COVINGTON et al v. THE STATE OF NORTH CAROLINA et al

Filing 147

OPINION AND ORDER signed by Judge James A. Wynn, Jr., Judge Thomas D. Schroeder, and Judge Catherine C. Eagles on 01/04/2017. This Court declines to stay implementation of the November 29 Order. Defendants' Motion 141 is DENIED. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SANDRA LITTLE COVINGTON, et al.,

)
)
)
)
)
)
)
)

Plaintiffs,
v.
THE STATE OF NORTH CAROLINA, et al.,
Defendants.

1:15CV399

OPINION and ORDER
Plaintiffs, individual North Carolina citizens, challenged
the constitutionality of nine state Senate districts and nineteen
state

House

of

Representatives

districts

(the

“Challenged

Districts”) “as racial gerrymanders in violation of the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution.”
opinion

First Amended Complaint ¶ 1, ECF no. 11.

filed on

August

11,

2016,

this

Court

held

In an

that

the

Challenged Districts, as drawn by the General Assembly in 2011,
violated the Equal Protection Clause and, in an accompanying Order
and Judgment, directed the legislature to draw new districts.
Memorandum Opinion, ECF no. 123; Order and Judgment, ECF no. 125.
While recognizing that the Supreme Court has counseled that
“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,” Reynolds v. Sims,
377 U.S. 533, 585 (1964), this Court granted Defendants’ request

1

to allow the 2016 election to proceed under the unconstitutional
districts because the finding of racial gerrymandering was made on
the eve of that election. ECF no. 123, at 160-63.

But in doing

so, this Court enjoined Defendants from conducting any elections
using

the

unconstitutional districts

after

the November

2016

election and requested briefing from the parties regarding the
appropriate remedy for the constitutional violations.

Memorandum

Opinion, ECF no. 123, at 163-64; Order and Judgment, ECF no. 125.
After careful consideration of the briefs submitted by the
parties on

the

appropriate

remedy

for

the

constitutional

violations, on November 29, 2016, this Court ordered, among other
things, that (1) no later than 5 p.m. on March 15, 2017, the State
of North Carolina draw

new district

plans for

the

Challenged

Districts; and (2) in the fall of 2017, the State of North Carolina
hold special primary and general elections for the purpose of
electing new legislators in the Challenged Districts and any other
districts redrawn in order to cure the constitutional defects of
the Challenged Districts (the “November 29 Order”).

Order, ECF

no. 140.
On December 2, 2016, Defendants filed the instant motion to
stay the November 29 Order.

Defendants’ Emergency Motion to Stay

Remedial Order Pending Disposition of Jurisdictional Statement,
ECF no. 141 (the “Motion”).

2

“‘[A] stay is considered extraordinary relief for which the
moving party bears a heavy burden,’ and ‘[t]here is no authority
to suggest that this type of relief is any less extraordinary or
the burden any less exacting in the redistricting context.’”
Personhuballah v. Alcorn, 155 F. Supp. 3d 552, 558-59 (E.D. Va.
2016) (quoting Larios v. Cox, 305 F. Supp. 2d 1335, 1336 (N.D. Ga.
2004) (internal quotations omitted)). In determining whether to
stay a remedial order, like the November 29 Order, pending appeal
the Court

must

consider

four

factors:

“(1)

whether

the

stay

applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will
substantially

injure

the

other

parties

interested

in

the

proceeding; and (4) where the public interest lies.” Id. at 558
(quoting Hilton v. Branskill, 481 U.S. 770, 776 (1987)).

“The

movant must establish each of these four elements in order to
prevail.”

Larios, 305 F. Supp. 2d at 1336.

Defendants fail to meet their “heavy burden” under this
exacting test.

First, regarding likelihood of success on the

merits, Defendants principally argue that two decisions cited in
our November 29 Order in which courts ordered special elections as
a remedy for racial gerrymandering--Smith v. Beasley, 946 F. Supp.
1174, 1212-13 (D.S.C. 1996), and Butterworth v. Dempsey, 237 F.
Supp.

302,

306

(D.

Conn.

1965)
3

(per

curiam)--provide

an

insufficient basis for this Court to order special elections.

But,

as Plaintiffs correctly note, numerous other courts have ordered
special elections to remedy voting rights violations or recognized
their authority to do so.

See, e.g., Cousins v. City Council of

City of Chi., 503 F.2d 912, 914 (7th Cir. 1974); Bell v. Southwell,
376 F.2d 659, 662, 665 (5th Cir. 1967); Tucker v. Burford, 603 F.
Supp. 276, 279 (N.D. Miss. 1985); Cosner v. Dalton, 522 F. Supp.
350, 364 (E.D. Va. 1981).

Accordingly, there is ample legal

support establishing that ordering special elections is one of the
equitable remedies available to district courts to cure voting
rights
Indeed,

violations,
given

and

racial

courts’

gerrymandering

obligation

to

remedy

in

particular.

unconstitutional

apportionment schemes as soon as possible, Reynolds, 377 U.S. at
585, a special election is particularly appropriate in the instant
case given that this Court allowed--at Defendants’ request--the
November 2016 elections to proceed under the unconstitutional
districts,

Smith,

946

F.

Supp.

at

1211-12

(ordering

special

election after allowing elections to proceed in unconstitutional
districts due to close proximity between finding of constitutional
violation and election day).
Defendants

nonetheless

argue

that

this

Court

abused

its

discretion in ordering a special election because previous cases
in which courts
districts.

This

ordered
amounts

special
to

elections

little
4

more

involved
than

a

far

fewer

claim

that

Defendants’ racial gerrymandering is “too big to remedy.”

But

courts must “provid[e] remedies fully adequate to redress the
constitutional violations which have been adjudicated and must be
rectified.”
added).

White v. Weiser, 412 U.S. 783, 797 (1973) (emphasis

Accordingly, the expansive scope of Defendants’ racial

gerrymandering dictates the scope of the remedy this Court imposed.
Personhuballah, 155 F. Supp. 3d at 563 (explaining that the scope
of a remedial plan

“depends on the scope and

constitutional violation”).

effect of the

Indeed, the large number of racially

gerrymandered districts weighs in favor of--rather than against-awarding relief as quickly as possible, and therefore requiring
special elections.

Absent such relief, a large swath of North

Carolina citizens will lack a constitutionally adequate voice in
the

State’s

legislature,

even

as

that

unconstitutionally

constituted legislature continues to pass laws that materially
affect those citizens’ lives.

“Those citizens are entitled to

have their rights vindicated as soon as possible so that they can
vote

for

their

representatives

apportionment plan.”

under

a

constitutional

Smith, 946 F. Supp. at 1212.

Additionally, the authority to craft a remedy for racial
gerrymandering, like other forms of race discrimination, lies
within this Court’s “sound discretion.” United States v. Paradise,
480 U.S. 149, 184 (1987); Large v. Fremont Cty., 670 F.3d 1133,
1139 (10th Cir. 2012).

And the Supreme Court will review for clear
5

error

our

predominated

holding
in

that

the

racial

drawing

factors

of

the

Personhuballah, 155 F. Supp. 3d at 559.

unconstitutionally

Challenged

Districts.

That the Supreme Court

will subject both decisions to deferential review further suggests
that Defendants are unlikely to succeed on the merits.
(concluding

deferential

standard

of

appellate

review

Id.

weighed

against finding movants were likely to succeed on merits).1
Defendants also

fail to show

an irreparable

outweighs any such injury to Plaintiffs and the public.

injury that
Defendants

principally argue that they will be irreparably injured because
the General Assembly will have to spend the first six weeks of its

Defendants’ suggestion that the possibility of forthcoming
Supreme Court review of other North Carolina redistricting
decisions militates in favor of their requested stay is similarly
misguided. One of these cases--Harris v. McCrory, 159 F. Supp. 3d
600 (2016)--is pending before the Supreme Court following the
defendants’ direct appeal pursuant to 28 U.S.C. § 1253 of an order
holding that two of North Carolina’s Congressional districts
constitute racial gerrymanders. As such, ongoing proceedings
before the Court provide little insight into Defendants likelihood
of success on appeal in the present action. Accord Personhuballah,
155 F. Supp. 3d at 559 (explaining that, in the context of a direct
appeal, the “Court’s decision to hear oral argument indicates only
that there is some doubt as to how the case will be decided,” and
is therefore insufficient to demonstrate a likelihood of success
in a separate appeal). The second of these decisions--Dickson v.
Rucho, 368 N.C. 481 (2016)--addresses allegations of racial
gerrymandering related to those at issue here. However, because
the defendants in that case prevailed below, any further action by
the Supreme Court would serve only to lessen the likelihood that
Defendants’ will prevail in their own appeal. Bethley v.
Louisiana, 520 U.S. 1259 (1997) (“It is well settled that our
decision to deny a petition for writ of certiorari does not in any
sense constitute a ruling on the merits of the case in which the
writ is sought.”).
1

6

new session drawing new district maps and because the State will
have to devote resources to preparing for the special primary and
general elections. But, as this Court explained previously, the
General Assembly already has had months to “hold[] hearings,
commission[] studies, develop[] evidence, and ask[] experts to
draw proposed new districts” and has refused to do so. ECF no.
140, at 3; see also Johnson v. Mortham, 926 F. Supp. 1540, 1542
(N.D. Fla. 1996) (“[T]he mere administrative inconvenience the
Florida Legislature and Florida elections officials will face in
redistricting

simply

fundamental rights.”).

cannot

justify

denial

of

Plaintiffs’

Accordingly, it is the General Assembly’s

inaction--not this Court’s remedial order--that will force the
General Assembly to “spend the first six weeks of its alreadyshortened term drawing new districting maps.”
ECF no. 144, at 2.

Defendants’ Reply,

Likewise, this Court has previously explained

that “[w]hile special elections have costs, those costs pale in
comparison to the injury caused by allowing citizens to continue
to be represented by legislators elected pursuant to a racial
gerrymander.”
Defendants

ECF no. 140, at 2-3.
also

fail

to

acknowledge

the

considerable

irreparable harm that staying the November 29 Order would impose
on Plaintiffs and the public at large. It is axiomatic that
“[d]eprivation of a fundamental right, such as limiting the right
to vote in a manner that violates the Equal Protection Clause,
7

constitutes irreparable harm.”

Personhuballah, 155 F. Supp. 3d at

560 (internal quotation marks omitted); Johnson, 926 F. Supp. at
1543.

Staying implementation of the November 29 Order and thereby

prolonging the time during which Plaintiffs and other citizens are
represented

by

legislators

elected

in

racially

gerrymandered

districts would serve only to exacerbate the irreparable harm the
voters have already suffered by allowing an unconstitutionally
constituted legislature to continue to act.

Accordingly, “the

irreparable harm to the plaintiffs, and to all voters in [North
Carolina] who have [been represented by legislators elected in
racially gerrymandered districts], outweighs the harm the state
may

encounter

by

being

unable

to

resolve

an

appeal

of

this

decision” before drawing new districts and holding a new election.
Larios, 305 F. Supp. 2d at 1343.
Finally, the public interest aligns with requiring the State
to hold a special election in 2017. The Supreme Court has longrecognized

the

democratic

racial gerrymandering.

and

dignitary

harms

resulting

from

Shaw v. Reno, 509 U.S. 630, 647 (1993).

When a legislature relies on race as the predominant factor in
drawing district lines--even when based on a flawed understanding
of the law, as the General Assembly did here--it “reinforces the
perception that members of the same racial group--regardless of
their age, education, economic status, or the community in which
they live--think alike, share the same political interests, and
8

will prefer the
Likewise,

it

same candidates

sends

a

at the polls.”

“pernicious

.

.

.

message”

Id.
to

at 647.
elected

representatives that they should represent the interests only of
the racial group from which they obtained support, not their
constituency as a whole.

Id. at 648. To allow such constitutional

violations to persist for any longer than necessary would not only
harm Plaintiffs, but also the public at large, which has “an
interest in having . . . representatives elected in accordance
with the Constitution.”

Personhuballah, 155 F. Supp. 3d at 560-

61.
For

the

foregoing

reasons,

this

implementation of the November 29 Order.

Court

declines

to

stay

Accordingly, Defendants’

Motion is
DENIED.

This 4th day of January, 2017.

/s/ James A. Wynn, Jr.
/s/ Thomas D. Schroeder
/s/ Catherine C. Eagles

9