Common Cause v. Rucho (318 F. Supp. 3d 777, 2018)

Before WYNN, Circuit Judge, and OSTEEN, District Judge, and BRITT, Senior District Judge.

MEMORANDUM OPINION

WYNN, Circuit Judge, wrote the opinion, in which BRITT, Senior District Judge, concurred.

TABLE OF CONTENTS

I. BACKGROUND...801

A. THE MODERN HISTORY OF REDISTRICTING IN NORTH CAROLINA ...801

B. THE DRAWING OF THE 2016 PLAN ...803

C. PROCEDURAL HISTORY ...810

II. JURISDICTIONAL ARGUMENTS...814

A. STANDING ...814

1. Equal Protection Clause...815

2. First Amendment...828

3. Article I...831

B. JUSTICIABILITY ...836

1. Governing Law...837

2. Legislative Defendants' Arguments Against Justiciability...843

III. EQUAL PROTECTION...860

A. BACKGROUND LAW ...861

1. Discriminatory Intent...861

2. Discriminatory Effects...864

3. Lack of Justification...867

B. APPLICATION ...868

1. Statewide Evidence...868

2. District-Specific Evidence...923

IV. FIRST AMENDMENT...923

A. BACKGROUND LAW ...924

B. LEGAL STANDARD AND APPLICATION ...929

1. Intent To Burden Speech and Associational Rights...929

2. Burden on Speech and Associational Rights...930

3. Causation...935

V. ARTICLE I...935

A. BACKGROUND LAW ...937

B. APPLICATION ...937

VI. REMEDY...941

In these consolidated cases, two groups of Plaintiffs allege that North Carolina's 2016 Congressional Redistricting Plan (the "2016 Plan") constitutes a partisan gerrymander in violation of Article I of the Constitution, the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After conducting a four-day trial and carefully considering the parties' evidence and briefing, this Court awarded judgment in Plaintiffs' favor on all of their claims and enjoined the State from using the 2016 Plan in future elections. Common Cause v. Rucho , 279 F.Supp.3d 587, 598 (M.D.N.C. 2018), vacated sub nom. Rucho v. Common Cause , --- U.S. ----, 138 S.Ct. 2679, --- L.Ed.2d ---- (2018) (mem.). On July 25, 2018, the Supreme Court vacated that judgment, and remanded the case to this Court for reconsideration in light of the Supreme Court's decision in Gill v. Whitford , --- U.S. ----, 138 S.Ct. 1916, --- L.Ed.2d ---- (2018), which addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause.

As further explained below, we conclude that, under the test set forth in Gill , at least one Plaintiff registered to vote in each of the thirteen districts in the 2016 Plan has standing to assert an Equal Protection challenge to each of those districts. In particular, such Plaintiffs introduced evidence establishing that each of their districts is "packed or cracked" and, as a result, that their votes "carry less weight than [they] would carry in another, hypothetical district." Id. at 1931. We further conclude that Gill did not call into question-and, if anything, supported-this Court's previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment.

As to the merits, a common thread runs through the restrictions on state election regulations imposed by Article I, the First Amendment, and the Equal Protection Clause: the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others. In particular, Article I preserves inviolate the right of "the People" to elect their Representatives, and therefore bars the States from enacting election regulations that "dictate electoral outcomes" or "favor or disfavor a class of candidates." U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 833-34, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Similarly, the First Amendment prohibits election regulations that "restrict the speech of some elements of our society in order to enhance the relative voice of others." Buckley v. Valeo , 424 U.S. 1, 48-49, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). And the Equal Protection Clause embodies the foundational constitutional principle that the State must govern "impartially"-that "the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation." Davis v. Bandemer , 478 U.S. 109, 166, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part). That the framers of the Constitution and the Reconstruction Amendments sought to protect this principle through three different constitutional provisions only reinforces its centrality to our democratic system.

Partisan gerrymandering-"the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power," Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n , --- U.S. ----, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704 (2015) -strikes at the heart of this foundational constitutional principle. By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another. Thornton , 514 U.S. at 833-34, 115 S.Ct. 1842. By intentionally ensuring that Representatives from one party have a disproportionate voice in Congress, it also "restrict[s] the speech of some elements of our society"-voters who do not support the policies embraced by the favored party-and "enhance[s] the relative voice of others"-voters who support the favored party. Buckley , 424 U.S. at 48-49, 96 S.Ct. 612. And by favoring the viewpoints of one group of voters over another, it runs afoul of the Government's constitutional duty to "treat its voters as standing in the same position, regardless of their political beliefs or party affiliation." Davis , 478 U.S. at 166, 106 S.Ct. 2797.

Put differently, by intentionally seeking to entrench a favored party in power and make it difficult-if not impossible-for candidates of parties supporting disfavored viewpoints to prevail, partisan gerrymandering "seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion." Turner Broad. Sys., Inc. v. F.C.C. , 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). But " '[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market,' and the people lose when the government is the one deciding which ideas should prevail ." Nat'l Inst. of Family & Life Advocates v. Becerra , --- U.S. ----, 138 S.Ct. 2361, 2375, --- L.Ed.2d ---- (2018) (emphasis added) (quoting Abrams v. United States , 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting) ). Partisan gerrymanders, therefore, "raise the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." Turner Broad. , 512 U.S. at 641, 114 S.Ct. 2445 (internal quotation marks omitted).

That is precisely what the Republican-controlled North Carolina General Assembly sought to do here. The General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on "political data"-that is, past election results specifying whether, and to what extent, particular voting precincts had favored Republican or Democratic candidates, and therefore were likely to do so in the future-to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the State's congressional districts, and would continue to do so in future elections. Ex. 1007. And the Republican-controlled General Assembly achieved that goal. As detailed below, the 2016 Plan led to Republican candidates prevailing by "safe" margins in the vast majority of the State's thirteen congressional districts. Put differently, the General Assembly's Republican majority "decid[ed] which ideas [w]ould prevail" in the State's congressional elections. Becerra , 138 S.Ct. at 2375. In doing so, they deprived Democratic voters "of their natural political strength" by making it difficult for such voters to raise money, attract strong candidates, and motivate fellow party members and independent voters to campaign and vote. Gill , 138 S.Ct. at 1938 (Kagan, J., concurring).

Legislative Defendants drew a plan designed to subordinate the interests of non-Republican voters not because they believe doing so advances any democratic, constitutional, or public interest, but because, as the chief legislative mapdrawer openly acknowledged, the General Assembly's Republican majority "think[s] electing Republicans is better than electing Democrats." Ex. 1016, at 34:21-23. But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, "those who govern should be the last people to help decide who should govern." McCutcheon v. Fed. Election Comm'n. , 572 U.S. 185, 134 S.Ct. 1434, 1441-42, 188 L.Ed.2d 468 (2014) (plurality op. of Roberts, C.J.). Indeed, "the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around." Ariz. State Leg. , 135 S.Ct. at 2677 (internal quotation marks omitted). Accordingly, and as further explained below, we conclude, with one narrow exception, that Plaintiffs prevail on all of their constitutional claims.

I. BACKGROUND

A. THE MODERN HISTORY OF REDISTRICTING IN NORTH CAROLINA

Over the last 30 years, North Carolina voters repeatedly have asked state and federal courts to pass judgment on the constitutionality of the congressional districting plans drawn by their state legislators. The first such challenge involved a redistricting plan adopted by the North Carolina General Assembly after the 1990 census, which increased the size of North Carolina's congressional delegation from 11 to 12 members. See Shaw v. Reno (Shaw I ), 509 U.S. 630, 633-34, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). When the General Assembly set out to redraw the state's congressional districts to incorporate the new seat, the Department of Justice, pursuant to its "max-black" policy, pushed for the creation of a second majority-black district to augment, it maintained, the representation of the state's African-American voters in Congress. Id. at 635, 113 S.Ct. 2816. In response, the General Assembly prepared a revised district map that included the majority-black First and Twelfth Districts (the "1992 Plan"). Id.

Several dozen North Carolina voters, most of whom were Republican, challenged the 1992 Plan as a partisan gerrymander, in violation of the Equal Protection Clause, the First Amendment, and Article I, Section 2 of the United States Constitution. Pope v. Blue , 809 F.Supp. 392, 394-95, 397-98 (W.D.N.C. 1992), aff'd 506 U.S. 801, 113 S.Ct. 30, 121 L.Ed.2d 3 (1992). A divided three-judge panel dismissed the action, holding that the plaintiffs failed to adequately allege that the redistricting plan had a legally cognizable "discriminatory effect" on any "identifiable political group," under the standard set forth in the Supreme Court's decision in Davis v. Bandemer , 478 U.S. 109, 127, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plurality op.). Pope , 809 F.Supp. at 397.

Separately, a group of North Carolina voters challenged the 1992 Plan as a racial gerrymander, in violation of the Equal Protection Clause. Shaw I , 509 U.S. at 636-37, 113 S.Ct. 2816. After several years of litigation, the Supreme Court held that the General Assembly's use of race as the predominant factor in drawing the second majority-black district in the 1992 Plan violated the Equal Protection Clause, and enjoined the use of that district in future elections. Shaw v. Hunt (Shaw II ), 517 U.S. 899, 905-18, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). In 1997, a politically divided General Assembly enacted a remedial plan expected to elect six Republican and six Democratic Representatives, rendering each party's share of the state's congressional delegation proportional to its share of the statewide vote in the most recent congressional election. Cromartie v. Hunt , 133 F.Supp.2d 407, 412-13 (E.D.N.C. 2000), rev'd sub nom. Easley v. Cromartie , 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) ; id. at 423-24 (Thornburg, J., dissenting). In 2001, after several more years of litigation, the Supreme Court approved that remedial plan. See Easley , 532 U.S. 234, 121 S.Ct. 1452 (holding that three-judge panel's finding that race constituted the predominant motivation in redrawing remedial districts was not supported by substantial evidence).

Just as litigation regarding the 1992 Plan came to an end, the results of the 2000 census entitled North Carolina to another seat in Congress, and the General Assembly again set out to redraw the state's congressional districts to include the additional seat. The resulting plan, which was adopted in 2001 (the "2001 Plan"), was used in each of the State's congressional elections between 2001 and 2010. In all but one of these elections, the party receiving more statewide votes for their candidates for the House of Representatives also won a majority of the seats in North Carolina's congressional delegation (the only exception being the 2010 election, in which Republicans won 54 percent of votes statewide but only 6 of the 13 seats). Exs. 1021-25. Although the 2001 Plan did not include any majority-black districts, black voters in the First and Twelfth Districts were consistently successful in electing their preferred candidates. Harris v. McCrory , 159 F.Supp.3d 600, 606-07 (M.D.N.C. 2016), aff'd sub nom. Cooper v. Harris , --- U.S. ----, 137 S.Ct. 1455, 197 L.Ed.2d 837 (2017). Unlike the 1992 Plan, the 2001 Plan did not generate significant federal litigation. Id. at 607.

B. THE DRAWING OF THE 2016 PLAN

In 2010, for the first time in more than a century, North Carolina voters elected Republican majorities in both the North Carolina Senate and the North Carolina House of Representatives, giving Republicans exclusive control over the decennial congressional redistricting process. See id. at 607. The House of Representatives and Senate each established redistricting committees, which were jointly responsible for preparing a proposed congressional redistricting plan. Id. Representative David Lewis, in his capacity as the senior chair of the House Redistricting Committee, and Senator Robert Rucho, in his capacity as senior chair of the Senate Redistricting Committee, were responsible for developing the proposed redistricting plan. Id.

Through private counsel, the committees engaged Dr. Thomas Hofeller, who had previously worked as the redistricting coordinator for the Republican National Committee, to draw the new congressional districting plan. Id. Concurrent with his work on the 2011 North Carolina congressional redistricting plan, Dr. Hofeller also served on a "redistricting team" established as part of the national Republican State Leadership Committee's ("RSLC") Redistricting Majority Project, commonly referred to as "REDMAP." Ex. 2015, at ¶ 13. According to RSLC, REDMAP sought to elect Republican candidates to state legislatures so that Republicans would control such legislatures' redistricting efforts and thereby "solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade." Id. at ¶ 10. With regard to North Carolina, in particular, REDMAP sought to "[s]trengthen Republican redistricting power by flipping [state legislative] chambers from Democrat to Republican control." Ex. 2020.

Representative Lewis and Senator Rucho, both of whom are Republican, orally instructed Dr. Hofeller regarding the criteria he should follow in drawing the new districting plan. Dep. of Thomas B. Hofeller ("Hofeller Dep.") 20:7-19, Jan. 24, 2017, ECF Nos. 101-34, 110-1. According to Dr. Hofeller, Representative Lewis and Senator Rucho's "primar[y] goal" in drawing the new districts was "to create as many districts as possible in which GOP candidates would be able to successfully compete for office." Id. at 123:1-7.

In accordance with Representative Lewis and Senator Rucho's instructions, Dr. Hofeller testified that he sought "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate." Id. at 127:19-22. In order to minimize the electoral opportunities of Democratic candidates, Dr. Hofeller used the results of past statewide elections to predict whether a particular precinct or portion of a precinct was likely to vote for a Republican or Democratic congressional candidate in future elections. See id. at 132:22-134:13, 159:20-160:12. According to Dr. Hofeller, "past voting behavior," as reflected in "past election results," is "the best predictor of future election success." Ex. 2037. Past election data have become "the industry standard" for predicting the partisan performance of a districting plan, he explained, because "as more and more voters ... register non-partisan or independent," party registration data have decreased in predictive value. Id.

Using past election data to "draw maps that were more favorable to Republican candidates," Dr. Hofeller moved district lines "to weaken Democratic strength in Districts 7, 8, and 11 ... by concentrating Democratic voting strength in Districts 1, 4, and 12." Ex. 2043, at 33-34. Additionally, according to Dr. Hofeller, "[t]he General Assembly's goal [in 2011] was to increase Republican voting strength in New Districts 2, 3, 6, 7, and 13. This could only be accomplished by placing all the strong Democratic [census voting districts ("VTDs") ] in either New Districts 1 or 4." Hofeller Dep. 116:19-117:25; Ex. 2036, at 4 (Dr. Hofeller averring that "[t]he Republican strategy was to weaken Democratic strength in Districts 7, 8, and 11; and to completely revamp District 13, converting it into a competitive GOP district."). Dr. Hofeller testified that to "improve[ ] GOP voting strength" in Districts 2 and 9, he "concentrat[ed] Democratic voting strength in Districts 1, 4 and 12." Ex. 2036, at 4. Dr. Hofeller conceded that, by making these changes, the 2011 Plan "diminished ... [t]he[ ] opportunity to elect a Democratic candidate in the districts in which [he] increased Republican voting strength." Hofeller Dep. 128:17-21. All told, Dr. Hofeller testified that he redrew Districts 2, 3, 6, 7, 8, 9, 11, and 13 to increase Republican voting strength in those districts, and, to do so, he concentrated Democratic voters in Districts 1, 4, and 12.

Claiming (incorrectly) that Section 2 of the Voting Rights Act required the creation of majority-black districts "where possible," Representative Lewis and Senator Rucho also directed Dr. Hofeller to draw two majority-black districts in the state. Harris , 159 F.Supp.3d at 608. This goal worked hand-in-hand with the General Assembly's partisan objective because, as Legislative Defendants acknowledge, "race and politics are highly correlated." Ex. 2043, at ¶ 120. Thus, Dr. Hofeller drew the map to further concentrate black voters, who are more likely to vote for Democratic candidates, into District 1 and District 12, where Dr. Hofeller already was planning to concentrate Democratic voting strength. Harris , 159 F.Supp.3d at 607-09. As a result, the proportion of black voters in those districts increased from 47.76 percent to 52.65 percent and from 43.77 percent to 50.66 percent, respectively. Id. The General Assembly enacted the 2011 Plan on July 28, 2011. Id. at 608.

North Carolina conducted two congressional elections using the 2011 Plan. In 2012, Republican candidates received a minority of the statewide vote (49%), Ex. 3023, but won a supermajority of the seats in the State's congressional delegation (9 of 13), Ex. 1020. In 2014, Republican candidates received 54 percent of the statewide vote, and won 10 of the 13 congressional seats. Ex. 1019.

Meanwhile, voters living in the two majority-black districts challenged the 2011 Plan in both state and federal court, alleging that lines for the two districts constituted unconstitutional racial gerrymanders. Harris , 159 F.Supp.3d at 609-10. The Supreme Court of North Carolina twice ruled that the 2011 Plan did not violate the state or federal constitution. Dickson v. Rucho , 368 N.C. 481, 781 S.E.2d 404, 410-11 (2015), vacated , --- U.S. ----, 137 S.Ct. 2186, 198 L.Ed.2d 252 (2017) (mem.);

Dickson v. Rucho , 367 N.C. 542, 766 S.E.2d 238 (2014), vacated , --- U.S. ----, 135 S.Ct. 1843, 191 L.Ed.2d 719 (2015) (mem.). However, on February 5, 2016, a three-judge panel presiding in the U.S. District Court for the Middle District of North Carolina struck down Districts 1 and 12 as unconstitutional racial gerrymanders and enjoined their use in future elections. Harris , 159 F.Supp.3d at 627. Following argument, the Supreme Court affirmed the Harris panel's decision in its entirety. Cooper v. Harris , --- U.S. ----, 137 S.Ct. 1455, 197 L.Ed.2d 837 (2017).

With both chambers of the North Carolina General Assembly still controlled by Republicans-and elected under one of the most widespread racial gerrymanders ever confronted by a federal court, Covington v. North Carolina , 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff'd --- U.S. ----, 137 S.Ct. 2211, 198 L.Ed.2d 655 (2017) -Representative Lewis and Senator Rucho again took charge of drawing the remedial districting plan. On February 6, 2016, Representative Lewis once more engaged Dr. Hofeller to draw the remedial plan. Dep. of Rep. David Lewis ("Lewis Dep.") 44:2-4, Jan. 26, 2017, ECF Nos. 101-33, 108-3, 110-3, 110-4; see also Ex. 4061. Soon thereafter, Representative Lewis spoke with Dr. Hofeller over the phone regarding the drawing of the new plan. Lewis Dep. 44:12-24; Ex. 4061. Even before he spoke with Representative Lewis, Dr. Hofeller had begun working on a remedial plan using redistricting software and data on his personal computer. Hofeller Dep. 130:2-9.

On February 9, 2016, Representative Lewis and Senator Rucho met with Dr. Hofeller at his home and provided him with more detailed oral instructions regarding the criteria he should follow in drawing the remedial plan. Ex. 4061; Lewis Dep. 48:19-49:7; Dep. of Sen. Robert Rucho ("Rucho Dep.") 170:13-170:17, Jan. 25, 2017, ECF Nos. 101-32, 110-5. Once again, Representative Lewis and Senator Rucho did not reduce their instructions to Dr. Hofeller to writing. Lewis. Dep. 60:1-13. In addition to directing Dr. Hofeller to remedy the racial gerrymander, Representative Lewis and Senator Rucho again directed Dr. Hofeller to use political data-precinct-level election results from all statewide elections, excluding presidential elections, dating back to January 1, 2008-in drawing the remedial plan. Ex. 2043, at ¶ 38; Lewis Dep. 162:24-163:7; Hofeller Dep. 100:3-102:5, 180:10-16. Representative Lewis and Senator Rucho further instructed Dr. Hofeller that he should use that political data to draw a map that would maintain the existing partisan makeup of the state's congressional delegation, which, as elected under the racially gerrymandered plan, included 10 Republicans and 3 Democrats. Ex. 2043, at ¶ 38; Lewis Dep. 162:24-163:7; Hofeller Dep. 175:19-23, 178:14-20, 188:19-190:2. And Representative Lewis and Senator Rucho instructed Dr. Hofeller "to change as few" of the district lines in the 2011 Plan as possible in remedying the racial gerrymander. Lewis Dep. 75:25-76:2.

With these instructions, Dr. Hofeller continued to prepare draft redistricting plans on his personal computer. To achieve Representative Lewis and Senator Rucho's partisan objectives-and in accordance with his belief that "past voting data" best predict future election results-Dr. Hofeller drew the draft plans using an aggregate variable he created to predict partisan performance. For each census block, the variable compared the sum of the votes cast for Republican candidates in seven statewide races occurring between 2008 and 2014 with the sum of the average total number of votes cast for Democratic and Republican candidates in those same races. Exs. 1017, 2002, 2039, 2043 at ¶¶ 18, 47, 49, 50; Dep. of Thomas Hofeller, Vol. II ("Hofeller Dep. II") 262:21-24, Feb. 10, 2017, ECF No. 110-2.

Dr. Hofeller testified that he used the averaged results from the seven elections so as "to get a pretty good cross section of what the past vote had been," Hofeller Dep. 212:16-213:9, and "[t]o give [him] an indication of the two-party partisan characteristics of VTDs," Hofeller Dep. II 267:5-6. Dr. Hofeller explained that "he had drawn numerous plans in the state of North Carolina over decades," and in his "experience[,] ... the underlying political nature of the precincts in the state does not change no matter what race you use to analyze it." Ex. 2045, at 525:6-10; Hofeller Dep. at 149:5-18. "So once a precinct is found to be a strong Democratic precinct, it's probably going to act as a strong Democratic precinct in every subsequent election. The same would be true for Republican precincts." Ex. 2045, at 525:14-17; see also Hofeller Dep. II at 274:9-12 ("[I]ndividual VTDs tend to carry ... the same characteristics through a string of elections.").

When he drew district lines, Dr. Hofeller was constantly aware of the partisan characteristics of each county, precinct, and VTD. Displaying the partisanship variable on his computer screen by color-coding counties, VTDs, or precincts to reflect their likely partisan performance, Ex. 5116, at ¶ 8, fig. 1; Hofeller Dep. 103:5-105:24; Hofeller Dep. II 267:18-278:4, Dr. Hofeller would use the partisanship variable to assign a VTD "to one congressional district or another," Hofeller Dep. 106:23-107:1, 132:14-20, and "as a partial guide" in deciding whether and where to split VTDs or counties, id. at 203:4-5; see also id. at 202:2-5; Hofeller Dep. II at 267:10-17. Dr. Hofeller further averred that partisanship considerations were the principal factor governing his placement of district lines within split counties. Ex. 5001, at 7-8 ("For the most part, the internal boundaries of split counties were drawn using a composite percentage of seven statewide political races.").

In assigning a county, VTD, or precinct to a particular district, Dr. Hofeller also sought to preserve the "core" constituency of the districts in the 2011 Plan. Ex. 5001, at ¶ 31. Using his partisanship variable-and in accordance with his effort to preserve the "cores" of the districts in the 2011 Plan-Dr. Hofeller drew, for example, Districts 1, 4, and 12 to be "predominantly Democratic," as those districts had been under the 2011 Plan. Hofeller Dep. 192:7-16. After drawing a draft plan, Dr. Hofeller also would use his seven-election variable to assess the partisan performance of the plan on a district-by-district basis and as a whole. Id. at 247:18-23; Hofeller Dep. II 283:15-19, 284:20-285:4. Dr. Hofeller then would convey his assessment of the partisan performance of each district to Representative Lewis. Hofeller Dep. II 290:17-25.

The following day, February 10, 2016, Dr. Hofeller met with Representative Lewis and Senator Rucho and showed them several draft redistricting plans. Rucho Dep. 31:16-31:18, 37:7-37:8. "Nearly every time" he reviewed Dr. Hofeller's draft maps, Representative Lewis assessed the partisan performance of the 2016 Plan as a whole and each "individual voter district[ ]" using the results from North Carolina's 2014 Senate race between Senator Thom Tillis and former Senator Kay Hagan, which was, in Representative Lewis's opinion, "the closest political race with equally matched candidates who spent about the same amount of money." Lewis Dep. 63:9-64:17. Representative Lewis visited Dr. Hofeller's house several more times over the next few days to review additional draft remedial plans. On either February 12 or February 13, Dr. Hofeller presented the near-final 2016 Plan to Representative Lewis, which Representative Lewis found acceptable. Id. at 77:7-20. Using the results of the Tillis-Hagan race, Representative Lewis concluded that the 2016 Plan would yield the "10-3 Republican advantage" the Chairs had intended. Id. at 128:29.

On February 12, 2016, the leadership of the North Carolina General Assembly appointed Representative Lewis and Senator Rucho as co-chairs of a newly formed a Joint Select Committee on Congressional Redistricting (the "Committee"), comprised of 25 Republican and 12 Democratic legislators, to draw the remedial district plan. Ex. 2009. On February 15, 2016-two days after Dr. Hofeller completed drawing the 2016 Plan-the co-Chairs held a public hearing on the redistricting effort. Ex. 1004. Dr. Hofeller did not attend the public hearing. Rucho Dep. 55:4-6. The Committee also solicited written comments regarding the redistricting efforts on its website. Id. at 55:10-23. Dr. Hofeller was not apprised of any of the comments made at the public hearing or in the written submissions. Id. at 55:4-56:13. Because Dr. Hofeller finished drawing the 2016 Plan before the public hearing and the opening of the window for members of the public to submit written comments, Hofeller Dep. 177:9-21, the 2016 Plan did not reflect any public input.

On February 16, 2016-three days after Dr. Hofeller, at Representative Lewis and Senator Rucho's direction, had completed drawing the remedial maps, id. ; Ex. 5001, at ¶ 33-the Committee met for the first time. At that meeting, Representative Lewis and Senator Rucho proposed the following criteria to govern the drawing of the remedial districts:

Equal Population: The Committee will use the 2010 federal decennial census data as the sole basis of population for the establishment of districts in the 2016 Contingent Congressional Plan. The number of persons in each congressional district shall be as nearly as equal as practicable, as determined under the most recent federal decennial census.

Contiguity: Congressional districts shall be comprised of contiguous territory. Contiguity by water is sufficient.

Political Data: The only data other than population data to be used to construct congressional districts shall be election results in statewide contests since January 1, 2008, not including the last two presidential contests. Data identifying the race of individuals or voters shall not be used in the construction or consideration of districts in the 2016 Contingent Congressional Plan. Voting districts ("VTDs") should be split only when necessary to comply with the zero deviation population requirements set forth above in order to ensure the integrity of political data.

Partisan Advantage: The partisan makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the current partisan makeup of North Carolina's congressional delegation.

Twelfth District: The current General Assembly inherited the configuration of the Twelfth District from past General Assemblies. This configuration was retained because the district had already been heavily litigated over the past two decades and ultimately approved by the courts. The Harris court has criticized the shape of the Twelfth District citing its "serpentine" nature. In light of this, the Committee shall construct districts in the 2016 Contingent Congressional Plan that eliminate the current configuration of the Twelfth District.

Compactness: In light of the Harris court's criticism of the compactness of the First and Twelfth Districts, the Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan that improve the compactness of the current districts and keep more counties and VTDs whole as compared to the current enacted plan. Division of counties shall only be made for reasons of equalizing population, consideration of incumbency and political impact. Reasonable efforts shall be made not to divide a county into more than two districts.

Incumbency: Candidates for Congress are not required by law to reside in a district they seek to represent. However, reasonable efforts shall be made to ensure that incumbent members of Congress are not paired with another incumbent in one of the new districts constructed in the 2016 Contingent Congressional Plan.

Ex. 1007. No other criteria were discussed by the Committee or in legislative debate on the 2016 Plan.

Representative Lewis explained the relationship between the "Political Data" and "Partisan Advantage" criteria as follows: the Partisan Advantage criterion "contemplate[s] looking at the political data ... and as you draw the lines, if you're trying to give a partisan advantage, you would want to draw lines so that more of the whole VTDs voted for the Republican on the ballot than they did the Democrat." Ex. 1005, at 57:10-16. And he further explained that "to the extent [we] are going to use political data in drawing this map, it is to gain partisan advantage." Id. at 54. Representative Lewis "acknowledge[d] freely that this would be a political gerrymander," which he maintained was "not against the law." Id. at 48:4-6.

Democratic state Senator Floyd McKissick, Jr., objected to the "Partisan Advantage" criterion, stating that "ingrain[ing]" the 10-3 advantage in favor of Republicans was not "fair, reasonable, [or] balanced" because, as recently as 2012, Democratic congressional candidates had received more votes on a statewide basis than Republican candidates. Id. at 49:16-50:5, 50:14-22. In response, Representative Lewis said that he "propose[d] that [the Committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats."Id. at 50:7-10. Democratic Committee members also expressed concern that the Partisan Advantage criterion would "bake in partisan advantage that was achieved through the use of unconstitutional maps." Id. at 62:1-3. In response, Representative Lewis again reiterated that "the goal" of the criterion "is to elect 10 Republicans and 3 Democrats." Id. at 62:18-19.

That same day, Committee members adopted, on a bipartisan basis, the Equal Population, Contiguity, Twelfth District, and Incumbency criteria. Id. at 14:16-18:3, 21:9-24:18, 91:17-94:17, 95:15-98:20. The remaining two criteria-Political Data and Partisan Advantage-were adopted on party-line votes. Id. at 43:21-47:5, 67:2-69:23. Additionally, the Committee authorized the chairmen to engage a consultant to assist the Committee's Republican leadership in drawing the remedial plan. Ex. 2003.

Also on February 16, 2016, after receiving authorization to hire a redistricting consultant, Representative Lewis and Senator Rucho sent Dr. Hofeller an engagement letter, which Dr. Hofeller signed that same day. Ex. 2003. Upon his formal engagement, Dr. Hofeller downloaded the 2016 Plan, which he had completed several days earlier, from his personal computer onto a legislative computer. Lewis Dep.

138:6-8; Ex. 1009, at 45:7-45:11; Ex. 1014, at 21:10-21:24; Ex. 4061. Democratic Committee members were not allowed to consult with Dr. Hofeller nor were they allowed access to the state computer systems to which he downloaded the 2016 Plan. Ex. 1011, at 36:9-20; Ex. 1014, at 44:23-45:15; Ex. 2008. According to Representative Lewis, Senator Rucho, and Dr. Hofeller, the 2016 Plan adhered to the Committee's Partisan Advantage and Political Data criteria. Ex. 1014, at 36:25-37:6; Ex. 1016, at 37:3-7; Hofeller Dep. 129:14-15.

The following day, Representative Lewis and Senator Rucho presented the 2016 Plan to the Committee. Ex. 1008. As part of the presentation, Representative Lewis provided Committee members with spreadsheets showing the partisan performance of the proposed districts in twenty previous statewide elections. Ex. 1017. Representative Lewis stated that he and Senator Rucho believed that the 2016 Plan "will produce an opportunity to elect ten Republican members of Congress," but it was "a weaker map than the [2011 Plan]" from the perspective of Partisan Advantage. Ex. 1008, at 12:3-7. The Committee approved the 2016 Plan by party-line vote. Id. at 67:10-72:8.

On February 19, 2016, the North Carolina House of Representatives debated the 2016 Plan. During that debate, Representative Lewis further explained the rationale behind the Partisan Advantage criterion, stating: "I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country." Ex. 1016, at 34:21-23. Following that debate, the North Carolina Senate and North Carolina House of Representatives approved the 2016 Plan, with one slight modification, on February 18 and February 19, respectively, in both cases by party-line votes. Ex. 1011, at 110:13-22; Ex. 1016, at 81:6-16.

The 2016 Plan splits 13 counties and 12 precincts. Ex. 5023. Under several mathematical measures of compactness, the districts created by the 2016 Plan are, on average, more compact than the districts created by the 2011 Plan. Ex. 5048. In accordance with the Chairs goals of protecting incumbents and preserving the "cores" of the districts in the 2011 Plan, 10 of the 13 districts (Districts 1, 2, 3, 4, 5, 6, 7, 10, 11, and 12) in the 2016 Plan retain at least 50 percent of the population in their corresponding 2011 version. Ex. 5001, Table 1. Representative Lewis acknowledged as much, testifying that "[m]any of the[ districts in the 2016 Plan] look basically the same as they did in the 2011 map." Lewis Dep. 61:15-16. For example, Representative Lewis noted that, like the 2011 Plan, the 2016 Plan split Buncombe County and the City of Asheville, where Democratic voters are concentrated, between Districts 10 and 11. Id. at 62:11-19. Notwithstanding the General Assembly's stated goal of protecting incumbents, the 2016 Plan paired 2 of the 13 incumbents elected under the unconstitutional 2011 Plan (David Price previously elected in District 4 and George Holding previously elected in District 13). Ex. 2010, at 15-19.

The Harris plaintiffs filed objections to the Plan with the three-judge court presiding over the racial gerrymandering case. Harris v. McCrory , No. 1:13-cv-949, 2016 WL 3129213, at *1 (M.D.N.C. June 2, 2016). Among those objections, the Harris plaintiffs asked the court to reject the 2016 Plan as an unconstitutional partisan gerrymander. Id. at *2. Noting that the Supreme Court had not agreed to a standard for adjudicating partisan gerrymandering claims and that the "plaintiffs ha[d] not provided the Court with a 'suitable standard' " for evaluating such claims, the court rejected the partisan gerrymandering objection "as presented." Id. at *3 (quoting Ariz. State Leg. , 135 S.Ct. at 2658 ). The court twice made clear, however, that its "denial of plaintiffs' objections does not constitute or imply an endorsement of, or foreclose any additional challenges to, the [2016 Plan]." Id. at *1, *3 (emphasis added).

In November 2016, North Carolina conducted congressional elections using the 2016 Plan. In accordance with the objective of the Partisan Advantage criterion, Republican candidates prevailed in 10 of the 13 (76.92%) congressional districts established by the 2016 Plan. Ex. 1018. Republican candidates received 53.22 percent of the statewide vote. Ex. 3022. Republican candidates prevailed in each of the ten districts Dr. Hofeller and the Chairs intended and expected Republican candidates to prevail (Districts 2, 3, 5, 6, 7, 8, 9, 10, 11, and 13), and Democratic candidates prevailed in each of the three districts Dr. Hofeller and the Chairs intended and expected to be "predominantly Democratic" (Districts 1, 4, and 12). Exs. 3022, 5116.

C. PROCEDURAL HISTORY

On August 5, 2016, Common Cause, the North Carolina Democratic Party, and fourteen North Carolina voters (collectively, "Common Cause Plaintiffs"), filed a complaint alleging that the 2016 Plan constituted a partisan gerrymander. Compl., Common Cause v. Rucho , No. 1:16-CV-1026, Aug. 5, 2016, ECF No. 1. The League of Women Voters of North Carolina (the "League") and twelve North Carolina voters (collectively, "League Plaintiffs," and together with Common Cause Plaintiffs, "Plaintiffs") filed their partisan gerrymandering action on September 22, 2016. Compl., League of Women Voters of N.C. v. Rucho , No. 1:16-CV-1164, Sept. 22, 2016, ECF No. 1. Both parties named as defendants Legislative Defendants; A. Grant Whitney, Jr., in his official capacity as Chairman of the North Carolina State Board of Elections (the "Board of Elections"); the Board of Elections; and the State of North Carolina (collectively, with Chairman Whitney and the Board of Elections, "State Defendants," and with Legislative Defendants, "Defendants").

In their operative complaints, both Common Cause Plaintiffs and League Plaintiffs allege that the 2016 Plan violates the Equal Protection Clause, by intentionally diluting the electoral strength of individuals who previously opposed, or were likely to oppose, Republican candidates, and the First Amendment, by intentionally burdening and retaliating against supporters of non-Republican candidates on the basis of their political beliefs and association. First Am. Compl. for Decl. J. and Inj. Relief ("Common Cause Compl.") ¶¶ 25-45, Common Cause v. Rucho , No. 1:16-CV-1026, Sept. 7, 2016, ECF No. 12; Am. Compl. ("League Compl.") ¶¶ 69-83, League of Women Voters of N.C. v. Rucho , No. 1:16-CV-1164, Feb. 10, 2017, ECF No. 41. Plaintiffs allege that the General Assembly diluted the votes of supporters of non-Republican candidates through "cracking"-dispersing members or supporters of a disfavored party or group across a number districts so that they are relegated to minority status in each of those districts-and "packing"-concentrating members or supporters of the disfavored party or group in a particular district or limited number of districts so as to dilute the voting strength of supporters of the disfavored party or group in the remaining districts. Common Cause Compl. ¶ 35; League Compl. ¶ 6.

Common Clause Plaintiffs further allege that the 2016 Plan violates Article I, section 2 of the Constitution, which provides that members of the House of Representatives will be chosen "by the People of the several States," by usurping the right of "the People" to select their preferred candidates for Congress, and Article I, section 4, by exceeding the States' delegated authority to determine "the Times, Places and Manner of holding Elections" for members of Congress. Common Cause Compl. ¶¶ 46-54.

On February 7, 2017, this Court consolidated the two actions for purposes of discovery and trial. Order, Feb. 7, 2017, ECF No. 41. Three days later, League Plaintiffs amended their complaint to reflect the results of the 2016 congressional election conducted under the 2016 Plan and empirical analyses of those results.

On February 21, 2017, Defendants moved to dismiss both complaints under Federal Rule of Civil Procedure 12(b)(6), principally asserting that (1) Pope v. Blue , 809 F.Supp. 392 (W.D.N.C. 1992), which the Supreme Court summarily affirmed, 506 U.S. 801, 113 S.Ct. 30, 121 L.Ed.2d 3 (1992), required dismissal of Plaintiffs' actions, and (2) the Supreme Court's splintered opinions regarding the justiciability of-and, to the extent such claims are justiciable, the legal framework for-partisan gerrymandering claims foreclosed Plaintiffs' claims. Mot. to Dismiss for Failure to State a Claim, Feb. 21, 2017, ECF No. 45. In a memorandum opinion and order entered March 3, 2017, this Court denied Defendants' motions to dismiss. Common Cause v. Rucho , 240 F.Supp.3d 376 (M.D.N.C. 2017) ; Order, Mar. 3, 2017, ECF No. 51.

Beginning on October 16, 2017, this Court held a four-day trial, during which the Common Cause Plaintiffs, League Plaintiffs, and Legislative Defendants introduced evidence and presented testimony from their expert witnesses. The parties also stipulated to the admission of numerous additional exhibits as well as extensive deposition testimony. Although counsel for the State Defendants attended trial, they did not participate and took no position as to how this Court should resolve the case.

In post-trial briefing, League Plaintiffs set forth a single, three-part test for determining whether a state congressional redistricting plan violates the First and Fourteenth Amendments. Under their proposed test, a plaintiff alleging that a state redistricting body engaged in unconstitutional partisan gerrymandering bears the burden of proving: (1) that the redistricting body enacted the challenged plan with the intent of discriminating against voters who support candidates of a disfavored party and (2) that the challenged plan had a "large and durable" discriminatory effect on such voters. League of Women Voters Pls.' Post-Trial Br. ("League Br.") 3, Nov. 6, 2017, ECF No. 113. If the plaintiff makes such a showing, then the burden shifts to the governmental defendant to provide (3) a legitimate, non-partisan justification for the plan's discriminatory effect. Id.

League Plaintiffs pointed to the Political Advantage and Partisan Advantage criteria as well as the chairmen's official explanations of those criteria as evidence of the General Assembly's intent to discriminate against voters who support Democratic candidates. Id. at 7-8. As to the plan's discriminatory effects, League Plaintiffs introduced expert analyses of the 2016 Plan's alleged "partisan asymmetry" to establish that the plan makes it substantially more difficult for voters who favor Democratic candidates to translate their votes into representation, and that this substantial difficulty is likely to persist throughout the life of the 2016 Plan. Id. at 12-16. Finally, League Plaintiffs asserted that Legislative Defendants failed to provide any evidence of a legitimate justification for the 2016 Plan's alleged partisan asymmetry, such as the state's political geography or other legitimate redistricting goals. Id. at 21-24.

By contrast, Common Cause Plaintiffs advanced distinct legal frameworks for their First Amendment, Equal Protection, and Article I claims. Regarding the First Amendment, Common Cause Plaintiffs asserted that the 2016 Plan's disfavoring of voters who previously opposed Republican candidates or associated with non-Republican candidates or parties amounts to viewpoint discrimination and passes constitutional muster only if narrowly tailored to serve a compelling state interest. Common Cause Pls.' Post-Trial Br. ("Common Cause Br.") 5-8, Nov. 6, 2017, ECF No. 116. According to Common Cause Plaintiffs, the General Assembly's use of individuals' past voting history to assign such individuals to congressional districts with the purpose of advantaging Republican candidates on a statewide basis constitutes evidence of viewpoint discrimination. Id. at 7-15. Common Clause Plaintiffs further contended that Legislative Defendants provided no compelling interest justifying such viewpoint discrimination. Id. at 9.

Turning to the Equal Protection Clause, Common Cause Plaintiffs suggested that the level of scrutiny to which a court must subject a redistricting plan turns on the degree to which the redistricting body intended to pursue partisan advantage. Id. at 15-17. According to Common Cause Plaintiffs, the General Assembly predominantly pursued partisan advantage in drawing the 2016 Plan, warranting application of strict scrutiny. Id. Under that standard, Legislative Defendants must show that the plan was narrowly tailored to advance a compelling state interest, Common Cause Plaintiffs maintained. Id. As proof of the General Assembly's predominant intent to burden voters who support non-Republican candidates, Common Cause Plaintiffs pointed to the Political Data and Partisan Advantage criteria, the chairmen's explanations of the purpose behind those criteria, and expert analyses showing that the 2016 Plan is an "extreme statistical outlier " with regard to its pro-Republican tilt relative to thousands of other simulated districting plans conforming to non-partisan districting principles. Id. at 17. Common Cause Plaintiffs further argued that, even if this Court found that the General Assembly did not draw the 2016 Plan with a predominantly partisan motive, the 2016 Plan nonetheless failed constitutional muster under intermediate or rational basis scrutiny. Id. at 18-19.

Finally, Common Cause Plaintiffs alleged that the 2016 Plan exceeds the General Assembly's delegated authority under Article I, section 4-commonly referred to as the "Elections Clause"-because it amounts to an unconstitutional effort " 'to dictate electoral outcomes' " and " 'to favor ... a class of candidates.' " Id. at 20-21 (quoting Cook v. Gralike , 531 U.S. 510, 523-24, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001) ). And Common Clause Plaintiffs further asserted that the 2016 Plan violates Article I, section 2 because it gives voters who favor Republican candidates " 'a greater voice in choosing a Congressman' " than voters who favor candidates put forward by other parties. Id. at 22-23 (quoting Wesberry v. Sanders , 376 U.S. 1, 13-14, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) ).

In response, Legislative Defendants first argued that both sets of Plaintiffs lack Article III standing to assert any of their claims. Legislative Defs.' Post-Trial Br. ("Leg. Defs.' Br.") 12, Nov. 6, 2017, ECF No. 115. With regard to Plaintiffs' Equal Protection claim, in particular, Legislative Defendants asserted that the Equal Protection Clause does not permit statewide standing for partisan gerrymandering claims and that Plaintiffs lacked standing to lodge district-by-district partisan gerrymandering challenges, notwithstanding that at least one individual Plaintiff who is a registered Democrat resided in each of the State's thirteen congressional districts. Id. at 12-14.

Legislative Defendants next contended that, even if Plaintiffs have standing, neither set of Plaintiffs had offered a judicially manageable standard under any constitutional provision for evaluating a partisan gerrymandering claim; therefore, they claimed, Plaintiffs' actions must be dismissed as raising nonjusticiable political questions. Id. at 9. To that end, Legislative Defendants criticized Plaintiffs' expert statistical analyses, in particular, on grounds that such analyses are "a smorgasbord of alleged 'social science' theories" that fail to answer what Legislative Defendants see as the fundamental question in partisan gerrymandering cases: "how much politics is too much politics in redistricting?" Id. at 2, 9-11. As to the merits, Legislative Defendants asserted that the 2016 Plan was not a "partisan gerrymander"-as they define that term-because, among other reasons, (1) the General Assembly did not try to "maximize" the number of Republican seats, and (2) the districts created by the 2016 Plan conform to a number of traditional redistricting principles such as compactness, contiguity, and adherence to county lines. Id. at 3, 7-8.

In a memorandum opinion and order entered January 9, 2018, this Court first rejected Legislative Defendants' justiciability and standing arguments, holding that Plaintiffs had put forward judicially manageable standards for adjudicating their claims and that the individual and organizational Plaintiffs had standing to assert district-by-district and statewide challenges to the 2016 Plan under each of the constitutional provisions under which Plaintiffs seek relief. Common Cause , 279 F.Supp.3d at 608-36. The Court then unanimously held that the 2016 Plan violated the Equal Protection Clause and Article I of the Constitution. Id. at 636-72, 683-90 ; id. at 693-96, 698 (Osteen, J., concurring in part). And a majority of the panel further concluded that the 2016 Plan violated the First Amendment. Id. at 672-83 (majority op.). Having found that the 2016 Plan violated the Constitution, the Court enjoined the State from conducting further elections using the 2016 Plan and gave the General Assembly an opportunity to draw a (second) remedial plan for use in the 2018 election. Id. at 690.

Soon thereafter, Legislative Defendants unsuccessfully moved this Court to stay our order pending review by the Supreme Court. Common Cause v. Rucho , 284 F.Supp.3d 780, 782 (M.D.N.C. 2018). Legislative Defendants then successfully sought a stay from the Supreme Court.

Rucho v. Common Cause , --- U.S. ----, 138 S.Ct. 923, 199 L.Ed.2d 619 (2018) (mem.). Several months later, on June 25, 2018, the Supreme Court vacated this Court's judgment, remanding the case for reconsideration in light of Gill , which addressed what evidence a plaintiff must put forward to establish Article III standing to assert a partisan gerrymandering claim under the Equal Protection Clause based on a vote dilution theory.

This Court invited the parties to submit briefing regarding the impact of Gill on our January 9, 2018, opinion and order striking down the 2016 Plan as an unconstitutional partisan gerrymander. Having carefully considered the Supreme Court's opinion in Gill and the parties' briefing, we conclude that at least one of the named Plaintiffs residing in each of the State's thirteen congressional districts has standing to lodge a partisan vote dilution challenge under the Equal Protection Clause to each district in the 2016 Plan. And we further hold that Gill does not call into question our earlier conclusions that Plaintiffs have standing to assert First Amendment and Article I challenges to the 2016 Plan, and that all of Plaintiffs' constitutional claims are justiciable.

Turning to the merits, we conclude that Plaintiffs' evidence establishes that 12 of the 13 districts in the 2016 Plan violate the Equal Protection Clause because, in drawing each of those 12 districts, the General Assembly's predominant intent was to dilute the votes of voters who favored non-Republican candidates; the General Assembly's manipulation of each of those district's lines has had the effect of diluting such voters' votes; and no legitimate state interest justifies that dilution. We further reaffirm our previous conclusion that the 2016 Plan violates the First Amendment by unjustifiably imposing burdens on Plaintiffs based on their previous and ongoing political expression and affiliation. Finally, we again hold that the 2016 Plan violates Article I by exceeding the scope of the General Assembly's delegated authority to enact congressional election regulations and interfering with the right of "the People" to choose their Representatives.

II. JURISDICTIONAL ARGUMENTS

Before addressing the merits of Plaintiffs' claims, we first address Legislative Defendants' threshold standing and justiciability arguments. As detailed below, we conclude that some, but not all, Plaintiffs have standing to assert partisan vote dilution claims under the Equal Protection Clause; that Plaintiffs have standing to assert partisan gerrymandering claims under the First Amendment; and that Common Cause Plaintiffs have standing to assert their claims under Article I of the Constitution. We further conclude that Plaintiffs' partisan gerrymandering claims are not barred by the political question doctrine, either in theory or as proven.

A. STANDING

Article III's "case" or "controversy" requirement demands that a plaintiff demonstrate standing-that the plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). To establish standing, a plaintiff first must demonstrate "an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) 'actual or imminent, not conjectural or hypothetical.' " Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and some internal quotation marks omitted). "Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be 'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.' " Id. (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org. , 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). "Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.' " Id. at 561, 112 S.Ct. 2130 (quoting Simon , 426 U.S. at 38, 43, 96 S.Ct. 1917 ). Plaintiffs bear the burden of establishing their standing. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).

Importantly, the Supreme Court repeatedly has admonished that courts must assess a plaintiff's standing on a claim-by-claim basis. Gill , 138 S.Ct. at 1934 ("[S]tanding is not dispensed in gross." (internal quotation marks omitted) ). Put differently, "a plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject." Lewis v. Casey , 518 U.S. 343, 358 n.6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (quoting Blum v. Yaretsky , 457 U.S. 991, 999, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) ).

With regard to each of Plaintiffs' three claims, Legislative Defendants do not dispute that to the extent Plaintiffs suffered an injury-in-fact, the injury was caused by the 2016 Plan. Nor do they dispute that, for each of Plaintiffs' claims, the asserted injuries are redressable by a favorable decision of this Court. Accordingly, we must determine whether Plaintiffs have suffered an injury-in-fact for each of the three claims at issue: (1) that the 2016 Plan violates the Equal Protection Clause of the Fourteenth Amendment by diluting Plaintiffs' votes on the basis of invidious partisanship; (2) that the 2016 Plan violates the First Amendment by burdening Plaintiffs' rights to engage in political speech and association; and (3) that the 2016 Plan violates Article I of the Constitution by "dictat[ing] electoral outcomes," by "favor[ing] ... a class of candidates," Cook , 531 U.S. at 523, 121 S.Ct. 1029, and by giving voters who favor Republican candidates "a greater voice in choosing a Congressman" than voters who favor candidates put forward by other parties, Wesberry , 376 U.S. at 14, 84 S.Ct. 526.

1. Equal Protection Clause

a. Background

In Gill , the Supreme Court addressed what constitutes an injury-in-fact sufficient to give rise to Article III standing to assert a partisan gerrymandering claim under the Equal Protection Clause based on a vote dilution theory. 138 S.Ct. at 1930-31. There, twelve Wisconsin voters lodged a statewide challenge to all ninety-nine districts in the State Assembly districting plan, principally alleging that the plan as a whole violated the Equal Protection Clause by intentionally diluting the votes of individuals who supported Democratic candidates. Id. at 1923-24. Four of the plaintiff-voters further alleged in the complaint that "they lived in State Assembly districts where Democrats have been cracked or packed." Id. at 1924. At trial, however, the plaintiffs' evidence focused on the mapmakers' intent to draw a plan that would favor Republican candidates statewide and on the statewide partisan effects of the map. Id. at 1931-32. And none of the individual plaintiffs "sought to prove that he or she lived in a cracked or packed district." Id. at 1932. Following trial, the district court held that each of the plaintiffs suffered an injury-in-fact giving rise to Article III standing to assert