COMMON CAUSE et al v. RUCHO et al

Filing 87

MEMORANDUM OPINION - Circuit Judge Wynn, Jr., wrote the opinion in which Senior District Judge Britt joined. Chief District Judge Osteen, Jr. concurred. 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

MEMORANDUM OPINION
Wynn, Jr., Circuit Judge, wrote the opinion, in which Britt, Senior District Judge, joined:
In these consolidated cases, two groups of Plaintiffs 1 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. Before the Court is Legislative Defendants’2 motion
to stay Plaintiffs’ action pending the Supreme Court of the United States’ final decision in
Gill v. Whitford, No. 16-1161 (calendared for oral argument on Oct. 3, 2017). The trial

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
Legislative 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 CoChairman 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;
and Philip E. Berger, in his official capacity as President Pro Tempore of the North
Carolina Senate. Plaintiffs also name as defendants A. Grant Whitney, Jr., in his official
capacity as Chairman and acting on behalf of the North Carolina State Board of Elections
(“Whitney”); the North Carolina State Board of Elections (collectively, with Whitney, the
“Board Defendants”); and the State of North Carolina (collectively, with the Legislative
Defendants and the Board Defendants, “Defendants”).
2

court in Whitford held that a Wisconsin state legislative redistricting plan was an
unconstitutional partisan gerrymander in violation of the First Amendment and the Equal
Protection Clause. Whitford v. Gill, 218 F. Supp. 3d 837, 884 (W.D. Wis. 2016).
After careful consideration of the parties’ briefing and arguments, we conclude that
Legislative Defendants have failed to put forward the “clear and convincing circumstances
outweighing potential harm” to Plaintiffs necessary to justify staying these proceedings.
Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983). Therefore,
and as further explained below, we exercise our discretion to deny Legislative Defendants’
motion to stay.
I.
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), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455
(2017). To remedy this constitutional violation, the Harris Court established a two-week
deadline for the North Carolina General Assembly to draw new congressional districts to
be used in future elections. Id. at 627. Thereafter, the General Assembly adopted the Plan
at issue in this case. According to Plaintiffs, the Plan relied on “political data”—data
“reflect[ing] whether the people . . . had voted in favor of Democratic or Republican
candidates for certain state-wide elections”—to draw districts intended to maximize the
number of Republican members of North Carolina’s congressional delegation. (Doc. 12,
¶ 18.)
3

Common Cause Plaintiffs filed their complaint challenging the new districts as
partisan gerrymanders on August 5, 2016, and League Plaintiffs filed their action on
September 22, 2016. Collectively, Plaintiffs allege that the Plan violates four constitutional
provisions:
1.

The Equal Protection Clause of the Fourteenth Amendment, by diluting the
electoral strength of individuals who voted against Republican candidates
(Doc. 41, ¶¶ 69–80; Doc. 12, ¶¶ 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 (Doc. 41, ¶¶ 81–83; Doc. 12, ¶¶ 25–38);

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
usurping the right of the voters to select their preferred candidates for
Congress (Doc. 12, ¶¶ 46–49); and

4.

Article I, section 4, which provides that “the times, places and manner of
holding elections of . . . Representatives, shall be prescribed in each State by
the Legislature thereof” (Doc. 12, ¶¶ 50–54).

On February 21, 2017, Defendants moved to dismiss Plaintiffs’ actions under Federal Rule
of Civil Procedure 12(b)(6).

(Doc. Nos. 45, 46.) In an order and accompanying

memorandum opinion issued on March 3, 2017, this Court denied Defendants’ motion to
dismiss. Common Cause v. Rucho, -- F. Supp. 3d --, 2017 WL 876307, at *1 (M.D.N.C.
Mar. 3, 2017).
This Court established an April 28, 2017, deadline for the parties to complete
discovery and scheduled a bench trial for the week of June 26, 2017. (Doc. Nos. 47, 53.)
Pursuant to that order, the parties engaged in extensive fact and expert discovery, which
involved the production of documents, the propounding and answering of interrogatories,
4

the preparation and submission of a number of expert reports, and numerous depositions.
On May 30, 2017, the parties filed their final pretrial disclosures. (Doc. Nos. 54–58.) One
week later, the parties submitted their proposed findings of fact and conclusions of law and
pretrial briefs.

(Doc. Nos. 60–62, 64.) On June 19, 2017, League Plaintiffs moved in

limine to exclude the testimony of one of Defendants’ proffered expert witnesses and
submitted substantial briefing and supporting materials in support of that motion. (Doc.
Nos. 71, 72.) That same day, this Court held a pre-trial hearing. At the hearing, this Court,
on its own motion, continued the trial indefinitely.
On June 26, 2017, Legislative Defendants filed the present motion to stay further
proceedings pending the Supreme Court’s final decision in Gill. (Docs. 74, 75.) Plaintiffs
opposed Legislative Defendants’ motion, and Board Defendants and Defendant State of
North Carolina took no position. (Docs. 78, 79.) On August 29, 2017, having lifted the
continuance, this Court received argument from the parties on Legislative Defendants’ stay
motion. That same day, this Court entered an order denying the stay motion and stating
that this opinion would follow. (Doc. 85.)
II.
“[T]he power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see
also Maryland v. Universal Elections, Inc., 729 F.3d 370, 375 (4th Cir. 2013) (explaining
that district courts have broad discretion “to balance the various factors relevant to the
expeditious and comprehensive disposition of the causes of action on the court’s docket”
5

(internal quotation marks omitted)). Factors courts consider in deciding whether to
exercise their discretion to stay proceedings “include the interests of judicial economy, the
hardship and inequity to the moving party in the absence of a stay, and the potential
prejudice to the non-moving party in the event of a stay.” Yadkin Riverkeeper, Inc. v. Duke
Energy Carolinas, LLC, 141 F. Supp. 3d 428, 452 (M.D.N.C. 2015). “The party seeking
a stay must justify it by clear and convincing circumstances outweighing potential harm to
the party against whom it is operative.” Williford, 715 F.2d at 127.
A.
Legislative Defendants argue that “clear and convincing circumstances” outweigh
the harm to Plaintiffs attributable to a stay because Whitford involves legal theories that
are “essentially identical” to Plaintiffs’ claims and “will ultimately resolve currently
unanswered questions regarding the justiciability, legal standards, and appropriate remedy
in political gerrymandering claims.” (Doc. 75, at 2, 5.) Legislative Defendants maintain
that if these proceedings move forward without the benefit of the Supreme Court’s
guidance, the parties will “unnecessarily expend significant time and resources at trial, only
to have to re-try the case later or dismiss it.” (Doc. 75, at 11–12.) Accordingly, we must
consider whether the Supreme Court’s decision in Whitford is likely to render any
proceedings held in advance of that decision a sufficiently significant “waste of time and
money” as to outweigh the harm to Plaintiffs caused by further delaying these proceedings.
(Doc. 75, at 1.)
In Whitford, Democratic voters challenged a decennial state assembly redistricting
plan adopted by a Republican-controlled assembly and approved by the state’s Republican
6

governor. Whitford, 218 F. Supp. 3d at 852. In creating the plan, the legislature considered
several alternative districting plans and selected the plan that, according to the legislature’s
expert consultants, was likely to lead to the election of the most Republican candidates. Id.
at 849–52. By the time of trial, Wisconsin had conducted two elections under the plan. In
2012, Wisconsin voters cast 48.6% of their votes for Republican candidates, yet
Republican candidates won over 60% (60 of 99) of the seats in the state assembly. Id. at
853. In 2014, Republican candidates received 52% of the statewide votes, and won 63 of
the 99 seats in the assembly. Id.
The Whitford plaintiffs alleged that the redistricting plans violated the Equal
Protection Clause by “treat[ing] voters unequally, diluting their voting power based on
their political beliefs,” and the First Amendment by “unreasonably burden[ing] their First
Amendment rights of association and free speech.” Id. at 855. Although the plaintiffs
asserted claims under both the First Amendment and Equal Protection Clause, the plaintiffs
proposed a single, three-part framework for analyzing both claims and did not “identif[y]
any analytical differences” between the two claims. Whitford v. Nichol, 180 F. Supp. 3d
583, 587 (W.D. Wis. 2016). Under the plaintiffs’ proposed framework, which derived
from the Supreme Court’s decision in Davis v. Bandemer, 478 U.S. 109, 127 (1986)
(plurality op.), plaintiffs first would have to demonstrate a legislative intent to discriminate
against an identifiable political group and then have to establish a discriminatory effect,
Whitford, 180 F. Supp. at 587. If plaintiffs satisfied their burden under the first two parts
of their proposed framework, the burden would shift to the defendants to show that the
discriminatory effects were justified by the state’s political geography or other legitimate
7

redistricting considerations. Id. at 589–90. The “most significant innovation” of the
plaintiffs’ proposed test related to the discriminatory effects prong. Id. at 588. The
Whitford plaintiffs proposed that the court assess the discriminatory effects of the
challenged plan through a novel metric termed the “efficiency gap,” which measures
“partisan symmetry”—how each party “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)—by comparing the number of “wasted” votes each political party has under a
districting plan, Whitford, 180 F. Supp. 3d at 588–89.
A divided three-judge district court panel ruled that the legislative districting plan
constituted an unconstitutional partisan gerrymander. Whitford, 218 F. Supp. 3d at 843.
In reaching this conclusion, the Whitford majority applied a three-step framework similar
to the frameworks used in Bandemer and suggested by the plaintiffs. Id. at 884. In
particular, according to the majority, “the First Amendment and the Equal Protection
Clause prohibit a redistricting scheme which (1) is intended to place a severe impediment
on the effectiveness of the votes of individual citizens on the basis of their political
affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative
grounds.” Id. Therefore, in line with the plaintiffs’ suggestion, the Whitford majority
treated the First Amendment and Equal Protection claims as analytically indistinguishable.
Id.
The majority then found that plaintiffs’ evidence satisfied the intent prong by
demonstrating that, in drawing the districts, the legislature acted with “an intent to entrench
8

a political party in power.” Id. at 887. In particular, plaintiffs’ evidence showed that the
legislature’s line-drawing decisions focused on ensuring long-term Republican control of
the assembly by selecting the district plan that was likely to ensure Republican control even
if voters swung substantially in Democrats’ favor in a particular election. Id. at 890–96.
Regarding the discriminatory effect prong, the majority found that the results from the 2012
and 2014 elections demonstrated that the districts durably favored Republicans, consistent
with the predictions the legislature made in drawing the map. Id. 898–901. The court did
not embrace plaintiffs’ “efficiency gap” measure as decisive evidence of discriminatory
effect, but did state that the measure “bolstered” its conclusion. Id. at 903. In particular,
the plaintiffs’ evidence showed that, based on 2012 and 2014 election results, the efficiency
gap favoring the Republican party exceeded the threshold at which, according to statistical
analyses of hundreds of redistrictings in a number of states, a redistricting plan “will
continue to favor that party for the life of the plan.” Id. at 903–05. The majority further
concluded that the defendants failed to demonstrate that the district lines were “justifiable,
i.e., . . . explained by the legitimate state prerogatives and neutral factors that are implicated
in the districting process.” Id. at 911.
To be sure, there are some similarities between Whitford and the present case. Both
cases involve allegations of unconstitutional partisan gerrymandering. Likewise, both
cases involve claims under the First Amendment and Equal Protection Clause. And like
the plaintiffs in Whitford, League Plaintiffs, in particular, appeal to the “efficiency gap” as
a metric demonstrating the discriminatory effects of the Plan. Common Cause, 2017 WL
876307, at *3-4.
9

But the cases also differ in a number of significant ways. To begin, the plaintiffs in
Whitford lodged a statewide challenge to the legislative redistricting plans, notwithstanding
that the plaintiffs did not reside in all of the challenged districts. Whitford, 218 F. Supp.
3d at 929. Before the Supreme Court, the Whitford defendants argue that individuals lack
standing to bring a statewide partisan gerrymandering challenge, Br. for Appellants, Gill
v. Whitford, No. 16-1611, at 26–34 (July 28, 2017), a question the Supreme Court has yet
to resolve, see Whitford, 218 F. Supp. 3d at 929. Accordingly, the Supreme Court could
dispose of Whitford on standing grounds without addressing the merits, thereby providing
this Court with no additional guidance regarding the viability of and framework for
evaluating partisan gerrymandering claims. By contrast, Plaintiffs in these matters reside
in all thirteen North Carolina congressional districts and, therefore, have standing to assert
their partisan gerrymandering claims regardless of whether the Supreme Court determines
that such claims must proceed on a district-by-district basis, or, alternatively, may proceed
on a statewide basis.
Whitford and the present cases materially differ as to the merits as well. First,
whereas the Whitford plaintiffs proposed a single framework for evaluating partisan
gerrymandering claims under the First Amendment and Equal Protection Clause, Common
Cause Plaintiffs propose a distinct framework for assessing partisan gerrymandering claims
under the First Amendment. This framework is derived from the Supreme Court’s test for
analyzing claims that a governmental defendant unconstitutionally burdened or penalized
a plaintiff for exercising her First Amendments rights, including the right to engage in
political expression and association. (Doc. 79, at 55–63 (citing Reed v. Town of Gilbert,
10

135 S. Ct. 2218 (2015); Rutan v. Republican Party of Ill., 497 U.S. 62 (1990); Elrod v.
Burns, 427 U.S. 347 (1976))). The Supreme Court has held that the applicability of that
framework to partisan gerrymandering claims—an approach first suggested by Justice
Kennedy in his concurrence in Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J.,
concurring in the judgment)—is “uncontradicted by the majority in any of [the Court’s]
cases,” Shapiro v. McManus, 136 S. Ct. 450, 456 (2015). There are potentially meaningful
differences between the First Amendment framework advanced by Common Cause
Plaintiffs and the framework applied by the Gill trial court, which treated the First
Amendment claim as substantively indistinguishable from the Equal Protection claim. See
Benisek v. Lamone, 2017 WL 3642928, at *27 (D. Md. Aug. 24, 2017) (Neimeyer, J.,
dissenting) (stating that if a legislature draws district lines to disfavor one party’s voters, a
plaintiff challenging the districting plan “need not show that the linedrawing altered the
outcome of an election—though such a showing would certainly be relevant evidence of
the extent of the injury”). Accordingly, Whitford likely will not address, much less resolve,
the viability of Common Cause Plaintiffs’ proposed First Amendment framework, much
less whether Plaintiffs’ evidence entitles them to relief under that framework.
A second substantive difference between these cases is that Whitford involves state
legislative districts, whereas this case involves congressional districts.

To that end,

Common Cause Plaintiffs assert claims under Article I, section 2 of the Constitution, which
provides that the “House of Representatives shall be composed of Members chosen . . . by
the People,” and Article I, section 4, which provides that “the Times, Places and Manner
of holding Elections for . . . Representatives, shall be prescribed in each State by the
11

Legislature thereof.” The Supreme Court has relied on Article I, section 2 to invalidate
congressional districting plans that violate the one person, one vote rule. Wesberry v.
Sanders, 376 U.S. 1, 13–14 (1964) (explaining that malapportionment “defeat[s] the
principle solemnly embodied in the Great Compromise” by making elected congressmen
dependent on state legislatures, rather than the people, and by allowing “legislatures [to]
draw the lines of congressional districts in such a way as to give some voters a greater
voice in choosing a Congressman than others”). And the Court has held that Article I,
section 4, commonly referred to as the “Elections Clause,” does not endow state
legislatures with the “power to dictate electoral outcomes, to favor or disfavor a class of
candidates, or to evade important constitutional restraints.” U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 833–34 (1995); see also Tashjian v. Republican Party of Conn.,
479 U.S. 208, 217 (1986) (“The power to regulate the time, place, and manner of elections
does not justify, without more, the abridgement of fundamental rights, such as the right to
vote . . . or, as here, the freedom of political association.”). Those two constitutional
provisions apply to congressional districting plans, not state legislative districting plans.
See Reynolds v. Sims, 377 U.S. 533, 560–61 (1964). Therefore, Whitford will not address,
much less resolve, whether the Plan violates those provisions.
Third, there are a number of potentially meaningful factual differences between
Whitford and the instant case. For example, the Whitford districting plan was enacted as
part of a decennial redistricting, whereas the General Assembly drew the Plan to preserve
the partisan make-up of the General Assembly after federal courts held that North
Carolina’s 2011 congressional districting plan constituted a racial gerrymander.
12

Additionally, Plaintiffs assert that statements made by the legislative leaders of the 2016
congressional redistricting effort will provide direct evidence that the General Assembly
intended to draw the districts so as to maximize the number of Republican members of
North Carolina’s congressional delegation, and thereby maximally dilute the votes of
citizens who previously opposed Republican candidate. By contrast, the Whitford court
appears to have considered primarily circumstantial evidence of legislative intent.
Whitford, 218 F. Supp. 3d at 890-96. Moreover, to demonstrate the discriminatory effects
of the alleged partisan gerrymander at issue in the present case, Plaintiffs forecast that they
will introduce a variety of statistical analyses in addition to the “efficiency gap” metric.
Several of these analyses were never before the Whitford court. Finally, whereas, the
Whitford plaintiffs presented statistical evidence from two elections conducted under the
challenged districting plan, Plaintiffs intend to introduce statistical evidence from one
election conducted under the Plan and two elections conducted under the unconstitutional
2011 congressional districting plan.
In light of the numerous legal and factual differences between Whitford and the
instant case, staying these proceedings will, at most, minimally advance the interests of
judicial economy and preventing hardship to Legislative Defendants. To begin, as a result
of the untested approach to standing embraced by the district court in Whitford—an
approach that Legislative Defendants have claimed conflicts with the Supreme Court’s
approach to standing in racial gerrymandering cases (Doc. 29, at 13)—there is a distinct
possibility that the Supreme Court could resolve Whitford without reaching the merits,
meaning that Whitford would provide this Court with no additional guidance as to how to
13

resolve Plaintiffs’ claims. See Ga. State Conf. of the NAACP v. Georgia, -- F. Supp. 3d -, 2017 WL 3698494, at *11 (N.D. Ga. Aug. 25, 2017) (denying a request to stay a partisan
gerrymandering claim pending the Whitford decision because “[t]he Supreme Court’s
jurisprudence on partisan gerrymandering teaches us that the Court could rule in a variety
of ways on the issues before it in Whitford, including not ruling on them at all”). It makes
little sense “to delay consideration of this case for possibly a year or more, waiting for a
decision that may not ultimately affect it.” Id.
Even if the Supreme Court reaches the merits of the trial court’s decision in
Whitford, its decision is unlikely to address, much less resolve, many of the issues in this
case because, as explained above, several of the legal theories advanced by Plaintiffs differ
materially from those at issue in Whitford. To resolve Plaintiffs’ claims under the First
Amendment and Article I of the Constitution, in particular, this Court will, at some point,
have to hold a trial and receive argument from the parties on those claims. Conducting
further proceedings at this juncture is unlikely, therefore, to amount to an “unnecessar[y]”
expense of time and resources, as the evidence and arguments presented by the parties will
be necessary to resolve this case, regardless of the disposition of Whitford. (Doc. 75, at 11–
12.) Indeed, even with regard to Plaintiffs’ Equal Protection Clause claims—the claims
most likely to be impacted by a decision in Whitford—the evidence the parties intend to
introduce at trial—which speaks to Legislative Defendants’ alleged discriminatory intent
and the alleged discriminatory effects of the Plan—is likely to remain relevant to resolving
those claims, regardless of any further guidance the Supreme Court provides regarding the
framework for evaluating partisan gerrymandering claims under the Equal Protection
14

Clause. And to the extent the Supreme Court’s decision in Whitford impacts this Court’s
legal analysis of the facts relevant to Plaintiffs’ Equal Protection claims,—or any other
claims, for that matter—“that ruling can be adjusted accordingly.” Ga. State Conf., 2017
WL 3698494, at *11.
From our perspective, the only way that Whitford would render ongoing
proceedings in this case a “waste of time and resources” is if, as Legislative Defendants
suggest, the Supreme Court holds that partisan gerrymandering claims are nonjusticiable
under any legal theory, not just the Equal Protection framework advanced by the Whitford
plaintiffs and adopted by the Whitford majority. But the Supreme Court recently stated
that “[p]artisan gerrymanders . . . are incompatible with democratic principles.” Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (alteration
in original) (internal quotation marks omitted). And the Court’s last three decisions
addressing partisan gerrymandering claims under the Equal Protection Clause have held
that such claims are justiciable. See LULAC, 548 U.S. at 413–14 (declining to revisit
Bandemer’s holding, affirmed in Vieth, “that an equal protection challenge to a political
gerrymander presents a justiciable case or controversy”); see also Ga. State Conf., 2017
WL 3698494, at *10 (holding, based on LULAC, Vieth, and Bandemer, that “[t]he
justiciability of partisan gerrymandering claims is . . . certain under current caselaw”). It
is axiomatic that “if a precedent of [the Supreme] Court has direct application in a case . .
. [lower courts] should follow the case which directly controls, leaving to [the Supreme]
Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203,
237 (1997) (internal quotation marks omitted). Accordingly, in ruling on Legislative
15

Defendants’ stay motion, we must follow the Supreme Court’s holdings in LULAC, Vieth,
and Bandemer that partisan gerrymandering claims are justiciable and, therefore, refrain
from exercising our discretion to stay these proceedings on the bare possibility that the
Supreme Court may reverse its precedent and flatly bar claims challenging a practice the
Court has characterized as “incompatible with democratic principles.”

Ariz. State

Legislature, 135 S. Ct. at 2658.
Not only is Whitford unlikely to render ongoing proceedings before this Court a
waste of time and resources, Legislative Defendants will be minimally harmed by having
to prepare for and participate in a trial. The parties completed discovery, submitted
motions in limine, and prepared for trial before Legislative Defendants moved to stay these
proceedings. Likewise, this Court already has had the opportunity to review the parties’
proposed findings of fact and conclusions of law. Accordingly, staying the proceedings at
this juncture will, at most, provide minimal savings to the parties and the Court in terms of
time and resources.
B.
Although granting a stay would, at most, minimally advance the interests of judicial
economy and preventing hardship to Legislative Defendants, such a stay would expose
Plaintiffs to substantial prejudice. To begin, we note that Legislative Defendants waited
until the eve of trial to file their motion to stay, notwithstanding that the Whitford court
issued its opinion in November 2016 and the Whitford defendants noticed their appeal as
of right to the Supreme Court by filing their jurisdictional statement in March 2017. When
Legislative Defendants filed their stay motion, Plaintiffs already had devoted significant
16

time and resources to briefing and arguing Legislative Defendants’ motions to dismiss,
engaging in discovery, and preparing their cases for trial.
Of greater practical significance, granting Legislative Defendants’ motion would
mean that this Court could neither schedule nor hold a trial until after the Supreme Court
issues its decision in Whitford. The Supreme Court could issue that decision at any time
after hearing oral argument on October 3, 2017—up to and including the end of the Court’s
term in June 2018. Depending on when the Whitford opinion is published, a trial in this
case might not occur until the spring or late summer of 2018, with a written opinion issued
following the conclusion of that trial. Plaintiffs reasonably seek relief from the allegedly
unconstitutional Plan prior to the 2018 election cycle, which begins in early 2018.
Delaying our consideration of this case until after Whitford creates a substantial risk that,
in the event Plaintiffs prevail, this Court will not have adequate time to afford Plaintiffs the
relief they seek—constitutionally compliant districting maps for use in the 2018 election.
Given the Court’s “responsibility to ensure that future elections will not be conducted under
unconstitutional plans,” Larios v. Cox, 305 F. Supp. 2d 1335, 1344 (N.D. Ga. 2004), this
substantial risk weighs strongly against granting the requested stay, see Johnson v.
Mortham, 915 F. Supp. 1529, 1549–50 (N.D. Fla. 1995) (denying a motion to stay a
redistricting case pending a Supreme Court decision in a case involving a similar legal
theory on grounds that “the public welfare will be better promoted by the immediate
consideration of this cause, since any forthcoming Supreme Court decisions will be too
untimely to effectively give this court an opportunity to adjudicate the case at bar without
potentially disrupting the [next scheduled] elections”).
17

That Plaintiffs and other North Carolina voters cast their ballots under an
unconstitutional redistricting plan in 2012 and 2014 only enhances the potential prejudice
to Plaintiffs associated with staying these proceedings. If Plaintiffs prevail in this case, but
the Court nonetheless lacks sufficient time to afford relief before the 2018 election,
Legislative Defendants would reap “the fruits of victory for another election cycle.”
Personhuballah v. Alcorn, 155 F. Supp. 3d 552, 560 (E.D. Va. 2016). As a result, North
Carolinians would cast votes in congressional elections conducted under unconstitutional
maps in 2012, 2014, 2016, and 2018. That a stay could leave North Carolinians represented
by a congressional delegation elected under unconstitutional districting plans for nearly a
decade would send a troubling message to state legislatures that there is little downside to
engaging in unlawful districting practices because “the federal courts are powerless to
effectively redress [voters’] grievances.” Coal. for Educ. in Dist. One v. Bd. of Elections,
370 F. Supp. 42, 58 (S.D.N.Y. 1974). Denying Legislative Defendants’ stay motion
ensures that this Court can definitively resolve the constitutionality of the Plan in adequate
time to provide Plaintiffs meaningful relief, should this Court find that the Plan violates
the Constitution.
III.
In sum, due to the material legal and factual differences between Plaintiffs’ claims
and Whitford, as well as the substantial time and effort the parties already have devoted to
preparing these cases for trial, staying these proceedings would, at most, minimally
advance the interests of judicial economy and preventing hardship to Legislative
Defendants. These minimal benefits are significantly outweighed by the substantial
18

prejudice to Plaintiffs that would result from a stay. Because Legislative Defendants failed
to demonstrate “clear and convincing circumstances outweighing” the significant harm to
Plaintiffs, and North Carolina voters in general, Williford, 715 F.2d at 127, we exercise our
discretion to deny Legislative Defendants’ motion to stay.
DENIED

19

Osteen, Jr., District Judge, concurring:
I concur in the decision to deny the motion to stay. The point is well made in the
majority opinion that the Supreme Court may resolve Gill v. Whitford, No. 16-1161, in a
manner, such as on standing grounds, that does not resolve or provide guidance in this
pending case.
Although the opinion of the majority here is narrowly drafted and well reasoned, I
choose to concur only because I would exercise our discretion to deny the motion to stay
solely on the narrow grounds described above. While Whitford may not resolve the issues
in this case, it is at least arguable that the justiciability of either Equal Protection or First
Amendment claims in this context may remain open to some debate. As the majority in
Benisek v. Lamone recognized with respect to justiciability in granting a motion to stay,
“the Supreme Court’s decision to hold over the jurisdictional question for argument is a
strong signal that the question remains unsettled in the minds of the Justices.” Benisek v.
Lamone, No. CV JKB-13-3233, 2017 WL 3642928, at *5 (D. Md. Aug. 24, 2017), petition
for cert. docketed, No. 17-333 (U.S. Sept. 1, 2017).
I concur in the order denying the motion to stay this case.

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