Raleigh Wake Citizens Ass'n v. Wake Cnty. Bd. of Elections, 5:15-CV-156-D

• Decision Date: 29 September 2017
• Docket Number: No. 5:15-CV-156-D,No. 5:13-CV-607-D,5:15-CV-156-D,5:13-CV-607-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: RALEIGH WAKE CITIZENS ASSOCIATION, et al., Plaintiffs, v. WAKE COUNTY BOARD OF ELECTIONS, Defendant. CALLA WRIGHT, et al., Plaintiffs, v. STATE OF NORTH CAROLINA, Defendant.

RALEIGH WAKE CITIZENS ASSOCIATION, et al., Plaintiffs,
v.
WAKE COUNTY BOARD OF ELECTIONS, Defendant.

CALLA WRIGHT, et al., Plaintiffs,
v.
STATE OF NORTH CAROLINA, Defendant.

No. 5:15-CV-156-D
No. 5:13-CV-607-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

September 29, 2017

Consolidated Civil Action

ORDER

In both cases in this consolidated action, plaintiffs move for attorneys' fees and litigation expenses under 42 U.S.C. § 1988, expert fees under 52 U.S.C. § 10310(e), and costs under Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. See [D.E. 118, 119] (No. 5:15-CV-156-D); [D.E. 125, 126] (No. 5:13-CV-607-D).¹ Defendant Wake County Board of Elections ("defendant") has responded in opposition [D.E. 123], and plaintiffs have replied [D.E. 124]. As explained below, the court grants plaintiffs' motions in part and denies them in part.

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I.

Plaintiffs challenged the North Carolina General Assembly's ("General Assembly") 2013 redistricting plan for electing the non-partisan Wake County School Board and the General Assembly's 2015 redistricting plan for electing the partisan Wake County Board of Commissioners. The redistricting plan for the Wake County School Board is contained in Session Law 2013-110. The redistricting plan for the Wake County Board of Commissioners is contained in Session Law 2015-4 and is identical to the plan in Session Law 2013-110. See Tr. Ex. 438 (S.L. 2013-110, § 5); Tr. Ex. 439 (S.L. 2015-4, § 1.(c)-.(d)). The court has discussed the intricacies of these plans, [D.E. 104] 5-6, and summarizes the essence of the litigation sufficiently to resolve the pending motions.

In these actions, plaintiffs contended that the redistricting plans in Session Law 2013-110 and Session Law 2015-4 (collectively, "Session Laws") violate the one-person, one-vote principle in the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, § 19 of the North Carolina Constitution. As for the School Board redistricting plan, plaintiffs contended that the plan resulted from the General Assembly's partisan desire (1) to disadvantage incumbents on the non-partisan Wake County Board of Education ("Wake County Board of Education" or "Wake County School Board") who are registered Democrats who support "progressive" education policies and (2) to favor suburban and rural voters over urban voters. As for the Board of Commissioners redistricting plan, plaintiffs contended that the plan resulted from the General Assembly's partisan desire (1) to favor suburban and rural voters over urban voters and (2) to favor voters who favor Republican candidates over voters who favor Democratic candidates on the Wake County Board of Commissioners. Plaintiffs also contended that the 2015 General Assembly racially gerrymandered District 4 in the Board of Commissioners redistricting plan and thereby violated the Equal Protection Clause of the Fourteenth Amendment of the United States

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Constitution.

On March 17, 2014, United States District Judge Terrence W. Boyle dismissed the challenge to the School Board redistricting plan for lack of subject-matter jurisdiction and for failure to state a claim. See [D.E. 38] 9 (No. 5:13-CV-607-D). Plaintiffs appealed, and on May 27, 2015, the United States Court of Appeals for the Fourth Circuit affirmed in part, reversed in part, and remanded the case. See Wright v. North Carolina, 787 F.3d 256 (4th Cir. 2015). The court upheld dismissal of the State of North Carolina and several proposed state officials under the Eleventh Amendment, but held that plaintiffs adequately pleaded that Session Law 2013-110 violated the one-person, one-vote principle. See id.

In July 2015, both cases were reassigned to the undersigned. See [D.E. 27] (No. 5:15-CV-156-D); [D.E. 49] (No. 5:13-CV-607-D). The court thereafter consolidated the cases. See [D.E. 36] (No. 5:15-CV-156-D); [D.E. 53] (No. 5:13-CV-607-D).

On December 16-18, 2015, the court held a bench trial in this consolidated action. On February 26, 2016, the court found that plaintiffs had not proven their case, entered judgment for the Wake County Board of Elections, and declined to enjoin the Wake County Board of Elections from administering elections under the challenged redistricting plans. See [D.E. 64, 65]. Plaintiffs appealed. See [D.E. 66].

On July 1, 2016—after the Supreme Court's intervening decision in Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016)—the Fourth Circuit, in a 2-1 decision, resolved the appeal in this case. The Fourth Circuit unanimously rejected plaintiffs' racial gerrymandering claim. See Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 352-53 (4th Cir. 2016). As for plaintiffs' one-person, one-vote claim, the Fourth Circuit applied Harris and found that this case was the "rare[ ]" and "unusual" case referenced in Harris.

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Id. at 351. Accordingly, the Fourth Circuit held that the plans violated the one-person, one-vote principle in the United States Constitution and the North Carolina Constitution. Id. at 351-52. The Fourth Circuit remanded "with instructions to enter immediately judgment for Plaintiffs, granting both declaratory relief and a permanent injunction, as to the one person, one vote claims." Id. at 353-54 (footnote omitted). The Fourth Circuit added that it saw "no reason why the November 2016 elections should proceed under the unconstitutional plans we strike down today." Id. at 354 n.13.

Rather than issue its mandate immediately, the Fourth Circuit scheduled the mandate to issue on July 22, 2016. See [D.E. 104] 9. In anticipation of that date and in order to facilitate prompt remedial proceedings so that the November 2016 elections could take place as scheduled, this court issued an order on July 8, 2016, requesting certain information from the parties, the legislative leaders of the General Assembly, and the North Carolina State Board of Elections. See [D.E. 78]. Specifically, this court asked the parties and the legislative leaders to address the mandate rule, the principles governing any court-ordered remedial plan, and a schedule for devising, considering, and adopting any court-ordered remedial plan. See id. at 8.

On July 14, 2016, the Wake County Board of Elections petitioned for rehearing en banc. On that same date, the Fourth Circuit stayed the mandate pending a ruling on the petition.

In plaintiffs' response to the court's July 8, 2016 order requesting views concerning a remedy, plaintiffs contended that once the mandate issues, the court should enjoin the use of the statutes. See [D.E. 82] 2. Plaintiffs also contended that once the mandate issues, "unless and until the North Carolina General Assembly enacts other redistricting plans or methods of election, the State Board of Elections and the . . . Wake County Board of Elections[] are legally obligated to enforce the election system previously in place." Id.

On July 26, 2016, the Fourth Circuit denied the petition for rehearing en banc. On July 27,

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2016, this court notified the parties, the North Carolina State Board of Elections, and the legislative leaders that this court would hold a status conference on August 2, 2016, to discuss the remedy. See [D.E. 86]. On August 2, 2016, this court held a status conference. On August 3, 2016, the mandate issued. See [D.E. 89].

On August 4, 2016, in accordance with the Fourth Circuit's mandate, the court declared that the population deviations in the redistricting plans in Session Law 2013-110 and Session Law 2015-4 violate the one-person, one-vote-principle in the equal protection clauses of the Fourteenth Amendment and Article I, § 19 of the North Carolina Constitution. See [D.E. 93].

On August 9, 2016, this court issued its remedial order. Cf. Raleigh Wake Citizens Ass'n, 827 F.3d at 354 n.13. The court's remedial order enjoined the use of the population deviations in the BOE and BOCC districts in the Session Laws. See [D.E. 104] 6. The court did not declare any other provisions of the Session Laws to be unconstitutional.

The court's remedial order imposed a court-ordered interim election plan for 2016, but did not reinstate the entire 2011 redistricting plan and election scheme that preceded the Session Laws, despite plaintiffs' insistence to the contrary. See [D.E. 104] 36-37. The court's remedial order used the districts from the 2011 plan, but included an overall interim system of election for 2016 that largely tracked the policy decisions reflected in the Session Laws. See id.

The court's remedial order prohibited use of the population deviations and imposed a temporary, court-ordered redistricting plan that was far more limited than the relief plaintiffs sought. Plaintiffs sought an injunction that declared the Session Laws unconstitutional in their entirety and reverted to the method of election for the BOE and BOCC under the 2011 plan. See [D.E. 1] 22 (the "Wright Compl."); [D.E. 22] 17 (the "RWCA Compl."). Plaintiffs also sought a declaration that, if the General Assembly failed to promulgate a lawful election method, the BOE and the BOCC each

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had the authority to adopt its own redistricting plan. See Wright Compl. at 22; RWCA Compl. at 17.

After the Fourth Circuit's decision in July 2016, plaintiffs argued that merely enjoining the population deviations did not provide them the full scope of their requested relief. Plaintiffs repeatedly insisted that they were entitled to relief enjoining the Session Laws in their entirety. See [D.E. 82] 5, 20; [D.E. 87] 2; [D.E. 96] 3. Plaintiffs also sought relief that reinstated the entire election system contained within the 2011 redistricting plan—including the type of districts, length of terms, and timing of elections. Plaintiffs consistently argued that the court lacked authority to implement a court-ordered election plan for 2016 and could instead only give effect to the 2011 plan by operation...