting Plan and Decision of Federal District Court in Cavanagh v. Brock
Focusing on correspondence received from the USDOJ during 1981 and 1982, defendants assert that the USDOJ's objection to the 1981 State legislative redistricting plans now renders the WCP unenforceable. They also contend that Cavanagh v. Brock, 577 F. Supp. 176, controls the resolution of this issue. Finally, they assert that plaintiffs' interpretation of the State constitutional provisions, when coupled with the effect of the VRA, will result in a rewrite of the State Constitution and a mechanical interpretation of the same.
With regard to the USDOJ's objection to the 1981 proposed legislative redistricting plans — plans that failed to include any majority-minority VRA districts — the USDOJ indicated that it was unable to conclude that North Carolina's application of the WCP at that time did not have a discriminatory purpose or effect in the forty covered counties. In a letter dated 30November 1981, the USDOJ pointed out that its analysis "show[ed] that the prohibition against dividing the forty covered counties in the formation of Senate and House districts predictably require[d], and ha[d] led to the use of large, multi-member districts." Letter from William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to Alex Brock, Executive Secretary-Director, N.C. State Board of Elections (Nov. 30, 1981) [hereinafter 1981 USDOJ letter]. Thus, in reviewing the 1968 constitutional amendments, the USDOJ analyzed these amendments in the context of redistricting plans that included large, multi-member districts. The USDOJ further stated in this letter: "This determination with respect to the jurisdictions covered by Section 5 of the Voting Rights Act should in no way be regarded as precluding the State from following a policy of preserving county lines whenever feasible in formulating its new districts. Indeed, this is the policy in many states, subject only to the preclearance requirements of Section 5, where applicable." Id. In a subsequent letter dated 20 January 1982, the USDOJ specifically concluded that "the use of large, multi-member districts effectively submerge[d] sizable concentrations of black population[s] into a majority white electorate." Letter from William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to Alex Brock, Executive Secretary-Director, N.C. State Board of Elections (Jan. 20, 1982) [hereinafter 1982 USDOJ letter]. On this basis, the 1981 plans were not precleared. It is apparent from the full context of these letters that the USDOJ concluded that the plans, as then submitted, would result in large multi-member districts having a retrogressive effect on minority voters. Nowhere in these letters is there a statement that the amendments themselves are considered either unconstitutional or unenforceable in conjunction with an acceptable redistricting plan having no retrogressive effect, and defendants have offered no authority supporting such a proposition.
Our opinion that the 1981 and 1982 USDOJ letters do not abrogate the WCP is buttressed by the USDOJ's issuance of its administrative guidance for states concerning redistricting under the VRA. These guidelines provide: "[C]ompliance with Section 5 of the Voting Rights Act may require the jurisdiction to depart from strict adherence to certain of its redistricting criteria. For example, criteria which require the jurisdiction to . . . follow county, city, or precinct boundaries . . . may need to give way to some degree to avoid retrogression." Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, 66 Fed. Reg. 5413 (Jan. 18, 2001) (emphasis added). The USDOJ Civil Rights Division clearly considers following political boundaries, including county lines, to be an acceptable criterion but one that "may" have to give way "to some degree" in order to avoid retrogression. Significantly, both the USDOJ's letters to the State of North Carolina and its own administrative guidelines reflect that states need only modify, not necessarily abrogate, the application of whole-county redistricting limitations.
Thus, our review of the USDOJ's position on the WCP, as represented by its response to North Carolina's submission in 1981 and its administrative regulations concerning use of "whole-county" requirements, leads us to conclude that the WCP is not facially illegal or unenforceable relative to federal law. We believe our interpretation naturally flows from the language of the USDOJ's representation that its policy "should in no way be regarded as precluding the State [of North Carolina] from following a policy of preserving county lines whenever feasible in formulating new districts." The 1981 USDOJ letter, by its own terms, merely disallows a redistricting plan that adheres strictly to a "whole-county" criterion without complying with the VRA.
Defendants further argue that Cavanagh, 577 F. Supp. 176, voided the WCP. For the reasons set forth below, we respectfully disagree with the District Court's interpretation of the State Constitution. See Union Pac. R.R. Co. v. Board of Comm'rs of Weld Cty., 247 U.S. 282, 287, 62 L.Ed. 1110, 1117 (1918); see also Harter v. Vernon, 101 F.3d 334, 342 (4th Cir. 1996) ("Our holdings on questions of state law do not bind state courts"), cert. denied, 521 U.S. 1120, 138 L.Ed.2d 1014 (1997); Preston, 325 N.C. at 449-50, 385 S.E.2d at 479; White v. Pate, 308 N.C. 759, 766, 304 S.E.2d 199, 203 (1983).
As previously noted, North Carolina courts should first determine whether provisions of the State Constitution, as interpreted under state law, are inconsistent with federal law before applying a severability analysis. Where, as here, the primary purpose of the WCP can be effected to a large degree without conflict with federal law, it should be adhered to by the General Assembly to the maximum extent possible. Also, in addressing the intent of the General Assembly, the District Court in Cavanagh apparently failed to consider the history of North Carolina's use of whole-county districts for nearly 200 years prior to 1964. The Court in Cavanagh cited no authority to support its conclusion that the General Assembly in 1968 would not have intended or desired to adopt the WCP if that provision could not be fully applicable in all counties. Furthermore, the Court's ruling in Cavanagh was not a necessary conclusion based on the 1981 USDOJ letter concerning whole-county districts. As discussed above, the USDOJ's objection to the 1981 redistricting plans does not stand for the proposition that the constitutional "whole-county" provisions are per se unenforceable. For all these reasons, we reject defendants' contention that the District Court's holding in Cavanagh should be followed in our interpretation of the North Carolina Constitution.
Although no federal law has preempted this Court's authority to interpret the WCP as it applies statewide, we acknowledge that complete compliance with federal law is the first priority before enforcing the WCP.
We also reject defendants' assertion that enforcement of the WCP in some way rewrites the State Constitution. Defendants contend, among other things, that allowing the WCP to retain some measure of enforceability tacitly adds new words to these provisions, i.e., counties may not be split "except to the extent required by federal law." Defendants overlook the fact, however, that compliance with federal law is not an implied, but rather an express condition to the enforceability of every provision in the State Constitution. Moreover, our holding accords the fullest effect possible to the stated intentions of the people through their duly adopted State Constitution, the subject provisions of which have remained in place without amendment since 1971. Defendants' "all-or-nothing" interpretation is inordinately mechanical in its application, leaving no room to carry out the spirit or intent of the State Constitution in contravention of time-honored principles of federalism. See Printz v. United States, 521 U.S. 898, 921, 138 L.Ed.2d 914, 935-36 (1997). This construction needlessly burdens millions of citizens with unnecessarily complicated and confusing district lines.
Since Cavanagh, many North Carolina legislative districts have been increasingly gerrymandered to a degree inviting widespread contempt and ridicule. See, e.g., "Red-Light District: It's time to draw the line on gerrymandering," John Fund's Political Diary, WSJ.com Opinion Journal from the Wall Street Journal Editorial Page, at http://www.opinionjournal.com/ diary/?id=105001756 (Mar. 13, 2002) ("[e]lections in many semifree Third World nations routinely offer more choices than many North Carolina residents will have" under the 2001 legislative redistricting plans); How to Rig an Election, The Economist, Apr. 27, 2002, at 29, 30 ("In a normal democracy, voters choose their representatives. In America, it is rapidly becoming the other way around" and asserting that "North Carolina [has been] long notorious for outrageous reapportionment.")
We thus hold that because the General Assembly enacted its 2001 legislative redistricting plans in violation of the WCP, N.C. Const. art. II, §§ 3(3), 5(3), these plans are unconstitutional and are therefore void. Accordingly, the trial court properly granted summary judgment in favor of plaintiffs on this claim.
Having determined that defendants violated the WCP in enacting the 2001 legislative redistricting plans, we must next consider the practical consequences of our holding and address any required remedial measures. The United States Supreme Court has recognized the "power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan." Scott, 381 U.S. at 409, 14 L.Ed.2d at 478. Indeed, both "[r]eason and experience argue that courts empowered to invalidate an apportionment statute which transgresses constitutional mandates cannot be left without the means to order appropriate relief." Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex. 1991); see also Brooks v. Hobbie, 631 So.2d 883, 887-90 (Ala. 1993).
Plaintiffs contend that remedial compliance with the WCP requires the formation of multi-member legislative districts in which all legislators would be elected "at-large." For instance, plaintiffs' suggested five percent whole-county plan for the North Carolina House would require, within Mecklenburg and Gaston Counties, the creation of a single multi-member House district having a contingent of ten Representatives along with the creation of three "submerged" single-member VRA districts. For the following reasons, we reject plaintiffs' proposed remedy.
It is clear, as a practical matter in view of federal law, that application of the WCP in a strictly mechanical fashion would be inconsistent with other provisions of federal law and the State Constitution. Specifically, the WCP cannot be applied in isolation or in a manner that fails to comport with other requirements of the State Constitution. Consequently, as we reject plaintiffs' proposed remedy in the instant case, we recognize we cannot abdicate our duty of redressing the demonstrated constitutional violation which occurred in the present case. See generally Scott, 381 U.S. at 409, 14 L.Ed.2d at 478.
Although the United States Supreme Court has held that multi-member districts are not per se invalid under the federal Equal Protection Clause, Whitcomb v. Chavis, 403 U.S. 124, 142, 29 L.Ed.2d 363, 375 (1971), the Court has nonetheless instructed federal district courts to avoid the creation of multi-member districts in the remedial stage of an apportionment dispute, Connor v. Johnson, 402 U.S. 690, 692, 29 L.Ed.2d 268, 270-71 (1971). The Court has observed that ballots containing multi-member districts "tend to become unwieldy, confusing, and too lengthy to allow thoughtful consideration." Chapman, 420 U.S. at 15, 42 L.Ed.2d at 778. The Court has also recognized that multi-member districts may well "operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439, 13 L.Ed.2d 401, 405 (1965), quoted in Gingles, 478 U.S. at 47, 92 L.Ed.2d at 44.
Federal law expressly requires that states use single-member districts in reapportioning their congressional representation. See 2 U.S.C. § 2c (2000); Whitcomb, 403 U.S. at 158-59 n. 39, 29 L.Ed.2d at 385 n. 39.
Amicus asserts that the voting strength of minority voters will be unlawfully diluted by application of the WCP in a manner which permits the creation of multi-member legislative districts containing predominately nonminority voters adjacent to single-member VRA districts. At a minimum, by asserting this argument, amicus challenges the legal propriety of multi-member districts within North Carolina legislative redistricting plans. Accordingly, we turn 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.
Article I, Section 19 of the State Constitution provides, in pertinent part, that "[n]o person shall be denied the equal protection of the laws." We observe, as amicus alleges, 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. Conversely, voters in multi-member districts invariably suffer the adverse consequences described by the United States Supreme Court: unwieldy, confusing, and unreasonably lengthy ballots; and minimization of minority voting strength. Gingles, 478 U.S. at 47, 92 L.Ed.2d at 44; Chapman, 420 U.S. at 15, 42 L.Ed.2d at 778; see also Fortson, 379 U.S. at 439, 13 L.Ed.2d at 405.
The Equal Protection Clause of Article I, Section 19 of the State Constitution prohibits the State from denying any person the equal protection of the laws. Before embarking upon an equal protection analysis, we must first determine the level of scrutiny to apply. Department of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207 (2001), cert. denied, ___ U.S. ___, 151 L.Ed.2d 972 (2002). Strict scrutiny, this Court's highest tier of review, applies "when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." White, 308 N.C. at 766, 304 S.E.2d at 204; see also Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142, 149 (1980). 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. Northampton Cty. Drainage Dist. No. One v. Bailey, 326 N.C. 742, 746, 392 S.E.2d 352, 355 (1990). It is well settled in this State that "the right to vote on equal terms is a fundamental right." Id. at 747, 392 S.E.2d at 356; see also Preston, 325 N.C. at 454, 385 S.E.2d at 481; Texfi Indus., Inc., 301 N.C. at 12, 269 S.E.2d at 149. The classification of voters into both single-member and multi-member districts within plaintiffs' proposed remedial plans necessarily implicates the fundamental right to vote on equal terms, and thus strict scrutiny is the applicable standard.
In applying such standard, we note, for instance, that under plaintiffs' proposed five percent House Plan, voters in multi-member District 36 (Buncombe, McDowell, and Burke Counties) may vote for a contingent of five Representatives, while voters in neighboring District 38 (Haywood and Swain Counties) elect only one Representative. Likewise, in plaintiffs' proposed five percent Senate Plan, multi-member District 13 (Caswell, Rockingham, Guilford, Randolph, Davidson, and Forsyth Counties) voters elect a contingent of five Senators, while in neighboring District 19 (Rowan and Davie Counties), voters elect only one Senator. These classifications, as used within plaintiffs' proposed remedial plans, create an impermissible distinction among similarly situated citizens based upon the population density of the area in which they reside.
In this context, we examine the provisions of Article II, Sections 3(1) and 5(1) of the State Constitution to determine whether the use of both single-member and multi-member districts within the same redistricting plan violates the Equal Protection Clause of the State Constitution. See N.C. Const. art. I, § 19. We recognize that a constitution cannot be in violation of itself, Leandro v. State, 346 N.C. 336, 352, 488 S.E.2d 249, 258 (1997), and that all constitutional provisions must be read in pari materia, In re Peoples, 296 N.C. 109, 159, 250 S.E.2d 890, 919 (1978) (citing Williamson v. City of High Point, 213 N.C. 96, 103, 195 S.E. 90, 94 (1938), cert. denied, 442 U.S. 929, 61 L.Ed.2d 297 (1979), and Parvin v. Board of Comm'rs of Beaufort Cty., 177 N.C. 508, 511, 99 S.E. 432, 434 (1919)). These rules of construction require us to construe Article II, Sections 3(1) and 5(1) in conjunction with Article I, Section 19 in such a manner as to avoid internal textual conflict.
Article II, Sections 3(1) and 5(1) begin by stating that "[e]ach Senator [or Representative] shall represent, as nearly as may be, an equal number of inhabitants." These words embody the principle of "one-person, one-vote." The proviso that follows in each section adds "the number of inhabitants that each Senator [or Representative] represents being determined for this purpose by dividing the population of the district that he [or she] represents by the number of Senators [or Representatives] apportioned to that district." These provisos arguably contemplate multi-member districts by stating that, for apportionment purposes, each member of the General Assembly from such a district represents a fraction of the voters in that district. The principle of "one-person, one-vote" is preserved because the number of voters in each member's fraction of the multi-member district is the same as the number of voters in a single-member district. However, in practice, these theoretical divisions within such districts do not work because every Representative or Senator from such a district represents and is supported by every resident in the district, not just those voters making up the fraction of the district comprising the theoretical constituency. Members do not "divide the population of the district that he [or she] represents" to determine their "true" constituency. As a consequence, those living in such 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. Thus, although the people have mandated in their Constitution that all North Carolinians enjoy substantially equal voting power, Northampton Cty. Drainage Dist. No. One, 326 N.C. at 746, 392 S.E.2d at 355, the same Constitution contains language which appears to deny voters in single-member districts their right to substantially equal legislative representation. Accordingly, and consistent with the analysis found elsewhere in this opinion, we hold that the language quoted above purporting to allow multi-member districts is effective only within a limited context. We conclude that, while instructive as to how multi-member districts may be used compatibly with "one-person, one-vote" principles, Article II, Sections 3(1) and 5(1) are not affirmative constitutional mandates and do not authorize use of both single-member and multi-member districts in a manner violative of the fundamental right of each North Carolinian to substantially equal voting power.
The proposition that use of both single-member and multi-member districts within the same redistricting plan violates equal protection principles is not novel. In Kruidenier v. McCulloch, 258 Iowa 1121, 142 N.W.2d 355, cert. denied, 385 U.S. 851, 17 L.Ed.2d 80 (1966), the Iowa Supreme Court concluded that legislative redistricting schemes, in which there were multi-member districts and single-member districts in the same house plan, unconstitutionally impaired the rights of residents within single-member districts. The Court observed the following example from the apportionment scheme at issue there: "The resident of Warren County can vote for 1/61 of the senate and 1/124 of the house. The resident of Polk County can vote for 1/12 of the senate and 1/11 of the house." Id. at 1147, 142 N.W.2d at 370. The Court concluded that the "mere statement of this example disclose[d] the basic unfairness, inequality and lack of uniformity inherent in such a scheme of legislative apportionment" and stated:
Equal voting power for all citizens is the goal. Proposed legislation requires a majority vote of the members of each house to become a law. It is a political reality that legislators are much more inclined to listen to and support a constituent than an outsider with the same problem. It is equally basic that much legislative work is done by committees and there is a distinct advantage in having one's own representative sitting as a member of a committee considering legislation in which one has an interest. . . . Particularly in personal interest legislation the resident of [the multi-member district] has an unfair and unequal advantage over the resident of . . . any other single-member district. He has a much greater opportunity to find legislators to espouse his cause and a much greater chance that one or more of his representatives will be on the committee to which his legislation is assigned. His voting power is much greater.
Id. at 1147-48, 142 N.W.2d at 370-71 (emphasis added).
The Iowa Supreme Court concluded that any legislative apportionment scheme containing both multi-member and single-member legislative districts unlawfully impaired the right of a resident within a single-member district under both the Iowa Constitution and the Constitution of the United States. Id. at 1148, 1156, 142 N.W.2d at 371, 375. The Iowa Supreme Court qualified its holding by stating that, to the extent a rational plan of apportionment could not be achieved by using all single-member districts, the possibility existed that use of some multi-member districts could be constitutionally permissible. Id.
In our view, use of both single-member and multi-member districts within the same redistricting plan violates the Equal Protection Clause of the State Constitution unless it is established that inclusion of multi-member districts advances a compelling state interest. Therefore, the trial court is directed on remand to afford the opportunity to establish, at an evidentiary hearing, that the use of such districts advances a compelling state interest within the context of a specific, proposed remedial plan. With respect to redistricting plans, undoubtedly, federal law impacts the functional application of the WCP but does not, as suggested by defendants, totally void it. To accept defendants' logic would necessarily imply that any time Congress enacted a law which even superficially touched upon an area of primary state responsibility, all related state provisions within the challenged area of state jurisprudence would be immediately and entirely nullified. Such a presumption reflects a misunderstanding of federal preemption analysis.
It 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." State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988).
In the event such a hearing is requested on remand, the trial court is authorized to take all necessary remedial actions to ensure that the primary elections for legislative offices are conducted in a timely and expeditious manner and consistent with the general election scheduled for 5 November 2002.
As noted by the United States Supreme Court in Shaw v. Reno and by the USDOJ in its previous correspondence and administrative regulations, operation of federal law does not preclude states from recognizing traditional political subdivisions when drawing their legislative districts. Shaw, 509 U.S. at 647, 125 L.Ed.2d at 528; see also 66 Fed. Reg. 5413; Growe, 507 U.S. at 34, 122 L.Ed.2d at 400; 1981 USDOJ letter. Although we discern no congressional intent, either express or implied, to preempt the WCP through the operation of the VRA, we also recognize that the WCP may not be interpreted literally because of the VRA and "one-person, one-vote" principles. See Guerra, 479 U.S. at 280-81, 93 L.Ed.2d at 623; 1981 USDOJ letter. Federal law, therefore, preempts the State Constitution only to the extent that the WCP actually conflicts with the VRA and other federal requirements relating to state legislative redistricting and reapportionment. See Guerra, 479 U.S. at 281,93 L.Ed.2d at 623. It remains possible, therefore, to comply with both the VRA and the WCP as reconciled with other provisions of state law. See Florida Lime, 373 U.S. at 142, 10 L.Ed.2d at 256-57. Our interpretation of the WCP does not create a conflict with the VRA, nor does it frustrate the objectives and purposes of federal law. See id. Accordingly, the contention that the WCP is wholly unenforceable as a matter of federal preemption analysis is untenable.
In addition to our obligation to ensure that the WCP complies with federal law, it must also be reconciled with other legal requirements of the State Constitution. In this respect, an application of the WCP that abrogates the equal right to vote, a fundamental right under the State Constitution, must be avoided in order to uphold the principles of substantially equal voting power and substantially equal legislative representation arising from that same Constitution.
Without question, the intent of the WCP is to limit the General Assembly's ability to draw legislative districts without according county lines a reasonable measure of respect. Prior to the imposition of "one-person, one-vote" and VRA requirements, implementation of the provision was simple and straightforward. However, despite the advent of the VRA and "one-person, one-vote" principles, we are not permitted to construe the WCP mandate as now being in some fashion unmanageable, or to limit its application to only a handful of counties. Any attempt to do so would be an abrogation of the Court's duty to follow a reasonable, workable, and effective interpretation that maintains the people's express wishes to contain legislative district boundaries within county lines whenever possible. As we stated in State ex rel Martin v. Preston, "Progress demands that government should be further refined in order to best respond to changing conditions. Several provisions of our Constitution provide the elasticity which ensures the responsive operation of government." Preston, 325 N.C. at 458, 385 S.E.2d at 484.
To accomplish this task, we accept the obvious: that in the absence of large multi-member districts, the ability to substantially preserve external county boundaries while complying with the VRA, "one-person, one-vote," and State equal protection requirements, would be impossible without the ability to draw single-member districts within counties or aggregated groups of counties. As a result, the WCP is interpreted consistent with federal law and reconciled with equal protection requirements under the State Constitution by requiring the formation of single-member districts in North Carolina legislative redistricting plans. The boundaries of such single-member districts, however, may not cross county lines except as outlined below.
Consistent with the legal analysis set forth above, we direct the trial court, during the remedial stage of the instant proceeding, to ensure that redistricting plans for the North Carolina Senate and North Carolina House of Representatives comply with the following requirements.
On remand, to 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. 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.
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 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.
This Court has verified independently that the above requirements of the State Constitution, including the WCP and the Equal Protection Clause, can in fact be reconciled and applied in a manner consistent therewith, as well as with federal requirements, including the VRA and "one-person, one-vote" principles. This verification was achieved through use of a software program which is used by the General Assembly during the redistricting process and which the General Assembly makes generally available to members of the public.
The General Assembly optimally should be afforded the first opportunity to enact new redistricting plans for the North Carolina Senate and North Carolina House of Representatives based on the 2000 census and the constitutional requirements which we have upheld in this opinion. Defendants have represented, however, that there is insufficient time for the General Assembly to enact new plans for use in the 2002 election cycle. Accordingly, we direct the trial court to conduct a hearing, on an expedited basis, on the question of the feasibility of allowing the General Assembly the first opportunity to develop new redistricting plans. The General Assembly should be accorded the first opportunity to draw the new plans if so doing will not disrupt the timing of the 2002 general election. In the event defendants are unable to demonstrate that the General Assembly is able to develop new redistricting plans in accordance with the timetable established by the trial court, the trial court is authorized and directed to seek proposed remedial plans, review and adopt temporary or interim remedial plans for the North Carolina Senate and North Carolina House of Representatives, and seek preclearance thereof, for use in the 2002 election cycle.
The trial court should consider whether a court-appointed expert would be of assistance in ensuring compliance with federal law and state constitutional requirements. See N.C.G.S. § 8C-1, Rule 706 (1999).
In this event, the General Assembly shall be accorded the opportunity to enact new redistricting plans, consistent with the constitutional requirements set forth herein, during its 2003 session.
Based upon our thorough review of the extensive materials filed in this Court in this case, we believe that the people's insertion of a whole-county requirement within their Constitution was not an historical accident. Rather, we believe that this provision was inserted by the people of North Carolina as an objective limitation upon the authority of incumbent legislators to redistrict and reapportion in a manner inconsistent with the importance that North Carolinians traditionally have placed upon their respective county units in terms of their relationship to State government. Enforcement of the WCP will, in all likelihood, foster improved voter morale, voter turnout, and public respect for State government, and specifically, the General Assembly as an institution; will assist election officials in conducting elections at lower cost to the taxpayers of this State; and will instill a renewed sense of community and regional cooperation within the respective countywide or regionally formed legislative delegations mandated by the WCP. For instance, there will again be countywide delegations and, in rural areas, contiguous multi-county delegations in the General Assembly, which, in working with legislative delegations from other regions of the State, can more effectively work together in a positive manner on matters of mutual concern to citizens of our State.
Accordingly, the orders of the trial court below are affirmed as modified, the stay issued by this Court is lifted, and the trial court is authorized to enter such further orders as necessary to implement our holdings in this opinion.
We have reviewed and considered all other issues and assignments of error presented by the parties and conclude that they do not need to be addressed in order to effect a full and proper resolution of this case.
AFFIRMED AS MODIFIED.
Pursuant to Rule 32 of the North Carolina Rules of Appellate Procedure, the mandate of this opinion is expedited and shall issue at 12:00 o'clock noon on 3 May 2002.