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Harper v. Lewis

United States District Court, E.D. North Carolina, Western Division

October 22, 2019

REBECCA HARPER, AMY CLARE OSEROFF, DONALD RUMPH, JOHN BALLA, RICHARD R. CREWS, LILY NICOLE QUICK, GETTYS COHEN, JR., SHAWN RUSH, JACKSON THOMAS DUNN, MARK S. PETERS, JOSEPH THOMAS GATES, KATHLEEN BARNES, VIRGINIA WALTERS BRIEN, and DAVID DWIGHT BROWN, Plaintiffs,
v.
DAVID R. LEWIS, Representative, in his official capacity as Sr. Chair of the House Select Committee on Redistricting; RALPH HISE in his official capacity as Co-Chair of the Senate Committee on Redistricting; WARREN DANIEL in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting; PAUL NEWTON in his official capacity as Co-Chair of the Senate Standing Committee on Redistricting; TIMOTHY K. MOORE Speaker of the NC House of Representatives; PHILIP E. BERGER President Pro Tempore of the NC Senate; THE NORTH CAROLINA STATE BOARD OF ELECTIONS; DAMON CIRCOSTA in his official capacity as Chairman of the NC State Board of Elections; STELLA ANDERSON in her official capacity as Secretary of the NC Board of Elections; KENNETH RAYMOND in his official capacity as Member of the NC State Board of Elections; DAVID C. BLACK in official capacity as Member of the NC State Board of Elections; and JEFF CARMON in his official capacity as Member of the NC State Board of Elections, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on plaintiffs' emergency motion to remand and to expedite resolution of motion to remand (DE 18). Defendants Philip E. Berger, Warren Daniel, Ralph Hise, David R. Lewis, Timothy K. Moore, and Paul Newton (collectively, the “Legislative Defendants”) responded in opposition to the motion. Defendants Stella Anderson, David C. Black, Jeff Carmon, Damon Circosta, Kenneth Raymond, and the North Carolina State Board of Elections (collectively, the “State Board of Elections Defendants”) responded in support of the motion. For the following reasons, the motion is granted.

         STATEMENT OF THE CASE

         Plaintiffs commenced this action in Superior Court of Wake County on September 27, 2019, asserting that a congressional districting plan enacted by the North Carolina General Assembly in 2016 (the “2016 Plan”) is an unconstitutional and invalid partisan gerrymander under the North Carolina Constitution. In their first claim, plaintiffs assert that the 2016 plan violates the North Carolina Constitution, Free Elections Clause, Art. I, § 10, in part, because it draws “election districts for partisan purposes and a desire to preserve power” and to “predetermine election outcomes in specific districts.” (Compl. ¶ 127).

         In their second claim, plaintiffs assert that the 2016 plan violates the North Carolina Constitution, Equal Protection Clause, Art. I, § 19, in part, because of its “intentional classification of, and discrimination against, Democratic voters.” (Compl. ¶ 134). In their third claim, plaintiffs assert that the 2016 plan violates the North Carolina Constitution, Freedom of Speech and Assembly Clauses, Art. I, §§ 12 & 14, in part, by “burdening protected expression based on viewpoint by making Democratic votes less effective, and by eroding the ability of Democratic voters to “instruct and obtain redress from their members of Congress.” (Compl. ¶¶ 141-142).

         Plaintiffs seek the following relief from the state court, sitting as a three-judge panel:

a. Declare that the 2016 Plan is unconstitutional and invalid because it violates the rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution's Free Elections Clause, Art. I, § 10; Equal Protection Clause, Art. I, § 19; and Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14;
b. Enjoin Defendants, their agents, officers, and employees from administering, preparing for, or moving forward with the 2020 primary and general elections for Congress using the 2016 Plan;
c. Establish a new congressional districting plan that complies with the North Carolina Constitution, if the North Carolina General Assembly fails to enact new congressional districting plans comporting with the North Carolina Constitution in a timely manner;
d. Enjoin Defendants, their agents, officers, and employees from using past election results or other political data in any future redistricting of North Carolina's congressional districts to intentionally dilute the voting power of citizens or groups of citizens based on their political beliefs, party affiliation, or past votes.
e. Enjoin Defendants, their agents, officers, and employees from otherwise intentionally diluting the voting power of citizens or groups of citizens in any future redistricting of North Carolina's congressional districts based on their political beliefs, party affiliation, or past votes.
f. Grant Plaintiffs such other and further relief as the Court deems just and appropriate.

(Compl. (DE 5-1) at 43-44).[1]

         Plaintiffs are 14 individual registered Democrat voters. The Legislative Defendants are six members of the North Carolina Senate and House of Representatives named in their official capacities. The State Board of Elections Defendants are officers and members ...


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