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)

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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. ~- ~------~-~·····--·--·· -~-~---~-------~ ·-· - - - -~---~-~---~---------- -~~~-~--~~--~-~-- -~--~ -~-~~-~~~----~ -~~ ~~ -~---------~--~-------~-~~~~--- - 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

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