PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1329
CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L.
WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G.
DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN;
WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN;
BEVERLEY S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN
CHILDREN, d/b/a Coalition of Concerned Citizens for
African-American Children; RALEIGH WAKE CITIZENS
ASSOCIATION,
Plaintiffs – Appellants,
v.
STATE OF NORTH CAROLINA; WAKE COUNTY BOARD OF ELECTIONS,
Defendants – Appellees.
Appeal from the United States District Court for the
Eastern District of North Carolina, at Raleigh. Terrence
W. Boyle, District Judge. (5:13-cv-00607-BO)
Argued: December 10, 2014 Decided: May 27, 2015
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by
published opinion. Judge Wynn wrote the majority opinion,
in which Judge Gregory joined. Judge Motz wrote a
dissenting opinion.
ARGUED: Anita Sue Earls, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina, for Appellants. Alexander
McClure Peters, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina; Scott Wood Warren, WAKE COUNTY
ATTORNEY'S OFFICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Roger A. Askew, Claire A. Hunter, WAKE COUNTY
ATTORNEY'S OFFICE, Raleigh, North Carolina, for Appellee
Wake County Board of Elections.
2
WYNN, Circuit Judge:
“The right to vote is protected in more than the initial
allocation of the franchise. Equal protection applies as well
to the manner of its exercise. Having once granted the right to
vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person’s vote over that of
another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000) (citation
omitted).
Thirteen citizens of Wake County, North Carolina challenge
a state law redrawing the Wake County Board of Education
electoral districts. Plaintiffs contend that under the new
redistricting plan, some citizen’s votes will get significantly
more weight than other’s in violation of the Fourteenth
Amendment’s guarantees of one person, one vote and the North
Carolina Constitution’s promise of equal protection. For the
reasons explained below, we conclude that Plaintiffs have stated
a claim upon which relief could be granted against the Wake
County Board of Elections and that the district court therefore
erred in dismissing their suit. However, we affirm the denial
of the motion to amend because the state officials Plaintiffs
proposed to add as named defendants are not amenable to suit.
I.
3
Accepting the facts in Plaintiffs’ complaint as true, as we
must on a motion to dismiss, Plaintiffs allege that until 2013,
the Wake County Board of Education (“Board of Education”) was
composed of members elected from nine single-member districts.
The Board of Education’s functioning and selection was governed
by North Carolina General Assembly Session Law 1975-717, which
required, among other things, that the Board of Education
redistrict itself every ten years following the decennial
census.
In 2010, the census showed that Wake County’s population
had grown by 43.51% over the preceding decade, with a maximum
population deviation among the then-existing school board
districts of 47.89%. 1 The Board of Education thus redrew its
districts in 2011, resulting in geographically compact districts
with a maximum population deviation of 1.66% and no district
1
“To determine compliance with the one person, one vote
principle courts usually analyze the apportionment plan in terms
of the maximum population deviation among the districts.
Generally, to calculate maximum deviation, the court first
constructs a hypothetical ideal district by dividing the total
population of the political unit (e.g., state or county) by the
total number of representatives who serve that population.
Then, the court determines how much the actual population of
each district varies from the population of the ideal district.
This deviation is expressed as a percentage of the ideal
population. Maximum deviation is the sum of the absolute value
of the deviation of the district with the smallest population
and that of the district with the largest population.” Daly v.
Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996).
4
deviating from the ideal district population by even 1%. See
Appendix 1 (from Plaintiffs’ complaint at J.A. 19).
The plan was put into place by a Board of Education that
was majority Republican. But under the new plan, the fall 2011
elections resulted in a Board of Education with a Democratic
majority. Plaintiffs allege that because the new plan resulted
in a Democratic majority, the Republican-controlled North
Carolina General Assembly, in turn, “over the objection of a
majority of the Wake County School Board, passed a local bill
making numerous changes in the method of selection.” J.A. 11.
“No Democratic member of the legislature voted for it, and no
African-American member of the legislature voted for it.” J.A.
21.
The bill, Session Law 2013-110 (“Session Law”), made
“numerous” changes to the Wake County Board of Education’s
methods of election. Central to Plaintiffs’ complaint, the
Session Law changed the Board of Education’s make-up from nine
single-member districts to seven single-member districts and set
less geographically compact boundaries for this new set of
districts. See Appendix 2 (from Plaintiffs’ complaint at J.A.
23). The maximum population deviation among the single-member
districts is 7.82%.
Further, the Session Law created two “super districts.”
One super district forms a donut of “outer, rural areas of the
5
county,” while the other forms a donut hole in the “inner,
urban” area. J.A. 11. See Appendix 3 (from Plaintiffs’
complaint at J.A. 25). The maximum population deviation between
the superdistricts is 9.8%.
The Session Law also prohibits the Board of Education from
“making any further changes in its method of election until
2021,” something it previously could do. J.A. 11. Wake County
is thus burdened with some “substantially over-populated”
districts, where votes will be diluted vis-à-vis other
“substantially under-populated” districts. J.A. 26. Those
districts are “visually and mathematically less compact” and
“split 21 unique precincts in the county” (as opposed to the
prior districts, which split only 11 precincts). J.A. 28.
Plaintiffs sued the State of North Carolina and the Wake
County Board of Elections (“Board of Elections”), the entity
charged with administering the Board of Education’s elections.
Plaintiffs complained that the Session Law “overpopulates,
without justification, certain districts, causing the vote of
Plaintiffs living in those overpopulated districts to be
weighted less than votes of citizens in districts that are
unjustifiably under-populated.” J.A. 11. Plaintiffs thus
claimed that the Session Law violates the United States
Constitution’s one person, one vote guarantees and the North
Carolina Constitution’s equal protection clause.
6
Defendants answered and moved to dismiss. Plaintiffs, in
turn, sought leave to amend their complaint, substituting
Governor Patrick McCrory, Senate President Pro Tem Phillip
Berger, and General Assembly Speaker Thom Tillis (“individual
state officials”) in their official capacities for the State of
North Carolina.
The district court granted Defendants’ motions to dismiss
and denied Plaintiffs’ motion to amend as futile. Specifically,
the district court held that it had no jurisdiction over the
State, that Eleventh Amendment immunity also insulated the
individual state officials from suit, and that Plaintiffs’ one
person, one vote claims were really “partisan gerrymandering”
claims, which it considered non-justiciable under both the
United States and North Carolina Constitutions. Plaintiffs
timely appealed.
II.
We first consider Plaintiffs’ argument that the district
court erred in ruling that Proposed Defendants Tillis and Berger
(“Proposed Defendants”) were not proper parties to their suit. 2
2
Plaintiffs have not challenged the district court’s
dismissal of the State from their suit. Further, Plaintiffs
conceded in their reply brief that Defendant McCrory lacked a
“sufficient connection to the enforcement of the redistricting
plan at issue here” to constitute a proper defendant. Reply Br.
(Continued)
7
And we do so de novo. Franks v. Ross, 313 F.3d 184, 192-93 (4th
Cir. 2002) (noting that “the existence of sovereign immunity is
a question of law that we review de novo” and that “we review de
novo a . . . legal determination [of] whether Ex parte Young
relief is available”) (quotation marks and citations omitted).
Under the Eleventh Amendment, “[t]he judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. The United
States Supreme Court has read the Eleventh Amendment to render
States immune from being hauled into federal court by private
parties. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S.
743, 760 (2002).
While the Eleventh Amendment provides significant
protections to States, the immunity it provides to state
officials is less robust. Specifically, a state official
“ceases to represent the state when it attempts to use state
power in violation of the Constitution.” Sch. Bd. of City of
Charlottesville, Va. v. Allen, 240 F.2d 59, 63 (4th Cir. 1956).
See also Ex parte Young, 209 U.S. 123 (1908). Such officials
at 22. We therefore do not address the propriety of these
parties as defendants.
8
thus “may be enjoined from such unconstitutional action”—sued
and stopped, in other words—but only if they have “some
connection with the enforcement” of an unconstitutional act.
Id. at 157; see also Fla. Dep’t of State v. Treasure Salvors,
Inc., 458 U.S. 670, 685 (1982).
To be amenable to suit under the Eleventh Amendment, there
must exist a “special relation” between the state official being
sued and the challenged action. Ex parte Young, 209 U.S. at
157. See also, e.g., Waste Mgmt. Holdings, Inc. v. Gilmore, 252
F.3d 316, 331 (4th Cir. 2001) (“Ex parte Young requires a
‘special relation’ between the state officer sued and the
challenged statute to avoid the Eleventh Amendment’s bar.”).
This requires “proximity to and responsibility for the
challenged state action.” S.C. Wildlife Fed’n v. Limehouse, 549
F.3d 324, 333 (4th Cir. 2008) (emphasis in original). By
contrast, “[g]eneral authority to enforce the laws of the state
is an insufficient ground for abrogating Eleventh Amendment
immunity.” Id. (quotation marks omitted).
For example, in McBurney v. Cuccinelli we held that
Virginia’s attorney general did not have a specific duty to
enforce the state’s freedom of information act and thus was not
subject to suit under Ex parte Young. 616 F.3d 393, 400-02 (4th
Cir. 2010). We noted that Virginia had vested such authority in
local prosecutors as opposed to the attorney general. Further,
9
we likened the attorney general’s duty to issue advisory
opinions to the governor’s duty to uphold state law—not
sufficient to impose the required “special relation” to enforce
the law so as to make him a proper defendant. Id. at 401.
By contrast, in S.C. Wildlife Federation, we held that the
sued state official—there the director of South Carolina’s
Department of Transportation—had a sufficiently close
relationship with the challenged law or action to be amendable
to suit. 549 F.3d at 332-34. In that case, the plaintiffs
alleged violations of the National Environmental Policy Act
arising from the proposed construction of a bridge in South
Carolina. We held that both state and federal law imposed
specific duties upon the director that gave rise to the required
special relation. Id. at 333-34.
Turning to the case at hand, we agree with the district
court that neither Proposed Defendant had a special duty to
enforce the challenged Session Law, and thus neither is amenable
to suit. The North Carolina Constitution clearly assigns the
enforcement of laws to the executive branch. N.C. Const. art.
III, § 5. The General Assembly retains no ability to enforce
any of the laws it passes. Cf. id. And Proposed Defendants are
merely members of North Carolina’s General Assembly.
Additionally, as is the case with all election plans in North
Carolina, the county Board of Elections, in cooperation with the
10
State Board of Elections, has the specific duty to enforce the
challenged redistricting plan. N.C. Gen. Stat. §§ 163-22, 163-
33.
Plaintiffs counter that if the Proposed Defendants are not
party to their suit, there will be no mechanism for forcing a
constitutionally valid election, should they succeed in
enjoining the Session Law. 3 This assertion is, however,
incorrect. The district court could, for example, mandate that
the Board of Elections conduct the next election according to
the scheme in place prior to the Session Law’s enactment until a
new and valid redistricting plan is implemented. State law also
provides, for example, that the State Board of Elections can
make reasonable interim rules with respect to pending elections.
N.C. Gen. Stat. § 163-22.2 (“In the event . . . any State
election law . . . is held unconstitutional or invalid by a
State or federal court or is unenforceable . . ., the State
Board of Elections shall have authority to make reasonable
interim rules and regulations with respect to the pending
primary or election.”). Without question, then, a valid
election could take place if Plaintiffs succeed on the merits
and successfully enjoin the Session Law.
3
Plaintiffs make various other arguments relating to, for
example, the availability of attorneys’ fees, which we summarily
reject.
11
In sum, neither Proposed Defendant has any enforcement
authority over election proceedings, and, accordingly, neither
falls within the Eleventh Amendment exception to immunity
established in Ex parte Young. We thus affirm the district
court’s determination that adding Speaker Tillis and President
Pro Tem Berger as defendants would be futile.
III.
With their main argument on appeal, Plaintiffs contend that
the district court erred when it dismissed their complaint for
failure to state a claim upon which relief could be granted. We
review the district court’s dismissal of the Plaintiffs’
complaint de novo, “accept[ing] as true all of the factual
allegations contained in the complaint” and drawing “all
reasonable inferences in favor of the plaintiff.” E.I. du Pont
de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011) (quotation marks and citations omitted). Further,
while 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.” Id. (quotation marks and
citations omitted).
To the extent Plaintiffs’ claims do “not fall within the
four corners of our prior case law,” this “does not justify
12
dismissal under Rule 12(b)(6). On the contrary, Rule 12(b)(6)
dismissals ‘are especially disfavored in cases where the
complaint sets forth a novel legal theory that can best be
assessed after factual development.’” McGary v. City of
Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (quoting Baker v.
Cuomo, 58 F.3d 814, 818–19 (2d Cir. 1995), vacated in part on
other grounds, 85 F.3d 919 (2d Cir. 1996) (en banc)). See also
5B Charles Alan Wright & Arthur R. Miller et al., Federal
Practice & Procedure § 1357 (3d ed. 2015) (noting that 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”). Indeed, as the law “firm[s] up” in
unsettled areas, “it may be more feasible to dismiss weaker
cases on the pleadings;” otherwise, plaintiffs should be given
“an opportunity to develop evidence before the merits are
resolved.” Metts v. Murphy, 363 F.3d 8, 11 (1st Cir. 2004).
Finally, we bear in mind that “‘a complaint is to be
construed liberally so as to do substantial justice.’” Pub.
Employees’ Ret. Ass’n of Colo. v. Deloitte & Touche LLP, 551
F.3d 305, 311 (4th Cir. 2009) (quoting 5 Charles Alan Wright &
Arthur R. Miller et al., Federal Practice and Procedure § 1202
(3d ed. 2004)). See also, e.g., Anderson v. Found. for
Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 505
13
(4th Cir. 1998) (noting that “pleading standards require that
the complaint be read liberally in favor of the plaintiff”).
A.
The Fourteenth Amendment’s equal protection clause
guarantees not only “the initial allocation of the franchise”—
that is, the right to vote. Bush, 531 U.S. at 104. Rather,
equal protection “applies as well to the manner of its exercise.
Having once granted the right to vote on equal terms, the State
may not, by later arbitrary and disparate treatment, value one
person’s vote over that of another.” Id. at 104-05.
Inherent in the equal protection of voting is the
requirement that all citizens’ votes be weighted equally, a
principle that is commonly known as one person, one vote.
Reynolds v. Sims, 377 U.S. 533, 563, 565 (1964). “This
principle ensures that every voter, no matter what district he
or she lives in, will have an equal say in electing a
representative.” Daly, 93 F.3d at 1216. “A citizen, a
qualified voter, is no more nor no less so because he lives in
the city or on the farm. This is the clear and strong command
of our Constitution’s Equal Protection Clause.” Reynolds, 377
U.S. at 568.
The one person, one vote principle applies not just to the
federal government but also to state and local government.
Avery v. Midland Cnty., 390 U.S. 474, 480 (1968). Of particular
14
note in this case, the Supreme Court has left no doubt that one
person, one vote applies to school boards. Id. (“If voters
residing in oversize districts are denied their constitutional
right to participate in the election of state legislators,
precisely the same kind of deprivation occurs when the members
of a city council, school board, or county governing board are
elected from districts of substantially unequal population.”
(emphasis added)).
The courts have recognized that “[m]athematical exactness
or precision is hardly a workable constitutional requirement”
and do not hold state or local government districts to such a
standard. Daly, 93 F.3d at 1217 (quoting Reynolds, 377 U.S. at
577). Nevertheless, governments must “make an honest and good
faith effort” to construct districts as close to equal
population “as is practicable.” Daly, 93 F.3d at 1217 (quoting
Reynolds, 377 U.S. at 577).
Generally, therefore, a district apportionment plan with a
maximum population deviation under 10% will not, “by itself,”
support an equal protection claim. Daly, 93 F.3d at 1217-18.
The 10% threshold does not, however, “insulate” a state or local
districting plan from attack. Id. at 1220. Rather, it
determines the “allocat[ion of] the burden of proof,” with a
plaintiff in a case below the 10% population disparity mark
unable to “rely on it alone to prove invidious discrimination or
15
arbitrariness. To survive summary judgment, the plaintiff would
have to produce further evidence to show that the apportionment
process had a ‘taint of arbitrariness or discrimination.’” Id.
(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). 4
Here, Plaintiffs allege such a “taint of arbitrariness or
discrimination.” Id. Specifically, Plaintiffs complain that
the challenged districts discriminate between urban and rural
voters, “overpopulat[ing], without justification, certain
districts, causing the vote of Plaintiffs living in those
overpopulated districts to be weighted less than votes of
4
The Supreme Court has admonished courts not to confuse
evidentiary standards that govern plaintiffs’ burden at summary
judgment with the liberal pleading requirements established by
Rule 8(a) of the Federal Rules of Civil Procedure. In
Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the Supreme
Court reversed the Second Circuit’s requirement that the
plaintiff plead a prima facie case of Title VII discrimination
under the framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The Court stated that “[t]he prima
facie case under McDonnell Douglas . . . is an evidentiary
standard, not a pleading requirement.” Id. at 510. See also
McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin.,
780 F.3d 582, 585 (4th Cir. 2015) (stating that the district
court erred in requiring the plaintiff “to plead facts
establishing a prima facie case of discrimination to survive a
motion to dismiss”).
Our task is to determine whether Plaintiffs have pled a
plausible violation of the state and federal constitutions.
E.I. du Pont de Nemours, 637 F.3d at 440 (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That task does not
hinge on the determination of whether Plaintiffs have pled a
maximum population deviation exceeding 10%, which is merely one
way in which Plaintiffs can prove their prima facie case at the
evidentiary stage.
16
citizens in districts that are unjustifiably under-populated.”
J.A. 11. See Reynolds, 377 U.S. at 568 (stating that “a
qualified voter[] is no more nor no less so because he lives in
the city or on the farm”). The district court itself recognized
that “Plaintiffs allege a favoritism of rural areas of the
county over urban areas[,]” J.A. 88, and even Defendants agree
that Plaintiffs “do allege that the plan pits urban voters
against rural voters.” Appellees’ Br. at 20. It is hard to
square all of this with the dissenting opinion’s assertion that
“Plaintiffs do no such thing.” Post at 7. In any event,
Defendants’ concession highlights that Plaintiffs here fulfilled
Rule 8’s core requirement: they “‘g[a]ve the defendant fair
notice of’” their claims. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Twombly, 550 U.S. at 555).
Further, Plaintiffs complain that the districts,
particularly when compared to the previous districts that had
been drawn up just two years prior, were “visually and
mathematically less compact,” “confusing,” and had significantly
higher population deviations. J.A. 15, 28. Plaintiffs also
alleged that the challenged redistricting “split 21 unique
precincts,” whereas the prior plan divided only 11. J.A. 28.
Plaintiffs point out that not only did the Board of Education
itself oppose the redistricting, but that “[n]o Democratic
member,” and “no African-American member” of North Carolina’s
17
General Assembly supported the redistricting, suggesting, for
Rule 12(b)(6) review, that it was neither racially nor otherwise
neutral. J.A. 21.
Finally, Plaintiffs contend that the challenged
redistricting is intended “to disfavor incumbents who are
registered Democrats and support progressive education
policies.” J.A. 28. According to Plaintiffs, the redistricting
“further[s] Republican interests and advance[s] conservative
agenda policies—over the wishes of the Wake County electorate”—
which they contend is “not a legitimate state interest that
justifies the population deviations.” Id. Again, even the
district court recognized that Plaintiffs allege “the targeting
of democratic incumbents” and “impermissible political bias.”
J.A. 88.
When Plaintiffs’ complaint is viewed through the forgiving
lens mandated at the motion-to-dismiss stage, it states a
plausible claim for which relief can be granted. Plaintiffs
allege in detail a redistricting that resulted in a maximum
population deviation of nearly 10%. Plaintiffs describe how and
why that deviation was unjustified, discriminatory, and
unconstitutional. They do not allege that the apportionment
plan with a maximum population deviation just barely under 10%
“by itself” supports their equal protection claim, but rather
they plead facts indicating that the apportionment “had a taint
18
of arbitrariness or discrimination.” Daly, 93 F.3d at 1217,
1220 (quotation marks and citation omitted).
The dissenting opinion is quick to reject the complaint for
its failure to engage in talismanic incantations of magic words
like “arbitrary.” Post at 2 (making much ado of the fact that
the “complaint does not even contain the words ‘bad faith’ [or]
‘arbitrariness’”). That Plaintiffs chose to plead facts
sounding in arbitrariness rather than simply invoking the word
demonstrates to us only that Plaintiffs have heeded the Supreme
Court’s warning that “formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555. It is
clear to us that Plaintiffs pled arbitrariness when they
alleged, for example, that the redistricting was done “without
justification,” J.A. 11, and that the deviations “do not further
any legitimate redistricting criteria,” J.A. 28.
Similarly, the district court rejected Plaintiffs’
allegations and dismissed their complaint. In doing so, it
cited not a single case on all fours with this one nor any case
mandating such an outcome. Defendants similarly have identified
no precedent that suggests that dismissing Plaintiffs’ complaint
at this stage is warranted, much less required.
To the contrary, a closer look at the precedent Defendants
and the district court cite underscores that Plaintiffs’ claims
should survive. For example, both Defendants and the district
19
court rely on Daly, 93 F.3d 1212, to justify dismissal here.
Tellingly, however, we held in Daly that a plaintiff in a case
falling below the 10% population disparity mark may not “rely on
it alone to prove invidious discrimination or arbitrariness. To
survive summary judgment, the plaintiff would have to produce
further evidence to show that the apportionment process had a
‘taint of arbitrariness or discrimination.’” Id. at 1220
(quoting Roman, 377 U.S. at 710) (emphasis added). 5 Thus, in
Daly, rather than dismiss the plaintiffs’ claims, we remanded
the matter, stating that “[w]hether Plaintiffs can produce any
credible evidence to establish that the apportionment plan at
issue here was the product of bad faith, arbitrariness, or
invidious discrimination should be addressed on remand.” Id. at
1222.
Similarly, Roman, 377 U.S. 695, on which we relied in Daly,
was decided after a trial. And Gaffney v. Cummings, on which
the district court relied and in which the Supreme Court held
that an otherwise acceptable reapportionment plan was not made
constitutionally vulnerable by the fact that its purpose was to
5
Defendants use similar verbiage in their appellate brief,
arguing that “because plaintiffs have failed to show
arbitrariness or discrimination, these claims should be
dismissed.” Appellees’ Br. at 8. But Plaintiffs need not
“show” anything at this point; rather, they need only allege
facts that make arbitrariness or discrimination plausible in
addition to population disparities under 10%.
20
achieve political fairness between the major political parties,
was decided after “[c]onsiderable evidence was introduced.” 412
U.S. 735, 739 (1973). 6
By contrast, both Defendants and the district court try to
distinguish and dispense with Cox v. Larios, a case notably more
similar to the one at hand and illustrative of the district
court’s error in dismissing Plaintiffs’ complaint. 300 F. Supp.
2d 1320 (N.D. Ga. 2004) (three judge panel), summarily aff’d,
542 U.S. 947 (2004). In Larios, a federal court struck down a
statewide legislative redistricting plan in Georgia. The
plaintiffs there alleged that the plan disproportionately
favored Democrats in the state by under-populating districts in
the urban Atlanta region and the rural south-Georgia area—both
Democratic strongholds—while overpopulating districts with
Republican-leaning voters. The redistricting plan thereby
created a maximum population deviation of 9.98%. Id. at 1327.
Additionally, the new plan disproportionately protected
6
The district court cited Gaffney to support its assertion
that “differences in population disparities between the old 2011
plan and the new Session Law [] plan are of no consequence”
because the “Supreme Court has expressly rejected the argument
that the possibility of drafting a ‘better’ plan alone is
sufficient to establish a violation of the one person, one vote
requirement.” J.A. 87. Of course, the complaint here, on its
face, belies any suggestion that Plaintiffs allege the
possibility of a better plan “alone.” What is more, that would
not logically make the differences in disparities “of no
consequence.”
21
Democratic incumbents. Id. at 1329-30. The district court in
Larios found that the state purposefully drew districts in a way
to exist within “what they perceived to be a 10% safe harbor”
and struck the plan as unconstitutional. Id. at 1328. The
Supreme Court summarily affirmed the Larios decision.
We recognize that “the precedential effect of a summary
affirmance can extend no further than ‘the precise issues
presented and necessarily decided by those actions.’” Ill.
State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,
182 (1979) (quoting Mandel v. Bradley, 432 U.S. 173, 176
(1977)). Such summary actions “should not be understood as
breaking new ground but as applying principles established by
prior decisions to the particular facts involved.” Mandel, 432
U.S. at 176.
While sensitive to its limitations, we can nevertheless
glean several lessons from the Larios summary affirmance.
First, the Supreme Court has not created a 10% maximum
population deviation threshold, below which all redistricting
decisions are inherently constitutional. This point was made
clear by Justice Stevens’s opinion concurring in the affirmance
and highlighting the court’s rejection of a safe harbor for
districting plans that rest within the 10% threshold:
[A]ppellant invites us to weaken the one-person, one-
vote standard by creating a safe harbor for population
deviations of less than 10 percent, within which
22
districting decisions could be made for any reason
whatsoever. The Court properly rejects that
invitation. After our recent decision in Vieth v.
Jubelirer, 541 U.S. 267, 124 S. Ct. 1769, 158 L.Ed.2d
546 (2004), the equal-population principle remains the
only clear limitation on improper districting
practices, and we must be careful not to dilute its
strength.
542 U.S. at 949-50 (emphasis added). Second, the Supreme Court
necessarily believed to be correct the district court’s
rejection of discriminatory treatment of incumbents from one
party over those of another, the district court’s rejection of
allowing citizens in certain areas to have disproportionate
electoral influence, or both, since the lower court’s ruling
relied on those bases in striking the redistricting as
unconstitutional. Larios, 300 F. Supp. 2d at 1338.
Here, Plaintiffs allege that, as in Larios, a state
legislature designed a redistricting plan with a maximum
deviation in population of just under 10%, designed to pit rural
and urban voters against one another, and intended to favor
incumbents of one political party over those of another. Even
if Larios does not control this case (though neither Defendants
nor the district court point to anything else squarely on point
and controlling, either), we nevertheless find it persuasive.
The district court’s rejection of Larios rested on an
altogether arbitrary distinction. The district court declared
that “Larios dealt with state-wide elections whereas this case
23
deals only with Wake County. The broad geographic differences
found within a state are not found within one county.” J.A. 89.
The lack of a factual basis for this statement aside, the
district court failed to identify how such a difference in scale
might justify rejecting Plaintiffs’ claims as a matter of law.
Indeed, the Supreme Court recently reaffirmed that courts should
analyze redistricting plans “district-by-district,” reasoning
that the nature of the harms is “personal” and “directly
threaten[s] a voter who lives in the district attacked” but not
“a voter who lives elsewhere.” Alabama Legislative Black Caucus
v. Alabama, 135 S. Ct. 1257, 1265 (2015); see also Dickson v.
Rucho, No. 14-839, 2015 WL 223554, at *1 (U.S. Apr. 20, 2015)
(vacating judgment and remanding North Carolina’s legislative
redistricting in light of Alabama Legislative Black Caucus v.
Alabama). We see no reason why such a “district-by-district”
analysis applies any differently at the county level, and
Defendants point to none.
Similarly, the district court found it “plainly apparent in
Larios that [R]epublican incumbents were being targeted, whereas
here the targets are less clear.” J.A. 89. But certainty is
not required to survive a motion to dismiss. Notably, the
district court did not find it implausible that such targeting
occurred here. Twombly, 550 U.S. at 570. While “the factual
allegations in a complaint must make entitlement to relief
24
plausible,” Rule 12(b)(6) does not countenance “dismissals based
on a judge’s disbelief of a complaint’s factual allegations.”
McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009).
B.
The district court also sought to justify dismissal here by
viewing Plaintiffs’ complaint as “stat[ing] a political
gerrymandering claim” that Plaintiffs had merely dressed “in the
language of a one person, one vote claim.” J.A. 88. According
to the district court, political gerrymandering claims are
“nonjusticiable” per Vieth v. Jubelirer, 541 U.S. 267 (2004).
J.A. 88. We disagree.
In stark contrast to a mere “political gerrymandering
claim,” Plaintiffs allege that the Session Law violates the one
person, one vote principle by creating “non-compact,”
“confusing” districts with maximum population deviations
reaching almost 10% and that the deviation from one person, one
vote is “unjustifi[ed]” and results in discrimination amongst
not only political interests but also “rural” versus “urban”
populations. J.A. 11, 15. In other words, Plaintiffs here have
pled an equal protection claim.
Further, even if Plaintiffs had pled only a political
gerrymandering claim—which they did not—we could not agree with
the district court that such a claim is necessarily a non-
justiciable political question mandating dismissal. Indeed, the
25
district court’s assertion that “the Supreme Court found
political gerrymandering claims to be nonjusticiable in Vieth v.
Jubelirer, 541 U.S. 267, 281 (2004),” J.A. 88, fails to
appreciate that Vieth was a plurality opinion only, onto which
just four justices signed. As the plurality opinion itself
recognized, Justice Kennedy, in his concurring opinion,
“conclude[d] that courts should continue to adjudicate such
[political gerrymandering] claims.” Id. at 301. See also, id.
at 306 (Kennedy, J., concurring) (“While agreeing with the
plurality that the complaint the appellants filed in the
District Court must be dismissed, and while understanding that
great caution is necessary when approaching this subject, I
would not foreclose all possibility of judicial relief if some
limited and precise rationale were found to correct an
established violation of the Constitution in some redistricting
cases.”) (emphasis added). The face of the plurality opinion
also makes plain that the four dissenting justices, too, viewed
political gerrymandering claims as being justiciable. Id. at
292-301. In other words, a majority of the Supreme Court
refused to deem political gerrymandering claims to be per se
nonjusticiable. And the Court has since recognized as much.
See League of United Latin Am. Citizens v. Perry, 548 U.S. 399,
414 (2006) (“A plurality of the Court in Vieth would have held
26
[political gerrymandering] challenges to be nonjusticiable
political questions, but a majority declined to do so.”).
At the end of the day, we cannot say whether Plaintiffs
will ultimately succeed with their equal protection claim. But
we can say that they have made allegations sufficient to
withstand a motion to dismiss for failure to state such a claim.
The district court erred in holding otherwise.
C.
Separately but relatedly, Plaintiffs claim that they have
been denied equal protection under the North Carolina
Constitution, which also “guarantees the principle of one-
person, one-vote and demands that the vote of each citizen be
valued equally.” J.A. 30. As the district court noted,
“Plaintiffs allege the same supporting facts for their North
Carolina Constitutional claim as for their United States
Constitutional claim.” J.A. 90.
North Carolina’s courts have unequivocally stated that
under the North Carolina Constitution, “[t]he right to vote on
equal terms in representative elections—a one-person, one-vote
standard—is a fundamental right.” Blankenship v. Bartlett, 681
S.E.2d 759, 762-63 (N.C. 2009) (citing Northampton Cnty.
Drainage Dist. No. One v. Bailey, 392 S.E.2d 352, 356 (N.C.
1990)). Further, the Supreme Court of North Carolina’s analysis
regarding “the State Constitution’s Equal Protection Clause
27
generally follows the analysis of the Supreme Court of the
United States in interpreting the corresponding federal clause.”
Blankenship, 681 S.E.2d at 762. In fact, North Carolina courts
have even found the one person, one vote principle to apply in
instances where the federal courts have not. See id. at 763
(finding the one person, one vote principle applicable in North
Carolina’s election of superior court judges even though
“federal courts have articulated that the ‘one-person, one-vote’
standard is inapplicable to state judicial elections”).
As with the federal constitutional claim, the district
court shoe-horned Plaintiffs’ state-law one person, one vote
contentions into a political gerrymandering claim it then deemed
nonjusticiable. The district court stated that “plaintiffs’
factual allegations amount to a claim of impermissible political
bias which is a claim of political gerrymandering.” J.A. 91.
While the district court candidly admitted that it had “found no
North Carolina case law which supports a finding that such a
claim is nonjusticiable,” it nevertheless dismissed this claim,
too, citing Vieth. Id. Its failure to find state law support
for dismissal at the Rule 12(b)(6) stage should have given the
district court pause. In any event, for the reasons that we
hold Plaintiffs’ claims under the Equal Protection Clause of the
Federal Constitution should not have been dismissed, we likewise
28
hold that Plaintiffs’ North Carolina constitutional claim should
not have been dismissed.
IV.
Plaintiffs’ allegations in support of their claim that the
Session Law violates the one person, one vote principle suffice
to survive a motion to dismiss for failure to state a claim.
The district court thus erred in dismissing Plaintiffs’
complaint. The district court did not err, however, in
determining that the Proposed Defendants are not amenable to
suit.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
29
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
No matter how liberally construed, and notwithstanding the
majority’s vigorous attempts at resuscitation, the complaint in
this case fails to state a claim upon which relief can be
granted. The district court properly dismissed it.
I.
Plaintiffs allege that a redistricting plan, which
establishes districts for a non-partisan county school board
election with a maximum population deviation of under 10%,
violates the Constitution. Over 30 years ago, the Supreme Court
expressly held that “a maximum population deviation under 10%
falls within th[e] category of minor deviations” that render a
redistricting plan presumptively constitutional. Brown v.
Thomson, 462 U.S. 835, 842 (1983). The Court has never
retreated from this presumption and the circuit courts have
faithfully applied it. See, e.g., Daly v. Hunt, 93 F.3d 1212,
1219-20 (4th Cir. 1996); see also League of Women Voters of
Chicago v. City of Chicago, 757 F.3d 722, 725 (7th Cir. 2014);
Chen v. City of Houston, 206 F.3d 502, 523 n.15 (5th Cir. 2000).
To rebut the presumption, a plaintiff must “produce . . .
evidence to show that the apportionment process had a ‘taint of
arbitrariness or discrimination.’” Daly, 93 F.3d at 1220
(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). To escape
30
summary judgment, this standard requires that challengers offer
evidence that the plan “was the product of bad faith,
arbitrariness, or invidious discrimination.” Daly, 93 F.3d at
1222. To withstand a motion to dismiss, challengers need not
“forecast evidence sufficient to prove the elements of [a]
claim,” but their complaint must “allege sufficient facts to
establish those elements.” Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012) (internal quotation marks and citation
omitted). Plaintiffs have utterly failed to do this.
The complaint does not even contain the words “bad faith,”
“arbitrariness,” or “invidious discrimination,” let alone allege
facts supporting such claims. What Plaintiffs do allege is that
the North Carolina legislature created a redistricting plan for
the Wake County School Board designed to “disfavor incumbents
who are registered Democrats and support progressive education
policies,” and to instead “further Republican interests and
advance conservative agenda policies.”
Plaintiffs concede, however, that Wake County’s school
board elections are non-partisan. Candidates in non-partisan
elections run only under their own names, without “involving,
representing, or supporting the ideas of any political party or
group.” Black’s Law Dictionary (10th ed. 2014) (defining
“nonpartisan”). Thus, Plaintiffs’ challenge boils down to a
claim that the plan governing this non-partisan election
31
disfavors incumbents who prefer certain “education policies” and
advances those who prefer different “policies.” A presumptively
constitutional redistricting plan certainly cannot be found
unconstitutional simply because it affords a de minimis
apportionment advantage to those who prefer certain “policies”
over other “policies.”
In holding to the contrary, the majority plunges federal
judges into precisely the sort of dispute that the Supreme Court
has told us to avoid. Because “the apportionment task” concerns
“fundamental choices about the nature of representation,” that
task is to be left to the states’ legislative branches absent a
compelling reason to usurp it. Gaffney v. Cummings, 412 U.S.
735, 749 (1973) (internal quotation marks and citation omitted).
And when population deviations are less than 10%, compelling
reasons are few and far between. Thus, the Supreme Court has
long instructed federal courts not to wade into “the political
thicket” simply to correct “minor deviations . . . that no one,
with confidence, can say will deprive any person of fair and
effective representation.” Id. at 749-50.
By asking us to referee a dispute as to “policy,” the
complaint urges us to enter just this sort of “political
thicket.” In Plaintiffs’ view (which the majority apparently
shares), they can avoid dismissal of their complaint simply by
alleging that the redistricting alters the political balance
32
among those favoring different “policies.” If this were so,
then this and every other redistricting challenge of this sort
would recast federal judges as pollsters. It would make federal
judges employ granular scrutiny of voting patterns even in non-
partisan elections to determine if those preferring certain
“policies” have been disadvantaged by redistricting. And it
would require federal judges to probe the state legislature’s
motivation in adopting the plan. Until today, no court had
suggested that a presumptively constitutional redistricting plan
requires this level of supervision by a federal court.
Moreover, the fate of the school board incumbents, about
whom Plaintiffs evince great concern, is irrelevant when
assessing a one person, one vote claim. As the Seventh Circuit
recently explained, the one person, one vote principle
“protect[s] an individual’s right to vote.” League of Women
Voters, 757 F.3d at 726 (emphasis in original) (internal
quotation marks and citation omitted). It does not “insulate
individual politicians from the threat of political reprisal
once redistricting occurs.” Id. “Simply alleging” that
redistricting hands “the short end of the proverbial stick” to
certain incumbents “is not enough to overcome a presumptively
constitutional map.” Id.
Plaintiffs apparently prefer another redistricting plan, a
plan which creates districts with less population deviation,
33
districts that are more “compact,” less “confusing,” and split
fewer “unique voting precincts.” That plan may be “more
constitutionally perfect.” Daly, 93 F.3d at 1221. But “the
possibility of drafting a ‘better’ plan” does not provide the
basis for finding the plan created by the duly elected state
legislature unconstitutional. Id.
II.
The majority attempts to rectify the complaint’s fatal
shortcomings in two ways: by lowering the federal pleading
standard to remove hurdles the complaint cannot clear, and by
rewriting the complaint to contain facts never alleged.
A.
The majority offers a lengthy discourse on a court’s
obligations when reviewing the dismissal of a complaint. But it
fails to grapple with requirements the law imposes on parties
seeking to state a federal claim.
Of course, a court must construe complaints liberally. But
it must also ensure that, in them, plaintiffs “raise a right to
relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint must permit “the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Thus, to escape dismissal, a complaint must allege
34
facts sufficient to “nudge[]” a plaintiff’s claims “across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570.
“[T]ender[ing only] ‘naked assertions[s]’ devoid of ‘further
factual enhancement’” does not suffice. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557) (second alteration added).
The majority ignores these requirements. Instead, it relies on
a view that a complaint need only provide “fair notice” of the
claim alleged (notwithstanding the meritlessness of the claim)
to escape dismissal, and may survive on even less if it espouses
a “novel legal theory.” The majority’s treatment of the
pleading standard mandated by the federal rules simply does not
reflect the law.
Chief among a court’s obligations during 12(b)(6) review is
its mandate to dismiss any complaint that fails to meet the
pleading standard articulated by the Supreme Court. Judged
against this standard, the complaint here unquestionably fails.
Far from permitting a “reasonable inference” of liability, it
hangs its hopes on an unprecedented expansion of the one person,
one vote doctrine in conflict with the Supreme Court’s
teachings. The district court correctly dismissed it.
B.
Even were the pleading bar as low as the majority insists,
the complaint would not clear it. In an attempt to remedy this
deficiency, the majority invents allegations never pled.
35
First, the majority asserts that “Plaintiffs complain that
the challenged districts discriminate between urban and rural
voters.” But Plaintiffs do no such thing. Their sole reference
to a divide between urban and rural voters comes in the
complaint’s first paragraph, which characterizes the plan as
creating “two ‘super-districts’ . . . with an inner, urban
super-district and an outer, rural super-district.” Neither the
word “urban” nor the word “rural” appears again in the
complaint. Nowhere do Plaintiffs allege a claim of
discrimination based on geography, let alone facts sufficient to
make such a claim plausible.
Next the majority insists that “Plaintiffs allege” the
redistricting plan was “intended to favor incumbents of one
political party over those of another.” But again, this is
simply not the case. * Rather, as plaintiffs concede, the
challenged redistricting plan governs a non-partisan school
*
Of course if the complaint did, as the majority asserts,
challenge the plan as favoring one political party over another,
then the Supreme Court’s judgment in Vieth v. Jubelirer, 541
U.S. 267 (2004), would, as the district court concluded, seem
critical. There, a plurality of the Court agreed that
political-party gerrymandering claims are nonjusticiable, id. at
281, and a fifth Justice agreed that such claims should not
merit relief until “workable standards . . . emerge” to govern
them, id. at 317 (Kennedy, J., concurring). The concerns
animating a majority of the Court in Vieth are not assuaged
simply by rerouting the path into the political thicket through
an apportionment claim, rather than a gerrymandering claim.
36
board election in which no candidate is affiliated with any
party.
The motive for adding these two allegations to the
complaint seems clear. They are critical to the majority’s
attempt to align this case with Larios v. Cox, 300 F. Supp. 2d
1320 (N.D. Ga. 2004) (three-judge panel), summarily aff’d, 542
U.S. 947 (2004), on which it so heavily relies. There, the
district court held unconstitutional a Georgia redistricting
plan because it was the product of “a deliberate and systematic
policy of favoring rural and inner-city” areas over “suburban
areas,” and nominees of the Democratic party over those of the
Republican party. Id. at 1327, 1329. Even if Larios
constituted binding precedent, which it does not, it provides no
help to Plaintiffs here. For, stripped of the majority’s
additions, the complaint here contains no allegations of either
regional or political-party favoritism.
The majority’s response to this conclusion is telling. The
majority does not, because it cannot, cite or quote any portion
of the complaint giving lie to this conclusion. Instead, the
majority relies on statements about the complaint made by the
district court and the Defendants. But such statements provide
no substitute for allegations missing from the complaint itself.
Indeed, the majority’s need to rely on outside sources in its
attempt to establish the complaint’s allegations demonstrates
37
still again how deficient the complaint is. Just as outsiders
could not supply the Emperor with new clothes, they cannot
supply the complaint with new allegations.
III.
In sum, the allegations in the complaint, taken in the best
light for Plaintiffs, do not set forth facts that plausibly
rebut the presumption of constitutionality afforded this plan.
Contrary to the majority’s contention, dismissal of the
complaint here is not for want of “an opportunity to develop
evidence before the merits are resolved.” It is for want of
allegation of facts that would permit a court to believe
Plaintiffs could establish a viable claim. See Walters, 684
F.3d at 439.
The right to vote is precious. But its invocation does not
empower federal courts to commandeer state legislative functions
or eliminate federal pleading requirements. The Supreme Court
has long held that the Constitution, while affording enormous
protection to the right to vote, tolerates minor apportionment
deviations. The majority today replaces this considered
judgment with its own, preferring a “vast, intractable
apportionment slough,” Gaffney, 412 U.S. at 750, to the well-
worn path the Supreme Court has forged and mandated we follow.
With respect, I dissent.
38
APPENDIX 1
APPENDIX 2
APPENDIX 3