Pope v. Blue, Civ. A. No. 3:92CV71-P.

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Citation809 F. Supp. 392
Decision Date16 April 1992
Docket NumberCiv. A. No. 3:92CV71-P.
PartiesJames Arthur "Art" POPE, et al., Plaintiffs, v. Daniel T. BLUE, Jr., et al., Defendants.

809 F. Supp. 392

James Arthur "Art" POPE, et al., Plaintiffs,
v.
Daniel T. BLUE, Jr., et al., Defendants.

Civ. A. No. 3:92CV71-P.

United States District Court, W.D. North Carolina, Charlotte Division.

April 16, 1992.


809 F. Supp. 393
COPYRIGHT MATERIAL OMITTED
809 F. Supp. 394
Thomas F. Ellis, Thomas A. Farr, Sean Callinicos, Maupin, Taylor, Ellis & Adams, Raleigh, NC, for plaintiffs

Norma S. Harrell, Edwin M. Speas, Jr., H. Jefferson Powell, Tiare B. Smiley, Daniel F. McLawhorn, N.C. Dept. of Justice, Raleigh, NC, for defendants.

Before ERVIN, Chief Circuit Judge, POTTER and BRITT, District Judges.

MEMORANDUM OPINION AND ORDER

ERVIN, Chief Circuit Judge:

The Republican Party of North Carolina, thirty registered Republicans, nine registered Democrats, and three citizens not affiliated with either party (hereinafter, collectively, "the plaintiffs") brought this action to challenge the State of North Carolina's federal congressional redistricting plan. The defendants are various state officials and agencies who participated in the adoption or implementation of the redistricting plan. The defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim is pending before us. Holding that the plaintiffs have not alleged facts sufficient to state a claim, we grant the motion to dismiss with prejudice.

I.

We first set out the factual background to this controversy. Because we are ruling on a 12(b)(6) motion to dismiss, we must take the allegations in the plaintiffs' complaint as true. See, e.g., Finlator v. Powers, 902 F.2d 1158, 1160 (4th Cir. 1990). Thus, we summarize the allegations of the complaint as follows.

Before the 1970's, North Carolina was essentially a one-party state, with Democrats controlling the state government in all respects. That situation changed in the 1970's, as voters elected the first Republican governor and the first Republican United States Senator in this century. Republican successes continued in the 1980's. Currently, four of North Carolina's eleven United States Representatives, one of its two United States Senators, and its governor are Republicans. Registered Democrats outnumber registered Republicans by a two-to-one ratio.

The 1990 census showed that North Carolina's population had grown, entitling the state to a twelfth seat in the United States House of Representatives. The North Carolina General Assembly first passed redistricting legislation on July 9, 1991. According to the complaint, Democratic majorities in both the state house and senate prevented Republicans from having any influence in the redistricting process. The state's Republican governor was also unable to prevent Democratic gerrymandering, because North Carolina is the only state without gubernatorial veto power. The first redistricting legislation created one district with a majority of black voters, located in northeastern North Carolina. In order to protect white Democratic congressmen at the expense of Republicans, the General Assembly had to make that district very contorted. The state then submitted the proposed redistricting legislation to the United States Department of Justice ("DOJ") for preclearance, which the Voting Rights Act of 1965 requires.

On December 18, 1991, the DOJ objected to the legislation because the state had not shown that its failure to create a second minority district did not impermissibly dilute minority voting strength. In response, after one day of deliberation, the General Assembly passed the redistricting legislation at issue here, Chapter 7 (Extra Session 1991) (hereinafter "the Plan"), on January 24, 1992. The Plan creates a second minority district ("District 12") that snakes diagonally across North Carolina in a thin, 160 mile long band, connecting black neighborhoods from Durham to Gastonia. District 12 is so narrow that for much of its length it only encompasses Interstate 85. As a result of District 12 and other features of the Plan, many precincts, counties, and

809 F. Supp. 395
towns in North Carolina are divided among two or even three congressional districts. Many of the plaintiffs live in areas that are so affected. In creating the Plan, the Democratic majority rejected more compact plans that both Republicans and non-partisan groups had offered

The Plan creates districts that are as equally populated as is mathematically possible. Seven of the districts have a population of 552,386, and the other five districts have a population of 552,387. On February 6, 1992, the DOJ approved the Plan.

II.

In their complaint, the plaintiffs raise challenges to the Plan under a number of different constitutional provisions. We will address each of these arguments in turn.

The plaintiffs' primary contention is that the Plan violates their rights under the Fourteenth Amendment of the United States Constitution. The relevant part of that Amendment states: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 2.1

Under the law as most recently interpreted by the Supreme Court, we must consider the plaintiffs' equal protection claim as presenting a justiciable issue. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Court first acknowledged the justiciability of equal protection claims in relation to legislative districting. Baker itself, and the majority of cases subsequent to Baker, involved challenges to districts that were unequal in population. E.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). In other cases, the Court recognized the justiciability, even in the absence of population deviations among the districts, of claims of racial gerrymandering. See United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964). Most recently, in Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986), a majority of the Court ruled that an equal protection claim resulting from a purely political gerrymandering scheme presented a justiciable issue.

In granting the justiciability of political gerrymandering claims, however, a plurality of the Bandemer Court outlined stringent requirements for what could constitute a viable cause of action. Due to the fact that a minority of the Court opposed a finding of justiciability under any circumstances, this plurality opinion must be considered controlling as the position which concurs in the judgment on the narrowest grounds. See Badham v. March Fong Eu, 694 F.Supp. 664, 668-69 (N.D.Cal.1988), aff'd mem., 488 U.S. 1024, 109 S.Ct. 829, 102 L.Ed.2d 962 (1989).2

809 F. Supp. 396

The Bandemer plurality ruled that, as in the racial gerrymandering cases, it is necessary for a plaintiff to "prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." 478 U.S. at 127, 106 S.Ct. at 2808. In the present case, the complaint makes abundant allegations regarding the discriminatory intent of the General Assembly in its crafting of the serpentine legislative districts. Taking the allegations of the complaint as true, we have no trouble in finding that the Plan was designed with at least a partial purpose of disadvantaging a specific political group.3 As the Bandemer plurality acknowledged, "As long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended." Id. 478 U.S. at 129, 106 S.Ct. at 2809.

It is on the issue of discriminatory effect that we find the plaintiffs' complaint insufficient to state a valid claim. Recognizing that redistricting is an inherently political process, the Bandemer plurality rejected the notion that unconstitutional discriminatory effect could be shown by "the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice." Id. at 131, 106 S.Ct. at 2810. Instead, the plurality ruled that discriminatory effect in political gerrymandering cases would only be found "when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole." Id. at 132, 106 S.Ct. at 2810. Bandemer reversed a three-judge panel that had invalidated a redistricting scheme based largely on the disproportionate representation of a political party resulting after a single election under that scheme. The Court held that a plaintiff group must prove "a history (actual or projected) of disproportionate results" in conjunction with indicia that the group has "essentially been shut out of the political process." Id. at 139, 106 S.Ct. at 2814. The Badham court, in a decision subsequently affirmed by the Supreme Court, took an expansive view of "the political process as a whole." That court dismissed under Rule 12(b)(6) an equal protection claim premised on political gerrymandering, noting the lack of any allegations regarding interference in the "registration, organizing, voting, fundraising, or campaigning" of the purportedly disadvantaged group. 694 F.Supp. at 670. In the present case, the plaintiffs have relied exclusively on...

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