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Common Cause v. Rucho

United States District Court, M.D. North Carolina

March 3, 2017

COMMON CAUSE, et al., Plaintiffs,
ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants. LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, et al., Plaintiffs,
ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants.

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


          PER CURIAM

         In these consolidated cases, two groups of Plaintiffs[1] 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.”).

         Before the court are Defendants'[2] 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.



         We take 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.

         In 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. ¶ 44.

         In 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 48.

         That 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. ¶¶ 49-50.

         The 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).


         The 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 provisions:

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.

         Regarding 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. ¶¶ 44-45.

         To 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.

         The 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. ¶ 24.

         The 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).

         According 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, 79.

         On 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. ΒΆΒΆ 61-62 (emphasis in original). Given these results and the structural advantages enjoyed by ...

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