HARRIS et al v. MCCRORY et al

Filing 171

MEMORANDUM OPINION signed by ROGER L. GREGORY, United States Circuit Judge on 06/02/2016. The Court denies the plaintiffs' objections as presented. The Court reiterates that the denial of the plaintiffs' objections does not constitute or imply an endorsement of, or foreclose any additional challenges to, the Contingent Congressional Plan. (Coyne, Michelle)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID HARRIS, CHRISTINE
BOWSER, and SAMUEL LOVE,
Plaintiffs,

v.

Case No. 1:13-cv-949

PATRICK MCCRORY, in his
capacity as Governor of North
Carolina, NORTH CAROLINA
STATE BOARD OF ELECTIONS,
and JOSHUA HOWARD, in his
capacity as Chairman of the
North Carolina State Board
of Elections,
Defendants.
MEMORANDUM OPINION
PER CURIAM.

Pending before the Court are plaintiffs'

objections to the

North Carolina General Assembly's 2016 Contingent Congressional
Plan

("Contingent

Congressional

consideration of

the plaintiffs'

replies thereto,

the applicable law,

Court
Court.
not

DENIES

the

plaintiffs'

Plan") .

objections,

Upon

the responses

and

and the entire record,

the

objections

as

presented

The Court's denial of the plaintiffs'

constitute

or

imply

an

careful

endorsement

of,

to

this

objections does
or

foreclose

any

additional challenges to, the Contingent Congressional Plan.

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I.

The

relevant

facts

previous decision,
(M.D.N.C.

Feb.

are

fully

set

Harris v. McCrory,

5,

2016).

There,

forth

in

13-cv-949,
the

this

Court's

2016 WL 482052

Court

held

that

the

congressional map adopted by the North Carolina General Assembly
in

2011

violated

predominant

the

Fourteenth

consideration

Districts 1 and 12,

with

Amendment:
respect

race

was

the

Congressional

to

and the General Assembly did not narrowly

tailor the

districts

to serve a

found

the

Congressional Redistricting Plan violated

the

that

2011

Fourteenth

congressional

Amendment,

districts

the

be

unconstitutional districts.

compelling interest.

Court

drawn

that

new

remedy

the

ordered

forthwith

to

Having

See Wise v. Lipscomb, 437 U.S. 535,

539-40 (1978).
Before

enacting

the

Contingent

Congressional

Plan,

the

defendants filed a motion to stay this Court's order, which this
Court denied.
emergency
Supreme

See ECF No.

motion

Court,

to

which

stay

148.
this

the

The defendants then filed an
Court's

Supreme

Court

order

with

denied.

the

U.S.

McCrory

v.

Harris, 136 S. Ct. 1001 (2016).
On

February

18,

2016,

Contingent

Congressional

plaintiffs

filed

a

the

Plan.

motion

General
On

to

Assembly

February

establish

a

concerning the Contingent Congressional Plan.
2

22,

enacted
2016,

briefing

the
the

schedule

On February 2 3 ,

2016,

the

Court

other things,

issued

that

a

scheduling

the plaintiffs

factual and legal basis for
Congressional

Plan.

ECF

[any]

order,

directing,

among

"state with specificity the
objection"

to the Contingent

153.

No.

On

March

3,

2016,

the

On

March

7,

2016,

the

9,

2016,

the

plaintiffs

filed

their

objections.

defendants

filed

their

response.

plaintiffs filed their reply.

On

March

The plaintiffs'

objections are

now ripe for the Court's review.
II.

As

an

initial

jurisdictional

matter,

the

Court

On

February

8,

issues.

must
2016,

address
the

two

defendants

appealed this Court's decision on the merits to the U.S. Supreme
Court.

Thus,

jurisdiction

we must address the preliminary issue of whether
in

this

Court

notice of direct appeal.
an

event

of

was

stripped

by

the

filing

of

a

"The filing of a notice of appeal is

jurisdictional

significance

it

confers

jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved in
the appeal . "
56,

58

(1982)

Griggs v.
(per

Provident Consumer Disc.

curiam)

(emphasis

added) .

remedial phase of this case is not an "aspect [

Co.,

459 U.S.

Because

the

of the case

involved in the appeal," the Court retains jurisdiction over it.

3

Relatedly,
Court's

review

Districts

1

although
is

and

the

limited
12

defendants

to

pass

whether

contend

the

new

constitutional

that

this

Congressional

muster,

precedent

suggests that we have a responsibility to review the plan as a
whole.

McGhee v.

Cir. 1988).

Granville Cty., N.C.,

860 F.2d 110, 115

(4th

Nonetheless, while the Court reviews the Contingent

Congressional Plan as a whole,
legislative body

that review is limited.

respond [s]

with a

If "the

proposed remedy,

a

court may not thereupon simply substitute its judgment of a more
equitable remedy for that of the legislative bodyi

it may only

consider

is

whether

unacceptable

the

because

proffered
it

remedial

violates

anew

plan

legally

constitutional

or

statutory voting rights - that is, whether it fails to meet the
same

standards

applicable

to

legislative plan in place."

u.s. 37, 42 (1982)).

an

Id.

original

challenge

(citing Upham v.

In other words,

while a

of

Seamon,

a
456

court must not

overreach when fashioning a remedy of its own, it must determine
whether the legislative remedy enacted at its behest is in fact
a

lawful

substitute

Accordingly,

for

the

the Court can,

original

and will,

unconstitutional

consider the plaintiffs'

objections to the entire Contingent Congressional Plan.

4

plan.

III.
The
The

plaintiffs

first

appear

objection

is

to

raise

two

separate

remarkably vague,

objections.

suggesting

that

the

Court should be "skeptical" of the Contingent Congressional Plan
and

the

defendants'

"warped

conception

of

violation."

the

share

Assembly's

plaintiffs'

process

in

skepticism

drafting

the

original

While the Court

Pls.' Reply, ECF No. 163 at 5, 7.

may

the

the

about

Contingent

General

Congressional

Plan, including the exact criteria actually evaluated by the map
drawer,

Dr.

proffered

Hofeller,
a

plaintiffs

have

on

theory

the

why

plan

this

constitutional or statutory voting rights."
115.

Therefore,

objection

on

the

the

Court

grounds

rejects

that

they

not

sufficiently

"violates

anew

McGhee, 860 F.2d at

the

plaintiffs'

failed

to

first

state

with

specificity the factual and legal basis for the objection.
The

plaintiffs'

Congressional
partisan

Plan

second
should

gerrymander.

be

As

objection

is

rejected

that

as

an

Representative

the

Contingent

unconstitutional

Lewis

stated,

"I

acknowledge freely that this would be a political gerrymander."
Hamilton Decl., ECF No. 155 at Ex. 3 (Tr. 46:5-11); see also id.
(Tr.

51:12-52:5)

are

("[W]e want to make clear that we

going to use political data in drawing this map.
partisan advantage

on

the map.

I

want

that

It is to gain
criteria

to

be

I'm making clear that our

clearly stated and understood.
5

intent is to use -

is to use the political data we have to our

partisan advantage.") .
representations.

The

Court

claim

very

it

Nevertheless,

partisan-gerrymander

is

is

is

troubled by
unclear

whether

a

existing

given

justiciable

these

precedent.
The Supreme Court has recognized that partisan gerrymanders
"[are

incompatible]

Jubelirer,
316

541 U.S. 267,

(Kennedy,

"partisan

Ariz.
13 5

J.,

as

democratic
292

(2004)

concurring

gerrymandering

permissible"
policy,

with

such

judgment)

disfavors

"legislative

(concluding

one

party

classifications

is

s . Ct . 2 6 52

I

2 6 58

Ariz.

Indep.

that
[not]

reflect

but simply arbitrary and capricious action") ;

State Legislature v.

v.

(plurality opinion); id. at

in

that

Vieth

principles."

no

see also

Redistricting Comm' n,

"Even so, the Court in Vieth did

( 2 0 15 ) .

not grant relief on the plaintiffs' partisan-gerrymander claim.
The

plurality held

the

matter

Id.

nonjusticiable."

at

281.

"Justice Kennedy found no standard workable in [Veith] , but left
open

the

possibility

that

a

suitable

identified in later litigation."

Ariz.

standard

might

be

State Legislature,

135

S. Ct. at 2658.
In

light of

the

plurality holding

hands appear to be tied.
discussion
standards

reveals,
for

no

541 U.S.
judicially

adjudicating
6

in Vieth,

at 281

Court's

("As the following

discernible
political

the

and

manageable

gerrymandering

claims

have

Lacking

gerrymandering

political

emerged.

claims

them,
are

we

must

conclude

that

nonjusticiable.

• II )

•

While we find our hands tied, we note that it may be possible to
challenge

redistricting plans

"too far."

See Cox v. Larios, 542

J., dissenting)
541 U.S.

267

[politics]
so

when

long as

partisan

u.s.

considerations

947, 952 (2004)

go

(Scalia,

("In the recent decision in Vieth v. Jubelirer,

(2004),

all but one of

the Justices agreed that

is a traditional criterion, and a constitutional one,
it

does

not

go

obscure what "too far" means.
provided the Court with a

too

far.") .

But

it

is presently

Moreover, the plaintiffs have not

"suitable standard,"

see Ariz.

State

Legislature, 135 S. Ct. at 2658 - that is, one that is clear and
manageable
Therefore,

to

evaluate

it does not seem,

the

partisan-gerrymander

at this stage,

that the Court can

resolve this question based on the record before it.
reasons,

the Court rejects the plaintiffs'

claim.

For these

second objection as

presented.
IV.
For the foregoing reasons, the Court denies the plaintiffs'
objections as presented.
of

the plaintiffs'

The Court reiterates that the denial

objections does not constitute or imply an

7

endorsement of

1

or foreclose any additional challenges to

I

the

Contingent Congressional Plan.
SO ORDERED.

8