Wright v. North Carolina

• Decision Date: 27 May 2015
• Docket Number: No. 14–1329.,14–1329.
• Citation: 787 F.3d 256
• Parties: Calla WRIGHT; Willie J. Bethel ; Amy T. Lee ; Amygayle L. Womble; John G. Vandenbergh; Barbara Vandenbergh; Ajamu G. Dillahunt; Elaine E. Dillahunt; Lucinda H. MacKethan; William B. Clifford; Ann Long Campbell; Greg Flynn ; Beverley S. Clark; Concerned Citizens for African–American Children, d/b/a Coalition of Concerned Citizens for African–American Children; Raleigh Wake Citizens Association, Plaintiffs–Appellants, v. State of NORTH CAROLINA; Wake County Board of Elections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

787 F.3d 256

Calla WRIGHT; Willie J. Bethel ; Amy T. Lee ; Amygayle L. Womble; John G. Vandenbergh; Barbara Vandenbergh; Ajamu G. Dillahunt; Elaine E. Dillahunt; Lucinda H. MacKethan; William B. Clifford; Ann Long Campbell; Greg Flynn ; Beverley S. Clark; Concerned Citizens for African–American Children, d/b/a Coalition of Concerned Citizens for African–American Children; Raleigh Wake Citizens Association, Plaintiffs–Appellants

v.State of NORTH CAROLINA; Wake County Board of Elections, Defendants–Appellees.

No. 14–1329.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2014.

Decided: May 27, 2015.

ARGUED:Anita Sue Earls, Southern Coalition for Social Justice, Durham, North Carolina, for Appellants. Alexander McClure Peters, North Carolina Department of Justice, Raleigh, North Carolina; Scott Wood Warren, Wake County Attorney's Office, Raleigh, North Carolina, for Appellees.ON BRIEF:Roger A. Askew, Claire A. Hunter, Wake County Attorney's Office, Raleigh, North Carolina, for Appellee Wake County Board of Elections.

Before MOTZ, GREGORY, and WYNN, Circuit Judges.

Opinion

Affirmed in part, reversed in part, and remanded by published opinion. Judge WYNN wrote the majority opinion, in which Judge GREGORY joined. Judge MOTZ wrote a dissenting opinion.

WYNN, Circuit Judge:

“The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.” Bush v. Gore, 531 U.S. 98, 104–05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (citation omitted).

Thirteen citizens of Wake County, North Carolina challenge a state law redrawing the Wake County Board of Education electoral districts. Plaintiffs contend that under the new redistricting plan, some citizen's votes will get significantly more weight than other's in violation of the Fourteenth Amendment's guarantees of one person, one vote and the North Carolina Constitution's promise of equal protection. For the reasons explained below, we conclude that Plaintiffs have stated a claim upon which relief could be granted against the Wake County Board of Elections and that the district court therefore erred in dismissing their suit. However, we affirm the denial of the motion to amend because the state officials Plaintiffs proposed to add as named defendants are not amenable to suit.

I.

Accepting the facts in Plaintiffs' complaint as true, as we must on a motion to dismiss, Plaintiffs allege that until 2013, the Wake County Board of Education (“Board of Education”) was composed of members elected from nine single-member districts. The Board of Education's functioning and selection was governed by North Carolina General Assembly Session Law 1975–717, which required, among other things, that the Board of Education redistrict itself every ten years following the decennial census.

In 2010, the census showed that Wake County's population had grown by 43.51% over the preceding decade, with a maximum population deviation among the then-existing school board districts of 47.89%.¹ The Board of Education thus redrew its districts in 2011, resulting in geographically compact districts with a maximum population deviation of 1.66% and no district deviating from the ideal district population by even 1%. See Appendix 1 (from Plaintiffs' complaint at J.A. 19).

The plan was put into place by a Board of Education that was majority Republican. But under the new plan, the fall 2011 elections resulted in a Board of Education with a Democratic majority. Plaintiffs allege that because the new plan resulted in a Democratic majority, the Republican-controlled North Carolina General Assembly, in turn, “over the objection of a majority of the Wake County School Board, passed a local bill making numerous changes in the method of selection.” J.A. 11. “No Democratic member of the legislature voted for it, and no African–American member of the legislature voted for it.” J.A. 21.

The bill, Session Law 2013–110 (“Session Law”), made “numerous” changes to the Wake County Board of Education's methods of election. Central to Plaintiffs' complaint, the Session Law changed the Board of Education's make-up from nine single-member districts to seven single-member districts and set less geographically compact boundaries for this new set of districts.See Appendix 2 (from Plaintiffs' complaint at J.A. 23). The maximum population deviation among the single-member districts is 7.82%.

Further, the Session Law created two “super districts.” One super district forms a donut of “outer, rural areas of the county,” while the other forms a donut hole in the “inner, urban” area. J.A. 11. See Appendix 3 (from Plaintiffs' complaint at J.A. 25). The maximum population deviation between the super districts is 9.8%.

The Session Law also prohibits the Board of Education from “making any further changes in its method of election until 2021,” something it previously could do. J.A. 11. Wake County is thus burdened with some “substantially over-populated” districts, where votes will be diluted vis-à-vis other “substantially under-populated” districts. J.A. 26. Those districts are “visually and mathematically less compact” and “split 21 unique precincts in the county” (as opposed to the prior districts, which split only 11 precincts). J.A. 28.

Plaintiffs sued the State of North Carolina and the Wake County Board of Elections (“Board of Elections”), the entity charged with administering the Board of Education's elections. Plaintiffs complained that the Session Law “overpopulates, without justification, certain districts, causing the vote of Plaintiffs living in those overpopulated districts to be weighted less than votes of citizens in districts that are unjustifiably under-populated.” J.A. 11. Plaintiffs thus claimed that the Session Law violates the United States Constitution's one person, one vote guarantees and the North Carolina Constitution's equal protection clause.

Defendants answered and moved to dismiss. Plaintiffs, in turn, sought leave to amend their complaint, substituting Governor Patrick McCrory, Senate President Pro Tem Phillip Berger, and General Assembly Speaker Thom Tillis (“individual state officials”) in their official capacities for the State of North Carolina.

The district court granted Defendants' motions to dismiss and denied Plaintiffs' motion to amend as futile. Specifically, the district court held that it had no jurisdiction over the State, that Eleventh Amendment immunity also insulated the individual state officials from suit, and that Plaintiffs' one person, one vote claims were really “partisan gerrymandering” claims, which it considered non-justiciable under both the United States and North Carolina Constitutions. Plaintiffs timely appealed.

II.

We first consider Plaintiffs' argument that the district court erred in ruling that Proposed Defendants Tillis and Berger (“Proposed Defendants”) were not proper parties to their suit.² And we do so de novo. Franks v. Ross, 313 F.3d 184, 192–93 (4th Cir.2002) (noting that “the existence of sovereign immunity is a question of law that we review de novo” and that “we review de novo a ... legal determination [of] whether Ex parte Young relief is available”) (quotation marks and citations omitted).

Under the Eleventh Amendment, “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The United States Supreme Court has read the Eleventh Amendment to render States immune from being hauled into federal court by private parties. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).

While the Eleventh Amendment provides significant protections to States, the immunity it provides to state officials is less robust. Specifically, a state official “ceases to represent the state when it attempts to use state power in violation of the Constitution.” Sch. Bd. of City of Charlottesville, Va. v. Allen, 240 F.2d 59, 63 (4th Cir.1956). See also Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Such officials thus “may be enjoined from such unconstitutional action”—sued and stopped, in other words—but only if they have “some connection with the enforcement” of an unconstitutional act. Id. at 157, 28 S.Ct. 441 ; see also Fla. Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 685, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).

To be amenable to suit under the Eleventh Amendment, there must exist a “special relation” between the state official being sued and the challenged action. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441. See also, e.g., Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001) (“Ex parte Young requires a ‘special relation’ between the state officer sued and the challenged statute to avoid the Eleventh Amendment's bar.”). This requires “proximity to and responsibility for the challenged state action.” S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333 (4th Cir.2008) (emphasis in original). By contrast, “[g]eneral authority to enforce the laws of the state is an insufficient ground for abrogating Eleventh Amendment immunity.” Id. (quotation marks omitted).

For example, in McBurney v. Cuccinelli we held that Virginia's attorney general did not have a specific duty to enforce the state's freedom of information act and thus was not subject to suit under Ex parte Young. 616 F.3d 393, 400–02 (4th Cir.2010). We noted that Virginia had vested such authority in local prosecutors as opposed to the attorney general. Further, we likened the attorney general's duty to issue advisory opinions to the governor's duty to uphold state law—not sufficient to impose the required ...