Common Cause v. Lewis

Decision Date16 April 2020
Docket NumberNo. 19-1091, No. 19-1094,19-1091
Citation956 F.3d 246
Parties COMMON CAUSE; North Carolina Democratic Party; Paula Ann Chapman; Howard Dubose; George David Gauck; James Mackin Nesbit; Dwight Jordan ; Joseph Thomas Gates; Mark S. Peters; Pamela Morton; Virginia Walters Brien; John Mark Turner; Leon Charles Schaller; Rebecca Harper; Lesley Brook Wischmann; David Dwight Brown; Amy Clare Oseroff; Kristin Parker Jackson; John Balla; Rebecca Johnson; Aaron Wolff; Karen Sue Holbrook; Kathleen Barnes; Ann McCracken; Jackson Thomas Dunn, Jr.; Alyce Machak; William Service ; Donald Rumph; Stephen Douglas McGrigor; Nancy Bradley ; Vinod Thomas; Derrick Miller; Electa E. Person; Deborah Anderson Smith; Rosalyn Sloan; Julie Ann Frey; Lily Nicole Quick; Joshua Brown; Carlton E. Campbell, Sr., Plaintiffs – Appellees, and Mary Ann Peden-Coviello, Plaintiff, v. Representative David R. LEWIS, in his official capacity as Senior Chairman of the House Select Committee on Redistricting; Senator Ralph E, Hise, Jr., in his official capacity as Chairman of the Senate Committee on Redistricting; Speaker of the House Timothy K. Moore; President Pro Tempore of the North Carolina Senate Philip E. Berger; the State of North Carolina, Defendants – Appellants, and Andy Penry, Chairman of the North Carolina State Board of Elections and Ethics Enforcement; Joshua Malcolm, Vice-Chair of the North Carolina State Board of Elections and Ethics Enforcement; Ken Raymond, Secretary of the North Carolina Board of Elections and Ethics Enforcement; Stella Anderson, Member of the North Carolina State Board of Elections and Ethics Enforcement; The North Carolina State Board of Elections and Ethics Enforcement; Damon Circosta, Member of the North Carolina State Board of Elections and Ethics Enforcement; Stacy "Four" Eggers, IV, Member of the North Carolina State Board of Elections and Ethics Enforcement; Jay Hemphill, Member of the North Carolina State Board of Elections and Ethics Enforcement; Valerie Johnson, Member of the North Carolina State Board of Elections and Ethics Enforcement; John Lewis, Member of the North Carolina State Board of Elections and Ethics Enforcement; Robert Cordle, Member of the North Carolina State Board of Elections and Ethics Enforcement, Defendants. Reginald Reid, Amicus Supporting Appellant. Common Cause; North Carolina Democratic Party; Paula Ann Chapman; Howard Dubose; George David Gauck; James Mackin Nesbit; Dwight Jordan ; Joseph Thomas Gates; Mark S. Peters; Pamela Morton; Virginia Walters Brien; John Mark Turner; Leon Charles Schaller; Rebecca Harper; Lesley Brook Wischmann; David Dwight Brown; Amy Clare Oseroff; Kristin Parker Jackson; John Balla; Rebecca Johnson; Aaron Wolff; Karen Sue Holbrook; Kathleen Barnes; Ann McCracken; Jackson Thomas Dunn, Jr.; Alyce Machak; William Service ; Donald Rumph; Nancy Bradley ; Vinod Thomas; Derrick Miller; Electa E. Person; Deborah Anderson Smith; Rosalyn Sloan; Julie Ann Frey; Lily Nicole Quick; Joshua Brown; Carlton E. Campbell, Sr.; Stephen Douglas McGrigor, Plaintiffs – Appellants, and Mary Ann Peden-Coviello, Plaintiff, v. Representative David R. Lewis, in his official capacity as Senior Chairman of the House Select Committee on Redistricting; Senator Ralph E, Hise, Jr., in his official capacity as Chairman of the Senate Committee on Redistricting; Speaker of the House Timothy K. Moore; President Pro Tempore of the North Carolina Senate Philip E. Berger; the State of North Carolina, Defendants – Appellees, and Andy Penry, Chairman of the North Carolina State Board of Elections and Ethics Enforcement; Joshua Malcolm, Vice-Chair of the North Carolina State Board of Elections and Ethics Enforcement; Ken Raymond, Secretary of the North Carolina Board of Elections and Ethics Enforcement; Stella Anderson, Member of the North Carolina State Board of Elections and Ethics Enforcement; The North Carolina State Board of Elections and Ethics Enforcement; Damon Circosta, Member of the North Carolina State Board of Elections and Ethics Enforcement; Stacy "Four" Eggers, IV, Member of the North Carolina State Board of Elections and Ethics Enforcement; Jay Hemphill, Member of the North Carolina State Board of Elections and Ethics Enforcement; Valerie Johnson, Member of the North Carolina State Board of Elections and Ethics Enforcement; John Lewis, Member of the North Carolina State Board of Elections and Ethics Enforcement; Robert Cordle, Member of the North Carolina State Board of Elections and Ethics Enforcement, Defendants. Reginald Reid, Amicus Supporting Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Richard Bryan Raile, BAKER & HOSTETLER, LLP, Washington, D.C., for Appellants/Cross-Appellees. Elisabeth S. Theodore, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees/Cross-Appellants. Paul Mason Cox, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Phillip J. Strach, Michael McKnight, OGLETREE, DEAKINS, NASH, SMOAK, & STEWART, P.C., Raleigh, North Carolina; E. Mark Braden, Trevor M. Stanley, BAKER & HOSTETLER LLP, Washington, D.C., for Appellants/ Cross-Appellees. Edwin M. Speas, Jr., Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina; R. Stanton Jones, David P. Gersch, Daniel F. Jacobson, William C. Perdue, Sara Murphy D’Amico, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C.; Marc E. Elias, Aria C. Branch, Washington, D.C., Abha Khanna, PERKINSCOIELLP,Seattle,Washington,forAppellees/Cross-Appellants. Jason B. Torchinsky, Dennis W. Polio, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC, Warrenton, Virginia, for Amicus Reginald Reid.

Before GREGORY, Chief Judge, MOTZ, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and Judge Richardson joined.

GREGORY, Chief Judge:

The core of the two appeals before us concerns whether a partisan gerrymandering action, with claims brought exclusively under the North Carolina Constitution against certain state legislators, belongs in federal court and therefore was properly removed under the Refusal Clause of 28 U.S.C. § 1443(2). To support their removal, the legislators claimed, among other reasons, that they possess an enforcement role with respect to state laws. We disagree and conclude that they have failed to explain why they are enforcement officers. Given Plaintiffs’ sole reliance on state law and the court’s duty to narrowly construe removal statutes against removal, we affirm the district court’s remand order. Because the legislators removed within the statutorily mandated time limit and adhered to the district court’s expedited briefing schedule, we conclude that the district court did not abuse its discretion in declining to award fees and costs and also affirm the cross-appeal.

I.

On November 13, 2018, Common Cause, the North Carolina Democratic Party, and 38 individual voters in North Carolina (collectively, "Plaintiffs") commenced this action in state court, asserting redistricting plans enacted by the North Carolina General Assembly in 2017 (the "2017 Plans") are unconstitutional partisan gerrymanders under the North Carolina Constitution. In an amended complaint filed on December 7, 2018, Plaintiffs named as Defendants President Pro Tempore of the Senate Philip Berger, Chairman of the Senate Standing Committee on Redistricting Ralph Hise, Jr., Senior Chairman of the House Select Committee on Redistricting David Lewis, and Speaker of the House Timothy K. Moore (collectively, the "Legislative Defendants"). Plaintiffs also named as Defendants the State of North Carolina,1 the State Board of Elections and Ethics Enforcement, and individual officers and members of the State Board of Elections and Ethics Enforcement (collectively, the "State Defendants").

In their amended complaint, Plaintiffs brought three claims exclusively under the North Carolina Constitution. In their first claim, Plaintiffs alleged that the 2017 Plans violate the Equal Protection Clause, N.C. Const. art. I, § 19, because the plans intentionally and impermissibly classified voters into districts on the basis of the voters’ political affiliations and viewpoints. According to Plaintiffs, the "intent and effect of these classifications [was] to dilute the voting power of Democratic voters," making it more difficult for Democratic candidates to be elected across the state and rendering it "virtually impossible" to achieve a majority in the North Carolina General Assembly. J.A. 401. In their second claim, Plaintiffs alleged that the 2017 Plans also violated the Free Elections Clause, N.C. Const. art. I, § 5, because they denied voters an equal opportunity to translate their votes into representation. In their final claim, Plaintiffs alleged that the plans violated the Freedom of Speech and Freedom of Assembly Clauses, N.C. Const. art. I, §§ 12, 14, because the plans, among other effects, burdened protected speech and conduct based on viewpoint by making such speech and conduct less effective.

As relief from the North Carolina state court, Plaintiffs sought to (1) "[d]eclare that each of the 2017 Plans is unconstitutional and invalid because each violates the rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution’s Equal Protection Clause; Free Elections Clause; and Freedom of Speech and Freedom of Assembly Clauses"; (2) "[e]njoin Defendants, their agents, officers, and employees from administering, preparing for, or moving forward with the 2020 primary and general elections for the North Carolina General Assembly using the 2017 Plans"; (3) "[e]stablish new state House and state Senate districting plans that comply with the North Carolina Constitution, if the North Carolina General Assembly fails to enact new state House and state Senate districting plans comporting with the North Carolina Constitution in a timely manner"; and (4) "[g]rant Plaintiffs such other and further...

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