USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 1 of 97

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1095

RODNEY D. PIERCE; MOSES MATTHEWS,

Plaintiffs – Appellants,

v.

THE NORTH CAROLINA STATE BOARD OF ELECTIONS; ALAN HIRSCH, in his official capacity as Chair of the North Carolina State Board of Elections; JEFF CARMON, III, in his official capacity as Secretary of the North Carolina State Board of Elections; STACY "FOUR" EGGERS, IV, in his official capacity as a member of the North Carolina State Board of Elections; KEVIN LEWIS, in his official capacity as a member of the North Carolina State Board of Elections; SIOBHAN MILLEN, in her official capacity as a member of the North Carolina State Board of Elections; PHILLIP E. BERGER, in his official capacity as President Pro Tem of the North Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives,

Defendants – Appellees.

------------------------------

ROY A. COOPER, III; JOSHUA STEIN,

Amici Supporting Appellants.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:23-cv-00193-D-RN)

Argued: February 15, 2024 Decided: March 28, 2024 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 2 of 97

Before WILKINSON, GREGORY, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the majority opinion, in which Judge Wilkinson joined. Judge Gregory wrote a dissenting opinion.

ARGUED: Elisabeth S. Theodore, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Phillip John Strach, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Edwin M. Speas, Jr., POYNER SPRUILL LLP, Raleigh, North Carolina; R. Stanton Jones, Samuel I. Ferenc, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Thomas A. Farr, Alyssa M. Riggins, Cassie A. Holt, Alexandra M. Bradley, NELSON MULLINS RILEY & SCARBOROUGH LLP, Raleigh, North Carolina; Richard B. Raile, Katherine L. McKnight, Trevor M. Stanley, Benjamin D. Janacek, Washington, D.C., Patrick T. Lewis, Cleveland, Ohio, Rachel Palmer Hooper, Tyler G. Doyle, BAKER & HOSTETLER LLP, Houston, Texas, for Appellees. Joshua H. Stein, Attorney General, Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, Lindsay Vance Smith, Deputy Solicitor General, South A. Moore, Deputy General Counsel, Mary Elizabeth D. Reed, Solicitor General Fellow, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Amici Curiae.

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RUSHING, Circuit Judge:

North Carolinians are currently going to the polls to vote in primary elections for

their state senators, among many other public offices. 1 Each voter casts a ballot for a

candidate to represent their respective district among the State’s 50 Senate districts, as

recently reconfigured by the General Assembly in October 2023. In November,

Plaintiffs—two North Carolina voters—sued the State Board of Elections and its members,

along with the President pro tempore of the North Carolina Senate and the Speaker of the

North Carolina House of Representatives, alleging that the boundaries of Senate Districts

1 and 2 in eastern North Carolina violate Section 2 of the Voting Rights Act of 1965 (VRA).

In addition to permanent injunctive relief, Plaintiffs also sought a preliminary injunction

barring use of Senate Districts 1 and 2 and ordering use of new districts drawn by Plaintiffs

in the 2024 elections.

After conducting a hearing and considering all the parties’ evidence, the District

Court for the Eastern District of North Carolina denied the requested preliminary

injunction. The district court concluded that Plaintiffs have not shown the extraordinary

circumstances necessary to justify disrupting the status quo before trial; that Plaintiffs have

not proven they are likely to succeed on the merits of their VRA claim; and that equitable

factors, including proximity to the 2024 elections, counsel against preliminary injunctive

1 In the time since this opinion was written, the primary election has ended, the county boards of elections have conducted their post-election canvass, and the state and county boards of elections have certified the final results in all contests. Voting in runoff primaries, if any, will begin in April. 3 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 4 of 97

relief. Plaintiffs appealed, and we granted their motion to expedite our review. We now

affirm the judgment of the district court and remand for continued proceedings.

I.

Plaintiffs challenge the electoral map the North Carolina General Assembly enacted

in Senate Bill 758 (SB 758) in 2023. That map wasn’t drawn in a vacuum, so we begin

with some legal and historical context.

A.

Under the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution, “districting maps that sort voters on the basis of race ‘are by their very

nature odious.’” Wis. Legislature v. Wis. Elections Comm’n,

(2022)

(per curiam) (quoting Shaw v. Reno,

(1993)). States cannot enact such

maps “‘unless they are narrowly tailored to achieving a compelling state interest.’”

(quoting Miller v. Johnson,

(1995)). At the same time, compliance with

the VRA “often insists that districts be created precisely because of race.” Abbott v. Perez,

(2018). “In an effort to harmonize these conflicting demands,” the

Supreme Court has assumed that complying with the VRA, and Section 2 in particular, is

a compelling interest.

; Wis. Legislature,

.

As relevant here, a State violates Section 2 of the VRA “if, based on the totality of

circumstances, it is shown that the political processes leading to nomination or election in

the State or political subdivision are not equally open to participation by members of a

[racial minority group] in that its members have less opportunity than other members of

the electorate to participate in the political process and to elect representatives of their

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choice.”

(b). The Supreme Court has construed Section 2 “to prohibit

the distribution of minority voters into districts in a way that dilutes their voting power.”

Wis. Legislature,

. In Thornburg v. Gingles,

(1986), the

Supreme Court articulated a framework for demonstrating this sort of violation. “First,

three ‘preconditions’ must be shown: (1) The minority group must be sufficiently large and

compact to constitute a majority in a reasonably configured district, (2) the minority group

must be politically cohesive, and (3) a majority group must vote sufficiently as a bloc to

enable it to usually defeat the minority group’s preferred candidate.” Wis. Legislature,

(quoting Gingles, 478 U.S. at 50–51); see also Allen v. Milligan,

, 1503 (2023). Then, “a plaintiff who demonstrates the three preconditions must also

show, under the ‘totality of circumstances,’ that the political process is not ‘equally open’

to minority voters.” Milligan, 143 S. Ct. at 1503 (quoting Gingles, 478 U.S. at 45–46).

Before a State may engage in race-based districting, it must have “‘a strong basis in

evidence’ for concluding that [Section 2] required its action,” i.e., “that it would transgress

the [VRA] if it did not draw race-based district lines.” Cooper v. Harris,

(2017) (quoting Ala. Legislative Black Caucus v. Alabama,

(2015)). Put differently, the Equal Protection Clause “does not allow a State to adopt a

racial gerrymander that the State does not, at the time of imposition, ‘judg[e] necessary

under a proper interpretation of the VRA.’” Wis. Legislature,

(quoting

Cooper,

).

A state legislature attempting to produce a districting plan that comports with both

the Equal Protection Clause (which “restricts consideration of race”) and the VRA (which

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“demands consideration of race”) is thus “vulnerable to ‘competing hazards of liability.’”

Perez,

(quoting Bush v. Vera,

(1996) (plurality

opinion)). Over the past three decades, the North Carolina General Assembly has

attempted to navigate those hazards with mixed success. A brief survey of its efforts

provides helpful context for understanding the current case.

B.

Though we could go back further, 2 we begin in 2003 when the North Carolina

General Assembly adopted a redistricting plan that divided Pender County in southeastern

North Carolina between two state House districts. See Pender County v. Bartlett, No.

04CVS06966,

(N.C. Super. Ct. Jan. 9, 2006). Pender County sued,

arguing the 2003 redistricting plan violated the North Carolina Constitution’s Whole

County Provision, which prohibits counties from being divided “in the formation of a

representative district.” N.C. Const. art. II, § 5(3); see also id. § 3(3) (same, Senate

districts). The State defended the map as an effort to comply with Section 2 of the VRA

by creating a crossover district—i.e., a district in which the minority population is not a

2 In the 1990 redistricting cycle, North Carolina created two majority-minority congressional districts in response to the Attorney General’s preclearance demand under Section 5 of the VRA. The ensuing lawsuit resulted in the Supreme Court’s first case recognizing a racial gerrymandering claim. In Shaw v. Reno,

(1993), the Court held that challengers to North Carolina’s two majority-minority districts stated a claim under the Equal Protection Clause. The Supreme Court subsequently invalidated one of those congressional districts because it was not narrowly tailored to the State’s asserted interest in complying with Section 2 of the VRA. Shaw v. Hunt,

(1996). After North Carolina redrew that congressional district, a district court held it unconstitutional and the Supreme Court reversed, concluding that the district court clearly erred in finding that race, rather than politics, predominantly explained the district’s boundaries. Easley v. Cromartie,

, 243–244 (2001). 6 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 7 of 97

majority but is large enough to elect the candidate of its choice with help from voters who

are members of the majority and who cross over to support the minority’s preferred

candidate. See Pender County v. Bartlett,

(N.C. 2007) (“Past election

results in North Carolina demonstrate[d] that a legislative voting district with . . . an

African-American voting age population of at least 38.37 percent, create[d] an opportunity

to elect African-American candidates,” so “the General Assembly fashioned House District

18 with . . . an African-American voting age population of 39.36 percent” to create an

“effective black voting district.” (internal quotation marks omitted)).

The Supreme Court rejected the State’s VRA defense, explaining that “Section 2

does not impose on those who draw election districts a duty to give minority voters the

most potential, or the best potential, to elect a candidate by attracting crossover voters.”

Bartlett v. Strickland,

(2009) (plurality opinion). Instead, the Court held

that the first Gingles precondition requires “the minority population in the potential

election district [to be] greater than 50 percent.”

. Because Section 2 did not

require crossover districts, it could not justify a violation of state law, namely the Whole

County Provision.

; see also

(“If § 2 were interpreted to require crossover

districts throughout the Nation, it would unnecessarily infuse race into virtually every

redistricting, raising serious constitutional questions.” (internal quotation marks omitted)).

The General Assembly then adopted a policy of creating majority-minority districts.

In the 2011 redistricting plans, the legislature created twenty-three majority-black state

House districts and nine majority-black state Senate districts. Covington v. North Carolina,

(M.D.N.C. 2016) (three-judge district court), aff’d,

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(2017) (mem.). A group of voters challenged twenty-eight of those districts, which

included northeastern counties relevant to this case. Id. at 128, 142, 151–152, 159. The

State defended the districts as an effort to comply with Section 2 of the VRA. A three-

judge panel rejected the State’s defense under the third Gingles precondition and declared

the maps unconstitutional. Id. at 124. The panel reasoned that the General Assembly did

not have “a strong basis in evidence” for thinking that racial bloc voting operated at such

a level as “would enable the majority usually to defeat the minority group’s candidate of

choice” in those districts. Id. at 167. The mere existence of racially polarized voting was

not enough. Id. at 167–168. And evidence demonstrated that minority-preferred

candidates “were already consistently winning” in the challenged areas without majority-

minority districts. Id. at 172–173; see id. at 126.

Another lawsuit challenged two majority-minority congressional districts in the

2011 redistricting plan, one of which (CD1) included multiple northeastern counties at

issue in this case. Harris v. McCrory,

(M.D.N.C. 2016) (three-

judge district court); see also Cooper, 137 S. Ct. at 1483–1484. It met the same fate as the

suit challenging the state legislative districts. A three-judge panel concluded that “there

[was] no evidence that the white majority votes sufficiently as a bloc to enable it . . . usually

to defeat the minority’s preferred candidate” in CD1. Harris,

(internal quotation marks omitted). In fact, the evidence “vividly demonstrate[d]” that

“significant crossover voting by white voters” occurred in CD1.

; see also

(“For decades, African-Americans enjoyed tremendous success in electing their

preferred candidates in former versions of CD 1 and CD 12 regardless of whether those

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districts contained a majority black voting age population.”). The Supreme Court agreed.

Cooper,

. Electoral history “provided no evidence that a § 2 plaintiff

could demonstrate the third Gingles prerequisite” for CD1. Id. at 1470. Rather, the

evidence showed that “the district’s white population did not vote sufficiently as a bloc to

thwart black voters’ preference.” Id. (internal quotation marks and brackets omitted). As

a result, the State had “no reason to think that the VRA required it” to create a majority-

black district to avoid Section 2 liability. Id.; see also id. at 1471 (“North Carolina too far

downplays the significance of a longtime pattern of white crossover voting in the area that

would form the core of the redrawn District 1.”).

For the 2017 remedial redistricting after Covington, the General Assembly

implemented a policy forbidding consideration of race. North Carolina v. Covington,

(2018) (per curiam). Yet the “dizzying succession of litigation” over

North Carolina’s electoral districts continued—now on a partisan gerrymandering theory.

Common Cause v. Lewis, No. 18 CVS 014001,

, at *1 (N.C. Super. Ct.

Sept. 3, 2019). A state court declared the partisan gerrymandering theory justiciable under

the North Carolina Constitution and ordered the General Assembly to revise its state House

and Senate districting maps.

, *135–137. As part of the remedial phase of that

litigation, the state court endorsed the analysis of the plaintiffs’ experts that, based on the

minimum black voting-age population necessary for black voters to elect their candidates

of choice, Gingles would not justify any majority-black district in any of the areas at issue

there.

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A few years later, the General Assembly’s 2021 redistricting plan for congressional,

state House, and state Senate districts (which was also drawn without racial data) met with

another partisan gerrymandering lawsuit. See N.C. League, of Conservation Voters, Inc.

v. Hall, No. 21 CVS 015426,

, at *1–3 (N.C. Super. Ct. Jan. 11, 2022).

The case made its way to the North Carolina Supreme Court, which affirmed the

justiciability of the partisan gerrymandering claims under the State’s constitution. Harper

v. Hall,

, 559 (N.C. 2022) (Harper I). The court ordered the maps intended

for the 2022 election to be redrawn. Id.; see also Harper v. Hall,

, 161–162

(N.C. 2022) (Harper II) (reviewing constitutionality of remedial maps after 2022

elections).

Not long after, however, the North Carolina Supreme Court granted rehearing in

Harper I and reversed course. Harper v. Hall,

, 416 (N.C. 2023) (Harper

III). The court held that partisan gerrymandering claims “are nonjusticiable, political

questions under the North Carolina Constitution.”

It further ordered that, because both

the 2021 and 2022 maps were the byproduct of a “mistaken understanding of the North

Carolina Constitution,” the General Assembly “shall have the opportunity to enact a new

set of legislative and congressional redistricting plans” guided by federal and state law.

at 446–448 (referring to maps required by erroneous decisions in Lewis and Harper I).

C.

Taking that opportunity, the General Assembly went back to the drawing board and

emerged with a new set of maps to be used for the 2024 elections. See

(establishing congressional districts), 146 (establishing Senate districts), 149

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(establishing House districts). This case concerns only the Senate district map, which

began as SB 758. 3

The General Assembly “did not use racial data” when drawing the Senate map. J.A.

643; see Pierce v. N.C. State Bd. of Elections, --- F. Supp. 3d ---,

, at *4

(E.D.N.C. Jan. 26, 2024) (finding that “the General Assembly did not have race in the

computer when it created the Senate, House, and Congressional redistricting plans in

2023”). Instead, the General Assembly considered other factors, including preserving

communities of interest, following traditional redistricting principles, and adhering to the

Whole County Provision.

This case concerns Senate District 1 (SD1) and Senate District 2 (SD2) in

northeastern North Carolina. SD1 contains Bertie, Camden, Currituck, Dare, Gates,

Hertford, Northampton, Pasquotank, Perquimans, and Tyrrell Counties.

. “SD1 kept together four of North Carolina’s five finger counties,” and “many

SD1 residents in these counties work or travel frequently to the Virginia Tidewater region.”

Pierce,

, at *4 (internal quotation marks omitted). Seven of SD1’s ten

counties and 81 percent of its population “are in the Norfolk, Virginia media market.”

SD2 contains Carteret, Chowan, Halifax, Hyde, Martin, Pamlico, Warren, and Washington

Counties.

. “SD2 follows the Roanoke River from Warren

County to Washington County.” Pierce,

, at *4. “Five of SD2’s eight

3 This is not the only case challenging the maps adopted in 2023. See Complaint, Williams v. Hall, No. 1:23-cv-01057-TDS-JLW (M.D.N.C. Dec. 4, 2023); Complaint, N.C. State Conf. of the NAACP v. Berger, No. 1:23-cv-01104-WO-LPA (M.D.N.C. Dec. 19, 2023). However, this is the only case seeking preliminary injunctive relief. 11 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 12 of 97

counties are in the Greenville, North Carolina media market.”

And SD1 and SD2 “both

include their respective incumbent senator’s residence.”

“Before the General Assembly enacted SB 758 in October 2023, [it] held public

hearings throughout North Carolina, including one in Elizabeth City in northeast North

Carolina, to gather public input on the proposed Senate districts.”

The General

Assembly “also accepted public comments through an online portal” on its website.

After legislators publicly filed the bill, but before enacting it, they directed legislative staff

to “load racial data” into the map software, overlay it on the maps, and “make that

information publicly available on the General Assembly website as soon as possible.” J.A.

645. The Senate Committee on Redistricting and Elections then set a public hearing for

the following week to “consider any evidence that a member of [the] committee or a third

party advocating altering plans for racial reasons brings forth that provides a strong basis

in evidence that the Gingles preconditions are present in a particular area of the [S]tate” so

as to warrant “amending the districts” to satisfy Section 2 of the VRA. J.A. 645–646.

Plaintiffs did not submit any evidence to the Committee. The Southern Coalition

for Social Justice submitted a letter to the Committee stating that SD1 and SD2 would

dilute the voting strength of black voters but did not request a majority-black district. See

Letter from S. Coal. for Soc. Just., to Sen. Phil Berger et al. 2 (Oct. 22, 2023). Instead, the

Coalition proposed that any potential vote dilution could be resolved by changing SD1 and

SD2 to match former Senate Districts 1 and 3 under the 2022 remedial map.

.

Former Senate Districts 1 and 3 involved the same counties as SD1 and SD2, and,

according to the Coalition, the former grouping provided black voters “with an opportunity

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to elect a candidate of their choice” due to crossover voting.

at 3–4. SB 758 was not

amended, and it passed both houses and became law on October 25, 2023. 4

.

The Senate district map remained on the books for roughly one month before being

challenged. On November 20, Rodney Pierce and Matthew Moses, two black voters

residing in SD2, filed this lawsuit alleging that SD1 and SD2 diluted the voting strength of

black voters in northeastern North Carolina in violation of Section 2 of the VRA. Plaintiffs

sought declaratory relief, preliminary and permanent injunctions barring the State from

“enforcing or giving effect to” SD1 and SD2, and any “actions necessary to order the

adoption of a valid state Senate plan . . . in time to use the remedial plan in the 2024 Senate

elections.” J.A. 32. Two days later, Plaintiffs moved for a preliminary injunction barring

enforcement of SD1 and SD2 and ordering “immediate use of Plaintiffs’ proposed remedial

districts (labeled Demonstration Districts B-1 and B-2)” instead of SD1 and SD2, along

with “use of Districts 3-50 from the 2023 enacted map” for the rest of the State. Dist. Ct.

Dkt. ECF No. 16 at 2.

Legislative Defendants opposed the preliminary injunction motion, 5 and Plaintiffs

filed a reply on December 26. On December 29, the district court indicated that it had

questions for the advocates and scheduled a hearing on the motion for January 10, 2024.

4 Because the Governor cannot veto redistricting legislation, the bill took effect upon passage. See N.C. Const. art. II, § 22(5). 5 The North Carolina State Board of Elections and its members have consistently taken no position on the merits of Plaintiffs’ motion for preliminary injunctive relief or Plaintiffs’ appeal. 13 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 14 of 97

The same day, Plaintiffs filed an appeal to this Court, claiming that the district court had

functionally denied their preliminary injunction motion by scheduling a hearing. We

dismissed the appeal for lack of jurisdiction.

“[M]indful of the time sensitive nature of the issues in this case,” the district court

proceeded with the preliminary injunction hearing while it waited for this Court’s mandate

to issue. J.A. 852. About two weeks later, the district court issued a fulsome, sixty-nine-

page opinion denying Plaintiffs preliminary injunctive relief. As an initial matter, the court

observed that Plaintiffs were requesting the creation of “a racially gerrymandered majority-

black Senate district in northeast North Carolina” even though: “the 2024 Senate elections

are underway”; there was “no evidence . . . the General Assembly in 2023 [had] a strong

basis in evidence to believe that Section 2 required [it] to create a majority-black Senate

district in northeast North Carolina”; “insufficient evidence shows that Section 2 requires

a majority-black Senate district in northeast North Carolina”; and “federal litigation from

2011 to 2016 helped to show that there was not legally significant racially polarized voting

in North Carolina, including in the counties in northeast North Carolina at issue in this

case.” Pierce,

, at *1.

Moving through the detailed layers of legal requirements that Plaintiffs must satisfy,

the district court rejected Plaintiffs’ arguments at nearly every step of the analysis. At the

outset, the court determined that Plaintiffs’ request for injunctive relief sought to alter

rather than maintain the status quo and that they failed to justify such an extraordinary form

of relief. Even so, the court went on to analyze Plaintiffs’ motion under the traditional test

for preliminary injunctions. It concluded Plaintiffs failed to show a likelihood of success

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on the merits and a likelihood of irreparable harm because they had not satisfied all three

Gingles preconditions required to prevail under Section 2. The court assumed Plaintiffs’

Demonstration District A satisfied the majority-minority requirement under the first

Gingles precondition but held that Demonstration District B-1 did not because it has a black

voting-age population (BVAP) of less than 50 percent. Legislative Defendants did not

contest the second Gingles precondition, so the court found it satisfied. As for the third

Gingles precondition, the court held that Plaintiffs failed to demonstrate legally significant,

as opposed to statistically significant, racially polarized voting. Moreover, even if

Plaintiffs had satisfied all three Gingles preconditions, the court found that they had failed

to show under the totality of circumstances that the political process is not equally open to

minority voters. Most of the applicable factors in the totality of circumstances inquiry

either weighed against or did not support Plaintiffs, and the court found that “partisanship

better explains polarized voting in North Carolina than race.”

.

Despite concluding that Plaintiffs were unlikely to succeed on the merits or suffer

irreparable harm, the district court went on to balance the equities, which, again, disfavored

preliminary injunctive relief. Plaintiffs had delayed filing a complaint. The State would

suffer irreparable harm if it were precluded from enforcing the Senate district map while

the litigation proceeded. And, most importantly, preliminary injunctive relief would

violate the Purcell principle, which cautions courts against enjoining state election laws in

the period close to an election. See Purcell v. Gonzalez,

, 4–5 (2006) (per

curiam); Merrill v. Milligan,

, 880–881 (2022) (Kavanaugh, J., concurring).

Plaintiffs appealed, and we have jurisdiction under

(a)(1).

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II.

In challenging the district court’s denial of preliminary injunctive relief, Plaintiffs

shoulder a heavy burden on appeal. A preliminary injunction is “an extraordinary remedy”

that “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

Winter v. Nat. Res. Def. Council, Inc.,

(2008). Thus, Plaintiffs can prevail

only if it is clear that they are “likely to succeed on the merits,” that they are “likely to

suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips

in [their] favor, and that an injunction is in the public interest.”

.

Moreover, Plaintiffs seek a particularly aggressive form of preliminary injunction,

one that is “‘disfavored’” in “‘any circumstance.’” League of Women Voters of N.C. v.

North Carolina,

(4th Cir. 2014) (quoting Taylor v. Freeman,

, 270 n.2 (4th Cir. 1994)). Plaintiffs are not asking the Court to maintain the status quo

until after a trial and final judgment, which is the traditional function of a preliminary

injunction. See Pashby v. Delia,

(4th Cir. 2013). Rather, Plaintiffs seek

an order altering the status quo before the case even begins, what we have called a

“mandatory” injunction. League of Women Voters,

. Mandatory

preliminary injunctions are “warranted only in the most extraordinary circumstances.”

Taylor,

n.2; see also Wetzel v. Edwards,

(4th Cir. 1980)

(“Mandatory preliminary injunctions do not preserve the status quo and normally should

be granted only in those circumstances when the exigencies of the situation demand such

relief.”).

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Plaintiffs dispute that they seek a mandatory injunction. But plainly the Senate

district map adopted in SB 758 is already in place and constitutes the status quo. The

General Assembly adopted that map in October 2023, and it was uncontested for a month

before Plaintiffs sued. See League of Women Voters,

(defining the status

quo as “the last uncontested status between the parties which preceded the controversy”

(internal quotation marks omitted)); Wise v. Circosta,

, 98 (4th Cir. 2020) (en

banc) (explaining that “the state’s action” in an election procedures case “establishes the

status quo”). This case is not like League of Women Voters, where the plaintiffs filed suit

“the very same day [the challenged law] was signed.”

.

Plaintiffs’ assertion that maps used in 2020 (two revisions ago) are the status quo

cannot be taken seriously. Even if that were the case—and it obviously is not—Plaintiffs

don’t seek to preserve that supposed status quo. They do not ask the Court to reinstate the

2020 Senate district map (or even the 2022 map) but instead seek to impose an entirely

different map: one that implements their Demonstration Districts B-1 and B-2. Thus, even

under Plaintiffs’ own mistaken conception of the status quo, they clearly request court

action to alter it while this case is pending. Simply put, Plaintiffs seek an (extra)

extraordinary remedy that raises the stakes of an erroneous decision and erects a high bar

for relief.

On top of the high standard for obtaining a mandatory preliminary injunction,

Plaintiffs must also overcome a deferential standard of appellate review. We review the

denial of a preliminary injunction for “whether the record shows an abuse of discretion by

the district court, not whether [we] would have granted or denied the injunction.” Wetzel,

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. Pursuant to this standard, we review legal conclusions de novo and factual

findings for clear error. Pashby,

. Whether vote dilution has occurred is

“peculiarly dependent upon the facts of each case.” Gingles,

. So, like all

other factual findings, “[t]he [d]istrict [c]ourt’s determination whether the § 2 requirements

are satisfied must be upheld unless clearly erroneous.” League of United Latin Am.

Citizens v. Perry (LULAC),

(2006). Our mere disagreement with the

district court does not make its findings clearly erroneous. “If the district court’s account

of the evidence is plausible in light of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently.” Williams v. Martorello,

(4th Cir. 2023) (quoting United States v. Hall,

(4th Cir. 2012)). Indeed,

“[w]here there are two permissible views of the evidence, the [district court’s] choice

between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

(1985).

III.

The district court determined that Plaintiffs had failed to demonstrate the

extraordinary circumstances necessary for a preliminary injunction that would disrupt the

status quo and compel the race-based sorting of voters for the 2024 Senate elections in

North Carolina while this case remains pending. Because the court ruled against Plaintiffs

on all four preliminary injunction requirements, Plaintiffs necessarily dispute the court’s

assessment of each one on appeal. We will address the requirements in pairs: first the

18 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 19 of 97

likelihood of success and irreparable harm, and then the balance of hardships and the public

interest.

A.

A plaintiff seeking a preliminary injunction must make a clear showing that he is

likely to succeed at trial and to suffer irreparable harm in the absence of preliminary relief.

Winter,

; Pashby,

. Plaintiffs contend that “they will be

irreparably harmed if they are forced to vote in a district that dilutes their votes in violation

of the VRA.” Dist. Ct. Dkt. ECF No. 17 at 27. The district court determined that, because

Plaintiffs were unlikely to succeed on the merits of their Section 2 claim, they also had

failed to demonstrate they will suffer irreparable harm absent an order preliminarily

enjoining SB 758 for the 2024 Senate elections. The parties agree that, in this case, these

two requirements rise or fall together. Therefore, like the district court and the parties, we

focus on whether Plaintiffs have made a clear showing that they are likely to succeed on

the merits of their Section 2 vote dilution claim. 6

To make that showing, Plaintiffs were required to demonstrate a likelihood of

success on all three Gingles preconditions as well as the ultimate totality of circumstances

inquiry. After lengthy analysis, the district court assumed without deciding that Plaintiffs’

6 Legislative Defendants briefly contend that Plaintiffs lack a private cause of action to enforce Section 2 and urge us to affirm on that alternative basis. See Ark. State Conf. NAACP v. Ark. Bd. of Apportionment,

, 1206–1207 (8th Cir. 2023). The district court did not address this argument, and we decline to resolve it in the first instance on the thin briefing provided. 19 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 20 of 97

Demonstration District A 7—which Plaintiffs offered “solely for illustrative purposes to

satisfy Gingles One” and not “for use in any election,” Dist. Ct. Dkt. ECF No. 42 at 5—

satisfied the first Gingles precondition that black voters be a sufficiently large and

geographically compact group to constitute a majority in a reasonably configured district. 8

As for the second precondition, the district court found Plaintiffs likely to succeed in

7 Plaintiffs’ Demonstration District A consists of some counties from SD1, some from SD2, and Vance County, which is in Senate District 11. Plaintiffs proposed Demonstration District A in isolation, without accounting for changes that would be necessary in the remainder of the Senate map to accommodate that hypothetical district. Legislative Defendants argued that Demonstration District A was not a reasonably configured district under the first Gingles precondition. According to Legislative Defendants’ expert, moving Vance County out of Senate District 11 would leave that district without sufficient population to support a single Senate district and lead to “a cascade of changes that are difficult to sort out,” requiring a new statewide Senate districting plan. Pierce,

, at *14 (internal quotation marks omitted). Doing so would disrupt North Carolina’s traditional redistricting principles, including respect for county groupings throughout the State, and potentially dismantle crossover districts neighboring existing SD1 and SD2. Although the district court did not resolve these disputes at this juncture, it found that Legislative Defendants’ arguments “ha[d] force.”

. 8 By contrast, the district court concluded that Plaintiffs’ Demonstration District B- 1 was unlikely to satisfy the first Gingles precondition because black voters were not more than 50 percent of the voting-age population of that hypothetical district. See Strickland, 556 U.S. at 19–20 (“It remains the rule . . . that a party asserting § 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent.”). According to Plaintiffs, the BVAP of Demonstration District B-1 was 48.41 percent and the black citizen voting-age population (black CVAP) of that proposed district was 50.19 percent. The district court declined to use the CVAP statistic “[a]t this preliminary stage” because of uncertainty about its reliability and accuracy. Pierce,

, at *17. As the court explained, it had unanswered questions about the significant margins of error in the CVAP data set, and Plaintiffs had not explained how they arrived at their black CVAP figures, why BVAP and black CVAP differed in the proposed district, or why CVAP would be more accurate for this population. But the court left open the possibility that, “[a]fter discovery, [P]laintiffs may be able to demonstrate why the court should use black CVAP and why black CVAP is higher than BVAP in Demonstration District B-1.”

20 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 21 of 97

showing that black voters in North Carolina are a “‘politically cohesive’” group whose

members “‘usually vote for the same candidates.’” Pierce,

, at *17

(quoting Gingles,

). Plaintiffs’ evidence faltered, in the district court’s

estimation, on the third Gingles precondition and the totality of circumstances inquiry. We

turn to those requirements now.

1.

The third Gingles precondition requires Plaintiffs “‘to demonstrate that the white

majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred

candidate.’” Milligan, 143 S. Ct. at 1503 (quoting Gingles,

). This requires

“racial bloc voting that is ‘legally significant,’” not merely statistically significant.

Covington,

(quoting Gingles,

). “‘[I]n the absence of

significant white bloc voting it cannot be said that the ability of minority voters to elect

their chosen representatives is inferior to that of white voters.’” Voinovich v. Quilter,

(1993) (quoting Gingles,

n.15). And “[i]n areas with

substantial crossover voting”—that is, white voting for minority-preferred candidates—“it

is unlikely that the plaintiffs would be able to establish the third Gingles precondition.”

Strickland,

. “The key inquiry under Gingles’ third factor, then, is whether

racial bloc voting is operating at such a level that it would actually ‘minimize or cancel . . .

[minority] voters’ ability to elect representatives of their choice,’ if no remedial district

were drawn.” Covington,

(quoting Gingles,

).

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a.

The district court concluded that Plaintiffs, “[a]t this stage of the case,” had failed

to make a clear showing they are likely to succeed on the third Gingles precondition.

Pierce,

, at *22. Plaintiffs presented a report from one expert, Dr. Matt

Barreto, assessing racially polarized voting for purposes of Gingles’ third precondition.

But the district court found Barreto’s report unreliable, incomplete, and contradicted by

other evidence.

Unreliable. Barreto performed ecological inference statistical models across 31

recent elections in 2020 and 2022, including statewide elections and elections in the

“Northeast region” of North Carolina, which he defined to include some but not all counties

in SD1 and SD2 as well as other counties not within those districts. J.A. 273. Based on

those models, Barreto reported that between 80 and 88 percent of white voters in this

“Northeast region” vote against black voters’ candidate of choice. Barreto also reported

that black voters’ candidates of choice would have lost SD1 and SD2 in all but one election

if those districts were in place in 2020 and 2022.

The one election a black-preferred candidate would have won according to Barreto

was the 2022 state Senate race in SD2. The district court found this fact significant, noting

that Barreto’s analysis of the 2022 Senate race in SD2 was one of just four elections he

analyzed that most directly concerned whether black voters could elect Senate candidates

of choice in SD1 and SD2—i.e., the reconstituted 2020 SD1 and SD2 Senate elections and

the reconstituted 2022 SD1 and SD2 Senate elections.

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At the hearing, the district court asked Plaintiffs about “this startling piece of

[P]laintiffs’ evidence,” and “Plaintiffs responded that this figure must have been a typo.”

Pierce,

, at *18. The court granted Plaintiffs’ request to supplement

Barreto’s report. In his supplemental declaration, however, Barreto stated that this figure

was not a typo. Instead, he opined that this figure resulted from a methodological flaw in

his original analysis. As Barreto explained, his model excluded consideration of votes cast

in uncontested elections, which allegedly skewed his results. Barretto claimed that, if votes

in uncontested elections had been included in his analysis, his model would have predicted

a loss for the black-preferred candidate in SD2 in 2022. Barreto did not discuss what effect,

if any, this methodological shift would have on his other electoral predictions about SD1

and SD2, particularly the endogenous state House and Senate elections.

The district court was deeply troubled by Barreto’s changing methods and

outcomes. From the court’s perspective, Barreto’s “belated explanation undercuts all of

[his] conclusions by demonstrating that fuller data sets could change his estimated

outcomes.”

. Finding “profound discrepancies” between the methods of analysis

performed in Barreto’s initial report and supplemental declaration, the district court was

left wondering “why the court should credit any of his estimated outcomes for elections in

SD2.”

At a minimum, the district court reasoned that the questions raised by Barretto’s

supplemental declaration demonstrated “that this case would greatly benefit from

discovery,” including Barreto’s deposition and complete data files.

As the court put it,

“[t]his hotly contested factual issue weighs in favor of the court preserving the status quo

ante litem.”

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Incomplete. The district court also found Barreto’s attempt to show legally

significant racially polarized voting incomplete without a “‘district effectiveness analysis,’

which is ‘a district-specific evaluation used to determine the minority voting-age

population level at which a district becomes effective in providing a realistic opportunity

for . . . voters of that minority group to elect candidates of their choice.’”

(quoting

Covington,

n.46). As the court explained, legally significant white bloc

voting does not exist where crossover white voting enables black-preferred candidates to

succeed. See Cooper, 137 S. Ct. at 1471–1472; Strickland, 556 U.S. at 15–16; Gingles,

. And Section 2 “does not require crossover districts.” Strickland,

. Thus, a district effectiveness analysis can support the third Gingles precondition by

showing that “black voters’ candidates of choice cannot win elections” “‘without a VRA

remedy,’” that is, a district in which the “BVAP . . . exceeds 50% plus one vote.” Pierce,

, at *19 (quoting Covington,

).

The district court observed that, in Covington and Lewis, courts held that the North

Carolina General Assembly had failed to justify using race to create majority-black House

and Senate districts because it presented no evidence that majority-black districts were

necessary for black-preferred candidates usually to win—i.e., a district effectiveness

analysis. See, e.g., Covington,

(faulting map designer for “not

conduct[ing] any district effectiveness analysis prior to drawing the districts”); Lewis,

, at *100 (faulting legislators for not producing evidence “to establish the

minimum African-American percentage of the voting age population (‘BVAP’) needed in

any particular area of the State for the African American community to be able to elect the

24 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 25 of 97

candidate of its choice”). Without a proper district effectiveness analysis, the district court

reasoned, the General Assembly could not use Section 2 to justify creating a majority-black

district, whether on its own initiative or at the insistence of Plaintiffs.

Looking at the analysis Barreto did provide, the district court found it to “suggest[]

that a proper district effectiveness analysis for [P]laintiffs’ demonstration districts likely

would yield a [BVAP] below 50% which provides ‘a realistic opportunity for . . . voters of

that minority group to elect candidates of their choice.’” Pierce,

, at *20

(quoting Covington,

n.46). For example, Barreto estimated that black

voters’ candidates of choice would have won every endogenous and exogenous election in

Demonstration District B-1 in 2020 and 2022, even though that district had a BVAP of

48.41 percent.

Contradicted by other evidence. Finally, the district court found that other evidence

of white crossover voting cast doubt on Plaintiffs’ attempt to satisfy the third Gingles

precondition. For example, for the 2022 congressional elections, North Carolina’s first

congressional district contained all the counties in Demonstration District A and

Demonstration District B-1. Congressional District 1 had a BVAP of approximately 40

percent and in 2022 elected Congressman Don Davis, a black Democrat. This evidence of

white crossover voting in northeastern North Carolina, including in the counties at issue in

Plaintiffs’ proposed remedial districts, was relevant to the court’s assessment of Plaintiffs’

evidence. Further, the court noted Plaintiffs’ implicit concession that legally significant

racially polarized voting does not exist in neighboring Senate District 5. And scatterplots

aggregating electoral outcomes in Barreto’s report showed that black voters’ candidates of

25 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 26 of 97

choice begin winning precincts in the North Carolina counties at issue here when BVAP

meets or exceeds 30 to 40 percent.

In conclusion, “[o]n the current record,” the district court found:

(1) “the black voting-age population in the counties at issue in this case live and work in” “‘communities in which [they] are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice’”; and

(2) “the white voting-age population in the communities at issue do not vote as a bloc against black-preferred candidates to enable the white bloc usually to defeat the black-preferred candidates.”

at *21 (quoting Johnson v. De Grandy,

(1994)).

b.

On appeal, Plaintiffs largely argue as though we may decide the facts anew—they

urge us to find certain facts more persuasive than others, attempt to rehabilitate Barreto’s

report, and present new evidence to bolster their case. But we are legally obligated to

decline their invitation to “reweigh the evidence presented to the district court,” as that is

not our function. United States v. Charleston County,

, 349 (4th Cir. 2004).

The Supreme Court has instructed that we must uphold the district court’s “determination

whether the § 2 requirements are satisfied . . . unless [it is] clearly erroneous.” LULAC,

; Milligan, 143 S. Ct. at 1506 (same, at preliminary injunction stage). A

district court’s Section 2 findings may be “certainly disputable” without being “clearly

mistaken.” Charleston County, 365 F.3d at 349.

After careful review, we conclude Plaintiffs have not shown reversible legal error

or clear factual error in the district court’s assessment of the third Gingles precondition.

26 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 27 of 97

Many of Plaintiffs’ arguments on appeal are better directed to the district court on remand

after the parties develop the facts in discovery. Nevertheless, we briefly address each of

Plaintiffs’ principal points.

Barreto’s performance analysis. Recognizing the centrality of the district court’s

concerns about the reliability of Barreto’s predicted outcomes for elections in SD1 and

SD2, Plaintiffs emphasize that the statewide elections he analyzed were not affected by the

alleged methodological flaw because each of those elections was contested. Plaintiffs

imply the district court should not have been so concerned about the reconstituted 2020

and 2022 Senate elections for SD1 and SD2 because Barreto asserted that statewide

elections were more probative than endogenous ones. At the same time, Plaintiffs double

down on the accuracy of Barreto’s report that the black-preferred candidate would have

won SD2 in 2022 by emphasizing that his supplemental declaration “did not suggest that

he was wrong to have excluded votes in uncontested contests” or “that uncontested

elections should be included.” Pls. Opening Br. 36.

The district court did not clearly err in finding Barreto’s analysis of how SD1 and

SD2 would have performed in the 2020 and 2022 state Senate elections to be important for

proving the third Gingles precondition, including Barreto’s assessment—which Plaintiffs

stand by on appeal—that the black-preferred candidate would have won SD2 in 2022. Nor

was it clear error for the district court to consider those results more probative than

exogenous statewide elections. See, e.g., Johnson v. Hamrick,

(11th

Cir. 1999) (concluding that “viewing endogenous elections as more probative than

exogenous elections” was not clear error); Bone Shirt v. Hazeltine,

, 1021

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(8th Cir. 2006) (stating that exogenous elections “hold some probative value” but “are not

as probative as endogenous elections”). And although Barreto’s supplemental declaration

mentioned the statewide contests, it did not address whether his alternative analysis of

uncontested elections, based on a different data set than was first provided, would change

the results for other reconstituted 2020 and 2022 endogenous elections in SD1 and SD2,

like the other state Senate and House races. That legitimately raised the question whether

other changes might result from further examination of Barreto’s methods and opinions

during his anticipated deposition and cross-examination as this case progresses.

Furthermore, we accord special deference to a district court’s valuation of expert

opinion and credibility. See Hendricks v. Cent. Rsrv. Life Ins.,

(4th Cir.

1994). A district court is not obligated to credit the opinions of an expert witness when it

has serious doubts about the expert’s methodology, other evidence contradicts the expert’s

opinions, and the expert’s response to questioning raises more questions than it answers.

Cf. United States v. Hasson,

(4th Cir. 2022). Plaintiffs’ response to the

district court’s question about Barreto’s reconstituted 2022 Senate election result in SD2—

first claiming it was a typo, then retracting that explanation and claiming that a different

data set produces the opposite result—raised an inference that, at best, Plaintiffs didn’t

understand their own data and, at worst, Plaintiffs’ expert could selectively change his

predicted outcomes to suit the exigencies of the moment. At bottom, Barreto’s response

to the district court’s question created enough uncertainty that the court was quite

reasonably unwilling to rely exclusively on Barreto’s analysis (as the only expert Plaintiffs

offered to opine on white bloc voting) to find the third Gingles precondition satisfied. See

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Perez, 138 S. Ct. at 2333 (“Courts cannot find § 2 effects violations on the basis of

uncertainty.”).

Evidence not presented to the district court. Plaintiffs attempt to bolster Barreto’s

performance analysis by reference to a “StatPack” on the General Assembly’s website that

reports partisan election results for the 2023 Senate districts using 2020 and 2022 statewide

races. This evidence was not before the district court, so it could not have clearly erred by

failing to consider it. 9 Plaintiffs do not explain why they chose not to present this evidence

to the district court, so we will not consider it for the first time on appeal.

Barreto’s racial polarization analysis. As an alternative to Barreto’s performance

analysis, Plaintiffs claim that his “statistically significant finding of racially polarized

voting in North Carolina statewide as well as within the Northeast region” is sufficient, by

itself, to prove the third Gingles precondition. J.A. 280. Plaintiffs are wrong. While

“evidence of especially severe racially polarized voting . . . can help support finding the

existence of Gingles’ third factor,” a “general finding regarding the existence of any

racially polarized voting, no matter the level, is not enough.” Covington,

(emphasis added) (internal quotation marks omitted). As the Supreme Court has

explained, “statistically significant racially polarized voting” in past elections can

demonstrate “that in North Carolina, as in most States, there are discernible, non-random

9 Plaintiffs cite United States v. Gregory,

(4th Cir. 1989), for the proposition that the Court there relied on “judicially-noticeable data ‘not suppl[ied] below’ to find clear error.” Pls. Reply 14. We did nothing of the sort. Instead, we judged the district court in clear error for refusing to consider “statistical data presented [to it] by the Government.” Gregory,

. 29 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 30 of 97

relationships between race and voting,” but “that generalized conclusion fails to

meaningfully (or indeed, at all) address the relevant local question” whether, in the new

district, “black voters would encounter sufficient white bloc-voting to cancel their ability

to elect representatives of their choice.” Cooper,

n.5 (internal quotation

marks, brackets, and alterations omitted). Even Plaintiffs acknowledge elsewhere in their

briefing that something further is necessary to “transform[] statistically significant racially

polarized voting . . . into legally significant racially polarized voting.” Pls. Reply 13.

Plaintiffs claim that Barreto’s racial polarization statistics are similar to those in

Milligan and Charleston County, but that comparison fails for multiple reasons. Most

importantly, in neither appeal was it disputed that white bloc voting usually defeated the

election of minority-preferred candidates, so the Court did not opine on the evidence

necessary to carry the plaintiffs’ burden. See Milligan, 143 S. Ct. at 1505–1506;

Charleston County, 365 F.3d at 349. Moreover, the expert evidence in the cases is quite

different. Barreto analyzed two election years, focused largely on exogenous elections,

and reported the results in purely partisan terms. To the extent he reported data for the

“Northeast region,” that grouping included 11 of the 18 counties in SD1 and SD2 and one

(for Northeast-1) to three (for Northeast-2) counties that are not in either district. By

comparison, the expert in Milligan analyzed seven biracial endogenous elections in the

districts at issue and six biracial exogenous elections, over four election cycles. See

Singleton v. Merrill,

, 967–968 (N.D. Ala. 2022) (three-judge district

court); see also United States v. Charleston County,

(D.S.C.

2003) (discussing expert analysis of 31 contested county council elections over sixteen

30 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 31 of 97

years in the county at issue in assessing the extent of racial polarization). Significant

quantitative and qualitative differences between the evidence in these cases render

Plaintiffs’ comparative argument for clear error unpersuasive.

Perhaps recognizing that Barreto’s racial polarization findings, by themselves, do

not answer the relevant question for the third Gingles precondition, Plaintiffs proffer new

calculations—apparently conducted by counsel—to make their case. Obviously, we

cannot find new facts on appeal, much less uncritically accept attorney argument as though

it were expert opinion. See Long v. Hooks,

, 463 (4th Cir. 2020) (en banc)

(“[I]t is elemental that counsel’s arguments are not evidence in a case.”); Columbus-

America Discovery Grp. v. Atl. Mut. Ins. Co.,

, 575–576 (4th Cir. 1995) (“It is

a basic tenet of our legal system that . . . [appellate courts] do not make [factual] findings

in the first instance.”). If Plaintiffs have new evidence, they can present it to the district

court at the proper time as this litigation progresses.

Absence of district effectiveness analysis. Plaintiffs next contend that the district

court asked too much of their expert by faulting him for not conducting a district

effectiveness analysis. As the district court observed, Section 2 does not “require the

creation of crossover districts in the first instance.” Strickland,

; see

at

6–9 (rejecting North Carolina’s defense that the VRA required it to draw a crossover

district). Further, “‘[i]n areas with substantial crossover voting,’ § 2 plaintiffs would not

‘be able to establish the third Gingles precondition’ and so ‘majority-minority districts

would not be required.’” Cooper,

(quoting Strickland,

).

Consequently, courts have repeatedly rejected arguments that Section 2 required North

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Carolina to draw majority-minority districts when the State lacked evidence that such

districts were necessary for black-preferred candidates to win. See id.; Covington, 316

F.R.D. at 168–169; Lewis,

, at *100. A district effectiveness analysis,

as envisioned by the district court, is designed to answer that question by determining the

BVAP at which a district provides a realistic opportunity for black voters to elect their

candidates of choice, thereby providing insight into whether black voters’ candidates of

choice “would usually be defeated without a VRA remedy.” Covington,

.

As an example of the usefulness of this evaluation, the district court referenced a district

effectiveness analysis from the Lewis litigation in North Carolina. The court found

Barreto’s failure to conduct such an analysis to be “another deep flaw” in his report. Pierce,

, at *20.

Plaintiffs argue that the district court legally erred by stating that they could not

show legally significant racially polarized voting without a district effectiveness analysis.

As Plaintiffs point out, courts have found VRA violations in other cases without a district

effectiveness analysis, so it is hardly an across-the-board requirement. Yet Plaintiffs have

not shown that the district court misunderstood the requirements of the third Gingles

precondition or its application here. Courts in North Carolina have previously faulted

experts for concluding that sufficient white bloc voting exists to usually defeat black-

preferred candidates without first conducting this type of analysis. See, e.g., Covington,

; Lewis,

, at *100. The results of such an assessment

do not cease being probative for the third Gingles precondition simply because the

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litigation roles are reversed—i.e., here it is Plaintiffs, not the State, who advocate for a

majority-minority district drawn on the basis of race.

The district court’s inaccurate implication that a district effectiveness analysis is

required for proving a VRA violation in every Section 2 case is not a basis for reversing its

denial of a preliminary injunction. Plaintiffs have not shown that the court’s case-specific

assessment—that the absence of a district effectiveness analysis affected the

persuasiveness of Barreto’s opinions—was erroneous. And that determination was not the

sole, or even primary, reason for the district court’s skepticism of Barreto’s opinions.

Tweaking the district court’s statement to acknowledge that a district effectiveness analysis

is probative, but not required in all cases, does not make Plaintiffs’ evidence more likely

to succeed in proving the third Gingles precondition.

Demonstration District B-1. Somewhat relatedly, Plaintiffs briefly take issue with

the district court’s observation that their claim is undermined by Barreto’s conclusion that

black voters’ candidates of choice would have won every election in 2020 and 2022 in

Demonstration District B-1, a crossover district. As Plaintiffs put it, “[t]hat a 48% BVAP

district would perform does not save the 30% BVAP districts” currently in place. Pls.

Reply 21. We think Plaintiffs have missed the court’s point. The district court did not

suggest that Demonstration District B-1’s performance foreclosed Plaintiffs’ claim.

Rather, the court made the significantly milder point that crossover voting in

Demonstration District B-1 was probative of crossover voting in the counties at issue.

Lack of white bloc voting in surrounding counties and overlapping districts.

Finally, Plaintiffs make arguments about the relative strength of inferences to be drawn

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from other evidence of crossover voting, like Barreto’s scatterplots, Senate District 5, and

the historical performance of Congressional District 1. None of this shows clear error.

Plaintiffs also fault the district court for not mentioning the 2022 Senate race in former

Senate District 3, which covered seven of the same counties as current SD1 (with the other

counties falling in SD2). The black-preferred candidate lost that election even though,

Plaintiffs claim, Senate District 3’s BVAP was 42.33 percent. This single historical data

point does not show that the district court clearly erred in finding that Plaintiffs were not

likely to succeed in proving Gingles’ third precondition. Of course, the district court will

consider this evidence, along with all the other evidence, as the case proceeds on the merits.

2.

The district court’s ruling on the third Gingles precondition was sufficient to deny

relief. Yet the court also ruled, in the alternative, that even if Plaintiffs were likely to

succeed on all three Gingles preconditions, they nevertheless had not shown a likelihood

of success on the ultimate totality of circumstances inquiry.

“[S]imply clearing the Gingles hurdles, while necessary to prove a possible

violation of § 2, is not sufficient to establish an actual violation.” Charleston County, 365

F.3d at 348. To prove an actual violation, a plaintiff who demonstrates the three

preconditions must also show, “based on the totality of circumstances, . . . that the political

processes leading to nomination or election . . . are not equally open to participation by”

minority voters.

(b); see also Perez,

(“If a plaintiff

makes that showing [under the three preconditions], it must then go on to prove that, under

the totality of the circumstances, the district lines dilute the votes of the members of the

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minority group.”). To guide the totality of circumstances analysis, the Supreme Court has

referred to factors identified in the Senate Report on the 1982 amendments to the VRA.

Gingles, 478 U.S. at 36–37, 43–46. These so-called Senate factors are “neither

comprehensive nor exclusive.” Id. at 45. “[A]ny circumstance that has a logical bearing

on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.”

Brnovich v. Democratic Nat’l Comm.,

(2021); see also LULAC,

(considering proportionality between number of minority districts and

minority share of statewide population); Charleston County, 365 F.3d at 347, 352–353

(considering whether partisanship rather than race caused racially polarized voting).

There is “no requirement that any particular number of factors be proved, or that a

majority of them point one way or the other.” Gingles,

(internal quotation

marks omitted). The inquiry is “flexible” and “fact-intensive” and “requires an intensely

local appraisal” that benefits from “the trial court’s particular familiarity with the

indigenous political reality.”

(internal quotation marks omitted); see Milligan,

143 S. Ct. at 1503 (“[T]he totality of circumstances inquiry recognizes that application of

the Gingles factors is peculiarly dependent upon the facts of each case.” (internal quotation

marks omitted)). It is therefore the province of the district court.

“[O]ur function is not to reweigh the evidence presented to the district court.”

Charleston County, 365 F.3d at 349. Indeed, “[t]he Supreme Court has been explicit that

. . . we may set aside a trial court’s finding of vote dilution only if it is clearly erroneous,”

id., or rests on an error of law, see Gingles, 468 U.S. at 79. The district court here

thoroughly examined the “current preliminary and hotly contested record” and found that

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Plaintiffs had not made a clear showing they were likely to succeed in the totality of

circumstances inquiry. Pierce,

, at *28. Plaintiffs dispute this finding on

appeal, and we consider their arguments in three groups below.

a.

We begin with the Senate factors, which the district court outlined as follows:

(1) the extent of the state’s historical discrimination concerning the right to vote against plaintiffs’ minority group; (2) the extent of racially polarized voting; (3) the extent to which the state has adopted other voting practices that may exacerbate discrimination against the minority group; (4) whether members of plaintiffs’ minority group have been denied access to a candidate slating process; (5) whether members of plaintiffs’ minority group in the state “bear the effects of discrimination” in education, employment, or health, hindering their ability to participate in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; (7) the extent to which members of plaintiffs’ minority group have been elected to public office in the jurisdiction; (8) whether there is a significant lack of responsiveness by the state’s elected officials to the “particularized needs” of plaintiffs’ minority group; and (9) whether the state’s policy underlying its use of the challenged voting procedure is tenuous.

at *22 (quoting Gingles, 478 U.S. at 36–38). The court then analyzed Plaintiffs’

evidence concerning each one.

Under the first factor, the court gave “little weight” to Plaintiffs’ evidence of

historically discriminatory practices and cases because it was “very old” and

“overwhelmingly outdated”—Plaintiffs cited “just one case from the last 30 years in which

a court found the General Assembly acted with discriminatory intent.”

. On the

second factor, Plaintiffs repeated their arguments about the third Gingles precondition,

which, like the first time around, the district court found unpersuasive. The district court

found the third factor to favor Legislative Defendants because Plaintiffs did not cite any

36 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 37 of 97

evidence that North Carolina “presently employs other voting practices that may enhance

the opportunity for discrimination against black voters.”

Plaintiffs conceded the fourth

factor did not apply. The fifth factor “d[id] not help” Plaintiffs because, while Plaintiffs’

expert identified socioeconomic disparities, she did not demonstrate “that race

discrimination by North Carolina caused the socioeconomic disparities.”

Regarding

the sixth factor, racial appeals in political campaigns, the court gave “little weight” to

examples from 1984 and 1990.

. Of the two modern examples Plaintiffs offered,

the court found one “was not a racial appeal” and the other, assuming it was a racial appeal,

did not “characterize” North Carolina campaigns.

As for the seventh factor—the extent to which members of the minority group have

been elected to public office—the district court acknowledged the opinion of Plaintiffs’

own expert that black members of the North Carolina General Assembly “are ‘close to

parity’ with the share of black people in North Carolina’s population.”

(quoting expert

report); compare J.A. 429–430 (reporting “26 Black House members, or 21.6% of the

chamber,” and “9 Black senators, making up 18.0% of the chamber”), with J.A. 162

(reporting a statewide BVAP of “20.10%”). The court also observed that black North

Carolinians from both political parties occupy significant positions in state government,

including Lieutenant Governor, minority leader of the state Senate, minority leader of the

state House of Representatives, and state appellate judgeships. Moving to the eighth factor,

the court found Plaintiffs offered “no evidence of elected officials’ responsiveness or

unresponsiveness to black voters” but merely “ask[ed] the court to infer” unresponsiveness

based on socioeconomic inequality. Pierce,

, at *24. And, finally, the

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court was unpersuaded by Plaintiffs’ argument on the ninth factor, concluding instead that

the policies underlying the challenged map—compliance with federal law, the state

constitution, and traditional redistricting principles—were not tenuous.

On appeal, Plaintiffs contest the district court’s findings on every single Senate

factor. More often than not, they simply disagree with the weight the district court

accorded their evidence—a textbook factual dispute. See Charleston County, 365 F.3d at

349; Wright v. Sumter Cnty. Bd. of Elections & Registration,

, 1301 (11th

Cir. 2020) (“The clearly-erroneous standard extends . . . to [the district court’s] finding that

different pieces of evidence carry different probative values in the overall section 2

investigation.” (internal quotation marks omitted)). As for the two legal issues they raise,

we find no error in the district court’s analysis.

First, Plaintiffs contend the third Senate factor examines past, not present, voting

practices that enhance the opportunity for voting discrimination. That contravenes Gingles

itself, which looked to other voting procedures in operation at the time of the suit. 478

U.S. at 39–40, 56; see also Charleston County, 365 F.3d at 351 (assessing

contemporaneous electoral structure). Considering current practices makes sense, as the

third factor is concerned with whether other voting practices or procedures amplify the

discriminatory effect of the challenged voting procedure. And, as the district court

reasoned, a purely backward-looking analysis would replicate the first factor, with its focus

on historical discrimination concerning the right to vote.

Second, we reject Plaintiffs’ argument that the district court legally erred by

considering under the seventh factor the successful election of black candidates statewide

38 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 39 of 97

and not merely in the challenged districts. See Gingles,

, 74–75 (assessing

“the extent to which blacks have been elected to office in North Carolina, both statewide

and in the challenged districts”). Indeed, Plaintiffs themselves focused exclusively on

evidence of statewide underrepresentation in their briefing to the district court on this point,

noting that North Carolina has never had a black governor or black United States Senator. 10

The remainder of Plaintiffs’ arguments are an attempt to relitigate the significance

of each piece of evidence they put before the district court. But it is emphatically not our

duty “to duplicate the role of the lower court.” Anderson,

. That admonition

is especially salutary at this preliminary stage, when the case will return to the district court

for final fact finding on a more fulsome record after discovery and trial. As always, it

matters not how we would have evaluated the evidence in the first instance but only

whether the district court’s assessment was “plausible.” Cooper,

(internal quotation marks omitted). “‘Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Brnovich,

(quoting Anderson,

). That remains true “even when the

district court’s findings do not rest on credibility determinations, but are based instead on

. . . documentary evidence or inferences from other facts.” Anderson,

.

Plaintiffs fall well short of identifying “clearly mistaken” factual findings by the district

10 Equally baseless is Plaintiffs’ assertion, under the ninth factor, that North Carolina’s interests in complying with federal constitutional prohibitions against racial gerrymandering and state constitutional prohibitions against splitting counties are illegitimate considerations. Cf. Brnovich, 141 S. Ct. at 2339–2340 (considering “the strength of the state interests served by a challenged voting rule” and “the reason for the rule”). 39 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 40 of 97

court, much less error sufficient to call into question the court’s ultimate conclusion.

Charleston County, 365 F.3d at 349. We nevertheless briefly address Plaintiffs’ factual

arguments.

On the first Senate factor, Plaintiffs take issue with the district court calling their

evidence of historical discrimination “outdated” and giving it “little weight.” It is

imminently reasonable to conclude that recent history is more persuasive of whether “the

political process is . . . equally open to minority voters” than history far more removed.

Milligan, 143 S. Ct. at 1503 (internal quotation marks omitted); cf. Shelby County v.

Holder,

(2013) (striking down Section 4(b) of the VRA because “the

conditions that originally justified these measures no longer characterize voting in the

covered jurisdictions”).

As for more recent history of voting-related discrimination, the evidence Plaintiffs

highlight on appeal is a mixed bag. Plaintiffs flag Department of Justice objection letters

“[f]rom 1980 to 2013” to election law changes in North Carolina and note that “[s]ome” of

those objections asserted the General Assembly acted with discriminatory intent. Pls.

Opening Br. 43–44. Plaintiffs stress this Court’s finding that the General Assembly

enacted certain voting changes in 2013 with “discriminatory intent” after requesting racial

data, but the Court was also careful to disclaim any suggestion that legislators acted with

“racial hatred or animosity.” N.C. State Conf. of NAACP v. McCrory,

(4th Cir. 2016); see also Covington,

n.1 (“[W]e make no finding

that the General Assembly acted in bad faith or with discriminatory intent.”); Harris,

(making “no finding” regarding legislators’ “good faith”). The district

40 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 41 of 97

court acknowledged that decision, and Plaintiffs have not shown clear error in the court’s

weighing of their evidence on this factor as a whole.

Similarly for the second Senate factor: the record at this preliminary stage shows

that the extent of racially polarized voting, in North Carolina and in the northeastern

counties at issue, is “certainly disputable.” Charleston County, 365 F.3d at 349. As the

district court observed, Plaintiffs’ own evidence demonstrates notable crossover voting

statewide and locally.

As for the fifth factor (the extent to which minority group members “bear the effects

of discrimination” in education, employment, or health, hindering their ability to

participate in the political process) and eighth factor (unresponsiveness by elected officials

to the “particularized needs” of the minority group), on appeal Plaintiffs rely on ipse dixit.

Gingles,

. The district court found that Plaintiffs presented no evidence

connecting the disparities they reported between black and white North Carolinians to

official race discrimination or unresponsive elected officials. Plaintiffs reply not with

evidence but by asserting this is “an obvious reality.” Pls. Opening Br. 49; see

(asserting that “of course” race discrimination by North Carolina caused the disparities).

On this record, we cannot conclude the district court clearly erred.

Finally, on the sixth factor, Plaintiffs have not shown that the district court clearly

erred in finding that political campaigns in North Carolina were not “‘characterized by’”

racial appeals based on the evidence Plaintiffs presented. Gingles,

(quoting

S. Rep. No. 97-417, 97th Cong. 2d Sess. 28, 28–29 (1982)).

41 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 42 of 97

b.

In addition to the Senate factors, the district court also considered whether

partisanship, rather than race, drove polarization in North Carolina. On this point,

Legislative Defendants presented a report from their expert Dr. John Alford. Using the

same election and voter data and employing the same ecological inference method as

Barreto, Alford assessed the effect of race on electoral outcomes.

As the district court recounted, Alford began with two United States Senate

elections, one featuring a white Republican against a white Democrat and another featuring

a white Republican against a black Democrat. Black voters statewide and regionally

supported both Democratic candidates at essentially identical rates. And white voters were

not more likely to oppose a black Democrat compared to a white Democrat—in fact, white

voters were slightly more supportive of the black Democrat in 2022 compared to the white

Democrat in 2020. Alford reached similar results when analyzing state supreme court and

appellate court elections. Again black voters’ support for black and white Democrats was

essentially identical, while white voters were not more likely to oppose a black Democrat

than a white Democrat. And the pattern persisted when Alford evaluated an election

featuring a black Republican against a white Democrat: the black Republican candidate

received no more black voter support and no less white voter support than the average

white Republican candidate. Alford’s analysis of all 2020 and 2022 elections yielded the

same results. White voters supported Republican candidates at essentially the same rate

regardless of their race, and black voters supported Democratic candidates at essentially

the same rate, regardless of their race. Alford opined that, “[i]n contrast to the strong

42 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 43 of 97

impact of candidate party affiliation, . . . the race of the candidates does not appear to have

a polarizing impact on vote choice” but was “essentially indetectable.” J.A. 682. Thus,

Alford concluded, and the district court accepted, “that Dr. Barreto’s analysis ‘clearly

demonstrates that the party affiliation of the candidates is sufficient to fully explain the

divergent voting preferences of Black and White voters in the 2020 and 2022 North

Carolina elections.’” Pierce,

, at *26 (quoting J.A. 687).

Plaintiffs contend that Alford’s analysis is irrelevant, but that argument contradicts

our precedent. “Certainly the reason for polarized voting is a critical factor in the totality

analysis,” including evidence that “partisanship [is] the cause of the racially divergent

voting.” Charleston County, 365 F.3d at 347, 349; see also id. at 348 (reasoning that the

totality of circumstances examination “is tailor-made for considering why voting patterns

differ along racial lines”); Lewis v. Alamance County,

, 615 n.12 (4th Cir. 1996)

(concluding that “causation . . . [is] relevant in the totality of circumstances inquiry”); cf.

Gingles, 478 U.S. at 100–101 (O’Connor, J., concurring in judgment) (explaining that

causation evidence should be part of “the overall vote dilution inquiry”); League of United

Latin Am. Citizens v. Clements,

, 861 (5th Cir. 1993) (concluding that

plaintiffs failed to establish a Section 2 claim where the evidence “unmistakably shows

that divergent voting patterns among white and minority voters are best explained by

partisan affiliation”).

For example, in Charleston County, the district court considered evidence that

minority-preferred minority candidates were defeated more often than minority-preferred

white candidates, and that white voters offered less cohesive support to minority

43 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 44 of 97

Democratic candidates than to white Democratic candidates. 365 F.3d at 353. It was not

clearly erroneous, we explained, for the district court to conclude this evidence cut against

a finding that partisanship was the cause of racially polarized voting. Id. Although caselaw

does not require the minority-preferred candidate to be a member of the minority group, a

model that accounts for the candidate’s race can provide probative evidence about

causation.

Plaintiffs also dispute what conclusions can be drawn from Alford’s analysis and

fault him for failing to further isolate and measure other potential race-based reasons why

black voters prefer Democrats. These arguments go to the persuasiveness of the evidence

and the weight it should receive. Plaintiffs do not identify any legal error or clear factual

error in the district court’s consideration of this evidence; indeed, they aver that Alford’s

analysis supports multiple equally plausible conclusions. It is possible that further expert

discovery will limit the plausible conclusions that can be drawn from the partisanship data,

but the absence of such certainty now simply demonstrates the district court did not clearly

err. See Brnovich,

.

c.

As a final consideration in its totality of circumstances analysis, the district court

reviewed the extended litigation about North Carolina’s congressional and legislative maps

over the years. Plaintiffs do not dispute that the district court could account for this broader

context when examining whether the totality of circumstances proved vote dilution. See

(permitting consideration of “any circumstance that has a logical bearing” on

vote dilution).

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As the district court explained, “[w]hen the General Assembly enacted SB 758 in

October 2023, state and federal courts had repeatedly affirmed that the General Assembly

must draw legislative districts without reference to race because legally significant racially

polarized voting did not exist in North Carolina,” including the northeastern counties at

issue here. Pierce,

, at *28. In case after case, courts struck down North

Carolina’s redistricting efforts premised on VRA compliance. In Strickland, when the

General Assembly disregarded the state constitution’s Whole County Provision to create a

minority crossover district, the Supreme Court held that Section 2 did not justify that

departure. 566 U.S. at 23. In subsequent cases, when the State used race to draw majority-

minority congressional and legislative districts, courts struck down those maps as

unconstitutional, in part because the absence of legally significant racially polarized voting

showed that Section 2 did not justify using race to draw majority-black districts. E.g.,

Cooper, 137 S. Ct. at 1470–1471; Covington, 316 F.R.D. at 167–174; Harris, 159 F. Supp.

3d at 624–625. State courts also limited the General Assembly’s consideration of race

during redistricting. E.g., Harper II, 881 S.E.2d at 180; Lewis,

, at *133.

Plaintiffs quibble with the district court’s statement that Cooper and Harris involved

the same portion of northeastern North Carolina at issue in this case. While the

congressional district featured in Cooper and Harris certainly included parts of counties

not at issue here, the core of that challenged district consisted of the entirety of Bertie,

Halifax, Hertford, Northampton, and Warren Counties (the only whole counties in that

district) and parts of other counties involved here. See Cooper,

. Those

counties are the heart of Plaintiffs’ dispute. Plaintiffs’ argument also obscures a broader

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point. The fact that prior cases involved other counties in addition to the ones at issue here

simply supports an inference that crossover voting occurs in many parts of the State,

including northeastern North Carolina.

* * *

In sum, Plaintiffs have not identified any misunderstanding of law or clearly

erroneous fact undergirding the district court’s alternative conclusion that, based on the

evidence presented thus far, Plaintiffs are unlikely to succeed in proving vote dilution under

the totality of circumstances. The court engaged in an “intensely local appraisal” of the

practical and functional political realities in North Carolina, and specifically northeastern

North Carolina, and avoided giving any one factor conclusive weight. Charleston County,

365 F.3d at 349, 351 (internal quotation marks omitted). The district court judged this

“preliminary and hotly contested record,” Pierce,

, at *28, insufficient to

justify ordering the North Carolina General Assembly to make “the drastic decision to draw

lines” on the basis of race for the 2024 state Senate elections, Perez,

;

see Strickland,

(“[R]acial classifications are permitted only as a last resort.”

(internal quotation marks omitted)). We see no reversible error.

B.

We turn now to the remaining requirements for a preliminary injunction. Plaintiffs

must show “that the balance of equities tips in [their] favor” and “that an injunction is in

the public interest.” Winter,

. These “factors ‘merge when the Government

is the opposing party.’” Miranda v. Garland,

(4th Cir. 2022) (quoting

Nken v. Holder,

(2009)). The district court concluded that the equities

46 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 47 of 97

favor Legislative Defendants and that “the Purcell principle”—that “‘federal district courts

ordinarily should not enjoin state election laws in the period close to an election’”—

“teaches that a federal court should not issue the requested mandatory federal preliminary

injunction of North Carolina’s 2024 Senate elections.” Pierce,

, at *29

(quoting Milligan,

(Kavanaugh, J., concurring)). We see no abuse of

discretion in the district court’s conclusions.

Redistricting “is primarily the duty and responsibility of the State,” and “[f]ederal-

court review of districting legislation represents a serious intrusion on the most vital of

local functions.” Miller,

(internal quotation marks omitted). Enjoining

North Carolina from enforcing its duly enacted redistricting law in the 2024 state Senate

elections would inflict “a form of irreparable injury.” Maryland v. King,

(2012) (Roberts, C.J., in chambers) (“Any time a State is enjoined by a court from

effectuating statutes enacted by representatives of its people, it suffers a form of irreparable

injury.” (internal quotation marks and brackets omitted)). Not to mention the practical

effects of an injunction on the State’s sound and orderly administration of the 2024 Senate

election, which we will discuss momentarily.

On the other side of the balance, Plaintiffs rightly emphasize that the public interest

favors protecting federally guaranteed voting rights. But Plaintiffs have not shown that

they are likely to prevail on their Section 2 claim or suffer irreparable harm.

By contrast, the district court found it significant that, at the time the General

Assembly voted SB 758 into law, it did not have a “strong basis in evidence” to conclude

that “Section 2 required a majority-black Senate district in northeast North Carolina.”

47 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 48 of 97

Pierce,

, at *29; see also Cooper,

. And without a

strong basis for concluding that the VRA required race-based districting, the General

Assembly was forbidden by the Equal Protection Clause from taking such action. Cooper,

137 S. Ct. at 1463–1464. If a federal court were to intervene and order the General

Assembly to create districts hitting a racial quota, it would create the real risk of imposing

racially gerrymandered districts for the 2024 Senate election, should Plaintiffs’ Section 2

claim ultimately fail on the merits. Such a result is obviously not in the public interest.

See Leaders of a Beautiful Struggle v. Balt. Police Dep’t,

(4th Cir. 2021)

(en banc) (“[I]t is well-established that the public interest favors protecting constitutional

rights.”).

Plaintiffs assert that the six months it took the General Assembly to enact new maps

after the North Carolina Supreme Court authorized it to do so was “an effort to thwart

review” that should be counted against the State in the balance of equities. Pls. Opening

Br. 60. We recognize that the timing of SB 758’s passage in October 2023 set a tight

timeline for any pre-election challenge. But there has been no finding that the General

Assembly acted in bad faith by taking six months to finalize new congressional districts,

state Senate districts, and state House districts. So at this point “the good faith of [the]

state legislature must be presumed.” Miller,

. As for Plaintiffs, the district

court noted that they did not present their views about SB 758 to the legislature while the

bill was under consideration. Instead, Plaintiffs waited 26 days after the General Assembly

enacted SB 758 to file suit and 28 days to seek a preliminary injunction. Weighing all the

48 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 49 of 97

facts, the district court did not abuse its discretion in concluding that inequity would result

if the court enjoined the use of SB 758 in the 2024 Senate elections.

Then there’s Purcell. That name stands for the principle that “federal courts

ordinarily should not enjoin a state’s election laws in the period close to an election,” and

that when “lower federal courts contravene that principle,” the Supreme Court will stop

them. Milligan, 142 S. Ct. at 879–880 (Kavanaugh, J., concurring). “When an election is

close at hand, the rules of the road must be clear and settled. Late judicial tinkering with

election laws can lead to disruption and to unanticipated and unfair consequences for

candidates, political parties, and voters, among others.”

at 880–881. Indeed, “[c]ourt

orders affecting elections . . . can themselves result in voter confusion and consequent

incentive to remain away from the polls,” a risk that increases “[a]s an election draws

closer.” Purcell, 549 U.S. at 4–5.

For example, in Merrill v. Milligan, a federal district court enjoined Alabama from

using its newly drawn congressional districts for the 2022 elections and ordered that the

districts be redrawn when absentee voting in the primary elections was set to begin nine

weeks later. The Supreme Court stayed the injunction, with Justices Kavanaugh and Alito

explaining that “the Purcell principle require[d]” a stay, “‘[g]iven the imminence of the

election and the inadequate time to resolve the factual disputes.’” Milligan,

(Kavanaugh, J., concurring) (quoting Purcell, 549 U.S. at 5–6). In numerous other

cases, the Court has similarly stayed lower court injunctions of state election laws in the

period close to an election. See, e.g., Merrill v. People First of Ala.,

(2020);

Merrill v. People First of Ala.,

(2020); Andino v. Middleton,

49 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 50 of 97

(2020); Republican Nat’l Comm. v. Democratic Nat’l Comm.,

(2020) (per

curiam); Democratic Nat’l Comm. v. Wis. State Legislature,

(2020) (declining

to vacate stay); Miller v. Johnson,

(1994); see also Wise, 978 F.3d at 96,

98–99 (declining to enjoin state election procedure based on Purcell).

The 2024 North Carolina Senate election is well underway. The statewide primary

election is scheduled for March 5, 2024. 11 Candidate filing ended on December 15, 2023.

Absentee ballots were distributed on January 19, 2024. In-person early voting began on

February 15, 2024. The election is not merely “close[],” or even “imminen[t]”—it is

happening right now. Purcell,

.

If a federal court were to enjoin North Carolina from enforcing SB 758 for the 2024

Senate elections, then the court must afford the General Assembly a reasonable opportunity

to redraw the Senate districts, as “it is the domain of the States, and not the federal courts,

to conduct apportionment.” Voinovich,

; see also Covington,

(“[A] legislature’s freedom of choice to devise substitutes for an apportionment plan

found [unlawful], either as a whole or in part, should not be restricted beyond the clear

commands of federal law.” (internal quotation marks omitted)). As the district court

explained, in this counterfactual scenario where a court accepted Plaintiffs’ argument, the

General Assembly “would first have to draw a majority-black VRA district in northeast

North Carolina before drawing non-VRA districts using other state-law redistricting

principles and rules, including county grouping or clustering requirements under”

11 In fact, as of the date this opinion is publicly released, the March 5 primary is over and done. The boards of elections have certified final results. 50 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 51 of 97

Stephenson v. Bartlett,

(N.C. 2002) (Stephenson I). Pierce,

, at *30 (internal quotation marks omitted). For example, if the General Assembly

chose to enact Plaintiffs’ Demonstration District A as a VRA-required majority-black

Senate district, it would “then have to regroup the remaining 92 counties under Stephenson

I and its progeny and redraw all other Senate districts.”

Then the county boards of elections would have to discard completed ballots—both

in-person ballots and absentee ballots, including “the ballots of the numerous North

Carolina citizens in the United States military who are deployed overseas.”

. The

North Carolina Board of Elections would have to conduct its “geocoding process” again to

reassign voters to the proper districts.

New district boundaries would require a fresh

opportunity for candidate filing. The Board would then have to generate, proof, and

distribute new ballots. It would have to move the March primary elections to May or later

and create a new runoff date in July or August. 12

All of this would result in the voter confusion and disruptive consequences the

Purcell principle is designed to avoid. See Purcell, 549 U.S. at 4–5; Milligan, 142 S. Ct.

at 880–881 (Kavanaugh, J., concurring). The district court rightly heeded the Supreme

12 As previously noted, by now the March 5 primary has already occurred.

Of course, Plaintiffs’ complaint seeks permanent injunctive relief barring use of SD1 and SD2 as drawn in SB 758 for “any Senate elections,” not just for the 2024 elections. J.A. 32. Even absent a preliminary injunction, therefore, the district court retains its ability “to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig.,

(4th Cir. 2003). 51 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 52 of 97

Court’s warning against triggering this cascade of election chaos with a preliminary

injunction during the ongoing 2024 Senate elections.

In response, Plaintiffs’ only argument is that the General Assembly could choose to

change the boundaries of only SD1 and SD2 by enacting Plaintiffs’ Demonstration

Districts B-1 and B-2. Plaintiffs note that the Senate candidates currently running for

election in SD1 and SD2 do not face challengers in the primary election, and so, according

to Plaintiffs, this limited remedy would be feasible. We see at least three problems with

Plaintiffs’ argument.

First, the General Assembly does not have to choose Plaintiffs’ proposed remedial

districts, and a federal court should not dictate that it do so when other revisions the

legislature might choose would comply with federal law. See Covington, 138 S. Ct. at

2554–2555; Voinovich,

; Wise v. Lipscomb,

(1978). As

discussed, the General Assembly could choose to enact Demonstration District A or some

other remedial majority-black Senate district in northeastern North Carolina, which would

necessarily affect the boundaries of other districts beyond SD1 and SD2. And, as the

district court observed, “the root cause of any ensuing upheaval would be the federal court

injunction prohibiting the use of SB 758 in the 2024 Senate elections and requiring the

General Assembly to remedy an alleged Section 2 violation.” Pierce,

,

at *32. Because of the domino effect of changing the Senate districting map, we think the

district court was correct that Purcell directs us not to preliminarily enjoin SB 758 at this

late hour. And even if the Purcell principle did not independently bar relief, it is enough

to conclude, as we do, that it counsels against federal court intervention at this point in

52 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 53 of 97

North Carolina’s 2024 Senate election, providing yet another reason why a preliminary

injunction would not serve the public interest.

Second, it may be the case, as Legislative Defendants argue, that the General

Assembly is legally forbidden from adopting Demonstration District B-1. As previously

noted, the North Carolina Constitution prohibits the General Assembly from dividing

counties when drawing legislative districts for the state House and Senate. See N.C. Const.

art. II, §§ 3(3), 5(3). Redistricting plans can “depart from strict compliance” with the

Whole County Provision “only to the extent necessary to comply with federal law,” like

the VRA. Stephenson I,

; see also Pender County,

,

aff’d sub nom. Strickland,

; Stephenson v. Bartlett,

, 251–252

(N.C. 2003) (Stephenson II). In Strickland, the Supreme Court held that the VRA “does

not mandate creating or preserving crossover districts.” 556 U.S. at 23. Consequently,

federal law did not require North Carolina to “override” the Whole County Provision in

that case to retain a crossover district. Id. at 14.

Demonstration Districts B-1 and B-2 split Pasquotank County, in violation of the

Whole County Provision. Plaintiffs claim the VRA requires that departure. But the district

court found, at least on the current record, that Demonstration District B-1 is a crossover

district, not a majority-minority district. In that case, VRA compliance would not require

(and therefore would not justify) departure from the Whole County Provision. See

Stephenson I,

. At this stage of the case, we express no opinion on

Demonstration District B-1’s legality but must acknowledge this potentially fatal flaw in

Plaintiffs’ sole argument for avoiding Purcell.

53 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 54 of 97

Third, even if the General Assembly could enact Demonstration Districts B-1 and

B-2 or choose some other reconfiguration that affects only the eighteen counties in SD1

and SD2 in response to a federal court injunction, the Purcell principle would still counsel

against a mandatory preliminary injunction interfering with the 2024 Senate elections. The

Board of Elections would have to reassign voters. Candidates would have to refile, which

could result in contested primaries in the two new Senate districts. The Board of Elections

would have to generate, proof, and distribute new ballots, schedule any contested primary

elections in these districts for May 2024 or later, and, if a runoff were needed, schedule

and conduct that special election before August 6, 2024, in order to prepare ballots for the

general election. All this would disrupt the orderly election process and sow voter

confusion, with the “consequent incentive to remain away from the polls.” Purcell,

. Even feasible feats can cause the “chaos and confusion” with which Purcell is

concerned. Milligan,

(Kavanaugh, J., concurring).

Finally, Plaintiffs contend that the Purcell principle “might be overcome . . . if a

plaintiff establishes at least the following: (i) the underlying merits are entirely clearcut in

favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction;

(iii) the plaintiff has not unduly delayed bringing the complaint to court; and (iv) the

changes in question are at least feasible before the election without significant cost,

confusion, or hardship.” Id. at 881. Those prerequisites have not been shown here. The

merits of Plaintiffs’ Section 2 claim are not clearcut in their favor, to say nothing of the

other requirements for this potential exception to Purcell’s mandate.

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“North Carolina voters deserve clarity” about their elections. Wise, 978 F.3d at 96.

With the statewide 2024 Senate election underway, candidates and voters alike are now

entitled to the stability and sense of repose that engender trust and confidence in our

elections. The district court did not abuse its discretion by heeding the Supreme Court’s

warnings against federal courts enjoining state election laws in the period close to an

election.

IV.

The denial of preliminary relief is just that: preliminary. It may be that with

discovery and further factual development, Plaintiffs can prove that these two Senate

districts violate Section 2 of the VRA and they are entitled to a majority-minority district

in northeastern North Carolina. But the standard for winning relief before trial and

obtaining concomitant federal court interference with state redistricting decisions while

elections are underway is high indeed, and Plaintiffs have not satisfied it with the record

they have developed thus far. Instead, the legal principles that must govern our decision

direct us not to intervene and order North Carolina to create race-based electoral districts

while this litigation remains pending.

AFFIRMED

55 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 56 of 97

GREGORY, Circuit Judge, dissenting:

In October of last year, the North Carolina General Assembly enacted a map that

cracked the state’s Black Belt 1 right down the middle. Yet the district court concluded that

this new map was unlikely to dilute Black voters’ power. In doing so, it misconstrued the

standard Appellants must meet under Thornburg v. Gingles,

(1986), and

improperly concluded that Appellants had to present a specific type of analysis that neither

this Court nor the Supreme Court has ever required. Further, in balancing the equities of

granting the preliminary injunction, the district court made much of Appellants’ 28-day

delay in bringing the case, without so much as mentioning Appellees’ six-month delay in

enacting the map in the first place. Therefore, I cannot agree with my colleagues that the

district court’s denial of a preliminary injunction was appropriate.

I.

We evaluate a district court’s decision to deny a preliminary injunction for abuse of

discretion, reviewing legal conclusions de novo and the factual findings for clear error.

Although we must accord great deference to the district court under this standard, such

deference is overcome where the district court “based its ruling on an erroneous view of

the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx

Corp.,

(1990); see United States v. Jenkins,

(4th Cir.

1 The Black Belt refers to a region stretching across the South characterized by its “thick, dark, and naturally rich soil.” Booker T. Washington, Up from Slavery: An Autobiography 108 (1st elec. ed. 1997), https://perma.cc/49Z8-NEGN. The counties in the challenged districts are part of this Black Belt region. 56 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 57 of 97

2021). Thus, a district court abuses its discretion where, as here, it misapprehends or

misapplies the applicable law. League of Women Voters of N.C. v. North Carolina,

(4th Cir. 2014); see also Centro Tepeyac v. Montgomery County,

(4th Cir. 2013) (en banc).

II.

As my colleagues explain, the third Gingles precondition requires Appellants to

show that the white majority votes sufficiently as a bloc such that it will usually defeat the

minority-preferred candidate, absent a remedial district. Gingles,

. This

showing, combined with satisfaction of the first two preconditions, establishes that “the

minority [group] has the potential to elect a representative of its own choice in a possible

district, but that racially polarized voting prevents it from doing so in the district as actually

drawn because it is submerg[ed] in a larger white voting population.” Cooper v. Harris,

(2017) (internal quotation omitted) (brackets in original). If a legislature

has reason to believe that all three preconditions are met, “then so too it has good reason

to believe that § 2 requires drawing a majority-minority district.” Id.

A.

For context, it is helpful to compare the challenged map to the map in place before.

Former Senate Districts 1 and 3 (Map A) are made up of the same counties that now constitute

challenged Senate Districts 1 and 2 (Map B). Map A shows that almost all of the northeast

counties with a high Black voting age population are within former Senate District 3. Map B

shows that the district boundary line divides the Black belt into Senate Districts 1 and 2.

57 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 58 of 97

Map A (2022):

J.A. 43.

Map B (2023):

J.A. 20.

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Before addressing the merits, I begin with the legislature’s argument that it was free

not to adopt a majority-minority district because it lacked a “strong basis in evidence” that

Section 2 required one. Leg. Def. Opening Br. at 43.

The district court was convinced by this argument: “Without a contemporaneous

strong basis in evidence in 2023 that Section 2 required the General Assembly to create a

VRA district by grouping citizens by race in order to form a majority-black Senate district,

the General Assembly would have violated the Fourteenth Amendment.” Dist. Ct. Op. at

6. According to the district court, had the General Assembly enacted a map with a

majority-minority district in the region at issue, it would have “committed the same

mistake” as it did when it enacted the 2011 maps. Id. Those maps were struck down as

impermissible racial gerrymanders in Covington v. North Carolina,

, 130–

41, 167–74 (M.D.N.C. 2016), and Harris v. McCrory,

(M.D.N.C.

2016). See Dist. Ct. Op. at 7. In the district court’s view, because there was no evidence

(or, at least Appellants cited none) that “anyone submitted information to the General

Assembly[,] before the General Assembly enacted SB 758 in 2023[,] that Section 2

required a majority-black Senate district in northeast North Carolina,” the General

Assembly wasn’t required to adopt a majority-minority district. Dist. Ct. Op. at 8

(emphasis added).

This misunderstands the standard. It assumes that a legislature cannot violate

Section 2 unless it knows that majority-minority districts are required but fails to enact

them. But Section 2 speaks only of effects—not knowledge. See

(a)

(“No voting . . . procedure shall be imposed or applied by any State or political subdivision

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in a manner which results in a denial or abridgement of the right of any citizen of the United

States to vote on account of race or color . . .” (emphasis added)). So legislatures cannot

claim that they declined to enact majority-minority districts because they received no

evidence that declining to enact them would violate Section 2. If they could, legislatures

could insulate themselves from VRA compliance by remaining ignorant or, more

perniciously, feigning ignorance.

It therefore does not matter that the General Assembly held public hearings to gather

input on the proposed districts or “accepted public comments through an online portal on

the General Assembly’s website.” Dist. Ct. Op. at 8. The legislature cannot outsource its

evidence-gathering duty and then argue that it lacked evidence that a majority-minority

district was required. There is no head-in-the-sand defense to VRA compliance.

Even if there were, the legislature would not be entitled to it here. Legislative

Appellees say they received no evidence “that the Gingles preconditions are present in a

particular area of the state.” Leg. Def. Opening Br. at 10. This is patently false. The

Southern Coalition for Social Justice submitted a 27-page letter, including an expert report

with data analysis of racially polarized voting. See J.A. 280 n.17 (citing Southern Coalition

for Social Justice, Letter re: Racially Polarized Voting in North Carolina and its Effect on

the 2023 Redistricting Plans (Oct. 22, 2023), https://perma.cc/2AQK-SEB7 (last accessed

Mar. 18, 2024)).

That report stated:

Appendix A confirms that the second and third Gingles preconditions are satisfied in Proposed Senate Districts 1 & 2. As discussed above, it is possible to draw reasonably configured Gingles demonstrative districts in

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several areas of North Carolina, each of which would satisfy the first Gingles precondition. This includes the areas covered by Proposed Senate Districts 1 & 2. When combined with the analysis laid out in Appendix A, this shows that all three Gingles preconditions are established in the area covered by Proposed Senate Districts 1 & 2, and when combined with North Carolina’s pervasive history of discrimination in voting, makes clear that enacting Proposed Senate Districts 1 & 2 would violate the VRA.

Southern Coalition Letter at 2–3 (first emphasis added). In other words, the Southern

Coalition for Justice explicitly told the legislature that the proposed map “would violate

the VRA.”

.

The district court also seemed to find it meaningful that the Southern Coalition for

Social Justice “did not request any majority-minority districts,” but instead just “asked that

the county grouping for SD1 and 2 be changed to the alternate county grouping used in

2022.” Dist. Ct. Op. at 9. But majority-minority districts are not the only way to remedy

Section 2 violations. See Cooper,

. More to the point, it does not matter

what remedy a third party requests. Just as the legislature cannot outsource determining

whether its map would violate Section 2, it cannot outsource the task of choosing which

remedial map to adopt.

B.

The third Gingles precondition asks whether white voters in the challenged district

vote sufficiently as a bloc to “thwart[] a distinctive minority vote.” Allen v. Milligan,

(2023) (internal quotation omitted). There is no per se rule for what counts as a

racial bloc. Rather, “bloc voting is a matter of degree.” James Buchwalter, et al., Corpus

Juris Secundum Elections § 96 (2024). Whether statistically significant racially polarized

voting rises to the level of legally significant racially polarized voting hinges on the

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particulars of the evidence in the record. See Gingles, 478 U.S. at 57–58 (“[T]he degree of

racial bloc voting that is cognizable as an element of a § 2 vote dilution claim will vary

according to a variety of factual circumstances. Consequently, there is no simple doctrinal

test for the existence of legally significant racial bloc voting.”). A review of the record

here makes clear that voters in the districts at issue vote in legally significant racial blocs.

Appellants’ expert, Dr. Matt Barreto, conducted two analyses: “a racially polarized

voting analysis using the ecological inference regression technique and a performance

analysis of election outcomes in current Senate Districts 1 and 2 based on the results of

past elections (since Districts 1 and 2 are new).” Pierce Opening Br. at 27.

i.

Ecological Inference Regressions. Ecological inference regressions involve

“compiling data on the percentage of each racial group in a precinct and merging that with

precinct-level vote choice from relevant election results.” J.A. 279 (Barreto report).

Barreto used official election result data, and voter file data obtained from the North

Carolina State Board of Elections. J.A. 273, 279. Voter file data contains information

about the voter’s self-reported race or ethnicity. J.A. 279. Barreto used that data to create

percentages of voter race/ethnicity by voting precinct. He then merged that precinct-level

race/ethnicity data with precinct-level election results from 31 recent North Carolina

elections. J.A. 279.

The results showed that Black voters in the Northeast region “demonstrate unified

and cohesive voting, siding for the same candidates of choice with clear support in the 95%

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range.” J.A. 280. White bloc voting has rates as high as 85% in opposition to minority-

preferred candidates in some instances. J.A. 280.

Specifically, in the elections that most closely resemble “endogenous” elections, 2

State House and State Senate elections in Northeast North Carolina in 2020 and 2022, 98–

99% of Black voters were cohesive in voting for their candidates of choice. J.A. 281. 3 There

is no truly endogenous election data here, of course, because this map creates new districts.

In contrast to Black voters, white voters voted against minority-preferred candidates at rates

between 80 and 88% in State House and State Senate elections. J.A. 281.

In statewide elections, 97–99% of Black voters were unified in their support of their

candidate of choice, while white voters “vote[d] in the exact opposite direction in every

one of these elections.” J.A. 281. In fact, voting was so racially polarized that Barreto’s

scatter plots look like this:

2 An election is endogenous when it was in the same district and for the same office as the election at issue. 3 Barreto’s non-statewide analysis focused only on precincts in certain counties. The “Northeast-1” analysis included all precincts in Bertie, Chowan, Gates, Halifax, Hertford, Martin, Northampton, Pasquotank, Perquimans, Warren, Washington, and Vance. The “Northeast-2” analysis included all those precincts and added all precincts in Pitt and Edgecombe counties. J.A. 280 n.18. Neither Pitt nor Edgecombe is part of the current or proposed maps here. 63 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 64 of 97

J.A. 282–83. These graphs show that each candidate’s percent vote within each precinct

(Y axis) changed almost perfectly in step with change in BVAP (X axis).

Reconstituted Election Analysis. Barreto next drew on precinct data from past elections

to determine whether Appellants’ proposed remedial districts would solve the white bloc

voting issues that exist in the challenged districts. J.A. 291–93. This is called a “reconstituted

election analysis.” It involves “extract[ing] actual election results from a variety of statewide

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and local races that subsume the area being analyzed and determines, precinct-by-precinct

within the proposed district, the racial composition of the vote and the ‘winner’ within the

proposed district.” Buchwalter, Corpus Juris Secundum Elections § 96. It “allows a researcher

to determine how an individual candidate performed within the boundaries of the target district

even though the actual election covered a different geographical area.” Id.

Barreto analyzed precinct data from the precincts in what are now Senate Districts

1 and 2. That data covered 31 elections from 2020 and 2022. See Appendix A. Of those,

27 were for statewide office (e.g., Governor). 4 J.A. 291–93. The remaining four elections

were for State Senate and State House races in current Senate Districts 1 and 2 (two in

2020 and two in 2022). J.A. 291–93. Barreto found that in every election conducted in

Demonstration District A, with a Black CVAP (BCVAP) of 53.1%, J.A. 291, the minority-

preferred candidate would win. 5 J.A. 291–93. The same was true of Demonstration

District B1, with a BCVAP of 50.2%. J.A. 291–93. In Demonstration District B2, where

BCVAP was 12.6%, the minority-preferred candidate lost every time (as would be

expected). J.A. 291–93. And had current Senate Districts 1 and 2 been in place during the

2020 and 2022 elections, the minority-preferred candidate in every single statewide race

would have lost both districts. J.A. 291–93. Of the four non-statewide races, if current

4 Though statewide elections are generally less probative of district elections, litigants “of course, can present statewide evidence in order to prove racial gerrymandering in a particular district.” Ala. Leg. Black Caucus v. Alabama,

(2015). 5 The district court took issue with Appellants’ use of BCVAP (as opposed to BVAP) to show that Demonstration District B-1 satisfied the first Gingles precondition. Dist. Ct. Op. at 31–32. But that is a separate issue from whether BCVAP can be used to demonstrate racial polarization, and the district court raised no concerns with the latter. 65 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 66 of 97

Senate Districts 1 and 2 had been in place, minority-preferred candidates would have lost

three (SD1 in 2020 and 2022 and SD2 in 2020). J.A. 291–93.

ii.

Appellees’ expert, Dr. John Alford, used the same ecological inference technique

that Barreto used (Barreto’s first analysis). J.A. 675. Alford attempted to replicate

Barreto’s ecological inference results by using the election and voter data sources that

Barreto cited. J.A. 678. Alford reported that his “initial replication results [were]

substantively similar to those reported by Dr. Barreto, but [did] not match as precisely as

would be expected based on [his] experience in multiple similar cases.” J.A. 678.

However, Alford explained that these inconsistencies were not surprising because, he

claimed, Barreto did not disclose “input data files or any details of the [ecological

inference] analytical options used” for his report. J.A. 678. 6

iii.

The district court took issue with Appellants’ arguments about the third Gingles

precondition for two main reasons. First, the district court said that Appellants failed to

satisfy the third precondition because Barreto’s analysis did not show that Black voters

would be unable to elect their candidates of choice unless BVAP exceeded 50% plus one.

Second, the district court said, Barreto’s finding and explanation about the results of a

hypothetical election in reconstituted Senate District 2 suggested that there was not racial

bloc voting in that district and that all of Barreto’s other findings were unreliable.

6 The remainder of Alford’s report was mostly about the cause of racial polarization. J.A. 679–85. This is not relevant to the third Gingles precondition. 66 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 67 of 97

Failure to Include District Effectiveness Analysis. The district court legally erred

by assuming that, to prevail on the third Gingles precondition, Appellants must show that

“black voters’ candidates of choice cannot win elections unless BVAP in the contested

districts exceeds 50% plus one vote.” Dist. Ct. Op. at 40–41. The third precondition asks

whether white voting patterns thwart minority voters’ preferences in the contested district

as its demographics currently stand. See Milligan, 599 U.S. at 17–19. The district court

formulated the standard to mean that, if minority voters could elect candidates of their

choice in a counterfactual present district, then minority voters can elect candidates of their

choice in the actual present district. This standard would mean that districts where minority

voters are consistently unable to elect their preferred candidates could stay in place just

because, if the district’s demographics were different, minority voters would be able to

elect their preferred candidates. But the whole point here is that the district’s demographics

aren’t different. And as a result, minority voters cannot elect their candidates of choice.

The district court’s belief that the third Gingles precondition requires showing

“black voters’ candidates of choice cannot win elections unless BVAP in the contested

districts exceeds 50% plus one vote” rested on a misunderstanding of Bartlett v. Strickland.

(2009). Strickland dealt with the first Gingles precondition, which requires that

a minority group show that it is “sufficiently large and geographically compact to constitute

a majority in a single-member district.”

at 11 (quoting Gingles, 478 U.S. at 50–51).

The first Gingles precondition, unlike the third, is about the demographics of a differently

drawn, potentially remedial district. Strickland held that meeting this precondition requires

showing a potential majority-minority district; a district with sufficient white crossover

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voting to elect the minority-preferred candidate will not meet the first precondition.

at

12–14. Strickland also held that, although a legislature may implement a crossover district

as a Section 2 remedy, a legislature cannot be required to do so.

(“[Section] 2

allows States to choose their own method of complying with the Voting Rights Act, and

we have said that may include drawing crossover districts”); see also Cooper,

(rejecting North Carolina legislature’s argument that because § 2 “does not require

crossover districts (for groups insufficiently large under Gingles), then § 2 also cannot be

satisfied by crossover districts (for groups in fact meeting Gingles’ size condition)”).

The district court took Strickland to mean that if a minority-preferred candidate

could win elections in the contested district when the contested district’s BVAP was less

than 50% plus one vote, the contested district was a crossover district. Dist. Ct. Op. at 40–

41 (“Section 2 does not require crossover districts. Thus, a proper district effectiveness

analysis supporting plaintiffs’ challenge must show that black voters’ candidates of choice

cannot win elections unless BVAP in the contested districts exceeds 50% plus one vote.”)

(citation omitted). But a crossover district is not a district with crossover potential,

contingent on demographic change. It is a district that actually crosses over (at least

sometimes), with its current demographics.

The district court’s misunderstanding of the legal standard led to an insurmountable

roadblock for Appellants. In sum, the district court believed that showing racial bloc voting

requires showing that Black voters can elect their candidates of choice only when BVAP

exceeds 50%. The way to show this is through a “district effectiveness analysis.” Dist. Ct.

Op. at 40 (“To demonstrate legally significant racially polarized voting, an expert must

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engage in a ‘district effectiveness analysis.’”). A district effectiveness analysis is a

“district-specific evaluation used to determine the minority voting-age population level at

which a district becomes effective in providing a realistic opportunity for . . . voters of that

minority group to elect candidates of their choice.” Covington,

n.46

(internal quotations omitted) (ellipses in original). So, the district court reasoned,

Appellants could not demonstrate racial bloc voting unless they provided a district

effectiveness analysis. Unsurprisingly, because the premise of this reasoning was legally

erroneous (explained above), its conclusion was, too.

Though the majority briefly addresses the district court’s erroneous conclusion that

a district effectiveness analysis is required, it elides the premise of that conclusion. On the

one hand, the majority describes the “district court’s inaccurate implication that a district

effectiveness analysis is required for proving a VRA violation in every Section 2 case,”

seemingly acknowledging that such a requirement is legally erroneous. Maj. Op. at 33.

On the other hand, the majority claims that “[Appellants] have not shown that the district

court misunderstood the requirements of the third Gingles precondition or its application

here.” Maj. Op. at 32. It is hard to reconcile these two statements. The very reason the

district court erroneously thought a district effectiveness analysis was necessary is because

it did not understand what the third Gingles precondition required.

Because of the district court’s legal error—a per se rule that plaintiffs cannot show

legally significant racial bloc voting, and thus cannot meet the third Gingles precondition,

without a district effectiveness analysis—Appellants’ case was doomed from the start,

regardless of the quantity, strength, and probativeness of their other evidence.

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The majority says Appellants “have not shown that the court’s case-specific

assessment—that the absence of a district effectiveness analysis affected the

persuasiveness of Barreto’s opinions—was erroneous.” Maj. Op. at 33. But by requiring

a district effectiveness analysis, the district court made Barreto’s opinions (all based on

data from other types of analyses) irrelevant. They weren’t simply less persuasive; they

had no bearing on the legal analysis.

For that reason, I cannot agree with the majority’s statement that “[t]weaking the

district court’s statement to acknowledge that a district effectiveness analysis is probative,

but not required in all cases, does not make [Appellants’] evidence more likely to succeed

in proving the third Gingles precondition.” Maj. Op. at 33. First, what the majority does

is far more than tweaking; more accurately, it inverts the district court’s statement. Second,

inverting the district court’s statement does “make [Appellants’] evidence more likely to

succeed” by making Appellants’ other evidence relevant in the first place. If, as the district

court believed, Appellants’ other data was wholly irrelevant absent a district effectiveness

analysis, the district court’s thoughts on the reliability and accuracy of the data that Barreto

did present is neither here nor there.

Reliability of Barreto’s Analysis. Nonetheless, because the majority treats Barreto’s

alleged unreliability as dispositive, I explain why the district court abused its discretion in

discounting Barreto’s analysis. In addition to finding that Barreto could not show legally

significant racial bloc voting without conducting a district effective analysis, the district

court concluded that the analyses that Barreto did conduct were unreliable. It based this

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finding on Barreto’s predictions of how current Senate District 2 would have performed

had the district been in place during the 2022 elections.

The table in Barreto’s original report shows that the minority-preferred candidate

would have won by a margin of 8.2 percentage points (54.1 to 45.9) in that district had it

been in place in 2022. J.A. 291. This finding was not helpful for Appellants’ case, and the

district court asked about it at its January 10 hearing on the preliminary injunction. Dist.

Ct. Op. at 38. Though Appellants’ lawyer first stated that the number was likely a typo,

Barreto later said in a supplemental declaration that it wasn’t.

In the declaration, he

explained why the 8.2 percentage points—though an accurate finding based on the data he

included—were not an indication that the minority-preferred candidate could be viable in

the district. See J.A. 853–54.

He explained that current Senate District 2 contains portions of districts from the

previous State Senate map, specifically former Senate Districts 1 and 3. J.A. 853. That

map was last used in 2022. That year, the Senate District 3 seat was contested, but the

Senate District 1 seat was uncontested. Barreto explained that his analysis included only

contested elections because the results of uncontested elections are not probative. J.A. 853.

Therefore, all his Senate District 2 analysis showed, he said, was “that a hypothetical

district containing only [the counties in previous Senate District 3] would perform for

Black-preferred candidates based on the 2022 State Senate elections.” J.A. 853.

Former Senate District 3, however, had an unrepresentatively high BVAP of 48.4%.

J.A. 853. Adding in the populations from the counties in former Senate District 1 (to create

what is now Senate District 2) decreases the overall BVAP to 30%. J.A. 853. While

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minority-preferred candidates would prevail in a 48.4% BVAP district, Barreto explained,

they wouldn’t prevail in a 30% BVAP district, i.e. in current Senate District 2. J.A. 854.

“When all 2022 State Senate elections are counted across both contested and

uncontested races in the counties now within current Senate District 2, 51,019 ballots were

cast for white-preferred (Republican) State Senate candidates, while only 16,877 ballots

were cast for Black-preferred (Democratic) State Senate candidates,” Barreto explained.

J.A. 853–54. That’s three-quarters of votes cast for the white-preferred (Republican)

candidate and only one-quarter cast for the Black-preferred (Democratic) candidate.

The district court took issue with Barreto’s explanation. Barreto’s admission that

his initial analysis did not use data from uncontested elections “shows that [he] is doing an

unusual form of reconstituted election analysis,” the court said. Dist. Ct. Op. at 38.

The purpose of a reconstituted election analysis is to show whether minority-

preferred candidates could prevail in a new district. If the district court believed that

excluding uncontested elections would not reliably predict minority-preferred candidates’

chances (a conclusion I agree with), then it presumably believed that including uncontested

elections would reliably predict minority-preferred candidates’ chances. Yet when Barreto

did what the district court would have had him do in the first place, the district court

continued to be skeptical of that finding. But either skepticism was warranted for Barreto’s

first figure or it was warranted for Barreto’s second figure—it cannot be warranted for both

at the same time.

What’s more, this skepticism bled into all of Barreto’s remaining figures, even though

every other election was contested. For instance, the district court agreed with Appellees

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that Barreto’s “new representation ‘cannot seem to be cabined to the contests he would prefer

the Court ignore.’” Dist. Ct. Op. at 38 (quoting Def’s. Resp. to Supp. Dec. at 2). It reasoned

that “Dr. Barreto’s belated explanation undercuts all of Dr. Barreto’s conclusions by

demonstrating that fuller data sets could change his estimated outcomes.” Id. at 39. But

there was no relevant fuller data set—no other election in the data set was uncontested. See

J.A. 285–90 (listing out names of candidates from each party in every 2020 and 2022

statewide election); State Board of Elections, 2020 Candidate List Grouped by Contest, at 6,

https://perma.cc/P3WB-9FBR (last accessed Mar. 18, 2024) (showing that, in 2020, then-

Senate District 1 and then-Senate District 3 were both contested); State Board of Elections,

2022 Candidate List Grouped by Contest, at 4, https://perma.cc/5PRS-THT6 (last accessed

Mar. 18, 2024) (showing that, in 2022, then-Senate District 1 was uncontested but then-

Senate District 3 was contested). So while the district court may have been justified in

discounting Barreto’s analysis of that one reconstituted election in current Senate District 2,

it was an abuse of discretion to disregard his analysis as to every other election.

***

In sum, the district court misunderstood what the third Gingles precondition

requires. As a result, it imposed a standard that made all of Appellants’ evidence irrelevant.

The district court then went on to find that, because one piece of that evidence may have

been unreliable, Appellants’ entire expert analysis must have been flawed. These

collective errors are enough to conclude that the district court abused its discretion in

finding that Appellants were unlikely to succeed on the merits of their case.

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III.

A.

After considering the Gingles preconditions, courts ask whether “based on the

totality of circumstances,” voters of color “have less opportunity than other members of

the electorate to participate in the political process and to elect representatives of their

choice.” See

(b). “[I]t will be only the very unusual case in which the

plaintiffs can establish the existence of the three Gingles [preconditions] but still have

failed to establish a violation of § 2 under the totality of the circumstances.” Jenkins v. Red

Clay Consol. Sch. Dist. Bd. of Educ.,

, 1135 (3d Cir. 1993), aff’d,

.

In the Senate Report accompanying the 1982 amendments to the VRA, the Senate

identified several factors that guide a court’s totality of circumstances analysis. Gingles,

478 U.S. at 36–37. These Senate factors assist the court in conducting “an intensely local

appraisal of the electoral mechanism at issue, as well as a searching practical evaluation of

the past and present reality.” Milligan,

.

The most important factors in the totality of the circumstances inquiry are the

“extent to which minority members have been elected to public office in the jurisdiction”

and “the extent to which voting in the elections of the state or political subdivision is

racially polarized.” Gingles, 478 U.S. at 48–49. Congress did not intend for these factors

to be comprehensive or exclusive, nor did Congress require that a particular number of

factors be satisfied to establish a § 2 violation. Id. at 45.

The district court gave the Senate factors short shrift. The law requires that courts

conduct “a searching practical evaluation of the past and present reality” to assess “whether

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the political process is equally open to minority voters.” Id. at 79 (internal citation and

quotation marks omitted). And the district court’s analysis overlooked much of North

Carolina’s past and present reality.

The first Senate factor examines “the extent of any history of official discrimination

in the state or political subdivision that touched the right of the members of the minority

group to register, to vote, or otherwise participate in the democratic process.” Id. at 36–37

(quoting S. Rep. No. 97-417, at 28–29 (1982)). Appellants presented ample evidence of

such history, spanning from 1900 to 2016. The district court gave little weight to

Appellants’ evidence, which it described as “overwhelmingly outdated.” J.A. 942. But

history is necessarily in the past and “[a]n eye toward past practices is part and parcel of

the totality of the circumstances.” League of Women Voters,

.

Gingles itself, which arrived at the Supreme Court from a challenge to a North

Carolina General Assembly redistricting plan, outlined the history of discriminatory voting

practices within the state. To do so, it pointed to discrimination against Black citizens from

“approximately 1900 to 1970 by employing at different times a poll tax, a literacy test, a

prohibition against bullet (single-shot) voting and designated seat plans.”

at 38–39.

Between 1982 and 2006, private plaintiffs brought at least fifty-five successful cases

challenging North Carolina’s election related practices. N.C. State Conference of NAACP

v. McCrory,

(4th Cir. 2016).

In 2016, this Court elaborated on the history recounted in Gingles, noting that the

record is “replete with evidence of instances since the 1980s in which the North Carolina

legislature . . . attempted to suppress and dilute the voting rights of African Americans.”

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McCrory,

(4th Cir. 2016). In fact, we observed, the Department of Justice

and federal courts have determined that the legislature at times even acted with

discriminatory intent, engaging in “a series of official actions taken for invidious

purposes.”

(quoting Arlington Heights v. Metropolitan Housing Development Corp.,

(1977)). This includes a 2013 omnibus election law that “target[ed]

African-Americans with almost surgical precision.” Id. at 214.

Even though the district court found that events from as recently as 2016 are

“overwhelmingly outdated,” it was still required to grapple with them. As Appellants

observe, the first Senate factor focuses on “the state’s historical discrimination” regarding

voting rights—and most history is old. Pierce Opening Br. at 44. Though this Court defers

to the district court on factual determinations, this deference does not permit the district court

to move the historical goalposts. And courts have concluded time and time again that this

same history satisfies the first Senate factor. See, e.g., Harris,

, aff’d sub

nom. Cooper v. Harris,

(2017) (invalidating 2011 congressional district lines).

The second Senate factor considers “the extent to which voting in the elections of

the state or political subdivision is racially polarized.” Gingles,

. Barreto’s

racially polarized voting analysis showed that approximately 85% of white voters in and

around the contested region voted against Black-preferred candidates. In that same region,

Black voters voted together 95% of the time. The district court discounted this racial

polarization for the same reasons that it found that Appellants could not meet the third

Gingles precondition. But as discussed above, the district court abused its discretion in

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evaluating the third Gingles precondition. It therefore erred in relying on that reasoning in

assessing the second Senate factor.

The district judge likewise rejected Appellants’ arguments under the third Senate

factor. That factor analyzes “the extent to which the state or political subdivision has used

. . . voting practices that may enhance the opportunity for discrimination.” Gingles, 478

U.S. at 36–37. Senate factors one and three overlap significantly. Legislative Appellees

claim that the third factor requires “a present tense inquiry because only existing election

features can combine with the challenged feature to enhance dilution.” Leg. Def. Reply

Br. at 17. But courts regularly look to history to evaluate this factor. See League of Women

Voters,

(“Neither the Supreme Court nor this Court has ever held that, in

determining whether an abridgement has occurred, courts are categorically barred from

considering past practices . . . .”). The district court erred by adopting Legislative

Appellees’ interpretation of this factor.

The parties agree that the fourth Senate factor is not relevant to this case.

The fifth Senate factor analyzes “the extent to which members of the minority group

in the state or political subdivision bear the effects of discrimination in areas such as

education, employment and health, which hinder their ability to effectively participate in the

political process.” Gingles,

. The district court found that this factor weighed

against Appellants because they presented “no statistical analysis demonstrating that race

discrimination by North Carolina caused the socioeconomic disparities.” J.A. 943.

But this Court has never required Appellants to show that racial discrimination

caused the socioeconomic disparities at issue, and requiring Appellants to show that link

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was legal error. See, e.g., League of Women Voters,

(presenting evidence

that Black North Carolinians lagged behind whites in several important socioeconomic

indicators but not requiring proof that aforementioned disparities were the product of

discrimination); League of United Latin American Citizens v. Perry (LULAC),

(2006) (pointing out that “the political, social, and economic legacy of past

discrimination . . . may well hinder [a minority group’s] ability to effectively participate in

the political process” (internal quotation omitted)).

Factor six examines “whether political campaigns have been characterized by overt or

subtle racial appeals.” Gingles,

. The district court gave little weight to

Appellants’ examples, finding that they were either too old, not clear racial appeals, or not

characteristic of recent campaigns within the state. J.A. 944. But in Gingles itself, the Supreme

Court affirmed the district court’s reliance on evidence of political campaigns nearly a century

earlier, and Appellants’ evidence here is far more recent. See Gingles,

.

For instance, United States Senator Jesse Helms, who represented the state of North

Carolina until 2003, famously deployed racial appeals in state-wide campaigns. In a 1990

ad for Helms’s campaign, white hands crumpled a job rejection letter while a voiceover

blamed that rejection on a minority applicant. Mtn. Prelim. Inj. at 426. The district court

said this ad was too old. Dist. Ct. Op. at 49. More recently, now-Senator Ted Budd

successfully deployed an ad against his Black opponent that was reminiscent of the

infamous 1988 Willie Horton ad.

The district court said that this ad was “not a racial

appeal” because it “never explicitly mention[ed] race.” Dist. Ct. Op. at 49 (internal

quotation omitted). But that is of no consequence; as the text of this Senate factor explains,

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political campaigns can be “characterized by . . . subtle racial appeals.” Gingles, at 37; see

also

(affirming the district court when it found Senate factor six satisfied by racial

appeals “ranging in style from overt and blatant to subtle and furtive”). Appellants also

offer evidence from former U.S. Representative Madison Cawthorn’s 2020 campaign, in

which Cawthorn accused his opponent of associating with people who want to “ruin white

males.” Mtn. Prelim. Inj. at 427. The district court, “without deciding” whether

Cawthorn’s statements were “an overt or subtle racial appeal,” dismissed this example

because it didn’t “characterize” today’s North Carolina campaigns. Dist. Ct. Op. at 49. It

went out of its way to minimize the racial appeal in each ad, defying common sense.

The seventh factor considers “the extent to which members of the minority group

have been elected to public office in the jurisdiction.” Gingles,

. The district

court correctly observes that Black candidates have found electoral success in other parts of

the state and in statewide elections. J.A. 945. But the success of a few minority candidates

does not “necessarily foreclose the possibility of dilution of the black vote.” S. Rep. No.

97-417, at 29 n.115.

More importantly, whether Black candidates can win in Durham, for example, has

no bearing on whether Black candidates can win in the challenged districts. See Dist. Ct.

Op. 50. For the same reason, whether a Black candidate can win a statewide election says

nothing about whether they can prevail in the challenged districts. Indeed, “the extent to

which minority candidates have been elected to office in the jurisdiction, obviously must

be measured by elections in the political jurisdiction in question.” City of Carrollton

Branch of the NAACP v. Stallings,

, 1560 (11th Cir. 1987); see Sanchez v.

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Colorado,

, 1324–25 (10th Cir. 1996) (concluding that “it is probative” that

no member of the minority group had been elected to the challenged office since 1940,

“notwithstanding” that members of the minority group had been elected to other offices in

the geographic region). The district court’s failure to even consider Black candidates’

performance in the challenged districts was an abuse of discretion.

The eighth Senate factor asks, “whether there is a significant lack of responsiveness

on the part of elected officials to the particularized needs of the members of the minority

group.” Gingles,

. Appellants assert that the General Assembly’s enactment

of discriminatory voting laws, as well as persistent socioeconomic disparities within the

region, render this factor self-evident. Pierce Opening Br. at 48. The district court declined

to make that inference. Yet the Supreme Court made a similar inference in LULAC. There,

the appellants demonstrated a combination of circumstances, including declining incumbent

popularity, a history of official discrimination within the state, and persistent sociological

disparity. LULAC, 548 U.S. at 439–40. The Court agreed that these circumstances showed

that the appellants’ representative was unresponsive to their needs.

Here, as in LULAC,

Appellants have demonstrated historical discrimination and sociological disparity.

Combined with present attempts to weaken their voting power, see Pierce Opening Br. at 48,

these circumstances evince their representatives’ nonresponsiveness.

Finally, the ninth Senate factor evaluates “whether the policy underlying the state or

political subdivision’s use of such . . . practice or procedure is tenuous”—in other words,

whether the government actually had a legitimate interest in enacting the challenged map.

Gingles,

. Legislative Appellees assert that they adopted the map to comply

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with federal law, a North Carolina state redistricting principle known as the Whole County

Provision, and traditional districting principles. Leg. Def. Opening Br. at 43. The district

court shared this reasoning. Dist. Ct. Op. at 51. But the serpentine shape of Senate District

2 is far from compact (a traditional districting principle), requiring several hours and multiple

ferry rides to span. Gov. Amici Br. 13–14. And the Whole County Provision applies only

after any VRA districts are drawn. See Stephenson v. Bartlett,

, 396–97 (N.C.

2002); see also Pender County v. Bartlett,

, 367–68 (N.C. 2007) (explaining

that a district required by § 2 trumps the need to comply with the Whole County Provision).

My colleagues in the majority are correct in pointing out that our review of the

district court’s decision requires deference. But affording deference does not mean

abdicating our responsibility to ensure that district courts adhere to existing guideposts.

And because there are few cases expounding on the meaning of individual Senate factors,

the best guideposts remain Gingles and its progeny. Here, the district court strayed from

the four corners of this jurisprudence throughout its totality analysis, planting additional

obstacles for Appellants to surmount along the way. If the totality analysis has any

meaningful role in identifying Section 2 violations, this must be error.

The district court erred throughout its analysis. The court failed to meaningfully

contend with the role of history in contravention of Gingles and subsequent case law. It

concluded that Senate factor three mandates a present-tense inquiry when no precedent

supports that requirement. It mandated never-before-required statistical proof of causation

between discrimination and socioeconomic disparities on Senate factor five and

overlooked areas in Appellants’ expert report where a connection is drawn between

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discrimination and disparate outcomes. And in its evaluation of the seventh factor, it

erroneously assumed that the presence of minority office holders in other parts of the state

is nearly dispositive of the ability of minority candidates in the challenged area to succeed.

B.

Both the district court and the majority opinion recognize the importance of the

second Senate factor (“the extent to which voting in the elections of the state or political

subdivision is racially polarized,” Gingles,

) and dedicate significant space

to its discussion. Specifically, they reason that because the racially polarized voting in the

challenged districts can be explained by partisan alignment, not race, the second Senate

factor cuts against Appellants. 7 See Maj. Op. at 43 (“Thus Alford concluded, and the

district court accepted, that [the] analysis clearly demonstrates that the party affiliation of

the candidates is sufficient to fully explain the divergent voting preferences of Black and

White voters in the 2020 and 2022 North Carolina elections.” (internal quotations

omitted)). Implicitly, if not expressly, they take this point one step further, contending that

because there is evidence that partisan motivation underlies the divergent voting patterns

among Black and white voters, Appellants cannot establish a Section 2 violation under the

totality of the circumstances. See

This reasoning threatens the viability of any Section

2 claim because it permits courts to dismiss every Section 2 case in which voting patterns

7 Though the majority treats this as a separate consideration, see Maj. Op. at 42, it is part of the second Senate factor. See United States v. Charleston County,

, 347 (4th Cir. 2004). 82 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 83 of 97

could be explained on partisan grounds. But a conclusion that polarization is explained by

partisan affiliation is not a conclusion that polarization is not explained by race.

In support of their argument, the majority and the district court cite United States v.

Charleston County.

(4th Cir. 2004). But Charleston County does not say

that evidence of partisan motivation undercuts a finding that the challenged districts violate

Section 2.

In Charleston County, the district court considered evidence that voting patterns

shifted when a candidate’s race changed but their party affiliation remained the same. Id.

at 353. We said that was evidence that racial motivation underlay the racially divergent

voting patterns. And, we said, that racial motivation was relevant to (though not dispositive

of 8) a finding that the second Senate factor favored the party challenging the districts. Id.

We did not say the inverse. That is, we did not say that if there was evidence of a non-

racial motivation underlying voting patterns, then the second Senate factor does not favor

the party challenging the relevant districts. The majority conflates these two distinct ideas.

The district court reasoned that the presence of partisan motivation in voting means

the absence of racial motivation. See Dist. Ct. Op. at 53–54. But partisan motivations and

racial motivations are not mutually exclusive. That is, the same voter can be motivated to

vote for a particular candidate due to both partisanship and race. For that reason, evidence

8 The district court in Charleston County found that changing the candidate’s race changed voting patterns. Charleston County, 365 F.3d at 353. Based in part on this finding, this Court concluded that the district court did not clearly err by saying that race appeared to influence voting patterns. Id. But its holding was not contingent on that finding. Id. at 352. Charleston County’s holding primarily hinged on the district court’s more robust evidence of racial polarization. Id. 83 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 84 of 97

of a partisan motivation says nothing about the existence or extent of a racial motivation.

While it may be true that affirmative evidence of a racial motivation underlying voting

patterns strengthens a party’s showing on the second Senate factor, see Charleston County,

365 F.3d at 353, evidence of a partisan motivation does not weaken that showing.

In Gingles itself, a plurality of the Supreme Court addressed a similar argument that

the second Senate factor is not satisfied when the racially divergent voting patterns can be

explained by voters’ socioeconomic characteristics. See Gingles,

. The

plurality rejected this argument, explaining that

it ignores the fact that members of geographically insular racial and ethnic groups frequently share socioeconomic characteristics, such as income level, employment status, amount of education, housing and other living conditions, religion, language, and so forth. Where such characteristics are shared, race or ethnic group not only denotes color or place of origin, it also functions as a shorthand notation for common social and economic characteristics.

In the same way, the argument that voting is not racially motivated because it is

motivated by partisanship “ignores the fact that members of geographically insular racial

and ethnic groups” frequently share the same partisan affiliation. See

This is because

partisan motivation and racial motivation among minority voters regularly coexist.

Accordingly, whether voting patterns in northeast North Carolina can be explained on

partisan grounds says nothing about whether they can be explained only on partisan

grounds. Permitting evidence of partisan motivation to explain away racial polarization

converts Black voters’ motivations for voting into an impediment to Black voting power.

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This cannot be squared with the purpose of Section 2: ensuring that minority voters can

participate equally in the political process.

IV.

Appellants argue that the remaining factors favor imposing a preliminary injunction.

They explain that failing to do so would disenfranchise thousands of Black voters in the

affected districts. In contrast, Appellants proposed remedy would impact only the two

challenged districts (where there are currently no contested primaries), and the State Board

of Elections has confirmed that it is administratively feasible to enact a new map and hold

a later primary in the new districts. 9

Appellees disagree. First, they argue that Appellants’ proposed remedy (altering

only the line between the two challenged districts) is inappropriate. Second, they argue

that because all other potential remedies impact districts where primaries are already

underway, imposing an appropriate remedy is not administratively feasible. This is

particularly true because, they contend, the Purcell principle prohibits federal courts from

“alter[ing] the election rules on the eve of an election.” RNC v. DNC,

(2020) (per curiam) (citing Purcell v. Gonzalez,

(2006) (per curiam)).

9 Though the Board’s proposed schedule envisioned a ruling by February 15 to allow enough time for a May 14 primary, the Board’s affidavit explains that it is possible to schedule a primary as late as the end of July, for which there is still time as of the date of this ruling. See J.A. 826–27; Pl.-Appellants’ Emergency Mot. to Expedite Briefing & Decision at 5. Because the races in Senate Districts 1 and 2 were uncontested and thus no primaries were held, the fact that the March primary date has come and gone does not affect the continued viability of scheduling later primary elections. 85 USCA4 Appeal: 24-1095 Doc: 49 Filed: 03/28/2024 Pg: 86 of 97

The district court and the majority rely heavily on Purcell. They believe that because

primaries are ongoing in North Carolina, any federal court intervention is bound to “result

in voter confusion and [a] consequent incentive to remain away from the polls,” and Purcell

instructs courts to avoid such intervention. Purcell v. Gonzalez,

, 4–5 (2006) (per

curiam). That application of Purcell is improperly narrow.

Some background is helpful here. Purcell itself did not prevent federal court

intervention in an election following thorough, judicious proceedings. Instead, it prevented

federal court intervention based solely on a barebones, unexplained order from the court of

appeals, which had granted an injunction pending appeal after the district court had denied

a functionally equivalent preliminary injunction. See Purcell,

; see also

League of Women Voters,

n.6 (explaining that the Purcell Court “seemed

troubled by the fact that a two-judge motions panel of the Ninth Circuit entered a factless,

groundless ‘bare order’ enjoining a new voter identification provision in an impending

election”). The Purcell Court said that the need for a full and thorough evaluation of the

district court’s decision outweighed concerns about voter confusion (which are central to

the Purcell principle today). See Purcell,

. Accordingly, the Supreme Court’s

admonition to the court of appeals to stay its hand is better understood as an instruction not

to sacrifice the integrity of its judicial proceedings to the urgency of the moment. It is not

a mandate that courts sit on their hands in the weeks before the election, when they still

have time to engage in reasoned decision-making, solely because an election is impending.

Initially, lower courts incorporated Purcell’s considerations into their weighing of

the equitable preliminary injunction factors. See, e.g., Ne. Ohio Coalition for Homeless &

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Serv. Emps. Union v. Blackwell,

(6th Cir. 2006); Ray v. Texas, No.

2:06-cv-385,

, at *5 (E.D. Tex. Oct. 31, 2006); United States v. City of

Philadelphia, No. 2:06-cv-4592,

, at *2 (E.D. Pa. Nov. 7, 2006); State

ex rel. Applegate v. Franklin Cnty. Bd. of Elections, No. C2-08-092,

, at

*6 (S.D. Ohio Feb. 6, 2008); Hunter v. Hamilton Cnty. Bd. of Elections,

,

244–45 (6th Cir. 2011); Democratic-Republican Org. of N.J. v. Guadagno,

, 461 n.8 (D.N.J. 2012); see also Hall v. Merrill,

, 1157 (M.D.

Ala. 2016) (“[T]he Purcell principle should be considered along with all the other factors

that courts use in determining whether to grant a temporary restraining order or a

preliminary injunction.”). The Purcell principle in its modern form did not emerge until

2014, eight years after Purcell. See, e.g., N.C. State Conf. of the NAACP v. McCrory,

(M.D.N.C. 2016); Feldman v. Arizona,

(Mem)

(9th Cir. 2016) (O’Scannlain, J., dissenting from the grant of rehearing en banc);

Republican Party of Pa. v. Cortes,

, 404–05 (E.D. Pa. 2016).

In 2014, the Fifth Circuit gave Purcell a broader scope. Dissenting from the

Supreme Court’s one-line, unsigned order denying a motion to vacate the Fifth Circuit’s

stay, Justice Ginsburg criticized the Fifth Circuit for misreading Purcell. See Veasey v.

Perry,

(2014). Joined by Justices Sotomayor and Kagan, she expressed her

view that the Fifth Circuit, which had stayed a district court’s permanent injunction of voter

identification procedures, erred when it stayed the injunction based “exclusively on the

potential disruption of Texas’ electoral processes” while “[r]efusing to evaluate the

defendants’ likelihood of success on the merits.”

. As she explained, “Purcell

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held only that courts must take careful account of considerations specific to election cases,

not that election cases are exempt from traditional stay standards.”

Similarly, in Frank v. Walker, the petitioners asked the Supreme Court to vacate a

court of appeals’ stay in the lead up to an election, which would have put the challenged

election procedure back in place.

(2014). The dissenting justices argued,

without referencing Purcell, that the fact that the election was imminent could not by itself

justify vacating the stay.

(Alito, J., dissenting). Today, by contrast, Purcell is regularly

invoked as a standalone principle.

When the Supreme Court next cited Purcell in 2018, the Purcell principle as we

know it had mostly taken shape as applied to district court intervention in elections. See

Benisek v. Lamone,

(2018); North Carolina v. Covington,

(2018). Around the same time, members of the Supreme Court writing

separately began to cite Purcell in support of blocking district and appellate court rulings

that the authoring justice believed came too close to an election. See Brakebill v. Jaeger,

(Mem) (Ginsburg, J., dissenting); RNC v. DNC,

(2020);

at 1210–11 (Ginsburg, J., dissenting); Andino v. Middleton,

(Mem) (2020)

(Kavanaugh, J., concurring); DNC v. Wis. State Legislature,

(Mem) (2020)

(Kavanaugh J., concurring).

However, no precedential Supreme Court opinion has ever addressed Purcell’s

proper scope. Left to decipher conflicting separate writings by individual justices,

inconsistent lower court applications of the doctrine come as no surprise. But in the

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absence of a Supreme Court majority opinion sufficient to clarify Purcell’s proper

application, we must make the most of these separate writings.

The most thorough explanation of the modern Purcell principle is Justice

Kavanaugh’s concurrence in Merrill v. Milligan in 2022 (16 years after Purcell).

(Mem) (2022). There, the Supreme Court stayed the district court’s injunction on

Alabama’s use of its electoral maps. See

Justice Kavanaugh expressly rejected the idea

that “the [Purcell] principle is absolute and that a district court may never enjoin a State’s

election laws in the period close to an election.”

. Instead, he explained, “the

Purcell principle is probably best understood as a sensible refinement of ordinary stay

principles for the election context—a principle that is not absolute but instead simply

heightens the showing necessary for a plaintiff to overcome the State’s extraordinarily

strong interest in avoiding late, judicially imposed changes to its election laws and

procedures.”

Justice Kavanaugh also acknowledged that “the Court has not yet had

occasion to fully spell out all of [the Purcell principle’s] contours.”

Justice Kavanaugh’s concurrence thus confirms what Purcell’s jurisprudential

history implies. Purcell emerged from equity balancing; it would make little sense for it

to be a rigid bar against relief. Courts applying Purcell must balance the equities (the

underlying interests of the parties and the public) in each case to determine whether federal

court intervention in state election procedures is appropriate. While this balancing requires

evaluation of “considerations specific to election cases,” Purcell,

, the analysis

does not start and end with the amount of time left until the next election. See Moore v.

Harper,

, 1091 (Mem) (2022) (Alito, J., dissenting) (arguing that it would

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have been appropriate for the Court to grant relief, despite the candidate filing deadline

being only seven days away, because “promptly granting a stay would have been only

minimally disruptive”); DNC v. Wisc. State Legislature,

, 42 (Mem) (2020)

(Kagan, J., dissenting) (“At its core, Purcell tells courts to apply, not depart from, the usual

rules of equity.”).

Properly applied, the Purcell principle should be incorporated into a court’s

consideration of the equitable preliminary injunction factors. In this case, the parties

dispute whether the requested injunctive relief is mandatory or prohibitory. That

distinction is not meaningless. Because a prohibitory injunction preserves the status quo

that existed at the time litigation was initiated, while a mandatory injunction changes the

status quo, the standard to impose a mandatory injunction is much higher. But resolving

the parties’ dispute over whether the requested injunction is mandatory or prohibitory is

unnecessary because Appellants meet the heightened standard for a mandatory injunction.

A court is justified in issuing a mandatory injunction only if such relief is necessary

both (1) “to protect against irreparable harm in deteriorating circumstances created by the

defendant,” and (2) “to preserve the court’s ability to enter ultimate relief on the merits of

the same kind.” In re Microsoft Corp. Antitrust Litig.,

(4th Cir. 2003).

Appellants have met their burden on the first prong. Absent relief, thousands of Black voters

in North Carolina’s Black Belt counties will be forced to vote in districts that unlawfully

dilute their vote. See

And the urgency in this case is of Legislative Appellees’ making.

Though Appellees attempt to blame Appellants for the urgency of this litigation, noting

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repeatedly that Appellants waited 28 days after the map was enacted to file suit, it was

Appellees’ delay in enacting the map that created this condensed litigation schedule.

In April of 2023, the North Carolina Supreme Court struck down the map in place

at the time and allowed the General Assembly to enact a new map. Harper v. Hall,

, 446–48 (N.C. 2023). But the General Assembly did not act immediately.

Rather, the General Assembly did not enact a map until six months later. At that point,

candidate filing was just six weeks away and the primary ballots were scheduled to be sent

out in less than three months. Thus, the need for extraordinary relief, the urgency of this

litigation, and the “deteriorating circumstances” that underlie this case have been “created

by the defendant[s].” See In re Microsoft Corp.,

.

Further, relying on a standalone Purcell principle to leave maps in place under

circumstances like this permits legislatures to insulate themselves from judicial review—

and subvert federal courts’ role in ensuring that states comply with the Voting Rights Act—

by waiting until the last minute to enact new maps. We cannot let one of our country’s

most important pieces of civil rights legislation be nullified by clever timing.

Appellants have also satisfied the second prong of the analysis: whether the

injunction is necessary “to preserve the court’s ability to enter ultimate relief on the merits

of the same kind.” In re Microsoft Corp.,

. Because the election is

imminent, the court will soon lose “its ability to enter ultimate relief on the merits” if an

injunction is not entered now. See

“[O]nce the election occurs, there can be no do-over

and no redress.” League of Women Voters,

.

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That brings us to the central reason why Purcell does not bar relief here: there is

still time. Unlike Purcell this is not a case of rushed, unexplained, unreasoned decision-

making. The district court conducted an evidentiary hearing and issued a detailed 69-page

opinion. This Court received extensive briefing and heard oral argument. And these

opinions are far more than the “four-sentence order” at issue in Purcell. See Purcell,

. In fact, to ensure full consideration and appropriate development of the record,

we did not take up Appellants’ first appeal. That appeal would have required this Court to

examine the issues without the benefit of fact finding by the district court. Rather than

engage in the same kind of rushed decision-making for which the Supreme Court faulted

the court of appeals in Purcell, we sent the case back to the district court to allow for an

evidentiary hearing and subsequent written opinion.

Appellees make much of the fact that Appellants waited too long after the

challenged map was enacted to file suit. Indeed, one of the motivating principles behind

Purcell is that it “discourages last-minute litigation and instead encourages litigants to

bring any substantial challenges to election rules ahead of time, in the ordinary litigation

process.” DNC, 141 S. Ct. at 31. But if there is a Purcell problem here, Appellants could

not have brought the litigation early enough to avoid it.

Here, the district court’s opinion came on January 26, one week after absentee

voting began. That’s two months later than the relevant date in Merrill v. Milligan. See

Milligan, 142 S. Ct. at 879 (Kavanaugh, J., concurring) (invoking Purcell to stay a district

court’s final injunction because absentee voting in the primaries would begin seven weeks

from the date of the Supreme Court’s opinion). There is no reason to think that the district

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court’s ruling here—let alone a ruling from this Court—could have come more than seven

weeks before the start of absentee voting if Appellants had filed suit 28 days earlier.

In sum, even if a 28-day delay in filing suit did amount to dilatory conduct by

Appellants, that delay is not the cause of the urgency of this litigation or the fact that any

federal court ruling will necessarily come on the eve of the election. The cause of the

timing of this litigation is instead the General Assembly’s failure to take any action on

redistricting until six months after the North Carolina Supreme Court struck down the 2022

maps in Harper v. Hall. Appellees should not be allowed to benefit from their delay. And

North Carolina’s voters should not be forced to vote under illegal maps for an entire

election cycle because the General Assembly delayed the enactment of the map. At the

very least, the record demonstrates that the district court abused its discretion by

completely ignoring how the legislature’s late enactment of the map affects the equitable

considerations in this case.

Appellees contend that they have only two remedial options. They say that because

neither can be imposed here, the current map cannot be enjoined. But courts have a range

of options when selecting an appropriate remedy. Here, those options are not limited to

imposing Demonstration District A (incompatible with Purcell) or Demonstration Districts

B1 and B2 (incompatible with Strickland) by judicial fiat. There is at least one more

option: this Court can order the General Assembly to adopt a new map that complies with

Section 2. The legislature can then choose whether to reconfigure the entire state map,

adopt crossover districts, or solve the problem some other way entirely.

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In deciding between these options, the legislature does not face the same constraints

as the federal judiciary. Because Purcell only prohibits federal courts from changing

election procedures too close to an election, the legislature is empowered to redraw the

entire state map if it so chooses. See Wisc. State Legislature, 141 S. Ct. at 31 (Kavanaugh,

J., concurring) (“It is one thing for state legislatures to alter their own election rules in the

late innings and bear the responsibility for any unintended consequences. It is quite another

thing for a federal district court to swoop in and alter carefully considered and

democratically enacted state election rules when an election is imminent.”). And while

Appellees have repeatedly argued that the General Assembly cannot possibly be required

to comply with Section 2 because it could only do so by violating the state’s Whole County

Provision, compliance with federal law cannot be subordinated to state law requirements.

See Stephenson, 562 S.E.2d at 389 (“[T]he 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.”). The legislature still has time to remedy the illegality

of the existing map.

V.

The district court erroneously construed the standard Appellants must meet under

Gingles. And it failed to consider in its Purcell analysis the deleterious impact of the

timeline on which Legislative Appellees chose to enact the new map. The VRA is “the

Nation’s signal piece of civil-rights legislation.” Shelby County v. Holder,

,

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580 (2013) (Ginsburg, J., dissenting). Section 2 is essential to ensuring the continuation

of the VRA’s noble purpose; its enforcement cannot be left solely to the will or whim of

state legislatures. I would reverse and therefore dissent.

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Appendix A

Table A1: Performance Analysis (Reconstituted Election Analysis) of 2022 Elections (J.A. 291)

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Table A2: Performance Analysis (Reconstituted Election Analysis) of 2020 Elections (J.A. 292–93)

97