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City of Greensboro v. Guilford County Board of Elections

United States District Court, M.D. North Carolina

April 3, 2017

CITY OF GREENSBORO, et al., Plaintiffs,


          Catherine C. Eagles, District Judge.

         In 2015, the North Carolina General Assembly passed a law that, among other things, prohibited the citizens of Greensboro, alone among municipal citizens in the state, from participating in municipal initiatives or referendums.[1] The City of Greensboro and several individual residents of Greensboro sued, challenging the law on several grounds, including a claim that this ban violates their equal protection rights.

         The plaintiffs moved for judgment on the pleadings on this claim. The defendant, the Guilford County Board of Elections, takes no position on the constitutionality of this provision. The State has not appeared in this litigation and thus has identified neither a legitimate governmental purpose for the initiative and referendum ban nor a rational relationship between any such purpose and singling out of Greensboro voters. No legitimate purpose or rational relationship appears in the undisputed evidence. The Court, having converted the motion to one for partial summary judgment and upon an expansion of the record, will grant the motion.


         A. North Carolina Law on Municipal Elections

         Under the North Carolina Constitution, cities and counties are essentially creatures of the state.[2] Article VII gives the General Assembly the power to “provide for the organization and government and the fixing of boundaries of counties, cities and towns.”[3]“[M]unicipalities have no inherent powers; they have only such powers as are delegated to them by legislative enactment.”[4]

         In 1969, the General Assembly adopted the statute now codified at N.C. Gen. Stat. §§ 160A-101 to -111, which delegates significant control to all cities over their forms of government.[5] Under Chapter 160A, every North Carolina municipality and its voters have the right to select the structure and form of the municipality's government.[6] Section 160A-101 allows every municipality to choose the style of the municipal corporation and its governing board;[7] the number, terms of office, and mode of election of council members;[8] the method of conducting municipal elections;[9] the method of choosing the mayor;[10] and the form (mayor-council or council-manager) of municipal government.[11]It also requires that city councils draw the boundaries of any districts and divide council seats between the districts and at-large seats, if any.[12]

         Each city council is authorized to change between and among options identified in § 160A-101 by adopting an ordinance amending the city's charter, subject to notice and procedural requirements.[13] Councils can, if they choose, require approval by the people before adopting the ordinance.[14]

         If a city council enacts such a change without approval by a vote of the people, public notice is required[15] and the change is subject to a referendum if the required number of voters submit a timely petition.[16] If a petition meeting the numerical requirements is presented to the council within thirty days of public notice, the council must submit its proposed change to a referendum before it can go into effect.[17]

         Each city's municipal voters can also change city governance by initiative.[18]There are procedural requirements, but an initiative can cover any topic in § 160A-101 except for drawing district boundaries.[19] After receiving an initiative petition, the council must call a special election to consider the proposed change.[20]

         Since 1983, Greensboro has chosen, pursuant to Chapter 160A, to use the mayor-council form of government, with the mayor and three council members elected at-large and five council members elected from single-member districts.[21] At the time the General Assembly passed the legislation at issue here, all council members and the mayor were elected to two-year terms.[22]

         B. Session Law 2015-138

         In early July 2015, days before the filing period for the 2015 Greensboro City Council election was scheduled to open, [23] the North Carolina General Assembly passed Session Law 2015-138, referenced here as “the Act.”[24] The Act made many changes to the way the Greensboro City Council would be elected in 2015 and to the city's governance structure going forward.

         As is relevant to the pending motion, the Act prohibits Greensboro voters from making changes to the form of city government by initiative or referendum.[25] At the time the Act was passed, one referendum, initiated by the Greensboro City Council, was scheduled for Fall 2015; the issue was whether to increase council member terms from two years to four years.[26] The original Act had had no expiration date on the prohibition of changes by its citizens.[27] In late September 2015, as part of a “technical corrections” bill, the General Assembly amended the Act to prohibit alterations and amendments to the City of Greensboro's form of government only “until after the return of the 2020 federal decennial Census.”[28]

         C. Litigation History

         The plaintiffs, including the City of Greensboro and several Greensboro citizens, filed this lawsuit on July 13, 2015, alleging that the Act violated the equal protection clauses of the United States and North Carolina Constitutions in two ways, including the prohibition on initiative and referendum petitions.[29] In addition to seeking preliminary injunctive relief, [30] the plaintiffs sought to permanently enjoin the implementation of the Act as unconstitutional, restore the previously existing election procedures, and recover attorney's fees.[31]

         On July 23, 2015, after notice to the defendant Guilford County Board of Elections and the Attorney General and after a hearing, the Court entered a preliminary injunction that enjoined the Board from implementing elections according to the Act.[32]The plaintiffs filed an initial amended complaint in February 2016, adding a third equal protection claim based on racial gerrymandering.[33]

         The sole defendant here, the Board, has indicated that it has only a “ministerial” role in elections and that taking a position on the constitutional issues raised would be inconsistent with its duty to administer elections in an impartial and nonpartisan manner.[34] The Board has not defended the Act, though it has participated in the litigation in other ways.[35]

         Before the hearing on the motion for preliminary injunction, the Attorney General was given notice of this lawsuit pursuant to state law.[36] The Attorney General decided not to participate in the litigation, [37] and no one from the attorney general's office appeared at the preliminary injunction hearing, [38] submitted evidence, or filed a brief in opposition to an injunction. Since the preliminary injunction, the Attorney General has not substantively participated in this litigation[39] and has not defended the Act.[40] Legislative leaders within the General Assembly appear to have standing to intervene, but have not asked to do so.[41]

         In August 2015, just a few weeks after the Court issued the injunction, several Greensboro residents moved to intervene as defendants in support of the Act, [42] and the Court allowed them to intervene soon thereafter.[43] The intervenors participated in discovery, [44] and filed a motion to dismiss for failure to join a necessary party.[45] The Court denied that motion pursuant to Wright v. North Carolina.[46] The intervenors did not file any summary judgment motions or respond to the pending dispositive motion.[47] The Court ultimately allowed them to withdraw in late 2016 at their request.[48]

         With the Court's permission, the plaintiffs filed a second amended complaint on December 8, 2016.[49] This complaint substituted one of the individual plaintiffs and included no substantive changes.[50] The Board filed an updated answer on December 22, which made no substantive changes from its earlier answers.[51]


         A. Procedural Background

         On October 21, 2016, the plaintiffs jointly filed a motion for partial judgment on the pleadings.[52] The plaintiffs sought judgment in their favor on their first claim for relief, [53] which alleged that the Act violated the Equal Protection Clause by depriving the citizens of Greensboro of the statutory right to seek an initiative or referendum, which remained available to the citizens of every other municipality in the state.[54] The Board filed a response indicating that it would not dispute the merits of this claim.[55] The defendant-intervenors did not respond to the motion and withdrew from the case six weeks after the motion for judgment on the pleadings was filed.[56]

         At a hearing on December 13, 2016, the Court converted the motion to a motion for partial summary judgment, without objection from the parties, and it held the motion open for submission of evidence.[57] The plaintiffs presented additional evidence in accordance with Federal Rule of Civil Procedure 12(d).[58] The parties agreed that additional briefing was not required.[59] Consistent with the standard in Rule 56, the Court views the evidence in the light most favorable to the defendant.[60]

         B. Merits

         1. Legal Context

         “[I]f a state chooses to confer the right of referendum to its citizens, it is ‘obligated to do so in a manner consistent with the Constitution.'” Molinari v. Bloomberg, 564 F.3d 587, 597 (2d Cir. 2009) (quoting Meyer v. Grant, 486 U.S. 414, 420 (1988)). Similarly, if the state creates an initiative procedure, it cannot restrict the use of that procedure in a way that violates the Constitution. Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993).

         The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The clause “does not take from the States all power of classification, ” Pers. Adm'r v. Feeney, 442 U.S. 256, 271 (1979), but “keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” Romer v. Evans, 517 U.S. 620, 633 (1996).

         “[T]he Equal Protection Clause of Article I, § 19 of the Constitution of North Carolina is functionally equivalent to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.” White v. Pate, 308 N.C. 759, 765, 304 S.E.2d 199, 203 (1983). The North Carolina Constitution also provides the same “equal right to vote” guaranteed by the United States Constitution. Id. at 769, 304 S.E.2d at 205.

         “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If the plaintiff makes this showing, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id.

         “Ordinarily, when a state regulation or policy is challenged under the Equal Protection Clause, unless it involves a fundamental right or a suspect class, it is presumed to be valid and will be sustained ‘if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.'” Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002) (quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993)). “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633. The rational basis test is admittedly a low bar; nonetheless, laws that do not pass this test are unconstitutional. See, e.g., id. at 635. See generally City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448, 450 (1985) (holding that zoning ordinance based on “an irrational prejudice against the mentally retarded” failed rational basis review); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (holding that “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”).

         While territorial uniformity is not a constitutional requirement of the equal protection clause, Salsburg v. Maryland, 346 U.S. 545, 552 (1954), a territorial distinction must rationally serve a legitimate governmental interest. See Id. at 553-54 (noting state's reasonable explanation for treating defendants in one county differently from defendants in other counties); Francis v. Maryland, 605 F.2d 747, 749-50 (4th Cir. 1979) (rejecting equal protection challenge to different treatment of juvenile defendants in one county based on finding of legislative “experimental purpose, ” and distinguishing Long v. Robinson, 316 F.Supp. 22 (D. Md. 1970), aff'd, 436 F.2d 1116 (4th Cir. 1971), where “no rational basis could be found” for treating juveniles in one city as adults, a “harsh exception” to the way juveniles were treated elsewhere in the state).

         There is no fundamental right to vote in an initiative or referendum. See Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011). The plaintiffs here do not contend that they are members of a suspect class. As the plaintiffs agree, the initiative and referendum prohibition in the Act is subject to this “rational basis” level of scrutiny.[61]

         2. Undisputed Evidence

         The Act prohibits the City of Greensboro from changing the form of its municipal government.[62] This prohibition necessarily includes a prohibition on citizen initiatives and referendums that would change the form of city government.[63] By its express terms, this part of the Act applies “only to the City of Greensboro” and to no other municipality.[64] The Act itself does not contain any findings of fact, any statement about the reason the Act was needed, or any explanation for its enactment beyond its title, which indicates it is “An Act . . . to Clarify” the form of Greensboro's elections and municipal government.[65]

         The legislative history that exists for the Act does not provide any justification for the Act's removal of initiative and referendum rights from the voters of Greensboro. While several versions of the Act were discussed by a Senate committee and by the House and Senate during floor debates, no legislator addressed the ban on initiatives and referendums or stated any reason to deny the citizens of Greensboro the right to bring these petitions on the same terms as citizens of other cities.[66] At least one opponent of the Act explicitly objected to the lack of explanation for the removal of initiative rights, asked why Greensboro was being “singled out for this treatment, ” and raised equal protection concerns.[67]

         To be sure, the legislature thoroughly discussed whether it should put the changes proposed in the Act before the citizens in the form of a referendum. In public comments, many citizens asked for a referendum.[68] Legislators discussed a referendum[69] and twice voted to stop amendments that would have put the changes to a referendum.[70] Those discussions, however, were about a potential referendum on whether the changes to the form of the City Council in the Act itself would become law, not the background provisions of §§ 160A-103 and -104 allowing citizens to petition for initiatives and referendums on other matters. The discussion in the legislature covered all other parts of the bill: the redistricting, the removal of the right to vote from the mayor, the increase of terms to four years, and the removal of the right of the City Council to change the districts or to submit the new districts to a referendum.[71]

         While the General Assembly has redistricted and reapportioned other cities and boards from time to time, nothing before the Court indicates that the General Assembly has ever before prohibited an existing municipality's voters from participating in the referendums and initiatives described in §§ 160A-103 and -104. The same law at issue here also changed the government of the City of Trinity, but the General Assembly did not prohibit the citizens of that city from using initiatives or referendums.[72] The only other similar 2015 session law, which changed the City of Albemarle's election procedures, did not deprive those citizens of their initiative or referendum rights, either.[73]

         The intervenors' amended answer suggests “that other municipalities are similarly situated with regard to a delayed referendum in North Carolina.”[74] The intervenors withdrew without providing any evidence in support of this statement, and there is no evidence in the record to support it.

         The plaintiffs advise the Court that they undertook a substantial search and review of North Carolina statutes related to municipal elections[75] and found only one time where the legislature prohibited the citizens of an entity similar to a municipality from seeking initiatives or referendums.[76] That lone exception was a 2003 session law prohibiting Butner from using initiatives or referendums to change its form of government.[77] Butner was a unique case because, while it was called a “town, ” it was not incorporated as a town at the time and was instead managed by the state.[78] The 2003 law in question merely created a new “advisory council” for Butner.

         In other situations identified by the plaintiffs, such as session laws that incorporated new towns, the General Assembly adjusted the percentage of voters needed to sign a petition to put an initiative or referendum on the ballot.[79] Unlike Greensboro citizens, the citizens of these municipalities were not wholly barred from conducting referendums or initiatives for any period of time.

         3. Analysis

         The text of the Act establishes that the legislature intended that the provisions of the Act at issue here would apply to-and only to-the citizens of Greensboro. The title of the Act refers to Greensboro's elections and municipal government.[80] The text states that Section Two “applies only to the City of Greensboro.”[81] The legislature has never deprived the citizens of any other municipality of their initiative and referendum rights, and it did not deprive citizens of Albemarle or Trinity of their referendum rights when it changed their municipal governments in the same year it changed Greensboro's municipal government.[82] It is undisputed that the Act treats the individual citizens of the City of Greensboro differently from all other municipal citizens in the state and from all other citizens whose municipal governance was changed in 2015.

         The Act intentionally withdraws statutory referendum and initiative rights from voters in Greensboro, alone among municipal citizens in North Carolina. Consequently, it cannot survive constitutional scrutiny unless there is a rational basis for distinguishing between Greensboro and other North Carolina municipalities, and between Greensboro and the two other municipalities whose governance structures were changed in 2015.[83]The crux of the motion is whether there is evidence of a legitimate governmental purpose behind this different treatment and whether there is a rational relationship between the Act and any such purpose.[84] The Court places the burden on the plaintiffs to prove the absence of these things.[85]

         There is no direct evidence or affirmative suggestion of a legitimate governmental purpose or of a rational relationship between the Act and any such purpose. The Board has offered no evidence or suggestion of a legitimate governmental purpose or rational basis for the initiative and referendum prohibition, [86] nor did the intervenors.[87] The Act itself and the transcripts of the legislative debates proffered by the plaintiffs are silent as to the reasons for the initiative and referendum prohibition.[88] No legislator or supporter of the Act has testified about a reason for banning citizen-initiated petitions in Greensboro.[89]

         Nor is there any indirect or circumstantial evidence suggesting a legitimate governmental purpose or any rational reason for singling out Greensboro. The historical evidence proffered by the plaintiffs of legislation about referendums and initiatives does not raise any legitimate state purpose for treating Greensboro citizens differently from citizens of all other cities in the state, [90] nor is there any suggested historical or factual reason on record for such different treatment. Even if the State had a legitimate interest in prohibiting initiatives and referendums by Greensboro citizens, there is nothing tending to distinguish the citizens of Greensboro from those of Trinity or Albemarle.[91]

         Finally, the Court has been unable to identify any obvious legitimate governmental interest for the Act's discriminatory treatment of Greensboro citizens. While one can imagine factual situations in which the legislature might have a rational basis for depriving one municipality's voters of the initiative and referendum rights available to voters in all other municipalities, such as a desire to experiment or a need ...

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