By Anthony Rascati

Elon University School of Law Dec. ’17

Edited by Nate Cook, Elon University School of Law ’17 and Mike Casterlow, Elon University School of Law Dec. ’17

Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016)

Introduction and Background Information

This case involves the constitutionality of two session laws enacted by the North Carolina General Assembly, Session Law 2013-110 and Session Law 2015-4. On July 1, 2016, the 4th Circuit invalidated two laws passed by the General Assembly that established new districts for Wake County’s Board of Education seats and Wake County’s Board of County Commissioners, finding that the laws violated the one person, one vote principle under the Fourteenth Amendment. While district numbers may never be exactly the same in each district, the court’s decision in this case affirms the principle that “governments must ‘make an honest and good faith effort’ to construct districts as close to equal population ‘as is practicable.’”[1]

When Session Law 2013-110 was passed, it “ma[de] numerous changes to the [Wake County] School Board’s method of selection,”[2] including redrawing the nine districts to which the members of the School Board are elected. The Plaintiffs in this case were a group of registered voters and civic organizations in Wake County. The law also created two county-wide “super districts.” When Session Law 2013-110 was challenged in federal district court, the plaintiffs “challeng[ed] the constitutionality of the districts that Session Law 2013-110 established . . . alleg[ing] that the plan unevenly weighed the votes of citizens in the county for impermissible reasons, thereby violating the one-person, one-vote guarantees of the federal and state constitutions.”[3]

Plaintiffs’ suit was filed on March 17, 2014, and was dismissed by the district court for failure to state a claim. On appeal, the 4th Circuit reversed the district court, finding that Plaintiffs had sufficiently pled violations of the federal and state constitutions.[4]

During the spring of 2015, while the previously mentioned appeal was pending before the 4th Circuit “the General Assembly enacted Session Law 2015-4, making the electoral system for the Wake County Board of County Commissioners . . . identical to the system it had created for the School Board with Session Law 2013-110.”[5] Opposition to both session laws was noted by the 4th Circuit, which observed that “the General Assembly forced a local bill on Wake County despite opposition.”[6] When Session Law 2015-4 was subsequently challenged in federal court, the plaintiffs “challeng[ed] the Board of County Commissioners’ redistricting plan as violating the one person, one vote guarantees of the state and federal constitutions.”[7]  The district court then consolidated the suits challenging the two session laws.[8] After bench trial in December 2015, the district court found for the defendants, upholding the constitutionality of Session Law 2013-110 and Session Law 2015-4.

Legal Standard for One Person, One Vote Cases

“[O]n appeal [for the second time to the 4th Circuit], Plaintiffs contend[ed] that the district court applied the wrong legal standard for adjudicating their one person, one vote claim.”[9]  The district court held “that ‘in order to prove a prima facie case in a one person one vote challenge, plaintiffs must at least negate the most common legitimate reasons that could explain the legislature’s action.’”[10] The 4th Circuit, however, “conclude[d] that, to succeed on the merits, plaintiffs in one person, one vote cases with population deviations below 10 percent must show by a preponderance of the evidence that improper considerations predominate in explaining the deviations.”[11] Population deviation refers to the difference in the number of citizens from one district to another.

4th Circuit Decision in Favor of Plaintiffs on the Merits

Examining the record, the 4th Circuit held that, “Plaintiffs proffered uncontroverted evidence of an illegitimate factor predominating in the skewed, unequal redistricting: an attempt to guaranty Republican victory through the intentional packing of Democratic districts.”[12] The court based this holding on the testimony of expert witnesses Anthony Fairfax and Dr. Chen. Finally, the Court also determined that “[a]bsent from the record . . . is any trial testimony confirming (or denying) a partisan motive behind the redistricting and its deviations.”[13]

In addition to finding that “the uncontested record evidence demonstrate[d] that illegitimate reapportionment factors predominated, the court wrote that “the evidence also exposed the stated reasons for the redistricting as pretextual.”[14] The 4th Circuit reviewed each of the stated reasons for the redistricting and discounted each as being disconnected from the actual reasoning of the General Assembly. The court also discounted reasons offered by the General Assembly including “increas[ing] the alignment between citizen’s voting districts and their assigned schools  . . . reducing campaign costs . . . increasing voter turnout . . . and allowing voters greater representation.”[15] The court also noted that the General Assembly had ignored an alternative suggested session law that would have “[met] all of the stated rationales for the skewed redistricting.”[16]   The 4th Circuit wrote that it could “reach only one conclusion: that Plaintiffs, the only parties to make their case at trial, successfully showed it to be more probable than not that the deviations at issue here reflect the predominance of an illegitimate reapportionment factor.”[17]

The 4th Circuit concluded that the district court’s “legal analysis of what Plaintiffs needed to show as well as the evaluation of the evidence Plaintiffs proffered to make that showing [were] fundamentally flawed.”[18]  Observing that “when ‘the record permits only one resolution of the factual issue,’ remand is unnecessary, and [the court] may rule based on the record before [it],”[19] the 4th Circuit “deem[ed] remand unnecessary [as] . . . in addition to copious documentary evidence, Plaintiffs presented fifteen live witnesses – two experts, four legislators, four county elected officials, and five plaintiffs and lay witnesses.”[20] The 4th Circuit reasoned that the sheer amount of evidence presented by the Plaintiffs and the lack of evidence presented by the Defendant weighed greatly in favor of the Plaintiffs. Thus, the 4th Circuit held that “[t]he resulting record . . . permits only one resolution of the Plaintiffs’ one person, one vote claims: Plaintiffs have proven that it is more probable than not that the population deviations at issue here reflect the predominance of a [sic] illegitimate reapportionment factor.”[21]

Redistricting Voting Equivalency Decision

When Session Law 2013-110 was passed by the General Assembly, and the new single-member districts were created in Wake County, “[t]he maximum population deviation among the new single-member districts swelled to over 7 percent.”[22] Additionally, “[t]he maximum population deviation between the super districts exceeded that of the single-member districts – just shy of 10 percent.”[23] For comparison, the 2010 redistricting “effort led to a redistricting plan with geographically compact districts having a maximum population deviation of 1.75 percent and no district deviating from the ideal district population by even 1 percent.”[24] The population deviation goes to whether a law or redistricting measure violates the one person, one vote principle. The 4th Circuit “recognize[d] that, generally, ‘attacks on deviations under 10 percent will succeed only rarely, in unusual cases.’”[25] Nonetheless, it determined that this case “constitute[d] just such an unusual case” and reversed the district court’s judgment in favor of the defendants.[26]

Racial Gerrymandering Decision

Once the Court ruled in favor of the Plaintiffs on their voting equivalency challenge, the Court then turned to the Plaintiffs’ “racial gerrymandering claim regarding the Board of County Commissioners’ District 4.”[27] To succeed at trial, Plaintiffs needed to establish “proof that ‘the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.’”[28]  The 4th Circuit held that district court properly applied the correct legal standard, and its “analysis of Plaintiffs’ racial gerrymandering claim [was] not clearly erroneous.”[29]  The court observed that, “even if [the Court] might have found otherwise . . . it was not implausible for the district court to determine that Plaintiffs had fallen short of proving that traditional districting criteria were subordinated to race in the drawing of District 4.”[30] Therefore, it affirmed the district court’s decision for the defendants.

Dissenting Opinion

Judge Motz “dissent[ed] from the majority’s holding that the district court erred in rejecting Plaintiffs’ equal protection challenge to twin presumptively constitutional redistricting plans.”[31] Judge Motz noted disagreed that this was the unusual case imagined by the Supreme Court, which had “recently reiterated that ‘attacks on deviations under 10 percent will succeed only rarely, in unusual cases.’”[32]

Judge Motz reasoned that even “[i]f those attacking a redistricting plan prove that a State has abused legitimate political considerations by systematically over-or under-populating districts to benefit one party at the expense another, then the challengers may be able to prevail.”[33]  Judge Motz then distinguished Harris and Larios, the precedent relied upon by the majority. Contrary to the present case, Judge Motz wrote that “[i]n Larios, Georgia legislators admitted before the district court that they had intentionally drawn legislative districts to favor incumbents of one party over those of the other.”[34] Additionally, Judge Motz noted “that the Harris plaintiffs had made a much stronger evidentiary showing than Plaintiffs d[id] here.”[35] However, “in Harris, those challenging the redistricting plan before it had ‘not carried their burden.’”[36]

Judge Motz reasoned that the expert witness for the Plaintiffs, Dr. Chen, upon whose testimony the majority also relied, was incorrect, and his “analysis suffer[ed] from two critical flaws.”[37] First, Dr. Chen was incorrect in his analysis because he had capped “the maximum tolerable level of population deviation between districts at 2 percent,”[38] even though 10 percent deviations were not considered presumptively high by the Supreme Court. Second, Dr. Chen only considered several of the numerous factors that may be used in the redistricting process. Judge Motz noted that “[t]his is particularly troubling because it is undisputed that two of the legitimate districting facts Dr. Chen failed to consider – incumbency protection and grouping communities of interest – actually motivated the legislature here.”[39]

Judge Motz determined that the Plaintiffs did not meet their burden, “fail[ing] to offer any evidence truly probative of legislative intent[, and] Plaintiffs’ experts tendered conclusions that their analyses could not support.”[40] Therefore, Judge Motz found no clear error and would have affirmed the district court’s decision in its entirety.[41]

[1] Raleigh Wake Citizens Association v. Wake County Board of Elections, 827 F.3d 333, 340–41. (4th Cir. 2016)

[2] Id. at 338.

[3] Id.

[4] Id. (quoting Wright v. North Carolina, 787 F.3d 256, 269 (4th Cir. 2015)) (alteration in original).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 340.

[10] Id. (quoting Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. Of Elections, 166 F. Supp. 3d 553, 589 (E.D.N.C. 2016)).

[11] Id. at 342 (considering Harris v. Ariz. Indep. Redistricting Comm’n, __ U.S. __, 136 S. Ct. 1301, 194 L. Ed. 2d. 497 (2016) and Larios v. Cox, 300 F. Supp. 2d. 1320 (N.D. Ga.) (three-judge panel), aff’d, 542 U.S. 947, 124 S. Ct. 2806, 159 L. Ed. 2d. 831 (2004) (mem.)).

[12] Id. at 346.

[13] Id. at 347.

[14] Id. at 349.

[15] Id.

[16] Id. at 350.

[17] Id. at 351.

[18] Id. at 345. Because the suits against Session Law 2013-110 and Session Law 2015-4 were decided in a bench trial in the federal district court, the 4th Circuit applied “’a mixed standard of review’” under which “factual findings may be reversed only if clearly erroneous [and] conclusions of law are examined de novo.’” Id.

[19] Id. (quoting Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982)).

[20] Id.

[21] Id.

[22] Id. at 338.

[23] Id. at 339.

[24] Id. at 338.

[25] Id. at 351 (quoting Harris, 136 S. Ct. at 1307)).

[26] Id. The 4th Circuit noted that plaintiffs would also be successful on their state claim for the same reasons they prevailed on their federal claim. The court did not reach plaintiffs’ additional claim of improper regional favoritism as an illegitimate factor behind the deviations.

[27] Id.

[28] Id. (quoting Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995)) (alteration in original).

[29] Id. at 353.

[30] Id.

[31] Id. at 354.

[32] Id. at 355 (quoting Harris, 136 S. Ct. at 1307).

[33] Id. (emphasis in original).

[34] Id. (citing Larios, 300 F. Supp. 2d at 1325).

[35] Id. at 356.

[36] Id. (quoting Harris, 136 S. Ct. at 1310).

[37] Id. at 357.

[38] Id.

[39] Id. (emphasis in original).

[40] Id. at 359.

[41] Id.