Calla Wright v. State of North Carolina

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