United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER DENYING LEGISLATIVE
DEFENDANTS' EMERGENCY MOTION TO STAY
memorandum opinion and order entered January 9, 2018 (the
“Order”), this Court held that North
Carolina's 2016 Congressional Redistricting Plan (the
“2016 Plan”) constitutes an unconstitutional
partisan gerrymander in violation of the Equal Protection
Clause of the Fourteenth Amendment, the First Amendment, and
Article I of the Constitution. Common Cause v. Rucho
(Common Cause II), --- F.Supp.3d ---, 2018 WL 341658
(M.D. N.C. Jan. 9, 2018). Before the Court is a motion (the
“Motion”) by only the Legislative
Defendants in this matter-four Republican members of
the North Carolina General Assembly-to stay this Court's
Order pending Supreme Court review. Leg. Defs.' Emerg.
Mot. to Stay Pending S.Ct. Rev. & Request for Exp.
Rul'g, Jan. 11, 2018, ECF No. 119. Neither the State of
North Carolina nor any of the State Board Defendants have
sought an emergency stay. Nor has the State of North Carolina
or the State Board Defendants appealed this Court's Order
to the Supreme Court.
careful consideration of Legislative Defendants'
arguments, we conclude that Legislative Defendants have
failed to meet their “heavy burden” in seeking
the “extraordinary relief” of staying this
Court's order. Harris v. McCrory, No. 1:13CV949,
2016 WL 6920368, at *1 (M.D. N.C. Feb. 9, 2016) (internal
quotation marks omitted). Therefore, and as further explained
below, we exercise our discretion to deny Legislative
Defendants' motion to stay.
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), aff'd sub nom. Cooper v. Harris, 137
S.Ct. 1455 (2017). Less than two weeks later, the General
Assembly adopted the 2016 Plan. Common Cause II,
2018 WL 341658, at *7. Several months later, Plaintiffs filed
the instant actions. Id. at *8-9.
26, 2017, Legislative Defendants moved to stay these
proceedings pending the Supreme Court's final decision in
Gill v. Whitford, Nos. 1161, 16A1149. ECF Nos. 74,
75. Plaintiffs opposed Legislative Defendants' motion,
and State Defendants took no position. ECF Nos. 78, 79. In an
August 29, 2017 order, and subsequent opinion, this Court
denied Legislative Defendants' stay motion.
Common Cause v. Rucho (Common Cause
I), Nos. 1:16-CV-1026, 1:16-CV-1164, 2017 WL 3981300, at
*2 (M.D. N.C. Sept. 8, 2017).
October 2017, this Court held a four-day trial, during which
the parties introduced evidence and presented testimony and
arguments. Common Cause II, 2018 WL 341658, at *9.
Thereafter, the parties filed extensive post-trial briefing.
Id. at *9- 10. On January 9, 2018, this Court ruled
in favor of Plaintiffs on all of their claims and gave
Defendants until January 24, 2018, to enact a remedial plan.
Id. at *10, *74-76.
January 11, 2018, Legislative Defendants filed the Motion and
also noticed an appeal to the Supreme Court. Leg. Defs.'
Notice of Appeal, Jan. 11, 2018, ECF No. 121. Plaintiffs
oppose the Motion. ECF No. 122. State Defendants-including
the State of North Carolina-have not asked this Court to stay
its Order, nor have they filed an appeal from the Order to
the Supreme Court.
Court considers four factors when determining whether to
issue a stay pending appeal: ‘(1) whether the stay
applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies.'” Harris, 2016 WL 6920368,
at *1 (quoting Hilton v. Braunskill, 481 U.S. 770,
776 (1987)); accord Long v. Robinson, 432 F.2d 977,
979 (4th Cir. 1970). “A stay is an intrusion into the
ordinary processes of administration and judicial review, and
accordingly is not a matter of right, even if irreparable
injury might otherwise result to the appeal.” Nken
v. Holder, 556 U.S. 418, 417 (2009) (internal quotation
stay is considered ‘extraordinary relief' for which
the moving party bears a ‘heavy burden, '”
and “[t]here is no authority to suggest that this type
of relief is any less extraordinary or the burden any less
exacting in the redistricting context.” Larios v.
Cox, 305 F.Supp.2d 1335, 1336 (N.D.Ga. 2004) (quoting
Winston-Salem/Forsyth Cty. Bd. of Educ. v. Scott,
404 U.S. 1221, 1231 (Burger, Circuit Justice, 1971)); see
Personhuballah v. Alcorn, 155 F.Supp.3d 552, 558-59
(E.D. Va. 2016) (Diaz, J.) (same); Does 1-5 v.
Cooper, No. 1:13CV711, 2016 WL 10587195, at *1 (M.D.
N.C. Mar. 2, 2016) (“The granting of a stay pending
appeal is ‘an extraordinary remedy.'”
(quoting Adams v. Walker, 488 F.2d 1064, 1065 (7th
Cir. 1973))). To that end, “[a]s with other types of
cases, district courts evaluating redistricting challenges
have generally denied motions for a stay pending
appeal.” Harris, 2016 WL 6920368, at *1 n.1
Defendants' Motion does not specifically address the four
factors set forth in Hilton. We nonetheless conclude
that even assuming Legislative Defendants had addressed the
governing four factors, they could not satisfy their
“heavy burden” to ...