COMMON CAUSE et al v. RUCHO et al

Filing 50

MEMORANDUM OPINION signed by JUDGE JAMES A. WHYNN, JR., CHIEF JUDGE WILLIAM L. OSTEEN, JR, and JUDGE W. EARL BRITT on 03/03/2017. Associated Cases: 1:16-cv-01026-WO-JEP, 1:16-cv-01164-WO-JEP(Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

COMMON CAUSE, et al.,
Plaintiffs,
v.
ROBERT A. RUCHO, in his official
capacity as Chairman of the North Carolina
Senate Redistricting Committee for the
2016 Extra Session and Co-Chairman of the
Joint Select Committee on Congressional
Redistricting, et al.,

No. 1:16-CV-1026

Defendants.

LEAGUE OF WOMEN VOTERS OF
NORTH CAROLINA, et al.,
Plaintiffs,
v.
ROBERT A. RUCHO, in his official
capacity as Chairman of the North Carolina
Senate Redistricting Committee for the
2016 Extra Session and Co-Chairman of the
Joint Select Committee on Congressional
Redistricting, et al.,
Defendants.

1

No. 1:16-CV-1164

Before WYNN, Circuit Judge, and OSTEEN, Chief District Judge, and BRITT,

Senior District Judge.
MEMORANDUM OPINION
PER CURIAM:
In these consolidated cases, two groups of Plaintiffs1 allege that North Carolina’s
2016 Congressional Redistricting Plan (the “Plan”) constitutes an unconstitutional partisan
gerrymander in violation of the First Amendment, the Equal Protection Clause of the
Fourteenth Amendment, and, in the case of the Common Cause Plaintiffs, Article I,
Sections 2 and 4 of the Constitution. In particular, Plaintiffs allege that in drawing district
lines, the Republican-controlled North Carolina General Assembly violated the
Constitution by improperly relying on “political data”—data “reflect[ing] whether the
people . . . had voted in favor of Democratic or Republican candidates for certain statewide elections”—to draw districts intended to maximize the number of Republican
members of North Carolina’s congressional delegation. First Am. Compl. Declaratory J.
& Inj. Relief, Doc. 12, ¶ 18, Common Cause v. Rucho, No. 1:16-cv-1026, Sept. 7, 2016
(“Common Cause Am. Compl.”).

1

The plaintiffs in 1:16-CV-1026 are Common Cause; the North Carolina
Democratic Party; Larry D. Hall; Douglas Berger; Cheryl Lee Taft; Richard Taft; Alice L.
Bordsen; William H. Freeman; Melzer A. Morgan, Jr.; Cynthia S. Boylan; Coy E. Brewer,
Jr.; John Morrison McNeill; Robert Warren Wolf; Jones P. Byrd; John W. Gresham; and
Russell G. Walker, Jr. (collectively, the “Common Cause Plaintiffs”). The plaintiffs in
1:16-CV-1164 are League of Women Voters of North Carolina; Elliott Feldman; Carol
Faulkner Fox; Annette Love; Maria Palmer; Gunther Peck; Ersla Phelps; John Quinn, III;
Aaron Sarver; Janie Smith Sumpter; Elizabeth Torres Evans; and Willis Williams
(collectively, the “League Plaintiffs,” and with the Common Cause Plaintiffs, “Plaintiffs”).
2

Before the court are Defendants’2 motions to dismiss the two actions under Federal
Rule of Civil Procedure 12(b)(6). In support of their motions, Defendants principally assert
that (1) Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992), which the Supreme Court
summarily affirmed, requires dismissal of Plaintiffs’ actions and (2) the Supreme Court’s
splintered opinions regarding the justiciability of—and, to the extent such claims are
justiciable, the legal framework for—partisan gerrymandering claims foreclose Plaintiffs’
claims. Defs.’ Mem. Supp. Mot. Dismiss, Doc. 31, League of Women Voters of North
Carolina v. Rucho, No. 1:16-cv-1164, Nov. 28, 2016 (“Defs.’ League Br.”); Defs.’ Mem.
Supp. Mot. Dismiss, Doc. 29, Common Cause v. Rucho, No. 1:16-cv-1026, Oct. 31, 2016
(“Defs.’ Common Cause Br.”). Mindful that “courts should be especially reluctant to
dismiss on the basis of the pleadings when the asserted theory of liability is novel,” Wright
v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015) (internal quotation marks omitted),
we conclude that neither of these arguments supports dismissal at this juncture.

I.

2

The defendants in both actions are Robert A. Rucho, in his official capacity as
Chairman of the North Carolina Senate Redistricting Committee for the 2016 Extra Session
and Co-Chairman of the 2016 Joint Select Committee on Congressional Redistricting;
David R. Lewis, in his official capacity as Chairman of the North Carolina House of
Representatives Redistricting Committee for the 2016 Extra Session and Co-Chairman of
the 2016 Joint Select Committee on Congressional Redistricting; Timothy K. Moore, 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; A.
Grant Whitney, Jr., in his official capacity as Chairman and acting on behalf of the North
Carolina State Board of Elections; the North Carolina State Board of Elections; and the
State of North Carolina (collectively, “Defendants”).
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A.
We take Plaintiffs’ factual allegations in their respective complaints as true. E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). On
February 5, 2016, a panel of three federal judges held that two districts established by North
Carolina’s 2011 decennial congressional redistricting plan constituted racial gerrymanders
in violation of the Equal Protection Clause. Harris v. McCrory, 159 F. Supp. 3d 600, 604
(M.D.N.C. 2016). To remedy this constitutional violation, and in deference to the state’s
legislative responsibilities, the Harris Court ordered the drawing of new congressional
districts to be used in future elections. Id. at 627.
In accordance with the court’s instruction, the leadership of the North Carolina
General Assembly appointed a Joint Select Committee on Redistricting (the “Committee”),
comprised of 25 Republican and 12 Democratic legislators, to draw a new congressional
district plan. Am. Compl., Doc. 41, ¶ 42, League of Women Voters of North Carolina v.
Rucho, No. 1:16-cv-1164, Feb. 10, 2017 (“League Am. Compl.”). On February 16, 2016,
the Committee debated a set of criteria to govern the drawing of the new districts. Id. ¶ 43.
The proposed criteria included “Partisan Advantage,” pursuant to which the Committee
would “make reasonable efforts to construct districts in the [2016 plan] to maintain the
current partisan makeup of North Carolina’s congressional delegation,” which, under the
map held unconstitutional in Harris, included 10 Republicans and 3 Democrats. Id.; see
also id., Ex. A (Contingent Congressional Plan Committee Adopted Criteria). To achieve
this result—and forestall claims of improper racial gerrymandering—the proposed criteria
also would require the mapmakers to rely only on (1) population data and (2) “political
4

data”—“election results in statewide contests since January 1, 2008, not including the last
two presidential contests.” Id. ¶ 44.
In discussing the proposed redistricting criteria, the Republican legislators
responsible for overseeing the drawing of the new plan openly acknowledged their partisan
motivations. For instance, Defendant Lewis, one of the Committee’s chairs, said he
“propose[d] that [the Committee] draw the maps to give a partisan advantage to 10
Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw
a map with 11 Republicans and 2 Democrats.” Id. ¶ 45 (quoting id., Ex. B (Feb. 16, 2016
North Carolina General Assembly Joint Committee on Redistricting Transcript), at 50).
And he further explained that “to the extent [we] are going to use political data in drawing
this map, it is to gain partisan advantage.”

Id., Ex. B, at 54.

Defendant Lewis

“acknowledge[d] freely that this would be a political gerrymander,” which he maintained
“is not against the law.” Id., Ex. B at 48.
That same day, the Committee adopted the proposed criteria by a party-line vote.
Id. ¶ 47. The following day, February 17, 2016, Defendants Rucho and Lewis presented
to the Committee the Plan, which had been drawn over the previous twenty-four hours to
conform to the Committee’s criteria. Id. ¶ 48. The Committee approved the Plan, again
along party lines.

Id.

The North Carolina Senate and North Carolina House of

Representatives approved the Plan on February 18 and February 19, respectively, in both
cases by party-line votes. Id. ¶¶ 49–50.
The Harris plaintiffs filed objections to the Plan with the three-judge court. Harris
v. McCrory, No. 1:13-cv-949, 2016 WL 3129213, at *1 (M.D.N.C. June 2, 2016). Among
5

those objections, the Harris plaintiffs asked the court to reject the Plan as an
unconstitutional partisan gerrymander. Id. at *2. Noting that the Supreme Court had not
agreed to a framework for adjudicating partisan gerrymandering claims and that the
“plaintiffs ha[d] not provided the Court with a ‘suitable standard’” for evaluating such
claims, the court rejected the partisan gerrymandering objection “as presented.” Id. at *3
(quoting Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652,
2658 (2015)). The court twice made clear, however, that its “denial of plaintiffs’ objections
does not constitute or imply an endorsement of, or foreclose any additional challenges to,
the [Plan].” Id. at *1, *3 (emphasis added).
B.
The Common Cause Plaintiffs filed their complaint challenging the Plan on August
5, 2016. The individual plaintiffs in the Common Cause action reside in all thirteen of the
congressional districts established by the Plan. Common Cause Am. Compl. ¶ 2. The
League Plaintiffs, who reside in six of the thirteen congressional districts, filed their
partisan gerrymandering action on September 22, 2016. League Am. Compl. ¶¶ 18–29.
Collectively, the two groups of Plaintiffs allege that the Plan violates three constitutional
provisions:
1. The Equal Protection Clause of the Fourteenth Amendment, by diluting
the electoral strength of individuals who voted against Republican
candidates, id. ¶¶ 69–80; Common Cause Am. Compl. ¶¶ 39–45;
2. The First Amendment, by burdening and retaliating against individuals
who voted against Republican candidates on the basis of their political
beliefs and association, League Am. Compl. ¶¶ 81–83; Common Cause
Am. Compl. ¶¶ 25–38; and
3. Article I, Section 2, which provides that members of the House of
Representatives will be chosen “by the People of the several States,” by
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usurping the right of the voters to select their preferred candidates for
Congress, Common Cause Am. Compl. ¶¶ 46–49.
Regarding the Equal Protection claim, both groups of Plaintiffs allege that (1) the
Plan was intended to favor Republican voters and discriminate against Democratic voters;
(2) the Plan had the effect of making it more difficult for Democratic voters to elect the
candidate of their choice, both within the ten districts drawn by the Committee to favor
Republican candidates and statewide; and (3) Defendants cannot establish that the Plan’s
discriminatory effect is justified by any legitimate state interest, such as the State’s
underlying political geography. League Am. Compl. ¶¶ 72–80; Common Cause Am.
Compl. ¶¶ 44–45.
To establish the intent prong, both complaints rely on the Republican control of the
redistricting process, the Committee’s redistricting criteria, and legislators’ statements that
they intended for the Plan to be a partisan gerrymander. League Am. Compl. ¶¶ 43–46;
Common Cause Am. Compl. ¶¶ 12–18. Defendants do not dispute that, in adopting the
Plan, the General Assembly intended to favor Republican voters and disadvantage voters
who voted for non-Republican candidates.
The Common Cause Plaintiffs and League Plaintiffs make somewhat different
allegations as to the second prong of their proposed test: discriminatory effects. The
Common Cause Plaintiffs point to the alleged disparity between the percentage of
registered voters for each major party and the number of seats the Plan’s framers expected
Republican candidates to win as evidence that the Plan is biased in favor of Republicans.
Common Cause Am. Compl. ¶ 23.

According to the Common Cause Plaintiffs, a
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“statistical analysis of the 2016 Plan will confirm that the gerrymander . . . to perpetuate
the 10-3 partisan advantage in favor of [Republicans] is intentional and is not the product
of chance or the neutral application of legitimate redistricting principles.” Id. ¶ 24.
The League Plaintiffs rely on a metric they term the “efficiency gap”—which they
characterize as a measure of “partisan symmetry”—to argue that the Plan will have the
effect of unduly discriminating against Democratic voters. League Am. Compl. ¶ 54.
Partisan symmetry purports to “measure partisan bias by compar[ing] how both parties
would fare hypothetically if they each (in turn) had received a given percentage of the
vote.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 419 (2006) (“LULAC”)
(alteration in original) (internal quotation marks omitted).
According to the League Plaintiffs, the efficiency gap measures partisan asymmetry
by comparing the difference between the number of “wasted” votes cast by voters of each
party in a given election. Id. ¶¶ 55–57. Partisan gerrymandering involves a combination
of “cracking” (dividing a disfavored party’s supporters among a number of districts, such
that the party’s supporters fall short of a majority in any individual district) and “packing”
(consolidating a disfavored party’s supporters into a single district such that the party
enjoys an overwhelming majority in that district). Id. ¶ 55. Cracking “wastes” votes cast
for the disfavored party because such votes “are cast for losing candidates.” Id. ¶ 56.
Packing “wastes” the disfavored party’s votes “to the extent they exceed the 50 percentplus-one threshold for victory (in a two-candidate race).” Id. The League Plaintiffs posit
that an efficiency gap reflecting that one party has significantly more wasted votes than the

8

other provides evidence that the redistricting plan has the effect of discriminating against
the party receiving more wasted votes. Id. ¶¶ 55–57, 79.
On February 10, 2017, the League Plaintiffs amended their complaint to add factual
allegations regarding the effects of the Plan in North Carolina’s 2016 congressional
election, the first election to use the districts established by the Plan. Id. ¶¶ 60–66. As the
Plan’s framers anticipated, Republican candidates won 10 of the 13 congressional districts
established by the Plan. Id. According to the League Amended Complaint, the Plan
produced an efficiency gap of 19 percent in the 2016 election, which is “in approximately
the worst 4 percent of the historical distribution, and the single worst score of all relevant
congressional plans in the country in 2016.” Id. ¶¶ 61–62 (emphasis in original). Given
these results and the structural advantages enjoyed by Republicans under the Plan, “the
Plan is virtually certain to exhibit a very large pro-Republican average efficiency gap over
the period it is in effect,” the League Plaintiffs allege. Id. ¶¶ 65–66.
The League Plaintiffs point to “partisan bias”—“the divergence in the share of seats
that each party would win given the same share (typically 50 percent) of the statewide
vote”—as additional evidence of the Plan’s discriminatory effect. Id. ¶¶ 53, 63. According
to the League Plaintiffs, in 2016, the Plan “produced a pro-Republican partisan bias of 27
percent[,] . . . by far the worst in North Carolina’s modern history and at the far edge of
the nationwide distribution.” Id. ¶ 63 (emphasis in original).
The Common Cause Plaintiffs and the League Plaintiffs rely on essentially the same
factual allegations to support the third prong of their Equal Protection framework: the lack
of a legitimate justification supporting the partisan gerrymander. In particular, both
9

complaints allege that numerous other maps could be drawn that comply with federal and
state districting requirements but do not exhibit the same pro-Republican bias as the Plan.
Id. ¶ 80; Common Cause Am. Compl. ¶¶ 36, 38, 45.
In addition to their claims under the Equal Protection Clause, both groups of
Plaintiffs allege that the Plan violates the First Amendment by “burdening or penalizing
citizens because of their participation in the electoral process, their voting history, their
association with a political party, or their expression of political views.” League Am.
Compl. ¶ 82 (internal quotations marks omitted) (quoting Vieth v. Jubelirer, 541 U.S. 267,
314 (2004) (Kennedy, J., concurring)); Common Cause Am. Compl. ¶ 30. In particular,
Plaintiffs allege that, by using the “political data” to draw district lines that favored
Republican voters, the Plan (1) was intended to penalize voters who supported Democratic
candidates for their previous political expression (i.e., voting for and associating with
Democratic candidates); (2) had the effect of penalizing such voters; and (3) does not
survive strict scrutiny because Defendants cannot establish a compelling state interest
justifying burdening such voters’ First Amendment rights. League Am. Compl. ¶¶ 82–83;
Common Cause Am. Compl. ¶¶ 25–38.
Both complaints seek relief from the alleged constitutional violations under 42
U.S.C. § 1983, requesting declaratory and injunctive relief barring the state from
administering elections under the Plan and requiring the General Assembly to draw new
districts that comply with the Constitution. The Common Cause Plaintiffs further ask the
court to declare that, by enacting a political gerrymander, the General Assembly exceeded
its authority under Article I, Section 4 of the Constitution, which empowers states to
10

determine the “Times, Places and Manner of holding Elections.” Common Cause Compl.
¶¶ 50–54.
II.
Defendants moved to dismiss both actions under Federal Rule of Civil Procedure
12(b)(6). To survive Defendants’ motions, Plaintiffs’ factual allegations, taken as true,
must “state a claim to relief that is plausible on its face.” Robertson v. Sea Pines Real
Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012) (internal quotation marks omitted) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under this standard, a complaint must include
sufficient factual allegations “to raise a right to relief above the speculative level” so as to
“nudge[] the[] claims across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). Although “the complaint must contain sufficient
facts to state a claim that is plausible on its face, it nevertheless need only give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Wright,
787 F.3d at 263 (internal quotation marks omitted). In assessing whether a complaint sets
forth a plausible claim to relief, courts “must accept as true all of the factual allegations
contained in the complaint” and “draw all reasonable inferences in favor of the plaintiff.”
Du Pont, 637 F.3d at 440 (internal quotation marks omitted).
To the extent a complaint asserts claims that “do not fall within the four corners of
our prior case law, this does not justify dismissal under Rule 12(b)(6).” Wright, 787 F.3d
at 263 (internal quotation marks omitted). On the contrary, “courts should ‘be especially
reluctant to dismiss on the basis of the pleadings when the asserted theory of liability’ is
‘novel’ and thus should be ‘explored.’” Id. (quoting 5B Charles Alan Wright & Arthur R.
11

Miller et al., Federal Practice & Procedure § 1357 (3d ed. 2015)). Accordingly, when—
as here—a claim for relief relies on a novel legal theory, “plaintiffs should be given ‘an
opportunity to develop evidence before the merits are resolved.’” Id. (quoting Metts v.
Murphy, 363 F.3d 8, 11 (1st Cir. 2004)).
III.
To address the specific grounds for dismissal raised by Defendants, it is first useful
to provide some background on the Supreme Court’s partisan gerrymandering
jurisprudence. The Supreme Court has recognized, in several opinions, that partisan
gerrymanders have the potential to run afoul of the Equal Protection Clause by diluting the
ability for voters supporting disfavored political parties to elect candidates of their choice.
See, e.g., Gaffney v. Cummings, 412 U.S. 735, 751 (1973) (“A districting plan may create
multimember districts perfectly acceptable under equal population standards, but
invidiously discriminatory because they are employed to minimize or cancel out the voting
strength of racial or political elements of the voting population.” (emphasis added)
(internal quotation marks omitted)).

The Supreme Court, however, never squarely

addressed a claim asserting that a redistricting plan unconstitutionally favored the
supporters of one political party at the expense of supporters of another until Davis v.
Bandemer, 478 U.S. 109 (1986).
In Bandemer, a group of Indiana Democrats sued Indiana state officials alleging that
the State’s decennial state legislative redistricting—which was enacted by a Republicancontrolled legislature and approved by a Republican governor—violated the Equal
Protection Clause by intentionally discriminating against Democrats, notwithstanding that
12

the plan satisfied the Equal Protection Clause’s one-person, one-vote requirement. Id. at
113–15 (plurality opinion). In particular, the plaintiffs alleged that the legislature drew
district lines that “packed” Democratic voters into certain districts and “cracked”
Democratic voters in other districts in order to debase Democratic voting strength. Id.
Beyond drawing favorable district lines, the legislature allegedly used multimember
districts to further dilute the ability of Democratic voters to elect their preferred candidates.
Id. at 114. In the 1982 election, the first election following the redistricting, Democratic
candidates received 51.9 percent of the statewide vote but won only 43 of the 100 House
seats. Id. at 115. In the Senate, Democratic candidates received 53.1 percent of the vote,
and won 13 of the 25 seats up for election. Id.
A divided three-judge district court panel declared the apportionment plan
unconstitutional, holding that the irregular shape of districts, the “peculiar” use of
multimember districts, and the failure of district lines to adhere to political subdivisions
and “communities of interest” evidenced an intent to favor Republican candidates. Id. at
116–17. The district court further held that the results of the 1982 election—the only
election conducted under the challenged plan—demonstrated a discriminatory effect
because the number of Democratic legislators did not reflect the proportion of votes
Democratic candidates received. Id. at 117.
On direct appeal to the Supreme Court, defendants argued that Fourteenth
Amendment partisan gerrymandering claims constitute nonjusticiable political questions
under the test set forth in Baker v. Carr, 369 U.S. 186, 216 (1962). Six Justices held that
partisan gerrymandering claims are not barred by the political question doctrine. See
13

Bandemer 478 U.S. at 123; id. at 165–66 (Powell, J., concurring). Writing for the Court,
Justice White noted that the Court had previously concluded that “one person, one vote”
and racial gerrymandering claims were justiciable, indicating that apportionment claims
related to “issue[s] of fair representation” are justiciable. Id. at 123–25. The Supreme
Court further stated that there was no reason to believe that the “standards . . . for
adjudicating this political gerrymandering claim are less manageable than the standards
that have been developed for racial gerrymandering claims.” Id. at 125.
Although the Bandemer Court concluded that partisan gerrymandering claims are
justiciable, the Court failed to agree on the proper test for adjudicating such claims under
the Equal Protection Clause. Writing for a four-justice plurality, Justice White held that
plaintiffs must prove “both intentional discrimination against an identifiable political group
and an actual discriminatory effect on that group.”

Id. at 127 (plurality opinion).

Regarding the effects element, the plurality stated that a plaintiff must prove that it “has
been unconstitutionally denied its chance to effectively influence the political process” or
that the “electoral system [has been] arranged in a manner that will consistently degrade a
voter’s or group of voters’ influence on the political process as a whole.” Id. at 132–33,
142–43. Because legislators are presumed to represent all of their constituents “even in a
safe district where the losing group loses election after election . . . the mere lack of
proportional representation will not be sufficient to prove unconstitutional discrimination.”
Id. at 132. Rather, a plaintiff must provide evidence “of continued frustration of the will
to a majority of the voters or effective denial to a minority of voters of a fair chance to
influence the political process.” Id. at 133. Applying this test, the plurality concluded the
14

plaintiffs failed to meet their burden. Id. at 133–34. The plurality emphasized that, among
other problems, the results of a single election were insufficient to demonstrate that
Democrats would be relegated to minority status throughout the decade. Id.
In partial dissent, Justice Powell, joined by Justice Stevens, agreed that a prima facie
claim of partisan gerrymandering requires proof of both discriminatory intent and
discriminatory effects. Id. at 161 (Powell, J., dissenting). However, Justice Powell
asserted that the plurality’s effects test was overly burdensome. Id. In particular, Justice
Powell posited that the plurality improperly required evidence from two elections; failed
to consider factors such as the shapes of voting districts, adherence to political
subdivisions, and the legislative process that led to adoption of the plan; and unreasonably
required plaintiffs to show that their elected representatives were wholly unresponsive to
their interests. Id. at 169–74. Considering the shapes of the enacted voting districts,
adherence to political subdivisions, the legislative process, and the results of the first
election conducted using the districts, Justice Powell concluded that the district court
correctly held that plaintiffs satisfied their burden of demonstrating both that the challenged
districting plan was adopted with discriminatory intent and that the districts had the effect
of impermissibly diluting the electoral power of voters who preferred Democratic
candidates. Id. at 175–84.
Although Bandemer recognized the justiciability of partisan gerrymandering
claims, the plurality’s test—which lower courts treated as controlling, see, e.g., Republican
Party of N.C. v. Martin, 980 F.2d 943, 955 n.22 (4th Cir. 1992)—proved virtually
impossible for plaintiffs to satisfy, Vieth, 541 U.S. at 279–80 (plurality opinion) (“[I]n all
15

of the cases we are aware of involving that most common form of political
gerrymandering[, the drawing of district lines], relief was denied.”); Samuel Issacharoff,
Pamela S. Karlan & Richard H. Pildes, The Law of Democracy 783 (4th ed. 2012)
(“Bandemer served almost exclusively as an invitation to litigation without much prospect
of redress.”); John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 Stan. L.
Rev. 607, 621 (1998) (“[B]y its impossibly high proof requirements the Court in Bandemer
essentially eliminated political gerrymandering as a meaningful cause of action, but only
after it had essentially declared the practice unconstitutional.”). Indeed, no court has held
that a state or federal legislative redistricting plan constituted an unconstitutional partisan
gerrymander under the Bandemer test.3
In Vieth v. Jubelirer, 541 U.S. 267 (2004), the Supreme Court revisited partisan
gerrymandering for the first time since Bandemer.

Vieth involved a decennial

congressional redistricting in Pennsylvania. Id. at 272–73. The plaintiffs alleged that the

3

Martin is the only case in which a court found that a complaint included adequate
factual allegations to support a partisan gerrymandering claim under the plurality’s test in
Bandemer. 980 F.2d at 957–58. There, the Fourth Circuit held that the plaintiff, the
Republican Party of North Carolina, stated a claim premised on North Carolina’s
longstanding practice of electing superior court judges through statewide elections,
notwithstanding that the judges would serve only in a single judicial district. Id. According
to the complaint, the statewide election system systematically prevented Republican
candidates from being elected to superior court judgeships, as evidenced by the fact that
only one Republican had been elected as a superior court judge in nearly 100 years,
notwithstanding that a majority of voters in numerous judicial districts had voted for a
Republican candidate. Id. at 948–49. In refusing to dismiss the claim, the court said that
“[t]he confluence of the alleged facts, including the unique claim of a near century-long
dearth of political diversity among superior court judges in North Carolina, and the
certainty of a similar future, compels our holding,” illustrating the high bar set by
Bandemer. Id. at 958.
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redistricting plan—which was enacted by a Republican-controlled legislature and
approved by a Republican governor—intentionally disadvantaged Democrats, as
punishment for pro-Democratic redistricting plans adopted in other states. Id. To that end,
in drawing the districts—which had contorted shapes and did not adhere to political
subdivisions or communities of interest—the legislature allegedly sought “maximum
partisan advantage . . . to the exclusion of all other criteria.” Id. at 340 (Stevens, J.,
dissenting) (internal quotation marks omitted). The plaintiffs proposed that a partisan
gerrymander exhibits discriminatory effects, as a matter of law, when it prevents a majority
of voters from being able to elect a majority of a congressional delegation. Id. at 308
(Kennedy, J., concurring).
Five justices voted to dismiss the action. Conceding “the incompatibility of severe
partisan gerrymanders with democratic principles,” id. at 292 (plurality opinion), a fourjustice plurality nonetheless asserted that no judicially manageable standards exist to
adjudicate partisan gerrymandering claims and therefore voted to reverse Bandemer’s
holding of justiciability, id. at 281.
Concurring in the judgment, Justice Kennedy agreed that the particular claims
asserted by the Vieth plaintiffs failed to articulate a manageable standard for assessing their
Equal Protection claims. Id. at 306 (Kennedy, J., concurring). Unlike the plurality,
however, Justice Kennedy refused to rule that partisan gerrymandering claims are
nonjusticiable per se.

Id.

In reaching this conclusion, Justice Kennedy stated

gerrymanders that intentionally disfavor voters who support a particular party would, in
certain instances, violate the Constitution. Id. at 311–12, 314–15. And Justice Kennedy
17

criticized legislators who enact the partisan gerrymanders as lacking “decorum and
restraint” and effectively “declaring that, when it comes to apportionment, ‘“We are in the
business of rigging elections.”’ Id. at 316–17 (quoting statement by North Carolina
legislator in Hoeffel, Six Incumbents Are a Week Away from Easy Election, Winston–
Salem Journal, Jan. 27, 1998, p. B1).
Notwithstanding his recognition that gerrymandering that unduly disfavors a
particular party violates the Constitution, Justice Kennedy identified two hurdles to
recognizing a framework for evaluating partisan gerrymandering claims under the
Fourteenth Amendment: (1) “the lack of comprehensive and neutral principles for drawing
electoral boundaries” and (2) “the absence of rules to limit and confine judicial
intervention” in partisan gerrymandering. Id. at 306–07. As Justice Kennedy explained,
both of these complications arise from difficulties in identifying and assessing the
discriminatory effects of an alleged gerrymander.

The first concern deals with the

difficulty in identifying a “fair” districting plan to use as a baseline against which to assess
the effects of a partisan gerrymander. Id. at 307. The second concern deals with the need
to establish the degree of deviation from the “fair” districting plan that would render a
partisan gerrymander unconstitutional. Id. at 307–08.
Regarding the latter concern, Justice Kennedy specifically rejected the plaintiffs’
contention that the Constitution entitles a majority of voters in a State to elect the majority
of the State’s congressional representatives. Id. at 308. Justice Kennedy further stated that
the Bandemer test failed to address either of these concerns, but suggested that lower courts
may be able to develop a workable framework if they are (1) allowed to consider
18

alternatives to the Bandemer plurality’s test and (2) able to take advantage of new
technology and methods of analysis:
[D]uring these past 18 years the lower courts could do no more than follow
Davis v. Bandemer, which formulated a single, apparently insuperable
standard. . . . [T]he rapid evolution of technologies in the apportionment field
suggests yet unexplored possibilities. Computer assisted districting has
become so routine and sophisticated that legislatures, experts, and courts can
use databases to map electoral districts in a matter of hours, not months.
Technology is both a threat and a promise. On the one hand, if courts refuse
to entertain any claims of partisan gerrymandering, the temptation to use
partisan favoritism in districting in an unconstitutional manner will grow. On
the other hand, these new technologies may produce new methods of analysis
that make more evident the precise nature of the burdens gerrymanders
impose on the representational rights of voters and parties. That would
facilitate court efforts to identify and remedy the burdens, with judicial
intervention limited by derived standards.
Id. at 312–13 (citations omitted).
Justice Kennedy further suggested that the First Amendment, as opposed to the
Fourteenth Amendment, may be the best vehicle for addressing the constitutionality of
partisan gerrymanders because “these allegations involve the First Amendment interest of
not burdening or penalizing citizens because of their participation in the electoral process,
their voting history, their association with a political party, or their expression of political
views.” Id. at 314. “Under general First Amendment principles those burdens in other
contexts are unconstitutional absent a compelling government interest,” he said. Id. (citing
Elrod v. Burns, 427 U.S. 347, 362 (1976) (plurality opinion)).
The four dissenting justices—whose views were set forth across three separate
opinions—agreed with the plurality and Justice Kennedy that gerrymanders designed to
disfavor a particular political party are antidemocratic and potentially violate the
19

Constitution. See id. at 325–26 (Stevens, J., dissenting) (“[P]olitical affiliation is not an
appropriate standard for excluding voters from a congressional district.”); id. at 343–44
(Souter, J., dissenting); id. at 361 (Breyer, J., dissenting) (“[P]olitical gerrymandering that
so entrenches a minority party in power violates basic democratic norms and lacks
countervailing justification.”). Likewise, the four dissenting justices agreed with Justice
Kennedy that partisan gerrymandering claims are not per se nonjusticiable. Id. at 317
(Stevens, J., dissenting) (“[F]ive Members of the Court . . . share the view that, even if
these appellants are not entitled to prevail, it would be contrary to precedent and profoundly
unwise to foreclose all judicial review of similar claims that might be advanced in the
future.”).
The dissenting justices, however, disagreed as to the proper test for evaluating
partisan gerrymandering claims under the Fourteenth Amendment. Justice Stevens said
such claims should proceed only on a district-by-district, as opposed to statewide, basis,
and should be evaluated under the framework used for racial gerrymandering claims. Id.
at 335–36 (Stevens, J., dissenting). Under this framework, a redistricting plan would
violate the Equal Protection Clause if the consideration that “predominated” was
partisanship and the legislature failed to identify any rational, nonpartisan basis justifying
the district lines drawn. Id. at 338–39. Justice Souter, joined by Justice Ginsburg, likewise
proposed that partisan gerrymandering claims should, at least initially, proceed on a
district-by-district, as opposed to statewide, basis. Id. at 345–50 (Souter, J., dissenting).
Contrary to the standard proposed by Justice Stevens, Justice Souter suggested that such
claims proceed under the burden-shifting framework used for evaluating Title VII
20

discrimination claims. Id. Finally, Justice Breyer suggested that partisan gerrymandering
amounts to a structural problem, and therefore that such claims should be evaluated on a
statewide basis. Id. at 362 (Breyer, J., dissenting). According to Justice Breyer, a partisan
gerrymander would violate the Fourteenth Amendment when it leads to “unjustified
entrenchment”—“a situation in which a party that enjoys only minority support among the
populace has nonetheless contrived to take, and hold, legislative power” and that that “hold
on power is purely the result of partisan manipulation and not other factors.” Id. at 360.
Taken together, then, the splintered opinions in Bandemer and Vieth stand for, at a
minimum, the following: (1) Fourteenth Amendment partisan gerrymandering claims are
justiciable; (2) in order to establish a partisan gerrymandering claim under the Equal
Protection Clause, a plaintiff must show both (a) discriminatory intent and (b)
discriminatory effects; and (3) the effects test proposed by the Bandemer plurality is
unworkable, and, therefore, no longer controlling. Accord Whitford v. Gill, -- F. Supp. 3d
--, No. 15–cv–421–bbc, 2016 WL 6837229, at *30 (W.D. Wis. Nov. 21, 2016).
Furthermore, given Vieth’s abrogation of Bandemer’s discriminatory effects test, the
Supreme Court has failed to provide lower courts with guidance as to the proper standard
for assessing whether an alleged partisan gerrymander produces discriminatory effects.
With this background in mind, we now turn to the specific arguments raised in Defendants’
motions to dismiss.
IV.
Although Plaintiffs’ complaints rely on somewhat different legal theories,
Defendants make the same two principal arguments in support of each of their motions to
21

dismiss. First, Defendants argue that Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992),
which the Supreme Court summarily affirmed, rejected factually indistinguishable First
and Fourteenth Amendment partisan gerrymandering claims and, therefore, requires
dismissal of Plaintiffs’ actions. Second, Defendants maintain that Plaintiffs’ claims are
foreclosed by the Supreme Court’s fractured opinions in Vieth. For the reasons stated
below, and mindful of the greater latitude we must afford at the pleading stage to parties,
like Plaintiffs, who assert novel theories of liability, we conclude that neither of these
arguments supports dismissal of Plaintiffs’ claims at this early stage.
A.
In Pope, several dozen North Carolina voters, most of whom were Republican,
challenged the state’s 1991 congressional redistricting plan as an unconstitutional partisan
gerrymander, in violation of the Equal Protection Clause, the First Amendment, and Article
I, Section 2 of the Constitution. 809 F. Supp. at 394–95, 397–98. The plaintiffs alleged
that Democratic majorities in the state legislature “prevented Republicans from having any
influence in the redistricting process” and that the Plan included “contorted” and
“serpentine” districts that did not reflect political subdivisions. Id. at 394–96.
Applying the test set forth by the plurality in Bandemer, a divided three-judge panel
held that the plaintiffs failed to state a claim. Id. at 396. In particular, the majority held
that the plaintiffs failed to satisfy the discriminatory effects prong of the test because the
plaintiffs did not allege Republicans had been “shut out of the political process;” that
“Republicans in the Democratic majority districts [were] precluded from influencing the
actions of their Congressmen;” or that “anyone ha[d] ever interfered with Republican
22

registration, organizing, voting, fund-raising, or campaigning.”

Id. at 397 (internal

quotation marks omitted). The majority also emphasized that the Bandemer plurality “held
that the results of a single election were insufficient to establish a discriminatory effect,”
but that the plaintiffs could not put forward results of “even . . . a single election to
corroborate [their] allegations of disproportionate representation.”

Id. at 396–97.

Likewise, the majority held that the plaintiffs’ First Amendment freedom of association
claim was “coextensive” with the Equal Protection claim, and therefore failed for the same
reasons. Id. at 398.
Defendants assert that “all of the allegations made by [P]laintiffs in this case track
the allegations by the Pope plaintiffs, except that, unlike the Pope plaintiffs, [Plaintiffs] do
not allege that the [Plan] fails to follow traditional redistricting principles,” and therefore
that Pope “is binding authority on this Court because it was summarily affirmed by the
Supreme Court.” Defs.’ League Mem. Supp. Mot. Dismiss at 7; see also Defs.’ Common
Cause Mem. Supp. Mot. Dismiss at 7. We disagree.
The allegations in the present case do not “track” those in Pope because unlike
Pope—in which the plaintiffs did not put forward any election results to support their
claims—Plaintiffs allege that the results of the 2016 elections (1) reveal that the Plan
already has had discriminatory effects and (2) indicate that those effects will persist.
League Am. Compl. ¶¶ 60–66. More significantly, the Pope majority dismissed the action
because it concluded that the plaintiffs had not satisfied their heavy burden under the test
for discriminatory effects set forth by the Bandemer plurality. 809 F. Supp. at 397. As
explained above, however, the Supreme Court unanimously abandoned the Bandemer test
23

in Vieth. See supra Part III; Whitford, 2016 WL 6837229, at *30 (“In Vieth, however, the
members of the Court were unanimous only in their willingness to jettison the test set forth
in Bandemer. We conclude, therefore, that the specific test for political gerrymandering
set forth in Bandemer no longer is good law.”). Because Pope relied on the Bandemer
plurality’s now-abrogated effects test, Pope does not bind this Court and, therefore, does
not serve as a basis for dismissing Plaintiffs’ actions. Cf. Qingyun Li v. Holder, 666 F.3d
147, 150 (4th Cir. 2011) (holding that a panel decision is not binding on later panels if “a
subsequent Supreme Court decision specifically rejected the reasoning on which [the prior
decision] was based” (alteration in original) (internal quotation marks omitted)).
B.
1.
Regarding Vieth, Defendants first argue that Plaintiffs’ claims are not “justiciable
because they are based upon the same allegations made by the Vieth plaintiffs, i.e., that the
[Plan] would result in the election of Republican candidates at a level that is
disproportionate with the number of Republican voters,” and five Justices found that such
allegations did not state a justiciable claim. Defs.’ League Mem. Supp. Mot. Dismiss at
12; Defs.’ Common Cause Mem. Supp. Mot. Dismiss at 11. Defendants are again
mistaken.
First, regarding Plaintiffs’ First Amendment claims, Justice Kennedy, who provided
the decisive fifth vote in favor of dismissing Vieth, expressly suggested that the wellestablished structure for analyzing claims that a governmental defendant unconstitutionally
burdened or penalized a plaintiff for exercising her First Amendment rights could offer a
24

viable framework for adjudicating partisan gerrymandering claims. Vieth, 541 U.S. at 315
(Kennedy, J., concurring). And the Supreme Court recently held that Justice Kennedy’s
proposed First Amendment framework, which Plaintiffs adopt in their respective
complaints, was “uncontradicted by the majority in any of [the Court’s] cases,” including
Vieth. Shapiro v. McManus, 136 S. Ct. 450, 456 (2015). Accordingly, nothing in the
Court’s splintered opinions in Vieth rendered nonjusticiable Plaintiffs’ First Amendment
claims. Accord Shapiro v. McManus, -- F. Supp. 3d --, No. 1:13-cv-03233, 2016 WL
4445320, at *10–11 (D. Md. Aug. 24, 2016) (concluding that partisan gerrymandering
claims are justiciable under the First Amendment “[b]ecause there is no redistricting
exception to th[e] well-established First Amendment . . . principle that the government may
not penalize citizens because of how they have exercised their First Amendment rights”).
Second, Vieth does not render nonjusticiable Plaintiffs’ Equal Protection claims.
See LULAC, 548 U.S. at 414 (stating that, in Vieth, a majority of Justices declined to reverse
Bandemer’s holding that partisan gerrymandering claims are justiciable). On the contrary,
Justice Kennedy voted to dismiss Vieth because the plaintiffs’ proposed standard for
establishing whether a gerrymander had a discriminatory effect—“that a majority of voters
in the [state] should be able to elect a majority of the [state’s] congressional delegation”—
lacked a constitutional basis, not because partisan gerrymandering claims are
nonjusticiable in all instances. Vieth, 541 U.S. at 308 (Kennedy, J., concurring). Plaintiffs
do not rely on the discriminatory effects standard rejected in Vieth, and, therefore, Vieth
does not render the present actions nonjusticiable.

25

Additionally, in rejecting the Vieth plaintiffs’ discriminatory effects standard,
Justice Kennedy expressed hope that the advent of new technology would bring forward
judicially discernible and manageable standards for adjudicating partisan gerrymandering
claims under the Equal Protection Clause or First Amendment. Id. at 312–13. By relieving
lower courts of the obligation to apply the Bandemer plurality’s discriminatory effects test,
Vieth thus opened the door for lower courts to “search for a judicially manageable standard”
for evaluating such claims, such as the standards and statistical methods proposed by
Plaintiffs. See Whitford v. Nichol, 151 F. Supp. 3d 918, 924, 927 (W.D. Wis. 2015) (“Thus
far, the Supreme Court has not identified a standard for reviewing a partisan
gerrymandering claim, but it has left open the possibility that an appropriate standard may
be found.”); see also Shapiro, 2016 WL 4445320, at *8 (“Taken together, the combined
effect of Bandemer, Vieth, and LULAC is that, while political gerrymandering claims
premised on the Equal Protection Clause remain justiciable in theory, it is presently
unclear whether an adequate standard to assess such claims will emerge.”).
2.
Defendants next argue that even if Vieth did not render Plaintiffs’ Equal Protection
claims nonjusticiable, Plaintiffs’ allegations fail to state a claim under the Equal Protection
Clause4 when measured against the various standards for evaluating the discriminatory

4

Defendants do not argue that, to the extent partisan gerrymandering claims are
justiciable under the First Amendment, Plaintiffs fail to adequately allege such a claim.
Accordingly, our discussion of the sufficiency of Plaintiffs’ pleadings is limited to their
Equal Protection claim.
26

effects of an alleged partisan gerrymander proposed and rejected by the splintered Vieth
opinions. Again, we disagree.
To begin, Defendants do not dispute that, to state a partisan gerrymandering claim
under the Equal Protection Clause, a plaintiff must allege discriminatory intent and
discriminatory effects—nor could they, given that a majority of the Bandemer Court
embraced that general framework and Vieth did nothing to undermine it. Bandemer, 478
U.S. at 127 (plurality opinion); id. at 161 (Powell, J., dissenting in part). And Defendants
do not dispute that Plaintiffs adequately allege that, in enacting the Plan, the General
Assembly intended to discriminate against voters who supported Democratic candidates.
Accordingly, Defendants challenge the sufficiency of Plaintiffs’ allegations only regarding
the discriminatory effects of the Plan.
As to those alleged effects, we note that “the plaintiffs in Bandemer, Vieth and
LULAC did not rely on partisan symmetry”—the discriminatory effects test proposed by
the League Plaintiffs—“in their arguments before the Court and the Court did not reject
partisan symmetry as a tool in determining whether partisan gerrymandering is
unconstitutional.” Whitford, 151 F. Supp. 3d at 930. To the contrary, several Justices have
stated that partisan symmetry has promise for measuring the discriminatory effects of a
partisan gerrymander and structuring a remedy. See, e.g., LULAC, 548 U.S. at 465–66
(Stevens, J. dissenting in part) (“[T]he symmetry standard, a measure social scientists use
to assess partisan bias . . . is undoubtedly a reliable standard for measuring a burden . . . on
the complainants’ representative rights.” (internal quotation marks omitted)). Because (1)
the Supreme Court’s abrogation of Bandemer’s discriminatory effects test obliges lower
27

courts to “search for” new judicially discernible and manageable tests for evaluating
political gerrymandering claims, Whitford, 151 F. Supp. 3d at 924, 927, and (2) the use of
measures of partisan symmetry to assess discriminatory effects is “uncontradicted by the
majority in any of [the Supreme Court’s partisan gerrymandering] cases,” Shapiro, 136 S.
Ct. at 456, Plaintiffs have satisfied their pleading-stage burden to allege that the Plan had
the effect of discriminating against disfavored voters.
Defendants nonetheless argue that Plaintiffs fail to state a claim under the partisan
gerrymandering frameworks proposed by Justice Stevens, Justice Souter, and Justice
Breyer in their dissents in Vieth. But, in Vieth, a majority of the Court rejected those tests.
See Vieth, 541 U.S. at 292–301 (plurality opinion); id. at 308 (Kennedy, J., concurring).
Accordingly, Plaintiffs cannot be faulted for failing to satisfy them.5
IV.
In rejecting Defendants’ arguments, we do not minimize the obstacles Plaintiffs
must overcome to prevail—challenges evident in the Supreme Court’s inability to agree,
to date, on a framework for demonstrating the discriminatory effects of a purported partisan

5

Defendants state, in a single sentence, that the League Plaintiffs lack standing to
challenge all 13 congressional districts created by the Plan on grounds that none of the
League Plaintiffs reside in 7 of those 13 districts. Defs.’ Mem. Supp. Mot. Dismiss at 13.
Defendants fail to cite any decision holding that a plaintiff has standing to challenge as an
unconstitutional partisan gerrymander only that electoral district in which he resides, nor
have we found any such decision. On the contrary, the only court that appears to have
squarely addressed standing in partisan gerrymandering cases held that partisan
gerrymandering claims are analogous to “one person, one vote” claims and, therefore, that
an individual plaintiff has standing to challenge a statewide districting map as a partisan
gerrymander. Whitford, 2016 WL 6837229, at *67–70 (citing Baker, 369 U.S. at 207–08).
Given that Defendants did not fully develop the standing argument in their brief, we decline
to address it at this juncture.
28

gerrymander. But the Supreme Court’s declaration that “[p]artisan gerrymanders . . . are
incompatible with democratic principles,” Ariz. State Legislature, 135 S. Ct. at 2658
(alteration in original) (internal quotation marks omitted), and the need for courts to “err
on the side of caution” in adjudicating claims “[w]here important rights are involved,” such
as “[a]llegations of unconstitutional bias in apportionment,” Vieth, 541 U.S. at 311
(Kennedy, J., concurring), require that we afford Plaintiffs an opportunity to develop
evidence establishing the viability of their proposed—and “uncontradicted”—
discriminatory effects test. Accordingly, Defendants’ motions to dismiss is denied.
An appropriate Order accompanies this Memorandum Opinion.
Date: March 3, 2017
/s/ James A. Wynn, Jr.
Hon. James A. Wynn, Jr.
United States Circuit Judge

/s/ William L. Osteen, Jr.
Hon. William L. Osteen, Jr.
Chief United States District Judge

/s/ W. Earl Britt
Hon. W. Earl Britt
Senior United States District Judge

29