Calla Wright v. State of North Carolina


PUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-cv-00607-BO. [999590494]. [14-1329]

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Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 1 of 41 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1329 CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L. WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G. DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN; WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN; BEVERLEY S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN CHILDREN, d/b/a Coalition of Concerned Citizens for African-American Children; RALEIGH WAKE CITIZENS ASSOCIATION, Plaintiffs – Appellants, v. STATE OF NORTH CAROLINA; WAKE COUNTY BOARD OF ELECTIONS, Defendants – Appellees. Appeal from the United States District Court Eastern District of North Carolina, at Raleigh. W. Boyle, District Judge. (5:13-cv-00607-BO) Argued: December 10, 2014 Decided: for the Terrence May 27, 2015 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote the majority opinion, in which Judge Gregory joined. Judge Motz wrote a dissenting opinion. Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 2 of 41 ARGUED: Anita Sue Earls, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants. Alexander McClure Peters, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Scott Wood Warren, WAKE COUNTY ATTORNEY'S OFFICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Roger A. Askew, Claire A. Hunter, WAKE COUNTY ATTORNEY'S OFFICE, Raleigh, North Carolina, for Appellee Wake County Board of Elections. 2 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 3 of 41 WYNN, Circuit Judge: “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate another.” treatment, value one person’s vote over that of Bush v. Gore, 531 U.S. 98, 104-05 (2000) (citation omitted). Thirteen citizens of Wake County, North Carolina challenge a state electoral law redrawing districts. the Wake Plaintiffs County contend Board that of Education under the new redistricting plan, some citizen’s votes will get significantly more weight than other’s in violation of the Fourteenth Amendment’s guarantees of one person, one vote and the North Carolina Constitution’s promise of equal protection. For the reasons explained below, we conclude that Plaintiffs have stated a claim upon which relief could be granted against the Wake County Board of Elections and that the district court therefore erred in dismissing their suit. However, we affirm the denial of the motion to amend because the state officials Plaintiffs proposed to add as named defendants are not amenable to suit. I. 3 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 4 of 41 Accepting the facts in Plaintiffs’ complaint as true, as we must on a motion to dismiss, Plaintiffs allege that until 2013, the Wake County Board of Education (“Board of Education”) was composed of members elected from nine single-member districts. The Board of Education’s functioning and selection was governed by North Carolina General Assembly Session Law 1975-717, which required, redistrict among other itself things, every ten that years the Board following of Education the decennial census. In 2010, the census showed that Wake County’s population had grown by 43.51% over the preceding decade, with a maximum population deviation districts of 47.89%. 1 among the then-existing school board The Board of Education thus redrew its districts in 2011, resulting in geographically compact districts with a maximum population deviation of 1.66% and no district 1 “To determine compliance with the one person, one vote principle courts usually analyze the apportionment plan in terms of the maximum population deviation among the districts. Generally, to calculate maximum deviation, the court first constructs a hypothetical ideal district by dividing the total population of the political unit (e.g., state or county) by the total number of representatives who serve that population. Then, the court determines how much the actual population of each district varies from the population of the ideal district. This deviation is expressed as a percentage of the ideal population. Maximum deviation is the sum of the absolute value of the deviation of the district with the smallest population and that of the district with the largest population.” Daly v. Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996). 4 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 5 of 41 deviating from the ideal district population by even 1%. See Appendix 1 (from Plaintiffs’ complaint at J.A. 19). The plan was put into place by a Board of Education that was majority Republican. But under the new plan, the fall 2011 elections resulted in a Board of Education with a Democratic majority. in a Plaintiffs allege that because the new plan resulted Democratic majority, the Republican-controlled North Carolina General Assembly, in turn, “over the objection of a majority of the Wake County School Board, passed a local bill making numerous changes in the method of selection.” J.A. 11. “No Democratic member of the legislature voted for it, and no African-American member of the legislature voted for it.” J.A. 21. The bill, “numerous” methods of Session changes to election. Law the 2013-110 Wake Central County to (“Session Board Plaintiffs’ of Law”), made Education’s complaint, the Session Law changed the Board of Education’s make-up from nine single-member districts to seven single-member districts and set less geographically districts. 23). compact boundaries for this new set of See Appendix 2 (from Plaintiffs’ complaint at J.A. The maximum population deviation among the single-member districts is 7.82%. Further, the Session Law created two “super districts.” One super district forms a donut of “outer, rural areas of the 5 Appeal: 14-1329 Doc: 46 county,” urban” while area. Filed: 05/27/2015 the Pg: 6 of 41 other forms 11. See J.A. complaint at J.A. 25). a donut hole Appendix 3 in (from the “inner, Plaintiffs’ The maximum population deviation between the superdistricts is 9.8%. The Session Law also prohibits the Board of Education from “making any further changes in its method 2021,” something it previously could do. is thus burdened districts, with some where votes will “substantially “visually be are and election J.A. 11. “substantially under-populated” districts of diluted districts. Wake County over-populated” vis-à-vis J.A. mathematically until less other 26. Those compact” and “split 21 unique precincts in the county” (as opposed to the prior districts, which split only 11 precincts). J.A. 28. Plaintiffs sued the State of North Carolina and the Wake County Board of Elections (“Board of Elections”), the entity charged with administering the Board of Education’s elections. Plaintiffs complained that the Session Law “overpopulates, without justification, certain districts, causing the vote of Plaintiffs weighted living less than in those votes overpopulated of citizens unjustifiably under-populated.” claimed the that Session J.A. Law in districts districts 11. violates to be that are Plaintiffs the United thus States Constitution’s one person, one vote guarantees and the North Carolina Constitution’s equal protection clause. 6 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 7 of 41 Defendants answered and moved to dismiss. turn, sought Governor leave Patrick to amend McCrory, their Senate Plaintiffs, in complaint, President substituting Pro Tem Phillip Berger, and General Assembly Speaker Thom Tillis (“individual state officials”) in their official capacities for the State of North Carolina. The district court granted Defendants’ motions to dismiss and denied Plaintiffs’ motion to amend as futile. Specifically, the district court held that it had no jurisdiction over the State, that Eleventh Amendment immunity also insulated the individual state officials from suit, and that Plaintiffs’ one person, one vote claims were really “partisan gerrymandering” claims, United which States it and considered North non-justiciable Carolina under Constitutions. both the Plaintiffs timely appealed. II. We first consider Plaintiffs’ argument that the district court erred in ruling that Proposed Defendants Tillis and Berger (“Proposed Defendants”) were not proper parties to their suit. 2 2 Plaintiffs have not challenged the district court’s dismissal of the State from their suit. Further, Plaintiffs conceded in their reply brief that Defendant McCrory lacked a “sufficient connection to the enforcement of the redistricting plan at issue here” to constitute a proper defendant. Reply Br. (Continued) 7 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 And we do so de novo. Pg: 8 of 41 Franks v. Ross, 313 F.3d 184, 192-93 (4th Cir. 2002) (noting that “the existence of sovereign immunity is a question of law that we review de novo” and that “we review de novo a . . . legal determination [of] whether Ex parte Young relief is available”) (quotation marks and citations omitted). Under the Eleventh Amendment, “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The United States Supreme Court has read the Eleventh Amendment to render States immune from being hauled into federal court by private parties. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002). While the protections officials is to Eleventh States, less the robust. Amendment immunity provides it significant provides Specifically, a state to state official “ceases to represent the state when it attempts to use state power in violation of the Constitution.” Sch. Bd. of City of Charlottesville, Va. v. Allen, 240 F.2d 59, 63 (4th Cir. 1956). See also Ex parte Young, 209 U.S. 123 (1908). Such officials at 22. We therefore do not address the propriety of these parties as defendants. 8 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 9 of 41 thus “may be enjoined from such unconstitutional action”—sued and stopped, connection in with other the words—but enforcement” only of an if they have “some unconstitutional act. Id. at 157; see also Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982). To be amenable to suit under the Eleventh Amendment, there must exist a “special relation” between the state official being sued and the challenged action. Ex parte Young, 209 U.S. at 157. See also, e.g., Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, ‘special 331 relation’ challenged This (4th to 324, 333 the avoid “proximity challenged state action.” F.3d 2001) between statute requires Cir. (4th the to (“Ex parte state officer Eleventh and Young requires sued and Amendment’s responsibility a the bar.”). for the S.C. Wildlife Fed’n v. Limehouse, 549 Cir. 2008) (emphasis in original). By contrast, “[g]eneral authority to enforce the laws of the state is an insufficient immunity.” For ground for abrogating Eleventh Amendment Id. (quotation marks omitted). example, Virginia’s attorney in McBurney general did v. not Cuccinelli have a we held specific that duty to enforce the state’s freedom of information act and thus was not subject to suit under Ex parte Young. Cir. 2010). 616 F.3d 393, 400-02 (4th We noted that Virginia had vested such authority in local prosecutors as opposed to the attorney general. 9 Further, Appeal: 14-1329 we Doc: 46 likened opinions Filed: 05/27/2015 the to attorney the Pg: 10 of 41 general’s governor’s duty duty to to issue uphold advisory state law—not sufficient to impose the required “special relation” to enforce the law so as to make him a proper defendant. Id. at 401. By contrast, in S.C. Wildlife Federation, we held that the sued state official—there Department of the director Transportation—had of a South Carolina’s sufficiently close relationship with the challenged law or action to be amendable to suit. 549 F.3d at 332-34. alleged violations arising from Carolina. the We of the proposed held that In that case, the plaintiffs National Environmental construction both state of and a Policy bridge federal in law Act South imposed specific duties upon the director that gave rise to the required special relation. Id. at 333-34. Turning to the case at hand, we agree with the district court that neither Proposed Defendant had a special duty to enforce the challenged Session Law, and thus neither is amenable to suit. The North Carolina Constitution clearly assigns the enforcement of laws to the executive branch. III, § 5. The General Assembly retains no ability to enforce any of the laws it passes. merely N.C. Const. art. members of Cf. id. North And Proposed Defendants are Carolina’s General Assembly. Additionally, as is the case with all election plans in North Carolina, the county Board of Elections, in cooperation with the 10 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 11 of 41 State Board of Elections, has the specific duty to enforce the challenged redistricting plan. N.C. Gen. Stat. §§ 163-22, 163- 33. Plaintiffs counter that if the Proposed Defendants are not party to their suit, there will be no mechanism for forcing a constitutionally enjoining the incorrect. valid Session election, Law. 3 should This they succeed assertion is, in however, The district court could, for example, mandate that the Board of Elections conduct the next election according to the scheme in place prior to the Session Law’s enactment until a new and valid redistricting plan is implemented. State law also provides, for example, that the State Board of Elections can make reasonable interim rules with respect to pending elections. N.C. Gen. Stat. § 163-22.2 (“In the event . . . any State election law . . . is held unconstitutional or invalid by a State or federal court or is unenforceable . . ., the State Board of Elections interim rules primary or and shall have regulations election.”). authority with Without to respect question, make to reasonable the then, pending a valid election could take place if Plaintiffs succeed on the merits and successfully enjoin the Session Law. 3 Plaintiffs make various other arguments relating to, for example, the availability of attorneys’ fees, which we summarily reject. 11 Appeal: 14-1329 In Doc: 46 sum, Filed: 05/27/2015 neither Pg: 12 of 41 Proposed Defendant has any enforcement authority over election proceedings, and, accordingly, neither falls within the Eleventh Amendment established in Ex parte Young. exception to immunity We thus affirm the district court’s determination that adding Speaker Tillis and President Pro Tem Berger as defendants would be futile. III. With their main argument on appeal, Plaintiffs contend that the district court erred when it dismissed their complaint for failure to state a claim upon which relief could be granted. review the complaint de allegations district novo, court’s dismissal “accept[ing] contained in the as of true complaint” the all Plaintiffs’ of and reasonable inferences in favor of the plaintiff.” We the factual drawing “all E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quotation marks and citations omitted). Further, while the complaint “must contain sufficient facts to state a claim that is plausible on its face,” it nevertheless “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Id. (quotation marks and citations omitted). To the extent Plaintiffs’ claims do “not fall within the four corners of our prior case law,” this “does not justify 12 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 13 of 41 dismissal under Rule 12(b)(6). dismissals ‘are complaint sets assessed especially forth after a On the contrary, Rule 12(b)(6) disfavored novel factual legal in theory development.’” cases that McGary where the can best be v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (quoting Baker v. Cuomo, 58 F.3d 814, 818–19 (2d Cir. 1995), vacated in part on other grounds, 85 F.3d 919 (2d Cir. 1996) (en banc)). 5B Charles Alan Wright & Arthur R. Miller et See also al., Federal Practice & Procedure § 1357 (3d ed. 2015) (noting that courts should “be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability” is “novel” and thus should be “explored”). unsettled areas, “it may Indeed, as the law “firm[s] up” in be more feasible to dismiss weaker cases on the pleadings;” otherwise, plaintiffs should be given “an opportunity resolved.” to develop evidence before the merits are Metts v. Murphy, 363 F.3d 8, 11 (1st Cir. 2004). Finally, we bear in mind that “‘a complaint is to construed liberally so as to do substantial justice.’” be Pub. Employees’ Ret. Ass’n of Colo. v. Deloitte & Touche LLP, 551 F.3d 305, 311 (4th Cir. 2009) (quoting 5 Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 1202 (3d ed. 2004)). See also, e.g., Anderson v. Found. for Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 505 13 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 14 of 41 (4th Cir. 1998) (noting that “pleading standards require that the complaint be read liberally in favor of the plaintiff”). A. The Fourteenth Amendment’s equal protection clause guarantees not only “the initial allocation of the franchise”— that is, the right to vote. Bush, 531 U.S. at 104. Rather, equal protection “applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Inherent requirement principle Reynolds in that that v. the all is Sims, equal protection citizens’ commonly 377 Id. at 104-05. votes known U.S. 533, as of be weighted one 563, voting person, 565 is the equally, one (1964). a vote. “This principle ensures that every voter, no matter what district he or she lives in, representative.” will Daly, have 93 an F.3d equal at say electing a “A 1216. in citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution’s Equal Protection Clause.” Reynolds, 377 U.S. at 568. The one person, one vote principle applies not just to the federal government but also to state and local Avery v. Midland Cnty., 390 U.S. 474, 480 (1968). 14 government. Of particular Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 15 of 41 note in this case, the Supreme Court has left no doubt that one person, one vote applies to school boards. Id. (“If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population.” (emphasis added)). The courts have recognized that “[m]athematical exactness or precision is hardly a workable constitutional requirement” and do not hold state or local government districts to such a standard. Daly, 93 F.3d at 1217 (quoting Reynolds, 377 U.S. at 577). Nevertheless, governments must “make an honest and good faith effort” to construct districts population “as is practicable.” as close to equal Daly, 93 F.3d at 1217 (quoting Reynolds, 377 U.S. at 577). Generally, therefore, a district apportionment plan with a maximum population deviation under 10% will not, “by itself,” support an equal protection claim. Daly, 93 F.3d at 1217-18. The 10% threshold does not, however, “insulate” a state or local districting plan from attack. Id. at 1220. Rather, it determines the “allocat[ion of] the burden of proof,” with a plaintiff in a case below the 10% population disparity mark unable to “rely on it alone to prove invidious discrimination or 15 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 arbitrariness. Pg: 16 of 41 To survive summary judgment, the plaintiff would have to produce further evidence to show that the apportionment process had a ‘taint of arbitrariness or discrimination.’” Id. (quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). 4 Here, Plaintiffs allege such a “taint of arbitrariness or discrimination.” Id. Specifically, Plaintiffs complain that the challenged districts discriminate between urban and rural voters, districts, “overpopulat[ing], causing overpopulated the districts without vote to of be 4 justification, Plaintiffs weighted less living than certain in those votes of The Supreme Court has admonished courts not to confuse evidentiary standards that govern plaintiffs’ burden at summary judgment with the liberal pleading requirements established by Rule 8(a) of the Federal Rules of Civil Procedure. In Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the Supreme Court reversed the Second Circuit’s requirement that the plaintiff plead a prima facie case of Title VII discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Court stated that “[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.” Id. at 510. See also McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that the district court erred in requiring the plaintiff “to plead facts establishing a prima facie case of discrimination to survive a motion to dismiss”). Our task is to determine whether Plaintiffs have pled a plausible violation of the state and federal constitutions. E.I. du Pont de Nemours, 637 F.3d at 440 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That task does not hinge on the determination of whether Plaintiffs have pled a maximum population deviation exceeding 10%, which is merely one way in which Plaintiffs can prove their prima facie case at the evidentiary stage. 16 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 17 of 41 citizens in districts that are unjustifiably under-populated.” J.A. 11. See Reynolds, 377 U.S. at 568 (stating that “a qualified voter[] is no more nor no less so because he lives in the city or on the farm”). that “Plaintiffs allege a The district court itself recognized favoritism of rural areas of the county over urban areas[,]” J.A. 88, and even Defendants agree that Plaintiffs “do allege against rural voters.” that the plan pits Appellees’ Br. at 20. urban voters It is hard to square all of this with the dissenting opinion’s assertion that “Plaintiffs do no such thing.” Post at 7. In any event, Defendants’ concession highlights that Plaintiffs here fulfilled Rule 8’s core requirement: notice of’” their claims. they “‘g[a]ve the defendant fair Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). Further, Plaintiffs complain that the districts, particularly when compared to the previous districts that had been drawn up just two years prior, were “visually and mathematically less compact,” “confusing,” and had significantly higher population deviations. alleged that the challenged J.A. 15, 28. redistricting Plaintiffs also “split precincts,” whereas the prior plan divided only 11. 21 unique J.A. 28. Plaintiffs point out that not only did the Board of Education itself oppose the redistricting, but that “[n]o Democratic member,” and “no African-American member” of North Carolina’s 17 Appeal: 14-1329 Doc: 46 General Filed: 05/27/2015 Assembly supported Pg: 18 of 41 the redistricting, suggesting, for Rule 12(b)(6) review, that it was neither racially nor otherwise neutral. J.A. 21. Finally, Plaintiffs redistricting registered is intended Democrats policies.” J.A. 28. “further[s] contend “to and that disfavor support the challenged incumbents progressive who are education According to Plaintiffs, the redistricting Republican interests and advance[s] conservative agenda policies—over the wishes of the Wake County electorate”— which they justifies contend the is “not population a legitimate deviations.” state Id. interest Again, that even the district court recognized that Plaintiffs allege “the targeting of democratic incumbents” and “impermissible political bias.” J.A. 88. When Plaintiffs’ complaint is viewed through the forgiving lens mandated at the motion-to-dismiss stage, it states a plausible claim for which relief can be granted. Plaintiffs allege in a detail a redistricting population deviation of nearly 10%. why that deviation unconstitutional. was that resulted in maximum Plaintiffs describe how and unjustified, discriminatory, and They do not allege that the apportionment plan with a maximum population deviation just barely under 10% “by itself” supports their equal protection claim, but rather they plead facts indicating that the apportionment “had a taint 18 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 19 of 41 of arbitrariness or discrimination.” Daly, 93 F.3d at 1217, 1220 (quotation marks and citation omitted). The dissenting opinion is quick to reject the complaint for its failure to engage in talismanic incantations of magic words like “arbitrary.” Post at 2 (making much ado of the fact that the “complaint does not even contain the words ‘bad faith’ [or] ‘arbitrariness’”). That Plaintiffs chose to plead facts sounding in arbitrariness rather than simply invoking the word demonstrates to us only that Plaintiffs have heeded the Supreme Court’s warning that “formulaic recitation of the elements of a cause of action will not do.” clear to us that Twombly, 550 U.S. at 555. Plaintiffs pled arbitrariness It is when they alleged, for example, that the redistricting was done “without justification,” J.A. 11, and that the deviations “do not further any legitimate redistricting criteria,” J.A. 28. Similarly, allegations and the district dismissed their court rejected complaint. In Plaintiffs’ doing so, it cited not a single case on all fours with this one nor any case mandating such an outcome. Defendants similarly have identified no precedent that suggests that dismissing Plaintiffs’ complaint at this stage is warranted, much less required. To the contrary, a closer look at the precedent Defendants and the district court cite underscores that Plaintiffs’ claims should survive. For example, both Defendants and the district 19 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 20 of 41 court rely on Daly, 93 F.3d 1212, to justify dismissal here. Tellingly, however, we held in Daly that a plaintiff in a case falling below the 10% population disparity mark may not “rely on it alone to prove invidious discrimination or arbitrariness. To survive summary judgment, the plaintiff would have to produce further evidence to show that the apportionment process had a ‘taint of arbitrariness or discrimination.’” Id. (quoting Roman, 377 U.S. at 710) (emphasis added). 5 at 1220 Thus, in Daly, rather than dismiss the plaintiffs’ claims, we remanded the matter, stating that “[w]hether Plaintiffs can produce any credible evidence to establish that the apportionment plan at issue here was the product of bad faith, arbitrariness, invidious discrimination should be addressed on remand.” or Id. at 1222. Similarly, Roman, 377 U.S. 695, on which we relied in Daly, was decided after a trial. And Gaffney v. Cummings, on which the district court relied and in which the Supreme Court held that an otherwise acceptable reapportionment plan was not made constitutionally vulnerable by the fact that its purpose was to 5 Defendants use similar verbiage in their appellate brief, arguing that “because plaintiffs have failed to show arbitrariness or discrimination, these claims should be dismissed.” Appellees’ Br. at 8. But Plaintiffs need not “show” anything at this point; rather, they need only allege facts that make arbitrariness or discrimination plausible in addition to population disparities under 10%. 20 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 21 of 41 achieve political fairness between the major political parties, was decided after “[c]onsiderable evidence was introduced.” 412 U.S. 735, 739 (1973). 6 By contrast, both Defendants and the district court try to distinguish and dispense with Cox v. Larios, a case notably more similar to the one at hand and illustrative of the district court’s error in dismissing Plaintiffs’ complaint. 300 F. Supp. 2d 1320 (N.D. Ga. 2004) (three judge panel), summarily aff’d, 542 U.S. 947 (2004). statewide plaintiffs In Larios, a federal court struck down a legislative there redistricting alleged that the plan in plan Georgia. The disproportionately favored Democrats in the state by under-populating districts in the urban Atlanta region and the rural south-Georgia area—both Democratic strongholds—while Republican-leaning voters. overpopulating The districts redistricting created a maximum population deviation of 9.98%. Additionally, the new plan 6 plan with thereby Id. at 1327. disproportionately protected The district court cited Gaffney to support its assertion that “differences in population disparities between the old 2011 plan and the new Session Law [] plan are of no consequence” because the “Supreme Court has expressly rejected the argument that the possibility of drafting a ‘better’ plan alone is sufficient to establish a violation of the one person, one vote requirement.” J.A. 87. Of course, the complaint here, on its face, belies any suggestion that Plaintiffs allege the possibility of a better plan “alone.” What is more, that would not logically make the differences in disparities “of no consequence.” 21 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Democratic incumbents. Pg: 22 of 41 Id. at 1329-30. The district court in Larios found that the state purposefully drew districts in a way to exist within “what they perceived to be a 10% safe harbor” and struck the plan as unconstitutional. Id. at 1328. The Supreme Court summarily affirmed the Larios decision. We recognize that “the precedential effect of a summary affirmance presented can and extend no necessarily further decided than by ‘the those precise issues actions.’” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979) (1977)). (quoting Such Mandel summary v. actions Bradley, “should 432 not U.S. be 173, understood 176 as breaking new ground but as applying principles established by prior decisions to the particular facts involved.” Mandel, 432 U.S. at 176. While glean First, sensitive several the population to lessons Supreme deviation its limitations, from Court the has threshold, Larios not we can summary created below which decisions are inherently constitutional. nevertheless affirmance. a all 10% maximum redistricting This point was made clear by Justice Stevens’s opinion concurring in the affirmance and highlighting the court’s rejection of a safe harbor districting plans that rest within the 10% threshold: [A]ppellant invites us to weaken the one-person, onevote standard by creating a safe harbor for population deviations of less than 10 percent, within which 22 for Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 23 of 41 districting decisions could be made for any reason whatsoever. The Court properly rejects that invitation. After our recent decision in Vieth v. Jubelirer, 541 U.S. 267, 124 S. Ct. 1769, 158 L.Ed.2d 546 (2004), the equal-population principle remains the only clear limitation on improper districting practices, and we must be careful not to dilute its strength. 542 U.S. at 949-50 (emphasis added). necessarily rejection believed of to be discriminatory Second, the Supreme Court correct treatment the of district incumbents court’s from one party over those of another, the district court’s rejection of allowing citizens in certain areas to have disproportionate electoral influence, or both, since the lower court’s ruling relied on those unconstitutional. Here, legislature bases in striking the redistricting as Larios, 300 F. Supp. 2d at 1338. Plaintiffs designed allege a that, as redistricting in plan Larios, with a a state maximum deviation in population of just under 10%, designed to pit rural and urban voters against one another, and intended to favor incumbents of one political party over those of another. Even if Larios does not control this case (though neither Defendants nor the district court point to anything else squarely on point and controlling, either), we nevertheless find it persuasive. The district court’s rejection altogether arbitrary distinction. of Larios rested on an The district court declared that “Larios dealt with state-wide elections whereas this case 23 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 deals only with Wake County. Pg: 24 of 41 The broad geographic differences found within a state are not found within one county.” The lack of a factual basis for this statement J.A. 89. aside, the district court failed to identify how such a difference in scale might justify rejecting Plaintiffs’ claims as a matter of law. Indeed, the Supreme Court recently reaffirmed that courts should analyze that redistricting the nature of plans the “district-by-district,” harms is “personal” reasoning and “directly threaten[s] a voter who lives in the district attacked” but not “a voter who lives elsewhere.” Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015); see also Dickson v. Rucho, No. 14-839, 2015 WL 223554, at *1 (U.S. Apr. 20, 2015) (vacating judgment and remanding North Carolina’s legislative redistricting in light of Alabama Legislative Black Caucus v. Alabama). analysis We see no reason why such a “district-by-district” applies any differently at the county level, and Defendants point to none. Similarly, the district court found it “plainly apparent in Larios that [R]epublican incumbents were being targeted, whereas here the targets are less clear.” J.A. 89. not to required to survive a motion But certainty is dismiss. Notably, the district court did not find it implausible that such targeting occurred here. Twombly, 550 U.S. at 570. allegations a in complaint must 24 make While “the factual entitlement to relief Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 25 of 41 plausible,” Rule 12(b)(6) does not countenance “dismissals based on a judge’s disbelief of a complaint’s factual allegations.” McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009). B. The district court also sought to justify dismissal here by viewing Plaintiffs’ complaint as “stat[ing] a political gerrymandering claim” that Plaintiffs had merely dressed “in the language of a one person, one vote claim.” to the district court, political J.A. 88. gerrymandering According claims are “nonjusticiable” per Vieth v. Jubelirer, 541 U.S. 267 (2004). J.A. 88. In We disagree. stark contrast to a mere “political gerrymandering claim,” Plaintiffs allege that the Session Law violates the one person, one “confusing” vote principle by districts with creating maximum “non-compact,” population deviations reaching almost 10% and that the deviation from one person, one vote is “unjustifi[ed]” and results in discrimination amongst not only political interests but also “rural” versus “urban” populations. J.A. 11, 15. In other words, Plaintiffs here have pled an equal protection claim. Further, even if Plaintiffs had pled only a political gerrymandering claim—which they did not—we could not agree with the district court that such a claim is necessarily justiciable political question mandating dismissal. 25 a non- Indeed, the Appeal: 14-1329 Doc: 46 district Filed: 05/27/2015 court’s assertion Pg: 26 of 41 that “the Supreme Court found political gerrymandering claims to be nonjusticiable in Vieth v. Jubelirer, 541 U.S. 267, 281 (2004),” J.A. 88, fails to appreciate that Vieth was a plurality opinion only, onto which just four justices signed. recognized, Justice “conclude[d] that As the Kennedy, courts in should plurality his opinion concurring continue to Id. at 301. at (“While (Kennedy, plurality that J., the concurring) complaint the opinion, adjudicate [political gerrymandering] claims.” 306 itself such See also, id. agreeing appellants with filed the in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”) (emphasis added). The face of the plurality opinion also makes plain that the four dissenting justices, too, viewed political gerrymandering claims as being justiciable. 292-301. In other words, a majority of the Supreme Id. at Court refused to deem political gerrymandering claims to be per se nonjusticiable. And the Court has since recognized as much. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414 (2006) (“A plurality of the Court in Vieth would have held 26 Appeal: 14-1329 Doc: 46 [political Filed: 05/27/2015 gerrymandering] Pg: 27 of 41 challenges to be nonjusticiable political questions, but a majority declined to do so.”). At the end of the day, we cannot say whether Plaintiffs will ultimately succeed with their equal protection claim. we can say that they have made allegations But sufficient to withstand a motion to dismiss for failure to state such a claim. The district court erred in holding otherwise. C. Separately but relatedly, Plaintiffs claim that they have been denied equal Constitution, protection which also under “guarantees the the North principle Carolina of one- person, one-vote and demands that the vote of each citizen be valued equally.” J.A. 30. As the district court noted, “Plaintiffs allege the same supporting facts for their North Carolina Constitutional Constitutional claim.” North Carolina’s claim as for their United States J.A. 90. courts have unequivocally stated that under the North Carolina Constitution, “[t]he right to vote on equal terms in representative elections—a one-person, one-vote standard—is a fundamental right.” S.E.2d 759, 762-63 (N.C. 2009) Blankenship v. Bartlett, 681 (citing Northampton Cnty. Drainage Dist. No. One v. Bailey, 392 S.E.2d 352, 356 (N.C. 1990)). regarding Further, the Supreme Court of North Carolina’s analysis “the State Constitution’s 27 Equal Protection Clause Appeal: 14-1329 Doc: 46 generally Filed: 05/27/2015 follows the Pg: 28 of 41 analysis of the Supreme Court of the United States in interpreting the corresponding federal clause.” Blankenship, 681 S.E.2d at 762. In fact, North Carolina courts have even found the one person, one vote principle to apply in instances where the federal courts have not. See id. at 763 (finding the one person, one vote principle applicable in North Carolina’s election of superior court judges even though “federal courts have articulated that the ‘one-person, one-vote’ standard is inapplicable to state judicial elections”). As court with the federal shoe-horned constitutional Plaintiffs’ state-law claim, one the person, district one vote contentions into a political gerrymandering claim it then deemed nonjusticiable. The district court stated that “plaintiffs’ factual allegations amount to a claim of impermissible political bias which is a claim of political gerrymandering.” J.A. 91. While the district court candidly admitted that it had “found no North Carolina case law which supports a finding that such a claim is nonjusticiable,” it nevertheless dismissed this claim, too, citing Vieth. Id. Its failure to find state law support for dismissal at the Rule 12(b)(6) stage should have given the district court pause. In any event, for the reasons that we hold Plaintiffs’ claims under the Equal Protection Clause of the Federal Constitution should not have been dismissed, we likewise 28 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 29 of 41 hold that Plaintiffs’ North Carolina constitutional claim should not have been dismissed. IV. Plaintiffs’ allegations in support of their claim that the Session Law violates the one person, one vote principle suffice to survive a motion to dismiss for failure to state a claim. The district complaint. court The thus erred in district court did dismissing not err, Plaintiffs’ however, in determining that the Proposed Defendants are not amenable to suit. AFFIRMED IN REVERSED IN AND REMANDED 29 PART, PART, Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 30 of 41 DIANA GRIBBON MOTZ, Circuit Judge, dissenting: No matter how liberally construed, and notwithstanding the majority’s vigorous attempts at resuscitation, the complaint in this case granted. fails to state a claim upon which relief can be The district court properly dismissed it. I. Plaintiffs establishes election allege districts with a that for maximum violates the Constitution. a a redistricting non-partisan population plan, school county deviation which board of under 10%, Over 30 years ago, the Supreme Court expressly held that “a maximum population deviation under 10% falls within th[e] category of minor deviations” that render a redistricting plan presumptively Thomson, U.S. 835, retreated 462 from this 842 (1983). presumption faithfully applied it. constitutional. and The the Brown Court circuit has courts v. never have See, e.g., Daly v. Hunt, 93 F.3d 1212, 1219-20 (4th Cir. 1996); see also League of Women Voters of Chicago v. City of Chicago, 757 F.3d 722, 725 (7th Cir. 2014); Chen v. City of Houston, 206 F.3d 502, 523 n.15 (5th Cir. 2000). To rebut the presumption, a plaintiff must “produce . . . evidence to show that the apportionment process had a ‘taint of arbitrariness or discrimination.’” Daly, 93 F.3d (quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). 30 at 1220 To escape Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 31 of 41 summary judgment, this standard requires that challengers offer evidence that the plan “was the product arbitrariness, or invidious discrimination.” 1222. of bad faith, Daly, 93 F.3d at To withstand a motion to dismiss, challengers need not “forecast evidence sufficient to prove the elements of [a] claim,” but their complaint must “allege sufficient facts to establish those elements.” 439 (4th omitted). Cir. 2012) Walters v. McMahen, 684 F.3d 435, (internal quotation marks and citation Plaintiffs have utterly failed to do this. The complaint does not even contain the words “bad faith,” “arbitrariness,” or “invidious discrimination,” let alone allege facts supporting such claims. What Plaintiffs do allege is that the North Carolina legislature created a redistricting plan for the Wake County School Board designed to “disfavor incumbents who are registered Democrats and support progressive education policies,” and to instead “further Republican interests and advance conservative agenda policies.” Plaintiffs concede, however, board elections are non-partisan. that Wake County’s school Candidates in non-partisan elections run only under their own names, without “involving, representing, or supporting the ideas of any political party or group.” Black’s “nonpartisan”). claim that the Law Dictionary (10th ed. 2014) (defining Thus, Plaintiffs’ challenge boils down to a plan governing 31 this non-partisan election Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 32 of 41 disfavors incumbents who prefer certain “education policies” and advances those who prefer different “policies.” constitutional redistricting unconstitutional simply plan because certainly it A presumptively cannot affords a be de found minimis apportionment advantage to those who prefer certain “policies” over other “policies.” In holding to the contrary, the majority plunges federal judges into precisely the sort of dispute that the Supreme Court has told us to avoid. Because “the apportionment task” concerns “fundamental choices about the nature of representation,” that task is to be left to the states’ legislative branches absent a compelling reason to usurp it. Gaffney v. Cummings, 412 U.S. 735, 749 (1973) (internal quotation marks and citation omitted). And when population deviations are less than 10%, compelling reasons are few and far between. Thus, the Supreme Court has long instructed federal courts not to wade into “the political thicket” simply to correct “minor deviations . . . that no one, with confidence, can say will deprive any person of fair and effective representation.” By asking complaint thicket.” us urges us to Id. at 749-50. referee to enter a dispute just as this to sort “policy,” of the “political In Plaintiffs’ view (which the majority apparently shares), they can avoid dismissal of their complaint simply by alleging that the redistricting 32 alters the political balance Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 33 of 41 among those favoring different “policies.” If this were so, then this and every other redistricting challenge of this sort would recast federal judges as pollsters. It would make federal judges employ granular scrutiny of voting patterns even in nonpartisan elections to determine if those preferring “policies” have been disadvantaged by redistricting. certain And it would require federal judges to probe the state legislature’s motivation in adopting the plan. Until today, no court had suggested that a presumptively constitutional redistricting plan requires this level of supervision by a federal court. Moreover, the fate of the school board incumbents, about whom Plaintiffs evince great concern, assessing a one person, one vote claim. recently explained, the one is 757 F.3d at 726 person, (emphasis when As the Seventh Circuit one “protect[s] an individual’s right to vote.” Voters, irrelevant in vote principle League of Women original) (internal quotation marks and citation omitted). It does not “insulate individual of once politicians redistricting from occurs.” the threat Id. political “Simply reprisal alleging” that redistricting hands “the short end of the proverbial stick” to certain incumbents “is not enough to overcome a presumptively constitutional map.” Id. Plaintiffs apparently prefer another redistricting plan, a plan which creates districts with 33 less population deviation, Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 34 of 41 districts that are more “compact,” less “confusing,” and split fewer “unique voting precincts.” constitutionally perfect.” That plan may be Daly, 93 F.3d at 1221. “more But “the possibility of drafting a ‘better’ plan” does not provide the basis for finding the plan created by the duly elected state legislature unconstitutional. Id. II. The majority shortcomings in attempts two to by ways: rectify the lowering complaint’s the federal fatal pleading standard to remove hurdles the complaint cannot clear, and by rewriting the complaint to contain facts never alleged. A. The majority offers a lengthy discourse on a court’s obligations when reviewing the dismissal of a complaint. But it fails to grapple with requirements the law imposes on parties seeking to state a federal claim. Of course, a court must construe complaints liberally. But it must also ensure that, in them, plaintiffs “raise a right to relief above the speculative level.” Twombly, 550 U.S. 544, 555 (2007). reasonable inference misconduct alleged.” (2009). Thus, to that the Ashcroft escape defendant v. Atl. Corp. v. A complaint must permit “the Iqbal, dismissal, 34 Bell a is 556 liable for the U.S. 662, 678 complaint must allege Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 35 of 41 facts sufficient to “nudge[]” a plaintiff’s claims “across the line from conceivable to plausible.” “[T]ender[ing only] ‘naked Twombly, 550 U.S. at 570. assertions[s]’ factual enhancement’” does not suffice. devoid of ‘further Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (second alteration added). The majority ignores these requirements. Instead, it relies on a view that a complaint need only provide “fair notice” of the claim alleged (notwithstanding the meritlessness of the claim) to escape dismissal, and may survive on even less if it espouses a “novel legal theory.” The majority’s treatment of the pleading standard mandated by the federal rules simply does not reflect the law. Chief among a court’s obligations during 12(b)(6) review is its mandate to dismiss any complaint that fails to meet the pleading standard articulated by the Supreme Court. Judged against this standard, the complaint here unquestionably fails. Far from permitting a “reasonable inference” of liability, it hangs its hopes on an unprecedented expansion of the one person, one vote teachings. doctrine in conflict with the Supreme Court’s The district court correctly dismissed it. B. Even were the pleading bar as low as the majority insists, the complaint would not clear it. In an attempt to remedy this deficiency, the majority invents allegations never pled. 35 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 36 of 41 First, the majority asserts that “Plaintiffs complain that the challenged districts discriminate between urban and rural voters.” to a But Plaintiffs do no such thing. divide complaint’s creating between first “two urban and paragraph, rural which ‘super-districts’ Their sole reference . voters comes characterizes . . with the an “urban” complaint. nor the Nowhere word do “rural” appears Plaintiffs plan inner, super-district and an outer, rural super-district.” word in as urban Neither the again allege the a in the claim of discrimination based on geography, let alone facts sufficient to make such a claim plausible. Next the redistricting majority plan was insists that “intended to “Plaintiffs favor political party over those of another.” simply not challenged the case. * redistricting Rather, plan as governs * incumbents of the one But again, this is plaintiffs a allege” concede, non-partisan the school Of course if the complaint did, as the majority asserts, challenge the plan as favoring one political party over another, then the Supreme Court’s judgment in Vieth v. Jubelirer, 541 U.S. 267 (2004), would, as the district court concluded, seem critical. There, a plurality of the Court agreed that political-party gerrymandering claims are nonjusticiable, id. at 281, and a fifth Justice agreed that such claims should not merit relief until “workable standards . . . emerge” to govern them, id. at 317 (Kennedy, J., concurring). The concerns animating a majority of the Court in Vieth are not assuaged simply by rerouting the path into the political thicket through an apportionment claim, rather than a gerrymandering claim. 36 Appeal: 14-1329 Doc: 46 board election Filed: 05/27/2015 in which no Pg: 37 of 41 candidate is affiliated with any allegations to the party. The motive for seems clear. complaint adding these They are two critical to the majority’s attempt to align this case with Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) (three-judge panel), summarily aff’d, 542 U.S. 947 (2004), on which it so heavily relies. district court held unconstitutional a Georgia There, the redistricting plan because it was the product of “a deliberate and systematic policy of favoring rural and inner-city” areas over “suburban areas,” and nominees of the Democratic party over those of the Republican party. Id. at 1327, 1329. Even if Larios constituted binding precedent, which it does not, it provides no help to Plaintiffs here. For, stripped of the majority’s additions, the complaint here contains no allegations of either regional or political-party favoritism. The majority’s response to this conclusion is telling. The majority does not, because it cannot, cite or quote any portion of the complaint giving lie to this conclusion. Instead, the majority relies on statements about the complaint made by the district court and the Defendants. But such statements provide no substitute for allegations missing from the complaint itself. Indeed, the majority’s need to rely on outside sources in its attempt to establish the complaint’s 37 allegations demonstrates Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 38 of 41 still again how deficient the complaint is. could not supply the Emperor with new Just as outsiders clothes, they cannot supply the complaint with new allegations. III. In sum, the allegations in the complaint, taken in the best light for Plaintiffs, do not set forth facts that plausibly rebut the presumption of constitutionality afforded this plan. Contrary to the majority’s contention, dismissal of the complaint here is not for want of “an opportunity to develop evidence before the merits are resolved.” allegation of facts that would permit It is for want of a court Plaintiffs could establish a viable claim. to believe See Walters, 684 F.3d at 439. The right to vote is precious. But its invocation does not empower federal courts to commandeer state legislative functions or eliminate federal pleading requirements. The Supreme Court has long held that the Constitution, while affording enormous protection to the right to vote, tolerates minor apportionment deviations. judgment with The its majority own, today replaces preferring a this “vast, considered intractable apportionment slough,” Gaffney, 412 U.S. at 750, to the wellworn path the Supreme Court has forged and mandated we follow. With respect, I dissent. 38 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 39 of 41 APPENDIX 1 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 40 of 41 APPENDIX 2 Appeal: 14-1329 Doc: 46 Filed: 05/27/2015 Pg: 41 of 41 APPENDIX 3

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