Stephenson v. Bartlett, 4:01-CV-171-H(4).

• Decision Date: 20 December 2001
• Docket Number: No. 4:01-CV-171-H(4).,4:01-CV-171-H(4).
• Citation: 180 F.Supp.2d 779
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Ashley STEPHENSON, individually and as a resident and registered voter of Beaufort County, North Carolina; Leo Daughtry, individually and as Representative for the 95th District, North Carolina House of Representatives; Patrick Ballantine, individually and as Senator for the 4th District, North Carolina Senate; Art Pope, individually and as Representative for the 61st District, North Carolina House of Representatives; Bill Cobey, individually and as Chairman of the North Carolina Republican Party and on behalf of all other persons similarly situated, Plaintiffs, v. Gary O. BARTLETT, as Executive Director of the State Board of Elections; Larry Leake, Rose Vaughn Williams, Genevieve C. Sims, Lorraine G. Shinn, and Charles Winfree, as members of the State Board of Elections; James B. Black, as Speaker of the North Carolina House of Representatives; Marc Basnight, as President Pro Tempore of the North Carolina Senate; Michael Easley, as Governor of the State of North Carolina; and Roy Cooper, as Attorney General of the State of North Carolina, Defendants.

180 F.Supp.2d 779

Ashley STEPHENSON, individually and as a resident and registered voter of Beaufort County, North Carolina; Leo Daughtry, individually and as Representative for the 95th District, North Carolina House of Representatives; Patrick Ballantine, individually and as Senator for the 4th District, North Carolina Senate; Art Pope, individually and as Representative for the 61st District, North Carolina House of Representatives; Bill Cobey, individually and as Chairman of the North Carolina Republican Party and on behalf of all other persons similarly situated, Plaintiffs, v. Gary O. BARTLETT, as Executive Director of the State Board of Elections; Larry Leake, Rose Vaughn Williams, Genevieve C. Sims, Lorraine G. Shinn, and Charles Winfree, as members of the State Board of Elections; James B. Black, as Speaker of the North Carolina House of Representatives; Marc Basnight, as President Pro Tempore of the North Carolina Senate; Michael Easley, as Governor of the State of North Carolina; and Roy Cooper, as Attorney General of the State of North Carolina, Defendants.

No. 4:01-CV-171-H(4).

United States District Court, E.D. North Carolina, Eastern Division.

December 20, 2001.

Thomas A. Farr, James C. Dever, III, Maupin, Taylor, Ellis & Adams, Raleigh, NC, for plaintiffs.

Norma Smithwick Harrell, Raleigh, NC, Susan Kelly Nichols, N.C. Dept. of Justice, Alexander McClure Peters, Spec. Dep. Aty. Gen., N.C. Dept. of Justice, Tiare Bowe Smiley, State Attorney General's Office, NC Department of Justice, Raleigh, NC, for defendants.

ORDER OF REMAND

MALCOLM J. HOWARD, District Judge.

There are pending before this court several motions and cross motions in this action. The most pressing issue facing the court is raised by plaintiffs' motion to remand to the North Carolina Superior Court for lack of a substantial federal question. This jurisdictional issue has been fully briefed by the parties and is ripe for adjudication.

STATEMENT OF THE CASE

On November 13, 2001, plaintiffs filed this action in North Carolina Superior Court in Johnston County, North Carolina, challenging the redistricting plans proposed by the North Carolina General Assembly ("General Assembly") for the North Carolina Senate and House of Representatives.¹ Plaintiffs contend that these redistricting plans violate several North Carolina constitutional provisions. Plaintiffs proffer three distinct theories supporting their claims. First, plaintiffs rely on several constitutional provisions vesting political power in the people to argue that the redistricting plans unconstitutionally interfere with the sovereignty of the people. Second, plaintiffs allege that the redistricting plans unconstitutionally divide counties in the formation of districts for reasons other than compliance with federal law. Third, plaintiffs assert that the redistricting plans create unconstitutional population deviations between districts motivated by partisan gerrymandering rather than the neutral application of traditional redistricting criteria like respect for municipal and county borders, compactness, and contiguousness.

On November 19, 2001, the defendants filed a notice of removal, asserting two bases for federal jurisdiction: federal question jurisdiction pursuant to 28 U.S.C. § 1441 and "refusal clause" jurisdiction pursuant to 28 U.S.C. § 1443(2). Since that time, various other cross motions have been filed which are now pending, including a motion for a three-judge panel, a motion for attorney's fees, and requests for expedited consideration. These issues, of course, are all contingent on the presence of federal jurisdiction itself, for if no federal jurisdiction lies, the resolution of the remaining relevant motions is for the state court system. The parties have also filed various memoranda in support of their respective positions. In order to serve judicial efficiency, the court conducted a hearing on the narrow issue of the propriety of federal jurisdiction on December 18, 2001. Both parties were fully represented at the hearing and addressed the issues raised by the jurisdictional question.

COURT'S DISCUSSION

I. Introduction

Forty of North Carolina's 100 counties are subject to the preclearance requirements of § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Accordingly, any "standard, practice, or procedure with respect to voting different from that in force or effect [in those counties] on November 1, 1964" must be submitted to the Attorney General for approval. 42 U.S.C. § 1973c. In this regard, North Carolina is somewhat unique among the southern states, as only a portion of its counties are "covered" under the Voting Rights Act. It is this preclearance requirement under the Voting Rights Act, and its relation to the North Carolina constitutional provisions cited by plaintiffs, which is at issue in determining whether a federal question is present.

The General Assembly has recently completed redistricting. Conducted after every census, North Carolina's redistricting process leads to political machinations, as legislators seek to harmonize state constitutional principles with federal law. Inevitably, these processes wind their ways through the court system, with parties staking opposing territory in the fight over apportionment and its resulting political power. And so it is today. Plaintiffs have challenged the General Assembly's latest redistricting plans under the North Carolina constitution.

This case places two competing strands of law on a collision course. One strand, the North Carolina constitution, demands that any state redistricting plan comport with traditional districting principles, such as respect for municipal boundaries, equal constituent representation in a given district, and contiguity of districts. N.C. Const. art. II §§ 3, 5. The other, the Voting Rights Act of 1965 and the case law interpreting it, requires that any change in voting practices may not have the purpose or effect of limiting the power of certain constituent groups to elect a candidate of their choice. 42 U.S.C. § 1973.

The issue facing the court, however, is only jurisdictional. Plaintiffs, as masters of their complaint, seek remand back to state court, invoking an amalgam of legal theories, including the invigorated federalism of recent years, traditional notions of state control over redistricting, and specific provisions of the North Carolina constitution. Defendants counter that plaintiffs' complaint raises substantial federal questions under the Voting Rights Act, and that such questions make the assertion of federal jurisdiction proper. Defendants also assert that even in the absence of a substantial federal question, federal jurisdiction is appropriate pursuant to the "refusal clause," 28 U.S.C. § 1443(2), which permits defendants to remove to federal court any case arising from an act taken under color of authority derived from laws providing for equal rights.

The court acknowledges that the redistricting process is primarily the province of the states. Supreme Court pronouncements on the importance of state control over apportionment decisions are manifold. In Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), Justice Scalia, writing for a unanimous court, stated "the Constitution leaves with the States the primary responsibility for apportionment of their federal congressional and state legislative districts." See also Connor v. Finch, 431 U.S. 407, 414, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977) ("We have repeatedly emphasized that `legislative reapportionment is primarily a matter for legislative consideration and determination'".) (internal citation omitted); Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975) ("[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court."). Similarly, in Voinovich v. Quilter, 507 U.S. 146, 157, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993), Justice O'Connor, writing for a unanimous court, made clear that "[f]ederal courts are barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place." It is with this understanding that the court proceeds to the question of jurisdiction.

II. Removal Jurisdiction Pursuant to 28 U.S.C. § 1441

For removal to be proper under Title 28 U.S.C. § 1441(b), there must be present in the case a federal question within the meaning of 28 U.S.C. § 1331. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994). Therefore, defendants' request for removal is proper only if the case arises under the Constitution or laws of the United States. In determining this, it is not enough "that the dispute is in some way connected with a federal matter." Cox v. Int'l Union of Operating Engineers, 672 F.2d 421, 422 (5th Cir.1982). Rather, the complaint must raise a "substantial claim founded `directly' upon federal law." Id. (quoting Mishkin, "The Federal Question in the District Courts," 53 Colum.L.Rev. 157, 165 (1953)). In other words, federal jurisdiction is proper if plaintiff's demand "necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (emphasis added). Moreover, what is essentially a state law claim cannot be transformed into a federal one by the mere assertion, either anticipated by plaintiffs or raised by defendants, of a federal defense. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152-53, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

As the parties seeking removal, defendants bear the burden of establishing federal jurisdiction. Mulcahey, 29 F.3d at 151. In their notice of removal, defendants cite "the Voting Rights Act and the equal protection principles of the...