Redistricting trial closing statement -- Zach Scauf, for the League of Conservation Voters

I'd like to begin by thanking the court and the court personnel. We're here because we brought this suit. You are all are here because it was your duty to do it. And we appreciate that it came at a significant cost to you and your families over the holidays. And we really do appreciate all the hard work.

So when we go to the polls to vote, we exercise the most fundamental right that our sacred democracy has given us. But going to vote isn't the same thing as democracy. You can go all over the world, see lots of elections. But you can look far and wide and not find a democracy like our founding fathers gave us.

The North Carolina State Constitution provides a solemn guarantee that the people of North Carolina can keep that democracy and we invoke that guarantee here. When partisan gerrymanders lock in election results and muffle the will of the people, they violate the promise that all elections shall be free. That guarantee dates to the 1689 English Bill of Rights which was drafted precisely to address the King's attempt to control Parliament by changing the electorate.

In North Carolina, the Equal Protection Clause guarantees “substantially equal voting power and substantially equal legislative representation” which cannot be squared with packing and cracking voters so that the majority no longer rules in this state. Last the Free speech and Free Assembly Clauses protect the right of North Carolinians to engage in political speech and association free from measures that target some voters because of the views they hold.

The evidence presented here over the last three days proves, indeed proves beyond any reasonable doubt, that the plans the General Assembly enacted in November 2021 violate those sacred promises. They are extreme partisan gerrymanders that will render most elections in North Carolina mere formalities as is confirmed by the analysis of every expert in this case. Those experts applied different methods and come from different perspectives but they are united in this: The enacted plans are statewide, across many districts, extreme partisan gerrymanders. You've heard from the Harper plaintiffs about their evidence, which I won't repeat here.

On behalf of the N.C.L.C.V plaintiffs, you heard from Professor Moon Duchin, a renowned mathematician who runs a lab specifically devoted to redistricting. Applying the well-established overlay method, she showed that the enacted plans create a quote “massive and entrenched partisan skew that delivers majorities in Congress, Senate and House to Republicans, even when voters prefer Democratic candidates by up to six points.” She also addressed the argument that the legislative defendants have been making since the start of this case: it's not partisan gerrymandering, it's political geography. Democrats are concentrated, Republicans are spread out. That's it.

Professor Duchin showed that this story does not hold water. You've heard a lot in this proceeding about NCLCV’s maps. But Professor Duchin used them to prove a simple, indisputable point. You can do better on North Carolina's traditional districting criteria while treating both parties and North Carolina's black voters fairly and equally. … So what you see there is the NCLCV plans are more compact across every measure and every map than the enacted plans. On virtually every measure of county and municipal preservation, The NCLCV maps do better. The enacted plans are not compelled by political geography or traditional districting principles. They are at war with those principles.

What do we get instead? Entrenched partisan skew that strangles competition and thwarts the will of the people. Professor Duchin illustrated that point with the story of three governors elections -- 2012, 2016 and 2020. Through each election Democratic performance improves. Not a good year in 2012 and accordingly they get four seats in Congress. Pull even in 2016 and win a resounding victory in 2020.  What happens?   Under these plans congressional seats are 4, 4 and 4 and Democratic candidates never win a majority in any chamber.

Why did that skew happen? Professor Duchin applied her expertise to confirm what all the other simulation evidence in this case has shown and what common sense tells us. You don't get that large and durable of an effect by accident.

Now when I say that all the expert analysis in this case agrees that the enacted max or extreme I included Dr. Barber’s. True, his report was all trees no forest. He didn't tell us what his cluster level analysis added up to. But fortunately we have professors Mattingly, Pegden and Duchin who used his own ensembles to show us. And it's a remarkable story which you can see from figures five and six and Dr. Duchin’s rebuttal report which is plaintiff's exhibit 235.

Dr. Barber's own data revealed that the enacted Senate and House plans are extreme partisan outliers. … Indeed they are slightly more pro Republican than the state as a whole. You heard Dr. Barber admit on the stand that he could find no fault with the computations in these charts. And in Congress, the story is even more telling. As Ms. Theodore said, the legislative defendants did not even ask an expert with their opening reports to analyze their congressional map.  Think about that.  They were called here to defend the legality of their map and put forward no expert evidence to contest that it’s extreme partisan outlier.

You've already heard about the evidence that Drs. Chen, Mattingly and Pegden put forward. And Professor Duchin was able to fill in the conspicuous omission in Dr. Barber’s analysis by running his own code to produce a congressional ensemble using his code. Same story: Congressional plan is an extreme outlier. NCLCV plan right there in the middle of the distribution.

And it's not just Democrats who suffer under the enacted plans. North Carolina has a long history of racially polarized voting that dates to Reconstruction. And because of how the enacted plans pack and crack cohesive Black communities across the state, North Carolina's Black citizens will not be able to elect their candidates of choice and their representation will fall well short of their share of the population. The Free Elections and Equal Protection clauses again protect North Carolina's Black citizens from that harm. They confer a right to “participate in elections on an equal basis with other citizens in the jurisdiction” -- that's White v. Pate -- and to substantially equal voting power and substantially equal legislative representation -- that's Stevenson.  And make no mistake here, the harm here is both profound and avoidable.

You can see on these maps, this is from Professor Duchin's opening report, every one of those dots you see is a person either an individual plaintiff in our suit or a black NCLCV member who's voting opportunity to elect their candidate of choice is destroyed by the enacted plan. But who, under the NCLCV plans, would be able to elect their preferred candidates. Professor Duchin testified at length about how the enacted plans destroy Black opportunity in two congressional districts, four Senate districts and 12 House districts.

Now, of course, we heard from Dr. Lewis who purported to apply Dr. Duchin’s methodology to reach an opposite result. But turns out his methodology was anything but Dr. Duchin’s, and it was anything but reliable. As just one example, in three of the districts he identified as effective for Black voters, those voters had to be sure a 90% chance of a black candidate winning the primary election. But they had a 0% chance of electing that Black preferred candidate in the general election. Again, think about that, a district that's supposed to be effective for Black voters where the candidate they prefer never prevails in the general election. Dr Lewis's approach was fundamentally flawed and does not cast any doubt on Professor Duchin's testimony.

Now there's an old lawyer saying I'm sure everybody here knows: When you have the law, pound the law and the law; when you have the facts, pound of facts. And when all else fails, pound the table. That's what we've heard from the legislative defendants here with their endless efforts to make this suit about NCLCV’s plans, rather than their own extreme gerrymanders. They've called our maps Democratic gerrymanders optimized for Democrat’s gain. As I've shown Dr. Barber's own ensembles … confirm how wrong that is. And indeed on the stand Dr. Barber himself candidly admitted that if he were optimizing for Democratic gain, he wouldn't have drawn the NCLCV maps. “Question -- If you are optimizing for Democratic advantage, would you draw clusters that are pro Republican like the NCLCV maps do. You mean if I was given the job? Yes, a Democratic gerrymandered map? No, I probably wouldn't do that. You know, I'd probably try to do the opposite.”

So all that's left is the legislative defendants conspiracy theory, which I understand to be something like: ‘The NCLCV plans are some sort of trojan horse aiming to double bunk a few Republican leaders.’ The legislative defendants though couldn't turn their innuendo into facts based. On this court orders, they've got the code. So they know the code neither targeted nor protected incumbents. And the reality is that when you run code that doesn't prefer incumbency, you are going to pair some incumbents.

That is the great revelation from the case that legislative defendants have put forward here. But in fairness, they had plenty of reason to think that distraction was their best tactic. Not only did their key expert’s own analysis spotlight the enacted plans as extreme partisan outliers, but after months of touting the transparency of the process, discovery and testimony here revealed that they had worked from secret concept maps. Mr. Reel showed one of the legislative defendants those maps on his phone in the hearing room, even as the legislative defendants were telling the world that the only maps they'd consider would be the ones drawn on the public terminals.

So no wonder if they'd rather talk about anything else. The simple truth is that the legislative defendants enacted egregious gerrymanders that dilute the voting power of North Carolina's Black citizens. They meant to do it. And now the fundamental North Carolina constitutional provisions we invoke require the court to set aside those maps.