NAACP - GREENSBORO BRANCH, et al v. THE GUILFORD COUNTY BOARD OF ELECTIONS, et al
Filing
39
MEMORANDUM OPINION signed by JUDGE WILLIAM L. OSTEEN JR. on 3/14/2012, as set forth herein; An order consistent with this opinion was entered on February 24, 2012 (see pleading 36 ). (Sheets, Jamie) Modified on 3/14/2012 to correct order date. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NAACP-GREENSBORO BRANCH,
MYRA ANN SLONE, and
R. STEVE BOWDEN,
Plaintiffs,
v.
THE GUILFORD COUNTY BOARD
OF ELECTIONS, THOM TILLIS in
his official capacity as
Speaker of the North Carolina
House of Representatives;
PHILIP E. BERGER in his
official capacity as
President Pro Tempore of
the North Carolina Senate;
and THE STATE OF NORTH
CAROLINA,
Defendants.
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1:12CV111
MEMORANDUM OPINION
On February 7, 2012, Plaintiffs filed a Motion for a
Preliminary Injunction (Doc. 12), seeking an interim remedy for
alleged constitutional infirmities in North Carolina Session Law
2011-407 (“SL 2011-407”).
Plaintiffs filed a brief in support of
this motion (Doc. 13), Defendants filed a brief in opposition
(Doc. 20), and Plaintiffs filed a reply brief (Doc. 23).
The
parties appeared before this court on February 17, 2012, to
present oral argument.
At that hearing, the parties fully
addressed the merits of Plaintiffs’ Motion for a Preliminary
Injunction (Doc. 12), and this court granted Plaintiffs’ motion
and stated that a memorandum opinion was forthcoming.
This
memorandum opinion sets forth the court’s reasoning for granting
Plaintiffs’ Motion for a Preliminary Injunction.
On February 24,
2012, this court entered an order (Doc. 36) setting forth an
interim remedy, which is also described below.1
I.
Background
On July 28, 2011, the North Carolina General Assembly passed
SL 2011-407, reducing the Guilford County Board of Commissioners
from eleven to nine members and redrawing the district lines of
Guilford County.
See generally SL 2011-407.
NAACP-Greensboro
Branch, Myra Ann Slone, and R. Steve Bowden (“Plaintiffs”) filed
a complaint against the Guilford County Board of Elections, Thom
Tillis, in his official capacity as Speaker of the North Carolina
House of Representatives, Philip E. Berger, in his official
capacity as President Pro Tempore of the North Carolina Senate,
and the State of North Carolina (“Defendants”) alleging that SL
2011-407 violates the Equal Protection Clause of the United
States Constitution (Compl. (Doc. 1) at 7) and of Article I, § 19
of the North Carolina Constitution (id. at 8).
Plaintiffs filed a Motion for a Temporary Restraining Order
(“TRO”) (Doc. 9), a Motion for a Preliminary Injunction (Doc.
1
At the preliminary injunction hearing, this court instructed
the parties to file briefs proposing appropriate remedies.
Plaintiffs and Defendants filed these briefs (Docs. 28 and 27,
respectively), and the court held a hearing on the issue of an
appropriate remedy on February 22, 2012.
2
12), and a Motion for Summary Judgment (Doc. 14).
Plaintiffs
requested that this court issue the TRO prior to the opening of
the filing period for elections for the Guilford County Board of
Commissioners, which was scheduled to occur on February 13, 2012.
(Pls.’ Mem. Supp. Mot. TRO (Doc. 10) at 1.)
Because this court
did not find that Plaintiffs would be irreparably harmed by
delaying any ruling until the issues could be fully briefed, this
court denied Plaintiffs’ Motion for a TRO without prejudice.
After reviewing the parties’ briefs (Docs. 13, 20, and 23), this
court heard oral argument regarding Plaintiffs’ Motion for a
Preliminary Injunction on February 17, 2012, and found
preliminary relief to be warranted.
This memorandum opinion more
fully sets out this court’s rationale for granting Plaintiffs’
motion and for its decision as to an appropriate remedy.
Article VII, § 1 of the North Carolina Constitution states,
The General Assembly shall provide for the
organization and government and the fixing of
boundaries of counties, cities and towns, and
other governmental subdivisions, and, except
as otherwise prohibited by this Constitution,
may give such powers and duties to counties,
cities and towns, and other governmental
subdivisions as it may deem advisable.
Accordingly, any power held by a county government exists solely
by permission of the legislature and may be revoked by the
General Assembly at any time.
The North Carolina Supreme Court
has noted that counties are “subject practically to the unlimited
control of the legislature, unless restricted by constitutional
3
provision” and that county commissioners have “no vested property
or contract right to the office to which they had been elected of
which they could not be deprived by the legislature.”
O’Neal v.
Jennette, 190 N.C. 96, 99, 129 S.E. 184, 185-86 (1925); see also
Ramsey v. Rollins, 246 N.C. 647, 651, 100 S.E.2d 55, 57 (1957);
Comm’rs of Dare Cnty. v. Comm’rs of Currituck Cnty., 95 N.C. 189,
192 (1886) (stating that counties “are always subject to
legislative control, and their powers may be abolished, enlarged,
abridged, or modified”).
From 1991 to 2011, elections for the Guilford County Board
of Commissioners were governed by North Carolina Session Law
1991-136 (“SL 1991-136”).2
Under this session law, the Board of
Commissioners consisted of eleven members, nine commissioners
from single-member districts and two at-large commissioners.
SL 1991-136, § 1.(a).
See
According to all of the parties, after the
2010 census, the General Assembly determined that the Guilford
County district lines needed to be redrawn to account for changes
in population distribution.
The General Assembly then passed
North Carolina Session Law 2011-172 (“SL 2011-172”), which
repealed SL 1991-136, shrank the Board from eleven to nine
commissioners, and granted authority to the Board of
Commissioners to create a redistricting plan that met certain
2
North Carolina Session Law 1993-521 reenacted and made
technical amendments to SL 1991-136.
4
outlined requirements.
See SL 2011-172.
A little over a month
later, however, the General Assembly adopted SL 2011-407, which
repealed SL 1991-136, as reenacted by SL 1993-521, and SL 2011172.
Only Section 3 of SL 2011-407 is applicable to Guilford
County and challenged in this case.
It states, in part,3 as
follows:
SECTION 3.(a) Chapter 136, Session Laws of
1991, as reenacted by Section 1 of Chapter
521, Session Laws of 1993, is repealed.
SECTION 3.(b) Chapter 172, Session Laws of
2011, is repealed.
SECTION 3.(c)
Effective on the first Monday
of December 2012, the Board of Commissioners
of Guilford County shall consist of nine
members.
The members shall be elected on a
partisan basis at the time of the regular
county primary and general elections. One
member shall be elected from each of
eight single-member districts established
under subsection (f) of this section. One
member shall be elected at large from within
the entirety of Guilford County.
SECTION 3.(d) In 2012 and quadrennially
thereafter, members for Districts 4, 5, 7,
and 8 shall be elected for four-year terms.
In 2014 and quadrennially thereafter, members
for Districts 1, 2, 3, and 6 and the at-large
member shall be elected for four-year terms.
SECTION 3.(e) The qualified voters of each
district shall elect the member of the board
for that district. Candidates must reside in
the district for which they seek to be
elected.
3
Section 3.(f), which lists the new districts (undisputed by the
parties), has been omitted for the sake of brevity.
5
SECTION 3.(g)
Following the return of the
2020 census, and each census thereafter, the
Guilford County Board of Commissioners may
revise the election districts.
SECTION 3.(h)
Notwithstanding Part 4 of
Article 4 of Chapter 153A of the General
Statutes, the structure of the Guilford
County Board of Commissioners shall not be
altered under that Part prior to July 1,
2017.
SECTION 3.(i) The Guilford County
Commissioners shall submit the changes
required by this act to the U.S. Department
of Justice pursuant to section 5 of the
Voting Rights Act of 1965.
SL 2011-407, § 3.
SL 2011-407 creates a Guilford County Board of Commissioners
comprised of eight commissioners from single-member districts and
one at-large commissioner.4
Under a single-member district
electoral scheme, constituents are represented by a single
commissioner whom they can hold directly accountable.
See
Stephenson v. Bartlett, 355 N.C. 354, 379-80, 562 S.E.2d 377,
394-95 (2002).
The benefits of such a scheme have been
recognized at both the state and federal level, indeed, “federal
law expressly requires that states use single-member districts in
reapportioning their congressional representation.”
Id. at 377
n.5 (citing 2 U.S.C. § 2(c) (2000); Whitcomb v. Chavis, 403 U.S.
124, 158-59 n.39 (1971)).
SL 1991-136 and SL 2011-172 also created a Board of
Commissioners composed of both commissioners from single-member
districts and at-large commissioners.
4
6
Additionally, like SL 2011-172, SL 2011-407 reduces the
Board of Commissioners from eleven to nine members.
Unlike SL
2011-172, however, it repeals the Board’s authority to redraw the
district lines and instead explicitly establishes the district
lines itself.
See SL 2011-407, § 3.(b) and § 3.(f).
Section
3.(c) states:
Effective on the first Monday of December
2012, the Board of Commissioners of Guilford
County shall consist of nine members. The
members shall be elected on a partisan basis
at the time of the regular county primary and
general elections. One member shall be
elected from each of eight single-member
districts established under subsection (f)
of this section. One member shall be elected
at large from within the entirety of Guilford
County.
The Guilford County Board of Commissioners currently consists of
eleven members whose terms expire as follows:
District 1:
District 2:
District 3:
District 4:
District 5:
District 6:
District 7:
District 8:
District 9:
At-Large:
At-Large:
Bruce Davis
Ben Bencini
Linda Shaw
Kirk Perkins
Billy Yow
Kay Cashion
Mike Winstead
Melvin Alston
Carolyn Coleman
Paul Gibson
John Parks
(2014)
(2014)
(2014)
(2012)
(2012)
(2014)
(2012)
(2012)
(2014)
(2012)
(2012)
SL 2011-407 also provides for staggered elections, with
commissioners from new districts 4, 5, 7, and 8 being elected in
2012 for four-year terms, and commissioners from new districts 1,
2, 3, and 6 and an at-large commissioner being elected in 2014
7
for four-year terms.
SL 2011-407, § 3.(d).
II. The Parties’ Interpretations of SL 2011-407
During the course of this litigation, the parties have
offered various interpretations of SL 2011-407 in an attempt to
reconcile the plain language of Sections 3.(c) and 3.(d) with
what the parties argue to have been the legislature’s intent.
As noted above, Section 3.(c) states, “Effective on the
first Monday of December 2012. . . .
One member shall be
elected from each of eight single-member districts established
under subsection (f) of this section.
elected at large.”
One member shall be
Section 3.(d) then institutes staggered
elections by providing that, in 2012, elections will only be held
for new districts 4, 5, 7, and 8.
Thus, while one subsection
clearly provides for a nine-member Board beginning in December
2012, the subsequent section only provides for the election of
commissioners from four of the new single-member districts.
The
General Assembly did not remedy this incongruity by specifying
whether incumbent commissioners, who were elected pursuant to SL
1991-136 and whose terms do not expire until 2014, will continue
to serve on the Board and, if so, in what capacity.
Both Plaintiffs and Defendants contend that SL 2011-407 does
not cut short the unexpired term of any incumbent commissioner.
They argue that the legislature’s intent to allow incumbent
commissioners to remain in office can be gleaned from Section
8
3.(c), which provides that, beginning in December 2012, the Board
of Commissioners shall consist of nine members.
Because Section
3.(d) only provides for the election of four commissioners in
2012, the parties argue that the legislature implicitly left
intact the terms of the incumbent commissioners through the 2014
election in order to have a full nine-member Board after the 2012
general election.
Additionally, Section 3.(d) provides for
elections for commissioners in new Districts 4, 5, 7, and 8 in
2012, the year in which the terms of the commissioners in former
Districts 4, 5, 7, and 8 expire.
Section 3.(d) also provides for
elections for commissioners in new Districts 1, 2, 3, and 6 in
2014, the year in which the terms of the commissioners in former
Districts 1, 2, 3, and 6 expire.
For the limited purpose of this preliminary injunction order
only, this court finds that the intent of the legislature, to the
extent it may be determined from the statutory language, was not
to terminate the unexpired term of any incumbent commissioner.
In reaching this conclusion, this court finds the arguments of
the Guilford County Attorney, Mark Payne, to be particularly
persuasive.5
Mr. Payne interprets SL 2011-407 as having
While this court recognizes that it has the responsibility to
determine the law, in light of Mr. Payne’s position as legal
counsel for the county, advising the county about complying with
the laws of the legislature, this court affords substantial
weight to his interpretation of legislative intent at this
preliminary stage of the proceedings. See Jones v. Madison Cnty.
Comm’rs, 137 N.C. 579, 50 S.E. 291, 297 (1905) (“In the exercise
5
9
abolished the former districts created by SL 1991-136 but not the
offices in which the incumbent commissioners serve.
Therefore,
in adopting this interpretation, this court finds an intent on
the part of the legislature to allow incumbent commissioners to
fulfill the remainder of their terms in office.
Although this court finds, for purposes of this order only,
that the legislature intended for incumbent commissioners to
serve out their terms, this court is unable to ascertain any
legislative intent as to which district each incumbent
commissioner will represent after the 2012 election.
Nothing in
SL 2011-407 designates any incumbent commissioner elected in 2010
as the representative of any of the new districts promulgated by
SL 2011-407.
This lack of guidance proves a stark contrast to
prior legislation governing Guilford County elections.
For
example, SL 1991-136, § 1.(b) expressly appointed incumbent
commissioners to particular districts in order to phase-in a new
staggered election scheme.6
of ordinary governmental functions, [counties] are simply
agencies of the state, constituted for the convenience of local
administration in certain portions of the state’s territory; and,
in the exercise of such functions, they are subject to almost
unlimited legislative control, except where this power is
restricted by constitutional provisions.”); N.C.G.S. 153A-144.
6
SL 1991-136, § 1.(b) reads, in pertinent part:
W. Dean Dull who was elected in 1990 for a
four-year term is designated as the member
from District 1 until the first Monday in
December of 1994. Steve Arnold who was
10
In light of this legislative silence, the parties disagree
as to what capacity the incumbent commissioners will serve
following the 2012 general election.
Plaintiffs argue that in
December 2012 any incumbent commissioner will become a
commissioner for the new district in which he or she resides.
Defendants, however, argue that the five incumbent commissioners
will not serve any particular district but instead will serve
Guilford County as a whole until the 2014 election.7
Defendants
apparently arrive at this position because SL 2011-407 abolished
the former districts from which the incumbent commissioners were
elected and no provision of SL 2011-407 appoints the incumbent
commissioners to serve any particular new district.
Notwithstanding the parties’ respective positions, however,
they agree that under SL 2011-407, new District 6 will not have a
single-member district commissioner between the 2012 and 2014
general elections.
As discussed below, this lack of
representation creates a substantial constitutional concern.
elected in 1990 for a four-year term is
designated as the member from District 2
until the first Monday in December of 1994.
Katie Dorsett who was elected in 1990 for a
four-year term is designated as the member
from District 9 until the first Monday in
December of 1994.
7
Under the County Attorney’s interpretation, all incumbent
commissioners are “resident commissioners” who do not currently
serve any particular district.
11
Furthermore, this “anomaly”8 has evidently been apparent to the
North Carolina General Assembly, which has not addressed the
problem.
(See Letter from Susan Nichols, Special Deputy Attorney
General for the North Carolina Department of Justice, to Anita
Earls, Southern Coalition for Social Justice (February 2, 2012)
(Doc. 15-1) (“Our clients do not anticipate taking any action
with respect to SL 2011-407 before the end of the candidate
filing period on February 29, 2012.”).)
III.
Motion for a Preliminary Injunction
“A preliminary injunction is an extraordinary remedy
afforded prior to trial” that temporarily provides “the relief
that can be granted permanently after trial.”
Real Truth About
Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 345 (4th Cir.
2009), vacated on other grounds, ___ U.S. ___, 130 S.Ct. 2371
(2010).
To obtain a preliminary injunction, a plaintiff “must
establish ‘[1] that he is likely to succeed on the merits, [2]
that he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his
favor, and [4] that an injunction is in the public interest.’”
8
See Letter from Susan Nichols, Special Deputy Attorney General
for the North Carolina Department of Justice, to Gary Bartlett,
Executive Director for the State Board of Elections (January 26,
2012) (Doc. 1, Ex. 2) (explaining that questions had arisen when
the county attorney and the Guilford County Board of Elections
had concluded that the Board of Elections lacked authority “to
remedy some anomalies in the legislation [SL 2011-407] with
apparently unanticipated consequences”).
12
Id. at 346 (quoting Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008)).
This court will address each of the
requirements for a preliminary injunction in turn.
A.
Likelihood of Success on the Merits
In order to meet the requirements for a preliminary
injunction, Plaintiffs must establish that they are likely to
succeed on the merits.
In the present case, Plaintiffs allege
that SL 2011-407 violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution (Compl.
(Doc. 1) at 7) and of Article I, § 19 of the North Carolina
Constitution (id. at 8).9
Plaintiffs do not directly contest the
new district lines, which have been approved by the General
Assembly and the Department of Justice.
Instead, they note that
the new district lines, which drew certain commissioners out of
their former districts, when combined with the election schedule
contemplated by SL 2011-407, leaves some citizens underrepresented and other citizens over-represented between the 2012
9
The Equal Protection Clause of the United States Constitution
sets the minimum standard of constitutional protection. See
State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998)
(“[T]he United States Constitution provides a constitutional
floor of fundamental rights guaranteed all citizens of the United
States, while the state constitutions frequently give citizens of
individual states basic rights in addition to those guaranteed by
the United States Constitution.”). Therefore, a violation of the
federal Equal Protection Clause also constitutes a violation of
the Equal Protection Clause of Article I, § 19 of the North
Carolina Constitution.
13
and 2014 general elections.
(Pls.’ Reply Br. Supp. Mot. Prelim.
Inj. (Doc. 23) at 8-9.)
In Reynolds v. Sims, the Supreme Court acknowledged that
“the fundamental principle of representative government in this
country is one of equal representation for equal numbers of
people, without regard to race, sex, economic status, or place of
residence within a State.”10
377 U.S. 533, 560-61 (1964).
The
Court clarified that “the right of suffrage can be denied by a
debasement or dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of the
franchise.”
Id. at 555.
The protections of the Equal Protection Clause extend to
local government.
In Avery v. Midland County, 390 U.S. 474, 479
(1968), the Supreme Court explained, “The Equal Protection Clause
reaches the exercise of state power however manifested, whether
exercised directly or through subdivisions of the State.”
Id. at
In Gray v. Sanders, 372 U.S. 368, 379 (1963), the Supreme Court
reasoned,
10
How then can one person be given twice or ten times the
voting power of another person in a statewide election
merely because he lives in a rural area or because he
lives in the smallest rural county? Once the
geographical unit for which a representative is to be
chosen is designated, all who participate in the
election are to have an equal vote - whatever their
race, whatever their sex, whatever their occupation,
whatever their income, and wherever their home may be
in that geographical unit. This is required by the
Equal Protection Clause of the Fourteenth Amendment.
14
479-80 (“[W]hen the State delegates lawmaking power to local
government and provides for the election of local officials from
districts specified by statute, ordinance, or local charter, it
must insure that those qualified to vote have the right to an
equally effective voice in the election process.”); see Vander
Linden v. Hodges, 193 F.3d 268, 272 (4th Cir. 1999).
Neither
party disputes that the members of the Guilford County Board of
Commissioners are individuals selected by popular election to
perform governmental functions.
Therefore, the Equal Protection
Clause applies.
In Daley v. Hunt, 93 F.3d 1212, 1216 (4th Cir. 1996), the
Fourth Circuit explained that the equal protection guarantee of
“one person, one vote”11 “also ensures that every person receives
equal representation by his or her elected officials.”
Id. at
1226 (explaining that elected representatives “should represent
roughly the same number of constituents, so that each person,
whether or not they are entitled to vote, receives a fair share
of the governmental power, through his or her representative”).
“[W]hen all of the aspects of equal representation are considered
as a whole, it becomes clear that representational equality is at
In Gray v. Sanders, 372 U.S. at 381, the Supreme Court
explained, “The conception of political equality from the
Declaration of Independence, to Lincoln’s Gettysburg Address, to
the Fifteenth, Seventeenth, and Nineteenth Amendments can mean
only one thing - one person, one vote.”
11
15
least as important as electoral equality in a representative
democracy.”
Id. at 1226-27.
In Avens v. Wright, a three-judge panel held in part that
“[d]ual representation for one Washington County magisterial
district offends, however, [] the equal protection clause of the
Fourteenth Amendment.”
320 F.Supp. 677, 680-81 (W.D.Va. 1970).
The court explained:
Six of the seven Washington County districts
are represented by one supervisor but
Harrison District, which has approximately
the same population as the others, is
represented by two. This dual representation
appears to have occurred because the newly
apportioned Harrison District embraced the
residences of two of the incumbent
supervisors. Consequently, a person in
Harrison District has twice the
representation of citizens living elsewhere
in the county.
Id. at 686.
The three-judge panel concluded, “This inequality
violates the equal protection clause.”
Id.
In Burdick v. Takushi, the Supreme Court explained,
A court considering a challenge to a state
election law must weigh “the character and
magnitude of the asserted injury to the
rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to
vindicate” against “the precise interests put
forward by the State as justifications for
the burden imposed by its rule,” taking into
consideration “the extent to which those
interests make it necessary to burden the
plaintiff’s rights.”
504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460
U.S. 780, 789 (1983)).
In Locklear v. North Carolina State Bd.
16
of Elections, 514 F.2d 1152 (4th Cir. 1975), the Fourth Circuit
applied strict scrutiny when examining whether the dilution of
the voting rights of some of the electorate violated the Equal
Protection Clause.
Id. at 1154-56 (citing Kramer v. Union Free
Sch. Dist. No. 15, 395 U.S. 621 (1969)).
The Fourth Circuit
explained, “There can be no doubt that, unless the state can
adduce a compelling justification, the votes of the residents of
the county school board geographical area are unconstitutionally
diluted,” concluding, “Thus we conceive the legal question to
confront us to be whether a compelling state interest justifies
permitting the residents of city school units to participate in
the election of . . . the county school board.
If not, the
franchise is constitutionally over-inclusive.”
Locklear, 514
F.2d at 1154.
This court therefore applies strict scrutiny in
its examination of the constitutionality of SL 2011-407.
Plaintiffs interpret SL 2011-407 to mean that, beginning in
December 2012, districts will be established according to the new
plan, with any incumbent commissioners representing the new
districts in which they reside.
Plaintiffs’ construction of SL
2011-407 leaves the residents of new District 6 without a
commissioner between the December 2012 and 2014 elections and may
leave two districts, new Districts 3 and 7, with two
commissioners during this two year period.
See Daly, 93 F.3d at
1222 (“[T]he purpose of redistricting is not only to protect the
17
voting power of citizens; a coequal goal is to ensure ‘equal
representation for equal numbers of people.’”) (quoting Garza v.
Cnty. of Los Angeles, 918 F.2d 763, 775 (9th Cir. 1990) (quoting
Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969))).
New
District 6's lack of representation on the Board of Commissioners
violates the assurances of the Equal Protection Clause that
“every person receives equal representation by his or her elected
officials.”
Daley, 93 F.3d at 1216.
These residents will have,
not just unequal representation, but no representation on the
Board of Commissioners between the 2012 and 2014 general
elections.
Additionally, under Plaintiffs’ interpretation of SL
2011-407, the double representation of new Districts 3 and 7
would thereby dilute the representation of the other districts.
See Reynolds, 377 U.S. at 566 (“Diluting the weight of votes
because of place of residence impairs basic constitutional rights
under the Fourteenth Amendment just as much as invidious
discriminations based upon factors such as race.”).
This court
is not able to discern a compelling state interest that would
permit this type of dilution of the representation of some
citizens of Guilford County between the 2012 and 2014 general
elections.
Defendants’ interpretation of SL 2011-407 raises similar
problems of diluted and absent representation.
Like Plaintiffs,
Defendants argue that the new districts will come into effect in
18
December 2012, although the incumbent commissioners will continue
to serve out their terms through the 2014 election.
In
Defendants’ brief, however, they argue:
Ms. Coleman was not elected from District 7
and Ms. Cashion was not elected from new
District 3. Thus, they cannot be deemed
representatives of either of these new
districts. . . . Nothing in S.L. 2011-407
assigned or appointed Ms. Coleman to serve as
a representative for new District 7 or Ms.
Cashion to serve as a representative for new
Districts 3 or 6.
(Doc. 20 at 18.)
During oral argument regarding Plaintiffs’
motion for a preliminary injunction, County Attorney Mark Payne
explained that, with the passage of SL 2011-407, all of the
commissioners were transformed into “resident” commissioners, in
effect commissioners without portfolios, who represent Guilford
County as a whole although they were elected from their former
districts.
Under this interpretation, after the 2012 election
only the residents of new Districts 4, 5, 7, and 8 will have
commissioners for their particular single-member districts and
new Districts 1, 2, 3, and 6 will have no representative
commissioner for their particular district.
This interpretation
presents problems of both under and over-representation on the
Guilford County Board of Commissioners.
At a minimum,
Defendants’ interpretation of SL 2011-407, like Plaintiffs’
interpretation, leaves at least the residents of new District 6
19
without any representative commissioner from their single-member
district from the 2012 election until the 2014 election.
Defendants attempt to downplay new District 6's lack of
representation by arguing that the vast majority of the residents
of that district had the opportunity to vote for a commissioner
who will serve on the Board through the 2014 election.
This
argument, however, appears to substitute the right to vote for a
commissioner with the right to equal representation on the Board
of Commissioners, a proposition for which this court has found no
authority.
The majority of new District 6 overlaps with former
District 2, and the residents of former District 2 elected Bill
Bencini to the Board of Commissioners in the 2010 election.
This
does not detract from or cure the constitutional problem,
however, created by the fact that Mr. Bencini, whom those
residents voted for, will not be representing new District 6
during this two-year period.
Additionally, voters in two of the
nineteen precincts in new District 6 had no opportunity to vote
for a commissioner in the 2010 election and will not have an
opportunity to vote until the 2014 elections.
(Doc. 20 at 6.)
Thus, these voters (5,702 registered voters) will not have a
commissioner for their single-member district, and there will be
no commissioner on the Board for whom they had the opportunity to
vote.
20
Under any of the above constructions, this court finds that
Plaintiffs have established a likelihood of success on the
merits.
Because of the electoral structure contemplated by SL
2011-407, between December 2012 and December 2014 residents of
Guilford County will have unequal representation on the Board of
Commissioners from the established single-member districts based
solely on the geographic location of their residences, violating
those residents’ equal protection rights.12
B.
Likelihood of Irreparable Harm
The second requirement for a preliminary injunction is that
Plaintiffs are likely to suffer irreparable harm in the absence
of preliminary relief.
The Supreme Court has clarified that
“plaintiffs seeking preliminary relief [must] demonstrate that
irreparable injury is likely in the absence of an injunction.”
Winter, 55 U.S. at 22 (emphasis in original).
Although constitutional violations do not per se constitute
irreparable harm, courts have found irreparable harm when
monetary damages are inadequate to compensate a plaintiff.
A
Helping Hand, LLC v. Baltimore Cnty., MD, 355 Fed.Appx. 773, 77677 (4th Cir. 2009) (unpublished).
12
Here, Plaintiffs have not
Even under a rational basis analysis, this court would reach
the same result. Although it might be rational for the
legislature to desire to permit incumbent commissioners to serve
out their terms, it is not rational to do so by diluting or
entirely eliminating the representation of some residents of
Guilford County on the Board of Commissioners for a two-year
period.
21
requested money damages, and money cannot adequately compensate
Plaintiffs for unequal representation on the Guilford County
Board of Commissioners.
See Legend Night Club v. Miller, 637
F.3d 291, 302 (4th Cir. 2011).
Under either Plaintiffs’ or
Defendants’ interpretation of SL 2011-407, the residents in new
District 6 will not be represented by a commissioner between the
2012 and 2014 elections.
Furthermore, the North Carolina legislature has not acted
and apparently cannot act until the election cycle is well under
way.
In Republican Party of North Carolina v. Hunt, a North
Carolina district court explained,
Should the interim relief that plaintiffs now
request be denied and plaintiffs ultimately
prevail on the merits at trial, plaintiffs
will endure unnecessary harm due to the
unavailability of prompt relief at that time.
. . . A victory on the merits by plaintiffs
would require the court either to nullify the
elections that had already taken place and
thereafter order new elections at
considerable cost and time to the public and
to all involved, or to bring the campaigns
then in process to a staggering halt.
841 F.Supp. 722, 728 (E.D.N.C. 1994).
This court therefore finds
that Plaintiffs have met their burden of showing a likelihood of
irreparable harm if their motion for a preliminary injunction is
not granted.
C.
Balance of the Equities
According to Defendants, the balance of the equities is not
in Plaintiffs’ favor because ample time remains available “for
22
any alleged constitutional injury . . . to be remedied by the
Board of Commissioners pursuant to the current statutory
authority, by the General Assembly, or by the Court.”
Br. Opp’n Req. Prelim. Inj. (Doc. 20) at 15.)
(Defs.’
Defendants
specifically argue that “the General Assembly also has the
opportunity to remedy any alleged or potential violation, by
amending SL 2011-407, when it convenes in May 2012.”
14.)
(Id. at
If a constitutional injury exists, however, waiting until
May for the General Assembly to remedy the situation would likely
result in the same voter confusion, wasted candidate efforts and
expenditures, needlessly spent tax dollars, and possible low
voter turnout that Defendants argue would result from a
preliminary injunction.13
(Id. at 15-16.)
13
Defendants’ arguments amount to a claim that Plaintiffs’
action is not ripe for review. To determine whether a case is
ripe, “we balance the fitness of the issues for judicial decision
with the hardship to the parties of withholding court
consideration. A case is fit for judicial decision when the
issues are purely legal and when the action in controversy is
final and not dependent on future uncertainties.” Miller v.
Brown, 462 F.3d 312, 319 (4th Cir. 2006) (internal quotation
marks and citations omitted). “The hardship prong is measured by
the immediacy of the threat and the burden imposed on the
[plaintiffs] who would be compelled to act under threat of
enforcement of the challenged law. When considering hardship, we
may consider the cost to the parties of delaying judicial
review.” Id.
The issues before this court are purely legal and are not
dependent on future uncertainties. While Defendants claim that
the General Assembly could step in and resolve the issue prior to
the general election, thus making the issue unfit for review at
this time, this court notes that this argument could be made any
time reapportionment is challenged. Courts could refrain from
acting simply because the legislature could choose to act at a
23
In the context of reapportionment cases, the Supreme Court,
in Reynolds v. Sims, explained:
[O]nce a State's legislative apportionment
scheme has been found to be unconstitutional,
it would be the unusual case in which a court
would be justified in not taking appropriate
action to insure that no further elections
are conducted under the invalid plan.
However, under certain circumstances, such as
where an impending election is imminent and a
State's election machinery is already in
progress, equitable considerations might
justify a court in withholding the granting
of immediately effective relief in a
legislative apportionment case, even though
the existing apportionment scheme was found
invalid.
Reynolds, 377 U.S. at 585.
This court finds that no “unusual”
equitable considerations exist in this case because:
1) Plaintiffs have not unduly delayed bringing suit and 2) this
case does not involve the arduous task of reapportionment and
redrawing district lines.
This court also finds the circumstances in this case to be
distinguishable from those in Maryland Citizens for a
Representative Gen. Assembly v. Governor of Maryland, 429 F.2d
later time. Furthermore, it is not clear that any such later
action by the General Assembly would not itself cause harm to
Plaintiffs. As Defendants note, “The injuries resulting from the
interruption of ongoing elections are also widespread. Voters
are confused. Candidates suffer from wasted efforts and
expenditures. Tax dollars are spent needlessly.” (Defs.’ Br.
Opp’n Req. Prelim. Inj. (Doc. 20) at 15-16.) These potential
injuries, which could result from delayed resolution of the
issues presented by SL 2011-407, at least as to new District 6,
would serve as a hardship for the parties. This court thus finds
Plaintiffs’ claims to be ripe for resolution.
24
606 (4th Cir. 1970) and Simkins v. Gressette, 631 F.2d 287 (4th
Cir. 1980), both of which affirmed a district court’s refusal to
convene a three-judge panel because it found injunctive relief to
be unavailable.
In Maryland Citizens, the Fourth Circuit
affirmed a district court’s finding that injunctive relief was
unavailable when the plaintiffs delayed challenging a
reapportionment plan for approximately five years after it had
been adopted, filing their complaint “only thirteen weeks prior
to the filing deadline,” when finding the statute ineffective
would have required the “time-consuming process” of developing a
new reapportionment plan (that “could not have been expected [to
be completed] until close upon the eve of the [filing]
deadline”), and when a census that same year would require yet
another reapportionment.
Maryland Citizens, 429 F.2d at 608-610
(expressing concerns about potential instability from
“reapportioning with undue frequency”).
In Simkins, the Fourth
Circuit also affirmed a district court’s finding that injunctive
relief was unavailable when the plaintiffs delayed challenging a
reapportionment plan for approximately eight years after the
South Carolina senate had adopted it, waiting until two days
before the filing period opened, and a census that same year
would likely require another reapportionment yet again.
Simkins,
631 F.2d at 296; see also Smith v. Beasley, 946 F.Supp. 1174,
1212 (D.S.C. 1996) (refusing to grant a preliminary injunction to
25
give time to redraw statewide district lines when primary
elections had already been held, the state’s election machinery
was “already in place,” candidates had already spent significant
time and money campaigning, voters had begun “to familiarize
themselves with the candidates,” and the general election was
approximately six weeks away).
As stated above, however, this court finds that the present
suit proves distinguishable in several ways.
First, although
Defendants assert the defense of laches, in this case Plaintiffs
did not unduly delay bringing suit and filed for a preliminary
injunction approximately six months after the enactment of SL
2011-407 and approximately three months after its preclearance
(Doc. 20 at 2), in contrast to the plaintiffs in Maryland
Citizens and Simkins who waited for years before challenging the
reapportionment plans at issue.
Although Plaintiffs did not file
their motion for a preliminary injunction until approximately six
days before the filing period for the office of Guilford County
Commissioner was scheduled to open,14 they had been in
In Republican Party of North Carolina v. Hunt, a North Carolina
district court explained the different contexts in which the same
motion for a preliminary injunction had been brought. The first
motion, which was denied, was filed
14
well after the candidacy filing period,
shortly after the districtwide primaries, and
just months before the scheduled [] general
statewide election. The proximity of that
impending election, the considerable reliance
candidates already had placed on the existing
electoral process and the considerable
26
communication with the State Board of Elections and the Attorney
General’s office during this period.
(See Letter from Susan
Nichols, Special Deputy Attorney General for the North Carolina
Department of Justice, to Anita Earls, Southern Coalition for
Social Justice (February 2, 2012) (Doc. 15-1).)
In light of
Plaintiffs’ attempts to seek legislative action or find an
alternate remedy before filing for a preliminary injunction, they
have not exhibited a lack of diligence in bringing this suit.
disruption to a nearly completed electoral
cycle that would have resulted from court
intervention figured significantly into the
court’s evaluation of the likelihood of harm
to the defendants if the requested relief
were granted.
Hunt, 841 F.Supp. at 727. In contrast, the second motion for a
preliminary injunction, which was filed prior to the inception of
the election process, provided the court with “the opportunity to
effectively remedy any defect(s) it may perceive in the electoral
process prior to significant and potentially detrimental reliance
on the present electoral scheme by defendants and potential
candidates.” Id. at 727. The court issued its opinion on
January 3, 1994, and the filing period for candidates began on
the second Monday in February and ended on the last business day
in February preceding the primary. Id.; N.C. Gen. Stat. § 163106(c). Here, this court recognizes that Plaintiffs’ suit falls
somewhere in between the two scenarios in Hunt. The suit was
brought immediately prior to the opening of the filing period and
this injunction was granted one week into the filing period. The
electoral process, however, has not been “nearly completed.” In
Hunt, the court explained that “[s]ufficient time [remained]
available for compliance with the preclearance requirements of
the Voting Rights Act.” Id. at 729. Here the Department of
Justice has already pre-cleared the new districts in SL 2011-407
(Defs.’ Br. Opp’n Req. Prelim. Inj. (Doc. 20) at 1) and
sufficient time remains to permit the election of a new District
6 commissioner during the 2012 general election.
27
Second, this case does not involve a “time-consuming” or
complex reapportionment.
Both parties agree that the lines of
the new districts are not in dispute and have been approved by
the General Assembly and the Department of Justice.
Thus, the
Fourth Circuit’s concerns with the time-consuming nature of a
remedy and the instability of unduly frequent reapportionment is
inapplicable.
Maryland Citizens, 429 F.2d at 610.
The problems
presented by SL 2011-407 are limited to clarifying which
commissioners will run for election in what districts in the
December 2012 election and ensuring that the districts have equal
representation between the 2012 and 2014 elections.
In light of the reasons expressed above and Plaintiffs’
rights to equal representation on the Guilford County Board of
Commissioners, this court finds that the balance of the equities
tips in Plaintiffs’ favor.
D.
Public Interest
Finally, this court examines whether granting this
preliminary injunction is in the public interest.
Plaintiffs
argue that the public interest would be served through granting a
preliminary injunction because of the public’s interest in “the
integrity of our representative form of government.”
(Doc. 13 at
17 (quoting Cook v. Luckett, 575 F. Supp. 479, 485 (S.D. Miss.
1983), vacated on other grounds, 753 F.2d 912 (5th Cir. 1984)).)
Defendants, however, argue that granting the preliminary
28
injunction is not in the public interest because interrupting an
ongoing election may cause voter confusion and low voter turnout, needless expense, and other widespread injuries.
Defendants’ various arguments for why a preliminary injunction
would not be in the public interest, however, simply serve to
emphasize why a preliminary injunction during these early stages
of the filing period would better serve the public than waiting
until the eve of the election.
This court finds that the public interest in an election and
a Board of Commissioners that complies with the constitutional
requirements of the Equal Protection Clause is served by granting
a preliminary injunction in this case.
See Legend Night Club,
637 F.3d at 303 (“[U]pholding constitutional rights is in the
public interest.”); Hunt, 841 F.Supp. at 732 (“[P]ublic interest
requires the furtherance of the constitutional protections that
attach to the franchise.”).
IV.
Remedy
During the course of this litigation, both parties have
proffered remedies for the equal protection problems this court
has identified in SL 2011-407.
Neither party, however, has
addressed the fact that SL 2011-407 may present other,
substantial constitutional issues under the Due Process Clause.
The statute as written appears to be incomplete and may,
therefore, be unconstitutionally vague, see Connally v. Gen.
29
Constr. Co., 269 U.S. 385, 391 (1926), or it may be an
unconstitutional delegation of legislative authority in that it
fails to specify the structure for the Board of Commissioners
beginning in December 2012.
See Mistretta v. U.S., 488 U.S. 361,
371 (1989); Legend Night Club, 637 F.3d at 302 (explaining that
“like the Supreme Court we [the Fourth Circuit] are wary of
legislatures who would rely on our intervention [to fix a
statute],” which would, “to some extent, substitute the judicial
for the legislative department of the government”) (internal
quotation marks omitted) (quoting United States v. Reese, 92 U.S.
214, 221 (1876)).
Neither party has raised these issues as
claims or as factors in establishing a remedy; however, these
issues will be fully addressed before this court enters a final
judgment in this case.
Nevertheless, in light of the issues as
currently presented by the parties, this court finds that a
remedy, limited in scope, is appropriate.
Plaintiffs’ proposed remedy requires the court to take the
following steps: 1) place new District 6 up for election in 2012,
2) delay the election in new District 7 until 2014, and 3)
delegate to the Board of County Commissioners the authority to
designate one of the two incumbent commissioners residing in new
District 3 to serve as the at-large commissioner through the
remainder of her term.
These actions, however, require the court
to write into SL 2011-407 a provision that the legislature failed
30
to include and would involve policy choices this court is unable
to make at this stage of the proceedings in the absence of clear
legislative intent.
Additionally, by granting the Board of
Commissioners the authority to appoint one of the two
commissioners currently residing in new District 3 to the atlarge seat, this court could actually be acting contrary to the
apparent intent of the legislature.
The General Assembly, in
revoking SL 2011-172, repealed the Board of Commissioners’ power
with regard to structuring elections.
Defendants contend that this court should adopt the remedy
presented as part of the parties’ proposed settlement agreement.
That plan would require placing all nine seats up for election in
2012.
It would allow for staggered terms by providing that some
of the commissioners elected in 2012 would serve two-year terms
before facing re-election, while others would serve four-year
terms.
This court, however, has no guidance for how to designate
who should serve two-year terms and who should serve four-year
terms.
If it adopted Defendants’ remedy, this court would also
have to cut short the terms of incumbent commissioners, which
could ultimately prove contrary to the intent of the General
Assembly.
Neither Plaintiffs nor Defendants present sufficient
evidence to warrant full, permanent, and mandatory relief at this
stage of the litigation.
“Mandatory preliminary injunctive
31
relief in any circumstance is disfavored, and warranted only in
the most extraordinary circumstances.”
F.3d 266, 270 n.2 (4th Cir. 1994).
Taylor v. Freeman, 34
“Mandatory preliminary
injunctions [generally] do not preserve the status quo and
normally should be granted only in those circumstances when the
exigencies of the situation demand such relief.”
In re Microsoft
Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003)
(internal quotation marks and citations omitted), abrogation on
other grounds recognized in Bethesda Softworks, LLC v. Interplay
Entm’t Corp., No. 11-1860, 2011 WL 5084587, at *2 (4th Cir. Oct.
26, 2011).
“That is to say, a mandatory preliminary injunction
must be necessary both to protect against irreparable harm in a
deteriorating circumstance created by the defendant and to
preserve the court’s ability to enter ultimate relief on the
merits of the same kind.”
Id.
Applying those same standards to the parties’ arguments,
this court finds that a narrowly-tailored, mandatory remedy is
appropriate in this instance.
This court finds, based on the
arguments of the parties and for purposes of this order only,
that the apparent legislative intent was to allow incumbent
commissioners to finish out their terms and elect new
commissioners through a general election in November 2012.
This
court also finds that the absence of a commissioner in new
District 6 likely violates the Equal Protection Clause.
32
Without
injunctive relief, the residents of new District 6 will be
irreparably harmed by the lack of representation for their
district on the Guilford County Board of Commissioners, a harm
caused by the election schedule established by SL 2011-407.15
Accordingly, this court will order that the general election
of Guilford County Commissioners proceed pursuant to SL 2011-407
upon the terms and conditions set forth in that statute.
Sections 3.(a), (b), (c), (e), (f), (g), (h), and (i) shall
remain in full force and effect.
The schedule of elections
contained in Section 3.(d) is enjoined.
In lieu of the schedule
specified in Section 3.(d), the election schedule for 2012 is
revised to provide for the election of a commissioner for new
District 6 and to stay the election of a commissioner for new
District 7 as follows:
In 2012, members shall be elected for
Districts 4, 5, 6, and 8. The election of a
member for District 7 is hereby stayed until
further order of this court.
This remedy is appropriate for the following reasons.
First, ordering the election of a new District 6 commissioner in
the 2012 general election: 1) remedies the lack of representation
15
The North Carolina Constitution disqualifies from elected
office “any person who is not qualified to vote in an election
for that office.” N.C. Const. Art. VI, § 8. The legislature has
not and appears unlikely to remove the residency requirements for
voting for county commissioners from single-member districts, and
no incumbent commissioner currently resides in new District 6
whom might be appointed to the position of commissioner for new
District 6.
33
on the Board of Commissioners for the residents of new District 6
between the 2012 and 2014 general elections, and 2) complies with
the apparent legislative intent that commissioners serve
staggered terms.
7 commissioner:
Second, staying the election of a new District
1) preserves the legislature’s chosen number of
seats (four) elected in the 2012 general election, and 2)
prevents the election of a second single-member district
commissioner who resides in new District 7.
Third, the
legislature cannot order this remedy when it meets because at
that point insufficient time would remain to hold a regularlyscheduled primary and possibly even the November general
election.
Fourth, this remedy is limited in scope and does not
prevent the legislature from establishing its own remedy, whether
by special election, appointment power, or any other manner it
finds appropriate.
Finally, this remedy preserves this court’s
power to enter final, ultimate relief on the merits, if required.
In re Microsoft Corp. Antitrust Litig., 333 F.3d at 526.
This court recognizes that this remedy still leaves at least
two issues unresolved: 1) the role of the two commissioners
currently residing in new District 3, and 2) whether the
currently serving commissioners are to remain as single-member
district representatives between the 2012 and 2014 general
elections.
These matters are not appropriately addressed as part
of preliminary injunctive relief as there is no threat of
34
irreparable harm in the absence of injunctive relief.
Although
this court has considered ordering a stay of the entire election
until the legislature remedied the due process and equal
protection concerns in SL 2011-407, counsel for the Legislative
Defendants has assured this court during various oral arguments
that the legislature will move to address any constitutional
problems with SL 2011-407 at the earliest possible date.
Because
reapportionment is a legislative matter, see Reynolds, 377 U.S.
at 586 (“[L]egislative reapportionment is primarily a matter for
legislative consideration and determination, and [] judicial
relief becomes appropriate only when a legislature fails to
reapportion according to federal constitutional requisites in a
timely fashion after having had an adequate opportunity to do
so.”), this court finds that further action in Plaintiffs’ motion
for a preliminary injunction is not appropriate and should be
denied.
An order consistent with this opinion was entered on
February 24, 2012.
This the 14th day of March 2012.
United States District Judge
35
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