THE CITY OF GREENSBORO et al v. GUILFORD COUNTY BOARD OF ELECTIONS
Filing
35
MEMORANDUM OPINION AND ORDER. Signed by JUDGE CATHERINE C. EAGLES on 7/23/2015. The Motion for Preliminary Injunction, (Doc. 7 ), is GRANTED to the extent stated herein. The Court reserves ruling on the motion, (Doc. 7 ), to the extent it is based on the one person, one vote claim. The Court will enter a separate Order enjoining enforcement of the Act as to the City of Greensboro by the defendant. The Motion for Temporary Restraining Order, (Doc. 3 ), is DENIED as moot. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CITY OF GREENSBORO, et al.,
Plaintiffs,
v.
GUILFORD COUNTY BOARD OF
ELECTIONS,
Defendant.
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1:15-CV-559
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
In early July 2015, the North Carolina General Assembly passed a law that
restructures both Greensboro city elections and the form of Greensboro city government.
Many changes will take effect for the upcoming 2015 municipal elections, and others will
go into effect in December 2015. The City of Greensboro and six of its citizens have
filed suit, contending that the law violates their equal protection rights under the United
States Constitution and the North Carolina Constitution.
The case presents two issues in the long run:
-
Under what circumstances, if any, does the General Assembly’s decision to
treat one municipality and its voters differently from all other municipalities
and their voters in connection with referendum rights and local control over
form of government, number and boundaries of districts, method of electing
council members, and style of elections violate the Equal Protection Clause?
-
Did the General Assembly violate the “one person, one vote” principles of the
Equal Protection Clause by the way it redistricted and reapportioned the eight
Greensboro City Council seats?
In the short run, the question before the Court today is whether the Court should
enjoin the Guilford County Board of Elections from holding the 2015 municipal elections
in conformity with the new statute in order to prevent irreparable harm to the plaintiffs
caused by these alleged equal protection violations.
It appears on the current record that the new statute deprives Greensboro voters,
alone among municipal voters in the State, of the right to change the City’s municipal
government by referendum and otherwise treats the City of Greensboro and its voters
differently from all other municipalities and municipal voters, without a rational basis.
Therefore, the plaintiffs are likely to prevail on the merits. The plaintiffs would suffer
irreparable harm should the 2015 election go forward under the new law, and the public
interest and the equities favor a return to the pre-existing status quo pending resolution of
this lawsuit. The Court will grant the plaintiffs’ motion for preliminary injunction.
BACKGROUND1
In early July 2015, just days before the filing period for the 2015 Greensboro City
Council election was scheduled to open, the North Carolina General Assembly passed
1
Findings of fact pursuant to Rule 65 of the Federal Rules of Civil Procedure are made
throughout this opinion. All findings of fact are made for purposes of the pending motion only
and are based on the evidentiary record as it currently stands.
2
House Bill 263, referenced here as Session Law 2015-138 or the Act.2 The Act makes
changes both to the way the City Council will be elected in 2015 and to the City’s
governmental structure, including redistricting all eight City Council seats and reducing
the power of the Mayor. The Act also withdraws from the City of Greensboro and its
voters certain statutory rights available to all other municipalities and municipal voters
statewide; these include the right of a city council to change its structure, see N.C. Gen.
Stat. § 160A-102, the right of voters to reject such a restructuring through a referendum,
see id. § 160A-103, and the right of voters to initiate such a restructuring through a
referendum. See id. § 160A-104.
In 1969, the General Assembly adopted the statute now codified at N.C. Gen. Stat.
§ 160A-101 et seq., which delegates to all cities, towns, and villages significant control
over their own forms of government. Under Chapter 160A, every North Carolina
municipality and its voters have the right to select the structure and form of the
municipality’s government. See generally id. § 160A-101 et seq. Section 160A-101
allows every North Carolina municipality to adopt or alter its name, id. § 160A-101(1); to
select the style of the municipal corporation and its governing board, id. § 160A-101(2);
to decide the number, terms of office, and mode of election of council members, id.
§ 160A-101(4)-(6); to select the method of conducting municipal elections, id. § 160A101(7); to determine the method of selecting the mayor, id. § 160A-101(8); and to decide
2
The Act is entitled “An Act to Modify the Form of Government in the City of Trinity and to
Clarify the Form of Government, Method of Election, and Determination of Election Results in
the City of Greensboro.” (Doc. 1-1 at 2.) The pending motion does not address the aspects of
the Act related to the City of Trinity.
3
the form (mayor-council or council-manager) of municipal government. Id. § 160A101(9). It also requires a city council to draw the boundaries of any districts and to
apportion those districts. Id. § 160A-101(6).
Under Chapter 160A, each city council is authorized to change from one of the
options identified in § 160A-101 to another by means of an ordinance amending the
city’s charter, subject to compliance with a number of notice and procedural
requirements, including a public hearing. See id. § 160A-102. Every council is
permitted, but not required, to condition adoption of such an ordinance on approval by
the people. See id. If a council chooses to proceed with a vote by the people, a special
election on the ordinance must be held no less than 70 days after the ordinance is
adopted. See id.
If a city council enacts such a change without approval by a vote of the people,
public notice of the enactment is required. See id. In every municipality, any change
made without voter approval is subject to a referendum if the required number of voters
submit a timely petition. See id. § 160A-103. If a petition meeting the numerical
requirements is presented to the council within 30 days of public notice, every council
must submit its proposed change to a referendum before it can go into effect. See id.
Each city’s municipal voters themselves are also authorized to initiate changes to
city governance by referendum. See id. § 160A-104. Chapter 160A imposes certain
numerical and procedural requirements for such petitions, but the subject matter of a
referendum petition can cover any topic set forth in § 160A-101, except for drawing
district boundaries. See id. § 160A-101(6) (“An initiative petition may specify the
4
number of single-member electoral districts to be laid out, but the drawing of district
boundaries and apportionment of members to the districts shall be done in all cases by the
council.”); id. § 160A-104 (“The [initiative] petition shall set forth the proposed
amendments by describing them . . . with reference to the pertinent provisions of [N.C.
Gen. Stat. §] 160A-101 . . . .”). Upon receipt of a referendum petition, a council must
call a special election to consider the proposed changes. See id. § 160A-104.
Since 1983, Greensboro has chosen, pursuant to Chapter 160A, to use the MayorCouncil form of government, with the Mayor and three council members elected at-large
and five council members elected from single-member districts. (Doc. 34 at ¶ 7.) All
council members and the Mayor are elected to two-year terms. (See Doc. 34 at ¶¶ 2, 8.)
Elections are held in odd-numbered years, see generally N.C. Gen. Stat. § 163-279, with
the Mayor and all council members on the ballot each election.3 Since 1973, the City has
used a primary/election method for selecting City Council members, by which a primary
is held in October followed by a general election in November between the two
candidates who received the most votes in the primary. (See Doc. 34 at ¶ 16); see also
N.C. Gen. Stat. § 163-294(b).
Before passage of the Act, no aspect of Greensboro’s governance and electoral
system was under challenge. One referendum was scheduled, which was initiated by the
City Council to change council member terms from two years to four years. (Doc. 33 at
3
For a history of municipal elections in North Carolina, see Robert Joyce, Municipal
Elections–Odd Year and Odd Man Out, Coates’ Canons: N.C. Local Government Law (July 7,
2015), http://canons.sog.unc.edu/?p=8154.
5
¶ 8; see also Doc. 1 at ¶ 40.) The filing period for the 2015 municipal elections was
scheduled to open on July 6 and close on July 17. (Doc. 24-3 at 2.)
The Act made many changes to the City’s governmental structure and elections
process. The Act changes the terms of office for City Council members and the Mayor
from two years to four years. (Doc. 1-1 at § 2.(c)); see also N.C. Gen. Stat. § 160A101(4), (8). It changes the mode of election of the City Council from three at-large
districts and five single-member districts to eight single-member districts, and it sets the
boundaries for those new single-member districts. (Doc. 1-1 at § 2.(c)); see also N.C.
Gen. Stat. § 160A-101(6). It changes the form of elections from nonpartisan primary and
election, see N.C. Gen. Stat. § 163-294, to nonpartisan election and runoff election.4
(Doc. 1-1 at § 2.(f)); see also N.C. Gen. Stat. §§ 160A-101(7), 163-293. The Act made
these changes effective for the 2015 municipal elections and delayed the filing period,
which was originally set to run from July 6 through July 17, to July 27 through August 7.
(Doc. 1-1 at § 3; see also Doc. 24-3 at 2.)
The Act also requires the City to operate under the Council-Manager form of
government. (Doc. 1-1 at § 2.(a)); see also N.C. Gen. Stat. § 160A-101(9)(a), (b). The
Act limits the Mayor’s voting rights, allowing the Mayor to vote in City Council matters
only when there is a tie and in certain employment-related matters. (Doc. 1-1 at § 2.(d),
.(e)); see also N.C. Gen. Stat. § 160A-101(8).
4
Under the election/runoff system, any candidate receiving more than 50% of the total votes
cast during the October election wins and the November election is used only when one
candidate did not receive such a majority. See N.C. Gen. Stat. § 163-293.
6
Finally, the Act prohibits the City of Greensboro and its voters from making
changes to the form or structure of city government. (See Doc. 1-1 at § 2.(b)
(“Notwithstanding Part 4 of Article 5 of Chapter 160A of the General Statutes . . . , the
City of Greensboro shall not alter or amend the form of government for the City.”)); see
also N.C. Gen. Stat. § 160A-101 (“Any city may change its name or alter its form of
government by adopting any one or combination of the options prescribed by this section
. . . .”). This prevents the City Council from changing anything about its election process
or the Mayor’s voting rights, and it prevents the City from acting on any petition from
Greensboro voters seeking either a referendum on any or all of the changes made by the
legislature or from making any changes at all in governmental form. See N.C. Gen. Stat.
§§ 160A-102 to -104.5
By its express terms, all of these changes applied “only to the City of Greensboro”
and to no other municipality. (Doc. 1-1 at § 2.(g) (“This section applies only to the City
of Greensboro.”).) While the General Assembly has from time to time redistricted and
reapportioned other cities and boards, nothing before the Court indicates that the General
Assembly has ever before prohibited a municipality’s voters from participating in the
referendum rights given in N.C. Gen. Stat. §§ 160A-103 and 160A-104 or that it has ever
before completely removed city governance choices from a city council.
5
While the Act itself does not mention referenda or petitions for referenda, it explicitly states
that “the City of Greensboro shall not alter or amend the form of government for the City.”
(Doc. 1-1 at § 2.(b).) This cannot be read to allow referenda under the North Carolina General
Statutes, see N.C. Gen. Stat. §§ 160A-103, -104, the purpose of which is to make such changes,
and, in any event, petitions for referenda require action by the City Council to be implemented.
See id. §§ 160A-103, -104.
7
LEGAL CONTEXT
Under the North Carolina Constitution, cities and counties are essentially creatures
of the state. See N.C. Const. art. VII, § 1. Article VII gives the General Assembly the
power to “provide for the organization and government and the fixing of boundaries of
counties, cities and towns.” Id. Cities have only the “powers and duties” that the
General Assembly “deem[s] advisable.” Id. In other words, “[m]unicipalities have no
inherent powers; they have only such powers as are delegated to them by legislative
enactment.” In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 16-17, 249 S.E.2d
698, 707 (1978); City of Asheville v. State, 192 N.C. App. 1, 20, 665 S.E.2d 103, 119
(2008).
On the other hand, the General Assembly cannot exercise its power over cities in a
manner prohibited by the North Carolina Constitution. See, e.g., Martin v. Bd. of
Comm’rs of Wake Cnty., 208 N.C. 354, 180 S.E. 777, 783 (1935) (noting that local
governments “are subject to almost unlimited legislative control, except where this power
is restricted by constitutional provision”). For example, all laws enacted by the General
Assembly are subject to the Equal Protection Clause of the United States Constitution.
E.g., Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (noting that “the purpose
of the equal protection clause . . . is to secure every person within the State’s jurisdiction
against intentional and arbitrary discrimination,” including that caused “by [the] express
terms of a statute”) (internal alteration and quotation marks omitted).
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
8
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.” See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);
see also Martinez v. RegisterFly, Inc., No. 1:07CV00188, 2007 WL 1028516, at *1
(M.D.N.C. Mar. 21, 2007) (opinion and recommendation of Sharp, M.J.) (applying the
preliminary injunction standard to a motion for a temporary restraining order). “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, 559 U.S. 1089 (2010). The plaintiff bears a “heavy burden in showing [a]
likelihood of success” where the area of the law at issue is “difficult and complicated”
and “still developing.” Id. at 349.
The Court has subject matter jurisdiction as the case raises federal questions. See
28 U.S.C. § 1331. While it is possible that all required parties have not been joined, as
the defendant suggests, that possibility is either not strong, see Wright v. North Carolina,
787 F.3d 256, 261-64 (4th Cir. 2015), or joinder is unlikely to be feasible. Moreover, the
Attorney General, who would likely represent any such required parties, is aware of this
lawsuit and, to date, has declined to participate. This uncertainty does not preclude
preliminary relief.
ANALYSIS
The plaintiffs allege that the Act violates the equal protection clauses of the United
States Constitution and the North Carolina Constitution. (Doc. 1 at ¶ 1.) They contend
that the Act violates their equal protection rights in two different ways.
9
First, they assert that the Act violates their equal protection rights by prohibiting
Greensboro and its voters from exercising local control over their form of government,
either through the City Council or through the voters by referendum, while giving that
right to all other municipalities in the State. (See Doc. 1 at ¶¶ 66-73.) Second, they
contend that under the redistricting and reapportionment required by the Act, the votes of
some voters will get significantly more weight than others, in violation of the equal
protection guarantee of “one person, one vote.” (See Doc. 1 at ¶¶ 74-82.)
A. Removing Local Control and Referendum Rights
1. Likelihood of Success on the Merits
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o
State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. The equal protection requirement “does not take from the
States all power of classification,” Pers. Adm’r v. Feeney, 442 U.S. 256, 271 (1979), but
“keeps governmental decisionmakers from treating differently persons who are in all
relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
“[T]he Equal Protection Clause of Article I, § 19 of the Constitution of North
Carolina is functionally equivalent to the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States.” White v. Pate, 308 N.C. 759, 765,
304 S.E.2d 199, 203 (1983). The North Carolina Constitution also provides the same
“equal right to vote” guaranteed by the United States Constitution. See id. at 769, 304
S.E.2d at 205.
10
“To succeed on an equal protection claim, a plaintiff must first demonstrate that he
has been treated differently from others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful discrimination.” Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If the plaintiff makes this showing, “the
court proceeds to determine whether the disparity in treatment can be justified under the
requisite level of scrutiny.” Id.; accord Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir.
2002). “Ordinarily, when a state regulation or policy is challenged under the Equal
Protection Clause, unless it involves a fundamental right or a suspect class, it is presumed
to be valid and will be sustained ‘if there is a rational relationship between the disparity
of treatment and some legitimate governmental purpose.’” Id. at 731 (quoting Heller v.
Doe, 509 U.S. 312, 319-20 (1993)).
Under the Act, Greensboro voters, unlike all other municipal voters in the State,
will elect their council members under a system that was never subject to the possibility
of review by referendum, and they will be unable to change that system going forward.
See discussion supra. While citizens do not have a fundamental constitutional right to
initiate a referendum, see Kendall v. Balcerzak, 650 F.3d 515, 522-23 (4th Cir. 2011), “if
a state chooses to confer the right of referendum to its citizens, it is obligated to do so in a
manner consistent with the Constitution.” Molinari v. Bloomberg, 564 F.3d 587, 597 (2d
Cir. 2009) (internal quotation marks omitted); see generally Meyer v. Grant, 486 U.S.
414 (1988). Because the Act withdraws the statutory right to petition for a referendum
from voters in the City of Greensboro, alone among North Carolina municipalities, it
cannot survive constitutional scrutiny unless there is a rational basis for distinguishing
11
between Greensboro voters and voters in every other North Carolina municipality. See
Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1209-13 (10th Cir. 2002).
The statute itself is silent as to the General Assembly’s motivation or purpose and
does not put forth any reasons for treating Greensboro and its voters differently from all
other municipalities and municipal voters in the State. No explanation or rational reason
based on a valid state interest for this different treatment appears on the record. The
Attorney General was given notice of the lawsuit and the briefing and evidentiary
schedule in connection with the plaintiffs’ motion and has offered no state interest that is
protected or promoted by excluding Greensboro and its voters from rights given to other
municipal voters.
The prohibition against voter referenda is part and parcel of a larger statutory
scheme that treats Greensboro voters differently. All other voters in municipalities in
North Carolina have the right to have decisions about whether and how council districts
are reapportioned, term lengths, and election methods made by persons who are elected
locally. All other voters in towns and cities in North Carolina have the right to public
notice and a hearing before council districts are revised, terms are changed, or the
mayor’s powers restricted. Greensboro’s voters had these rights before the Act was
adopted but will no longer have these rights under the Act.6
6
While earlier versions of the Act contained some of the changes ultimately enacted, none
contained the change to eight single-member districts adopted by the Act. Greensboro’s voters
had no opportunity to comment on the specifics of the eight single-member districts before the
Act was adopted, which would not have been the case had the Greensboro City Council made the
12
The Act also treats the Greensboro City Council differently from all other
municipal councils in the State. As noted supra, before the Act, the Greensboro City
Council, along with every other municipal council in the State, had the right to amend its
own charter to select different terms of office and whether those terms all expire at once
or at different times, and to change the number of council members, the mode and format
of elections, and the form of government, among other things. See N.C. Gen. Stat. §
160A-101. The Greensboro City Council, like all other municipal councils, had the
responsibility to draw all district boundaries and to apportion members to each district.
See id. § 160A-101(6). As a result of the Act, the City of Greensboro alone no longer has
these rights and responsibilities.
The Supreme “Court has firmly established the principle that the Equal Protection
Clause does not make every minor difference in the application of laws to different
groups a violation of our Constitution.” Williams v. Rhodes, 393 U.S. 23, 30 (1968). In
determining whether a distinction is minor or invidious, courts consider, among other
things “the facts and circumstances behind the law, the interests which the State claims to
be protecting, and the interests of those who are disadvantaged by the classification.”
Id. (footnote omitted).
Here, the General Assembly passed the Act on the eve of the filing period with no
advance notice of the boundaries of the reapportioned districts, there is no evidence of a
change pursuant to Chapter 160A. See N.C. Gen. Stat. § 160A-102; see also id. §§ 160A-103,
-104.
13
legitimate state interest that is protected by treating the City of Greensboro and its voters
differently from all other municipalities and municipal voters in the State, and
Greensboro voters are disadvantaged by the State’s classification of them as unentitled to
the referendum protections given to other municipal voters. With no rational basis, and
especially when considered in light of the significantly different treatment above and
beyond the referendum issue, this unequal treatment of Greensboro voters likely violates
their equal protection rights.
The result in Palisade supports this conclusion. See Save Palisade FruitLands,
279 F.3d at 1213-14. In that case, the court found no equal protection violation in a
Colorado statutory system that gave referendum rights to voters of some counties and not
to others. Id. at 1207-14. There, however, all counties could obtain the status that would
allow for referendum rights by going through procedural requirements indicating voter
support. Id. at 1208. That is not the case here, where the Act itself prohibits the City of
Greensboro and its voters from exercising the statutory rights given to all other
municipalities and municipal voters in the State and provides no mechanism for restoring
those rights. Moreover, the legitimate interests advanced by the statute at issue in
Palisade were to “facilitat[e] a broader degree of powers [by counties] and enhanc[e]
local autonomy,” id. at 1214, and those interests are not met here by depriving
Greensboro voters, and Greensboro voters alone, of referendum rights.
In the non-legislative context, courts have held that a desire to experiment with
different election formats provides a sufficient rational basis to support treating some
local entities differently from others. See, e.g., Sailors v. Bd. of Educ. of Cnty. of Kent,
14
387 U.S. 105, 110-11 (1967); see also White, 308 N.C. at 769-70, 304 S.E.2d at 206.
Here, however, the General Assembly did not require Greensboro to adopt a totally new
election system not available to other cities; it chose one of the “old standbys” that was
available for years to all municipalities. Thus the “desire to experiment” does not appear
to provide a rational explanation for the General Assembly’s decision to treat Greensboro
and its voters differently from other municipalities and municipal voters.
The plaintiffs have shown a likelihood of success on the merits as to their claim
that the Act violates the Greensboro voters’ equal protection rights by depriving them of
referendum and other local control rights given to all other municipal voters in the State,
without a rational basis for that unequal and discriminatory treatment.
2. Irreparable Harm
The primary right at issue here is the equal right to initiate referendum elections,
which is closely tied to the right to vote. Voting cases shed light on the nature of the
injury here because the effect of the Act is similar: it deprives Greensboro voters of the
right to vote on the way they select City Council members by depriving them of
referendum rights available to every other voter in every municipality in the State. In
voting cases, restrictions on the right to vote are routinely found to cause irreparable
injury. See, e.g., Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); Williams
v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); cf. Council of Alternative Political Parties
v. Hooks, 121 F.3d 876, 883 (3d Cir. 1997); United States v. West Virginia, No. 2:1427456, 2014 WL 7338867, at *5 (S.D. W. Va. Dec. 22, 2014).
15
Absent injunctive relief, the filing period for the 2015 election will open Monday,
July 27, 2015, and candidates will file to run for the City Council with eight, not five,
single-member districts and no at-large members and without allowing Greensboro voters
any opportunity for recourse to a local referendum. The election will occur in the fall of
2015 under a new general election/runoff election system selected by the General
Assembly and not subject to oversight by local voter referendum. Council members will
be elected to four-year terms as ordained by the General Assembly instead of the twoyear terms previously set by local decision, again without recourse to a referendum.
Unlike voters of every other municipality in the State, Greensboro voters will elect their
city council members under a new system established by the General Assembly that was
adopted without notice to local voters and without giving local voters the right to
disapprove of that system by referendum. In addition, Greensboro voters will be
prohibited from considering by referendum a recommendation made by the City Council
to change council members’ terms from two-year terms to four-year terms.
Just as in voting cases, if the Court does not enter an injunction, it would mean
that the City Council would be elected in a manner that is likely to be unconstitutional, to
the harm of individual voters. If no injunction is entered and the plaintiffs ultimately
win, the plaintiffs will have been deprived of their equal protection rights during the 2015
election cycle. That is not a deprivation that can be remedied. Moreover, all Greensboro
citizens will have been governed, at least for a time, by a City Council that was elected in
violation of equal protection requirements and by the only City Council in the state that
was elected through a system and process established without local participation or
16
oversight. That, too, is a wrong that cannot be remedied. There are no claims by any
plaintiff for monetary damages, which, even then, could not make the individual
plaintiffs whole.
In Republican Party of North Carolina v. Hunt, 841 F. Supp. 722 (E.D.N.C.
1994), the 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 . . . .
Hunt, 841 F. Supp. at 728.
The plaintiffs have met their burden of showing irreparable harm if the Court does
not grant their motion for preliminary injunction.
3. Balance of the Equities and the Public Interest
For years, sections 160A-102 and 160A-103 of the North Carolina General
Statutes have provided an orderly process for changes to municipal council districts and
other aspects of council elections and required notice and time before these changes are
passed and implemented. See discussion supra. There is little harm to anyone from
delaying implementation of the Act to place it on a schedule more akin to the schedule of
changes applicable to all other municipal election systems and methods in the State. Cf.
Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam) (noting, in a different context,
the problems caused by last-minute changes to elections). The public interest is served
by holding the 2015 elections according to a long-established system, as to which there
17
has not been a constitutional challenge, rather than a system that poses serious
constitutional concerns and that was enacted just days before the filing period was to
open. See Hunt, 841 F. Supp. at 728.
4. Conclusion
The plaintiffs have shown a likelihood of success on the merits and irreparable
harm. The balance of equities and the public interest favor an injunction. The Court will
grant the plaintiffs’ motion for a preliminary injunction.
B. Redistricting
In Reynolds v. Sims, 377 U.S. 533 (1964), the Supreme Court held 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.” Reynolds, 377 U.S. at 560-61. The Court held 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. In Avery v. Midland County, 390 U.S. 474 (1968), the Court held
that these protection rights extend to elections of local government officials. See Avery,
390 U.S. at 479.
Members of the Greensboro City Council are individuals selected by popular
election to perform governmental functions. Therefore, the one person, one vote
requirements of the Equal Protection Clause apply to the redistricting undertaken by the
General Assembly in the Act. See id. This means that elected representatives such as
those in the City Council districts here “should represent roughly the same number of
18
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.” Daly v. Hunt, 93
F.3d 1212, 1226 (4th Cir. 1996).
The starting point in these cases is the maximum deviation from the ideal
population differential between districts. As explained by the Fourth Circuit:
If the maximum deviation is less than 10%, the population differential will
be considered de minimis and will not, by itself, support a claim of vote
dilution. If the maximum deviation is greater than 10%, it is prima facie
evidence of a one person, one vote violation, and the state must justify the
population disparity by showing a rational and legitimate state policy for
the districting plan.
Id. at 1217-18 (footnotes, citations, and quotation marks omitted); see also Wright, 787
F.3d at 264.
“The 10% threshold does not, however, ‘insulate’ a state or local districting plan
from attack.” Wright, 787 F.3d at 264. If a plaintiff can “produce further evidence to
show that the apportionment process had a taint of arbitrariness or discrimination,” then
the plaintiff can prevail. See id. (quotation marks omitted); see also Williams, 393 U.S. at
30 (noting the importance of “the facts and circumstances behind the [election] law, the
interests which the State claims to be protecting, and the interests of those who are
disadvantaged by the classification”); Larios v. Cox, 300 F. Supp. 2d 1320, 1337-38
(N.D. Ga. 2004), aff’d, 542 U.S. 947 (2004) (holding that deviations unsupported by
“legitimate state interests such as making districts compact and contiguous, respecting
political subdivisions, maintaining the cores of prior districts, and avoiding incumbent
pairings . . . cannot withstand constitutional scrutiny”).
19
Here, the plaintiffs concede that the deviation at issue is less than 10%. They have
offered evidence that there are numerous other circumstances demonstrating that the
purpose, intent, and effect of the Act is to deprive Greensboro voters of the right to have
their votes counted equally. The Court is continuing to evaluate whether the plaintiffs
have met the requirements of Rule 65 as to this claim.
C. Conclusion
The Act adopts a comprehensive system for elections and governance in the City
of Greensboro that treats the City and its voters differently from all other municipalities
and municipal voters in the State. In other words, as to the sections applicable to
Greensboro and its voters, the Act is all of a piece. No one has suggested any practical
way that parts of the Act could be enforced while other parts are enjoined. It should be
enjoined in its entirety.
In terms of preliminary remedy, one option would be to hold over all incumbents
on the City Council pending a final decision. That option, however, would deprive
Greensboro voters of the right to elect new Council members in 2015. The better option
is to return to the previous system, which has been in place for some years and has not
been challenged on constitutional grounds.
The previously scheduled referendum would place before the voters a change to
four-year terms. (See Doc. 34 at ¶ 8.) That change is also contained in the Act. No party
has suggested nor does the Court see any reason why that referendum cannot proceed on
the ballot as originally scheduled.
20
For the reasons stated, it is ORDERED that:
1. The Motion for Preliminary Injunction, (Doc. 7), is GRANTED to the extent
stated herein;
2. The Court reserves ruling on the motion, (Doc. 7), to the extent it is based on
the one person, one vote claim;
3. The Court will enter a separate Order enjoining enforcement of the Act as to
the City of Greensboro by the defendant;
4. The Motion for Temporary Restraining Order, (Doc. 3), is DENIED as moot.
This the 23rd day of July, 2015.
__________________________________
UNITED STATES DISTRICT JUDGE
21
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