United States District Court, M.D. North Carolina
WYNN, Circuit Judge, and OSTEEN, Chief District Judge, and
BRITT, Senior District Judge.
these consolidated cases, two groups of
Plaintiffs allege that North Carolina's 2016
Congressional Redistricting Plan (the “Plan”)
constitutes an unconstitutional partisan gerrymander in
violation of the First Amendment, the Equal Protection Clause
of the Fourteenth Amendment, and, in the case of the Common
Cause Plaintiffs, Article I, Sections 2 and 4 of the
Constitution. In particular, Plaintiffs allege that in
drawing district lines, the Republican-controlled North
Carolina General Assembly violated the Constitution by
improperly relying on “political data”-data
“reflect[ing] whether the people . . . had voted in
favor of Democratic or Republican candidates for certain
statewide elections”-to draw districts intended to
maximize the number of Republican members of North
Carolina's congressional delegation. First Am. Compl.
Declaratory J. & Inj. Relief, Doc. 12, ¶ 18,
Common Cause v. Rucho, No. 1:16-cv-1026, Sept. 7,
2016 (“Common Cause Am. Compl.”).
the court are Defendants' motions to dismiss the two
actions under Federal Rule of Civil Procedure 12(b)(6). In
support of their motions, Defendants principally assert that
(1) Pope v. Blue, 809 F.Supp. 392 (W.D. N.C. 1992),
which the Supreme Court summarily affirmed, requires
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 foreclose
Plaintiffs' claims. Defs.' Mem. Supp. Mot. Dismiss,
Doc. 31, League of Women Voters of North Carolina v.
Rucho, No. 1:16-cv-1164, Nov. 28, 2016
(“Defs.' League Br.”); Defs.' Mem. Supp.
Mot. Dismiss, Doc. 29, Common Cause v. Rucho, No.
1:16-cv-1026, Oct. 31, 2016 (“Defs.' Common Cause
Br.”). Mindful that “courts should be especially
reluctant to dismiss on the basis of the pleadings when the
asserted theory of liability is novel, ” Wright v.
North Carolina, 787 F.3d 256, 263 (4th Cir. 2015)
(internal quotation marks omitted), we conclude that neither
of these arguments supports dismissal at this juncture.
Plaintiffs' factual allegations in their respective
complaints as true. E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
On February 5, 2016, a panel of three federal judges held
that two districts established by North Carolina's 2011
decennial congressional redistricting plan constituted racial
gerrymanders in violation of the Equal Protection Clause.
Harris v. McCrory, 159 F.Supp.3d 600, 604 (M.D. N.C.
2016). To remedy this constitutional violation, and in
deference to the state's legislative responsibilities,
the Harris Court ordered the drawing of new
congressional districts to be used in future elections.
Id. at 627.
accordance with the court's instruction, the leadership
of the North Carolina General Assembly appointed a Joint
Select Committee on Redistricting (the
“Committee”), comprised of 25 Republican and 12
Democratic legislators, to draw a new congressional district
plan. Am. Compl., Doc. 41, ¶ 42, League of Women
Voters of North Carolina v. Rucho, No. 1:16-cv-1164,
Feb. 10, 2017 (“League Am. Compl.”). On February
16, 2016, the Committee debated a set of criteria to govern
the drawing of the new districts. Id. ¶ 43. The
proposed criteria included “Partisan Advantage, ”
pursuant to which the Committee would “make reasonable
efforts to construct districts in the [2016 plan] to maintain
the current partisan makeup of North Carolina's
congressional delegation, ” which, under the map held
unconstitutional in Harris, included 10 Republicans
and 3 Democrats. Id.; see also id., Ex. A
(Contingent Congressional Plan Committee Adopted Criteria).
To achieve this result-and forestall claims of improper
racial gerrymandering-the proposed criteria also would
require the mapmakers to rely only on (1) population data and
(2) “political data”-“election results in
statewide contests since January 1, 2008, not including the
last two presidential contests.” Id. ¶
discussing the proposed redistricting criteria, the
Republican legislators responsible for overseeing the drawing
of the new plan openly acknowledged their partisan
motivations. For instance, Defendant Lewis, one of the
Committee's chairs, said 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. ¶ 45 (quoting
id., Ex. B (Feb. 16, 2016 North Carolina General
Assembly Joint Committee on Redistricting Transcript), at
50). 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., Ex. B, at 54.
Defendant Lewis “acknowledge[d] freely that this would
be a political gerrymander, ” which he maintained
“is not against the law.” Id., Ex. B at
same day, the Committee adopted the proposed criteria by a
party-line vote. Id. ¶ 47. The following day,
February 17, 2016, Defendants Rucho and Lewis presented to
the Committee the Plan, which had been drawn over the
previous twenty-four hours to conform to the Committee's
criteria. Id. ¶ 48. The Committee approved the
Plan, again along party lines. Id. The North
Carolina Senate and North Carolina House of Representatives
approved the Plan on February 18 and February 19,
respectively, in both cases by party-line votes. Id.
Harris plaintiffs filed objections to the Plan with
the three-judge court. 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 Plan as an unconstitutional partisan
gerrymander. Id. at *2. Noting that the Supreme
Court had not agreed to a framework 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
Legislature v. Ariz. Indep. Redistricting Comm'n,
135 S.Ct. 2652, 2658 (2015)). 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 [Plan].”
Id. at *1, *3 (emphasis added).
Common Cause Plaintiffs filed their complaint challenging the
Plan on August 5, 2016. The individual plaintiffs in the
Common Cause action reside in all thirteen of the
congressional districts established by the Plan. Common Cause
Am. Compl. ¶ 2. The League Plaintiffs, who reside in six
of the thirteen congressional districts, filed their partisan
gerrymandering action on September 22, 2016. League Am.
Compl. ¶¶ 18-29. Collectively, the two groups of
Plaintiffs allege that the Plan violates three constitutional
1. The Equal Protection Clause of the Fourteenth Amendment,
by diluting the electoral strength of individuals who voted
against Republican candidates, id. ¶¶
69-80; Common Cause Am. Compl. ¶¶ 39-45;
2. The First Amendment, by burdening and retaliating against
individuals who voted against Republican candidates on the
basis of their political beliefs and association, League Am.
Compl. ¶¶ 81-83; Common Cause Am. Compl.
¶¶ 25-38; and
3. Article I, Section 2, 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
voters to select their preferred candidates for Congress,
Common Cause Am. Compl. ¶¶ 46-49.
the Equal Protection claim, both groups of Plaintiffs allege
that (1) the Plan was intended to favor Republican
voters and discriminate against Democratic voters; (2) the
Plan had the effect of making it more difficult for
Democratic voters to elect the candidate of their choice,
both within the ten districts drawn by the Committee to favor
Republican candidates and statewide; and (3) Defendants
cannot establish that the Plan's discriminatory effect is
justified by any legitimate state interest, such as
the State's underlying political geography. League Am.
Compl. ¶¶ 72-80; Common Cause Am. Compl.
establish the intent prong, both complaints rely on the
Republican control of the redistricting process, the
Committee's redistricting criteria, and legislators'
statements that they intended for the Plan to be a partisan
gerrymander. League Am. Compl. ¶¶ 43-46; Common
Cause Am. Compl. ¶¶ 12-18. Defendants do not
dispute that, in adopting the Plan, the General Assembly
intended to favor Republican voters and disadvantage voters
who voted for non-Republican candidates.
Common Cause Plaintiffs and League Plaintiffs make somewhat
different allegations as to the second prong of their
proposed test: discriminatory effects. The Common Cause
Plaintiffs point to the alleged disparity between the
percentage of registered voters for each major party and the
number of seats the Plan's framers expected Republican
candidates to win as evidence that the Plan is biased in
favor of Republicans. Common Cause Am. Compl. ¶ 23.
According to the Common Cause Plaintiffs, a
“statistical analysis of the 2016 Plan will confirm
that the gerrymander . . . to perpetuate the 10-3 partisan
advantage in favor of [Republicans] is intentional and is not
the product of chance or the neutral application of
legitimate redistricting principles.” Id.
League Plaintiffs rely on a metric they term the
“efficiency gap”-which they characterize as a
measure of “partisan symmetry”-to argue that the
Plan will have the effect of unduly discriminating against
Democratic voters. League Am. Compl. ¶ 54. Partisan
symmetry purports to “measure partisan bias by
compar[ing] how both parties would fare hypothetically if
they each (in turn) had received a given percentage of the
vote.” League of United Latin Am. Citizens v.
Perry, 548 U.S. 399, 419 (2006)
(“LULAC”) (alteration in original)
(internal quotation marks omitted).
to the League Plaintiffs, the efficiency gap measures
partisan asymmetry by comparing the difference between the
number of “wasted” votes cast by voters of each
party in a given election. Id. ¶¶ 55-57.
Partisan gerrymandering involves a combination of
“cracking” (dividing a disfavored party's
supporters among a number of districts, such that the
party's supporters fall short of a majority in any
individual district) and “packing” (consolidating
a disfavored party's supporters into a single district
such that the party enjoys an overwhelming majority in that
district). Id. ¶ 55. Cracking
“wastes” votes cast for the disfavored party
because such votes “are cast for losing
candidates.” Id. ¶ 56. Packing
“wastes” the disfavored party's votes
“to the extent they exceed the 50 percent-plus-one
threshold for victory (in a two-candidate race).”
Id. The League Plaintiffs posit that an efficiency
gap reflecting that one party has significantly more wasted
votes than the other provides evidence that the redistricting
plan has the effect of discriminating against the party
receiving more wasted votes. Id. ¶¶ 55-57,
February 10, 2017, the League Plaintiffs amended their
complaint to add factual allegations regarding the effects of
the Plan in North Carolina's 2016 congressional election,
the first election to use the districts established by the
Plan. Id. ¶¶ 60-66. As the Plan's
framers anticipated, Republican candidates won 10 of the 13
congressional districts established by the Plan. Id.
According to the League Amended Complaint, the Plan produced
an efficiency gap of 19 percent in the 2016 election, which
is “in approximately the worst 4 percent of
the historical distribution, and the single worst score of
all relevant congressional plans in the country in
2016.” Id. ¶¶ 61-62 (emphasis in
original). Given these results and the structural advantages
enjoyed by ...