Republican Party of North Carolina v. Hunt

• Citation: 991 F.2d 1202
• Decision Date: 27 April 1993
• Docket Number: No. 91-1741,91-1741
• Parties: REPUBLICAN PARTY OF NORTH CAROLINA; Bruce Briggs; William R. Sigmon; Marvin K. Gray; R. Howard Riddle; Lloyd Fowler; Joe R. Wilson; R. Walter White; Edgar A. Readling, Jr.; Frederic M. Gallagher; Ralph A. Walker, Plaintiffs-Appellants, v. James B. HUNT, Jr., Governor of North Carolina; North Carolina State Board of Elections; William Marsh, Jr., Chairman of North Carolina State Board of Elections; Gregg O. Allen; M.H. Hood Ellis; Ruth Turner Semashko; June K. Youngblood; North Carolina Association of Black Lawyers, Defendants-Appellees, and Durham County Board of Elections; Forsyth County Board of Elections; Guilford County Board of Elections, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1202

991 F.2d 1202

REPUBLICAN PARTY OF NORTH CAROLINA; Bruce Briggs; William

R. Sigmon; Marvin K. Gray; R. Howard Riddle; Lloyd

Fowler; Joe R. Wilson; R. Walter White; Edgar A.

Readling, Jr.; Frederic M. Gallagher; Ralph A. Walker, Plaintiffs-Appellants, v. James B. HUNT, Jr., Governor of North Carolina; North

Carolina State Board of Elections; William Marsh, Jr.,

Chairman of North Carolina State Board of Elections; Gregg

O. Allen; M.H. Hood Ellis; Ruth Turner Semashko; June K.

Youngblood; North Carolina Association of Black Lawyers,

Defendants-Appellees,

and

Durham County Board of Elections; Forsyth County Board of

Elections; Guilford County Board of Elections, Defendants.

No. 91-1741.

United States Court of Appeals, Fourth Circuit.

April 27, 1993.

Prior report 980 F.2d 943 (4th Cir.1992).

ON PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING IN BANC

Appellees have filed a petition for rehearing with suggestion for rehearing in banc and appellants filed an answer to the petition. A member of the Court requested a poll on the suggestion for rehearing in banc, and a majority of the judges voted to deny rehearing in banc. Judges WIDENER, PHILLIPS and MURNAGHAN voted to rehear the case in banc and Judge PHILLIPS wrote the attached dissent. Judges RUSSELL, HALL, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG and WILLIAMS voted against rehearing in banc. Chief Judge ERVIN disqualified himself from participation.

The original judicial panel voted to deny the petition for rehearing.

The Court denies the petition for rehearing with suggestion for rehearing in banc.

Entered at the direction of Judge WILKINS for a panel consisting of Judge RUSSELL, Judge WILKINS and Judge GLEN M. WILLIAMS, Senior United States District Judge, sitting by designation.

PHILLIPS, Circuit Judge, dissenting from denial of rehearing en banc:

In 1986, a severely divided Supreme Court in Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) opened a narrow door of justiciability for claims by political parties (and possibly their cross-over allies) that their group voting power had been unconstitutionally degraded by partisan political gerrymandering of legislative districts and, having opened that outer door but narrowly, opened an even narrower door for the prima facie statement and proof of such a particularized claim. Significantly, the claim initially found justiciable by a six to three majority of the Bandemer Court was then thought by four of those who had thought it justiciable (and three who disagreed on that point) not, however, proven prima facie under the more stringent substantive sufficiency test. Though discriminatory intent by the state legislature was so palpable as not to be seriously questioned, see id. at 127, 140-41, 106 S.Ct. at 2807, 2814 and though there was considerable evidence of adverse effect from the gerrymander upon the challenging political party's proportionate success at the polls, see id. at 134, 106 S.Ct. at 2811, it was not sufficient in degree to establish an equal protection violation under the Court's demanding test. See id. at 134-143, 106 S.Ct. at 2811-16.

A common theme runs through each of the three different viewpoints expressed in the four separate Bandemer opinions. Concerns of federalism and separation of powers mandate that, if they are to exist at all, the occasions for federal court consideration of claims of partisan political gerrymandering by state legislatures must be strictly confined. See id. at 129-134, 143 & n. 14, 106 S.Ct. at 2809-11, 2832 & n. 14 (plurality opinion) (though such claims justiciable, stringent prima facie claim test required in view of "peculiar characteristics of these political gerrymandering claims" and "the delicacy of intruding on this most political of legislative functions"); id. at 144, 106 S.Ct. at 2816 (Burger, J., concurring in judgment) (not justiciable; claims of "injustice" from political gerrymandering do not "belong" with federal judiciary); id. at 144, 106 S.Ct. at 2816 (O'Connor, J., concurring in judgment) (same; "judiciary should leave [such claims] to the legislative branch"); id. at 184-85, 106 S.Ct. at 2838 (Powell, J., dissenting) (though claims justiciable in general and instant one proven, difficulties of adjudicating such claims by "federal judges ... ill-equipped generally to review legislative [districting] decisions" requires that courts "impose a heavy burden of proof" on parties making such claims).

Since Bandemer was decided in 1986 until now, neither the Supreme Court nor, I believe, any other lower federal court than ours had opened wider the narrow doors of justiciability and substantive claim defined by the Bandemer Court until the panel decision in this case. That decision has now opened both wider in ways that I believe are unwarranted under controlling Supreme Court authority. Unless corrected, the decision will work great constitutional mischief of exactly the sort recognized by every Justice who wrote in Bandemer as the special threat to federalism and separation of powers posed by this particular type of attack on state legislative functions.

I think we should do the correcting, and do it now. If we do not, and unless the Supreme Court were to undertake review of our judgment of reversal and remand at this time, the result will be to send this case back to the district court under a mandate which, with all respect, I believe is unmanageable--precisely because it is unmoored from even the concededly uncertain moorings of Bandemer. See id. at 185 n. 25, 106 S.Ct. at 2838 n. 25 (Powell, J., dissenting) (pointing out that because of the division of views within the court "there is no 'Court' for a standard that should be applied in determining whether a challenged redistricting plan is an unconstitutional partisan political gerrymander"). In consequence, later correction, whether by this Court of the Supreme Court, will have been at the expense of a great deal of essentially unguided effort by both court and parties, one of them a sovereign state, (and possibly by that state's legislature) in a real political thicket which the district court wisely had seen was one into which it should not go. For this reason, I dissent from the court's decision not to rehear en banc the appeal in this case.

I

The first and fundamental error in our panel's decision is its reading of Bandemer's narrow justiciability holding to include claims respecting the election of state judges. I believe that, properly read, Bandemer confines the justiciability of claims of partisan political gerrymandering to those involving the election of legislative officials. While Bandemer does not expressly say so (having no need to) all the pointers on which we commonly rely are in that direction.

The prime pointer is found in the Supreme Court's only direct consideration of a constitutional voting rights claim related to the election of judges. In Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) the Court summarily affirmed a three-judge district court decision that the claim, there of one-person, one-vote violation, was not a justiciable one. While such a summary affirmance does not of course foreclose later, full consideration of the dispositive issue by the Supreme Court, Bandemer, 478 U.S. at 121, 106 S.Ct. at 2804, the decision affirmed and its rationale are binding on this court until that happens. It has not yet. Indeed, the continued authority of Wells recently has been expressly recognized by the Supreme Court in Chisom v. Roemer, --- U.S. ----, ----, 111 S.Ct. 2354, 2368, 115 L.Ed.2d 348 (1991).

It therefore is presently the law of the land, hence of this circuit, that because state judges, where elected, are not elected to provide the people with "representative government," a claim that the process by which they are elected violates the constitutional one-person, one-vote principle is not a justiciable one--that principle simply being "not relevant to the makeup of the judiciary." Wells v. Edwards, 347 F.Supp. 453, 455-56 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). I believe that Wells' rationale for the non-justiciability of one-person, one-vote claims respecting judicial elections necessarily extends as well to the nonjusticiability of group vote-dilution claims respecting such elections. I do not see how, if having one's individual vote in judicial elections denied equal weight to that of all others in the voting constituency is not the subject of a justiciable constitutional claim, having an identifiable political group's voting power in such elections "diluted" by partisan political gerrymandering could be. The one is no more nor less relevant to "preserv[ing] a truly representative government" under the Wells rationale.

I therefore read Wells as holding directly, and by necessary implication from the rationale of the lower court decision it affirmed, that no constitutional challenge to a state's districting decisions respecting the election of its judges could present a justiciable controversy, whether based on one- person, one-vote or on group vote-dilution grounds.

Bandemer's later holding that equal protection challenges by political parties to state districting decisions respecting the election of legislators do present justiciable controversies does not undercut this reading of Wells. It would do so only if the necessary implication of its justiciability holding was that it embraced judicial as well as legislative elections. I believe the plurality and concurring opinions on which the Bandemer holding is based instead imply the opposite: that it is limited by its rationale, by its tone, and by the precedent upon which it relies, to claims respecting legislative elections.

The Bandemer holding, an extremely cautious one on any reading, is expressly grounded in a late-developed constitutional voting rights jurisprudence that was solely concerned...