Appendix — Hunt v. Republican Party

Supreme Court brief1993

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APPENDIX

TABLE OF CONTENTS

Opinion of Fourth Circuit Court of Appeals entered

November 24, 1992 (judgment issued on same

date), reported as Republican Party of North

| Carolina v. Martin, 980 F.27d943 ............ la

District Court Order entered June 6, 1991 (judgment

issued June 7, 1991), Republican Party of North

Carolina v. Martin, No. C-88-263-CIV-5....... 4la

District Court Order entered July 29, 1991

(judgment issued July 31, 1991), Republican

Party of North Carolina v. Martin,

Re Se. Ce ee 75a

Order and Dissent -- Petition for Rehearing

with Suggestion for Rehearing in Banc entered

April 27, 1993 in Fourth Circuit Court of

I tre athe ture G“ararrin tute eer et eoe eo ete 85a

Relevant Portions of the Constitution of North

nS rs fo ch Le Sere tone Ty tes 107a

OPINION OF THE FOURTH CIRCUIT COURT OF

APPEALS

REPUBLICAN PARTY OF NORTH CAROLINA; Bruce

Briggs; William R. Sigmon; Marvin K. Gray; R. Howard

Riddle; Lloyd Fowler; Joe R. Wilson; R. Walter White;

Edgar A. Readling, Jr.; Frederic M. Gallagher; Ralph A.

Walker,

Plaintiffs- Appellants,

Vv.

James G. MARTIN, Governor of North Carolina; North

Carolina State Board of Elections; Robert N. Hunter, Jr.,

Chairman of North Carolina State Board of Elections;

Thomas A. Farr; William A. Marsh, Jr.; Ruth Turner

Semashko; June K. Youngblood; The North Carolina

Association of Black Lawyers,

Defendants-Appellees,

and

Durham County Board of Elections; Forsyth County Board

of Elections; Guilford County Board of Elections,

Defendants.

No. 91-1741.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 1992.

Decided Nov. 24, 1992.

As Amended Jan. 5, 1993.

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

Before RUSSELL and WILKINS, Circuit Judges, and

WILLIAMS, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

OPINION

WILKINS, Circuit Judge:

The Republican Party of North Carolina (RPNC)'

appeals an order of the district court dismissing its suit

against the North Carolina State Board of Elections

(NCSBE)’ on the ground that RPNC’s complaint presents a

' Appellants include the Republican Party of North Carolina,

individual North Carolina voters registered as Republicans, individual

North Carolina voters registered as Democrats but who regularly vote for

Republican candidates for superior court judgeships, former candidates

for the office of Superior Court Judge in North Carolina, one current

Superior Court Judge, and one former Superior Court Judge. For ease

of reference, we refer to Appellants collectively as "RPNC."

? Appellees joining the motion made by the North Carolina State

Board of Elections include the Chairman of the North Carolina State

Board of Elections, Robert N. Hunter, Jr., and various other individuals

sued as officials responsible for conducting elections in the state. The

North Carolina Association of Black Lawyers, a statewide organization

of black lawyers and law students, successfully moved to intervene as a

party defendant, see Republican Party of N.C. v. Martin, 865 F.2d 1259

(4th Cir. 1988) (per curiam), and joins the motion as well. Defendant

James G. Martin, Governor of North Carolina, did not move or join in

the motion to dismiss. However, the district court dismissed the

complaint against all defendants due to the absence of a justiciable

question. See Fed. R. Civ. P. 12(h)(3). We refer collectively to

Appellees as "NCSBE."

(continued...)

ide nk pi

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

nonjusticiable political question. In its complaint brought

under 42 U.S.C-A. §§ 1981, 1983 (West 1981 & Supp.

1992), RPNC alleges that the method of electing superior

court judges’ in North Carolina constitutes a political

gerrymander intended to deprive members of the Republican

Party and others aligned with this political party of rights

guaranteed by the First Amendment, U.S. Const. amend. I,

and the Equal Protection Clause of the Fourteenth Amend-

ment, id. at amend. XIV, § 1. We agree with RPNC that a

justiciable question is presented. We further conclude that

the complaint states a claim under the Fourteenth Amend-

ment that, if proven, is one upon which relief may be

granted. We find, however, that RPNC has failed to state a

claim under the First Amendment. Consequently, we reverse

in part, affirm in part, and remand for further proceedings

consistent with this opinion.

2(.. continued)

The original defendants also included several county boards of

elections. These defendants successfully moved to dismiss early in the

litigation. Republican Party of N.C. v. Martin, 682 F. Supp. 834

(M.D.N.C.1988) (also granting motion of remaining defendants for

change of venue from the Middle District to the Eastern District of North

Carolina).

> Superior court judges in North Carolina are trial court judges of

general jurisdiction.

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

Prior to 1868, the General Assembly of North

Carolina appointed all state judges. John L. Sanders, A

Brief History of the Constitutions of North Carolina, in The

Constitution of the State of North Carolina: Its History and

Content 1, 1-2 (issued by Thad Eure, Secretary of State of

North Carolina, 1983). Since 1868, the Constitution of

North Carolina has allowed the General Assembly to choose

between statewide or districtwide popular elections as_ the

method for selecting superior court judges.‘ See N.C.

Const. art. IV, § 16 (also noting that current provisions of

this section are similar to those of the 1868 constitution as

rewritten in 1962). In 1877, the General Assembly imple-

mented the present scheme of statewide elections,’ see

generally N.C. Gen. Stat. § 163-1 (Michie 1991) (detailing

current timing of primaries and elections), and in 1915, the

legislature enacted Chapter 101, a law that includes a

requirement that candidates for the office of superior court

judge be nominated through party primaries, see generally

id. § 163-104 (Michie 1991) (current provision addressing

primary elections). Although Chapter 101 does not specify

* The General Assembly must "divide the State into a convenient

number of Superior Court judicial districts." N.C. Const. art. IV, §

9(1). The constitution further directs the legislature to organize the

counties of the state into judicial divisions to encompass multiple judicial

districts. Jd. §§ 9, 11.

* RPNC maintains that North Carolina is the only state in which trial

judges of general jurisdiction are elected by a statewide, general election.

at ABN NO Se al Pete St ea 0 a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

that the local primaries be held within each district, the

North Carolina State Board of Elections implemented and

presently maintains a system of local districtwide primaries.°

Consequently, voters nominate candidates for superior court

judgeships in local party primaries held in each district, and

thereafter, the successful primary candidates from each

district run against each other in a general, statewide

election. Thus, for example, in a given district, the voters

select one candidate in the Democratic primary and another

in the Republican primary. These candidates then run

against each other to fill that superior court judgeship in a

general, statewide election in which all of the voters of the

State participate.

While superior court judges must "reside in the

district for which [they are] elected," N.C. Const. art. IV,

§ 9(1), the constitution grants the judges statewide jurisdic-

tion, id. § 12(3), and permits rotation from district to district

within a judicial division,’ id. § 11. Presently, the state is

divided into four judicial divisions. See N.C. Gen. Stat. §

7A-41 (Michie Supp. 1991). According to RPNC’s com-

plaint, superior court judges do not actually serve throughout

the state because assignment outside of a division rarely

occurs, and a superior court judge exercises unique statutory

powers within his or her own district. For example, the

* Neither party points to statutory authority for this practice and our

research has uncovered no statute directing it.

7 Amendments to the constitution in 1868 resulted in the rotation

requirement. See N.C. Const. art. IV, § 11 (noting that provisions of §

11 are similar to those of art. IV, § 9 of the constitution of 1868 as

rewritten in 1962).

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

judge in each district appoints the local public defender, id.

§ 7A-466(d) (Michie Supp. 1991), and fills vacancies for the

position of clerk of superior court, id. § 7A-100(a) (Michie

1991).

In the mid-1980’s, the North Carolina Association of

Black Lawyers and others brought suit against Governor

Martin alleging that features of the system of electing

superior court judges had the purpose and effect of abridging

nonwhite voting strength in violation of the Voting Rights

Act, 42 U.S.C.A. §§ 1971-74e (West 1981 & Supp. 1992),

and the Fourteenth Amendment of the United States Consti-

tution. This litigation ended by a consent decree upon

adoption by the General Assembly of Chapter 509 of the

North Carolina Session Laws of 1987, 1987 N.C. Sess. Laws

509 (codified at scattered sections in N.C. Gen. Stat. §§

TA-1, et seqg., 163-1, et seq. (Michie 1991 & Supp. 1991))

(Chapter 509). See Alexander v. Martin, No. 86-1048-CIV-5

(E.D.N.C. Nov. 25, 1987).

Chapter 509 eliminated staggered terms within

multimember judicial districts and mandated redrawing of

district lines.* See State ex rel. Martin v. Preston, 325 N.C.

* Subsequent to passage of Chapter 509, Governor Martin filed suit

in his individual and official capacity against the State Board of Elections

and numerous superior court judges claiming that the statute violated the

Constitution of North Carolina because it infringed upon the right of

voters to elect judges and the right of candidates to seek judicial office.

See Preston, 385 S.E.2d at 481-82. Governor Martin further maintained

that the legislation usurped his executive authority to appoint judges and

that the precandidacy residency requirement unconstitutionally denied

(continued...)

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

438, 385 S.E.2d 473, 476-77 (1989); N.C. Gen. Stat. §

7A-41 (setting forth superior court divisions and districts).

As a result, the number of judicial districts increased from

34 to approximately 70.° See Preston, 385 S.E.2d at 476;

N.C. Gen. Stat. § 7A-41 (establishing new district lines).

Unlike past configurations, the new district lines often split

counties and some districts now consist of parts of more than

one county. See Preston, 385 S.E.2d at 476; N.C. Gen.

Stat. § 7A-41 (explaining new district boundaries). RPNC

alleges that 16 districts do not have a courthouse, a clerk of

court, or any other official associated with the judicial

district except for the local superior court judge. In addition,

Chapter 509 set forth the requirement that all individuals

seeking nomination for the position of superior court judge

must, at the time of filing a notice of candidacy, reside

within the district for which they seek election as it will exist

at the time the individual would take office. See Preston,

*(.. continued)

otherwise qualified candidates the right to seek office. See id. at 482,

486. He did not challenge the practice of districtwide nomination

followed by statewide election. The Supreme Court of North Carolina

rejected Governor Martin’s contentions and held that Chapter 509

comported with the state’s constitution. See id. at 486. The court also

noted that the legislature implemented the statute in order to bring the

state into compliance with the Voting Rights Act and to improve the

administration of justice. See id. at 479.

® RPNC contends that Chapter 509 resulted in an increase of the

number of judicial districts to 70; NCSBE maintains that it increased the

number to 73. This difference has no bearing on the holdings we reach,

and for simplicity, we consider the state to include 70 judicial districts.

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

385 S.E.2d at 477; N.C. Gen. Stat. § 163-106(i) (Michie

1991) (setting forth residency requirement).

According to the allegations of RPNC’s complaint, in

passing Chapter 509, the General Assembly rejected amend-

ments to eliminate the practice of nomination by primary

within each district followed by a statewide general election

in favor of a system by which both the primary and general

elections would be held within each district. RPNC contends

that this defeat marked at least the eighth attempt since 1961

to change the election method.

RPNC maintains that since 1900, in the hundreds of

elections for superior court judgeships held in the state, only

one Republican has been elected to a superior court judge-

ship.'° (This position was eliminated several years later

during redistricting.) RPNC further asserts that since 1968,

four of the ten Republican candidates for superior court

judgeships would have been successful if the general election

had been conducted on a districtwide, rather than on a

statewide, basis.

RPNC further claims that in the 1984 statewide

general election, Republican candidates for superior court

judgeships received approximately 46 percent of the overall

vote, and Democratic candidates received approximately- 54

percent of the overall vote. RPNC’s complaint avers that:

'0 In its complaint, RPNC alleged that no Republicans had been

elected to a superior court judgeship since 1900. However, the parties

agree that since the filing of the complaint in 1987, one Republican has

been elected to the office.

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

In the 24th Judicial District however, 54% of

the voters who voted for Superior Court

judges voted for the Republican candidate for

Superior Court judge for that district and 46%

voted for the Democratic candidate. Similar-

ly, in what were then the 15A, 17B, 18, 19A,

19B, 21, 22, 23, 24, 25, 26, 27A, 28 and 29

Judicial Districts, a majority of voters who

voted for Superior Court judge voted for the

Republican candidates. No Republican resi-

dent Superior Court judges were elected

because of the structural dilution of Republi-

can votes by the voting customs, practices,

and procedures complained of herein.

In addition, RPNC maintains that in the 1986 election, a

similar disparity between the statewide election results and

projected district-wide election results occurred in ten judicial

districts."

'' RPNC alleges that statewide voting statistics demonstrate that in

the 1986 general election, approximately 43 percent of the electorate that

voted for superior court judges voted for Republican candidates and 57

percent voted for Democratic candidates. In the Twenty-Sixth Judicial

District, however, 52 percent of the district voters who voted for superior

court judges voted for the Republican candidates, while 48 percent voted

for the Democratic candidates. According to RPNC, a majority of voters

in nine other districts voted for the Republican candidates for superior

court judgeships. RPNC maintains that had a Republican candidate

offered to run in these districts, and had the election been determined on

a district-wide basis, Republican candidates would have prevailed in these

districts. Party affiliation for 1986 remained constant from 1984: 27

percent of the voters were registered as Republicans, 69 percent as

Democrats, and 4 percent were unaffiliated.

10a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

RPNC challenges the custom or practice in North

Carolina of selecting superior court judges by statewide

popular election following local district-wide nomination.

According to RPNC, this method of nomination and election

contravenes the Fourteenth Amendment by diluting the votes

of those who vote for Republican candidates and violates the

First Amendment by restricting the rights of Republican

voters to free speech and political association. The com-

plaint also contests the validity of the requirement set forth

in Chapter 509 that all individuals seeking nomination for the

position of superior court judge must, at the time of filing a

notice of candidacy, reside within the district for which they

seek election. RPNC claims that this provision has the

purpose and effect of degrading the influence of Republican

voters in violation of the Fourteenth Amendment. RPNC

seeks a declaration that the system used to elect superior

court judges in North Carolina violates the First and Four-

teenth Amendments, an injunction that prohibits NCSBE

from conducting elections under the existing scheme, and an

order that directs NCSBE to conduct the primary and general

elections for superior court judges on a districtwide basis.

NCSBE moved to dismiss the complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).””

The district court granted the motion, holding that RPNC’s

'2 In addition, NCSBE maintained that the doctrine of legislative

immunity barred the suit. The district court did not consider this defense,

and NCSBE did not raise it in this appeal. Consequently, the applicabili-

ty of this doctrine is not before us.

ieee

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

complaint raised a nonjusticiable political question.’

RPNC appeals from this adverse ruling.

Justiciability concerns "the power of the federal courts

to entertain disputes, and . . . the wisdom of their doing

so." Renne v. Geary, --- U.S. ----, ----, 111 S. Ct. 2331,

2336, 115 L. Ed. 2d 288 (1991). Accordingly, we begin our

analysis by addressing whether RPNC presents a nonjustici-

able political question in complaining that a political gerry-

mander of the method for electing superior court judges in

North Carolina contravenes the First and Fourteenth Amend-

ments.'* In concluding that claims of vote debasement in

the legislative districting context are justiciable, the Supreme

Court set forth the framework for analysis of the political

question doctrine in Baker v. Carr, 369 U.S. 186, 82 S. Ct.

691, 7 L. Ed. 2d 663 (1962), articulating six factors that

may appear in a case raising a political question:

Prominent on the surface of any case held to

involve a political question is found a {1]

textually demonstrable constitutional commit-

'S Although the district court purported to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6), the court apparently

relied primarily on the lack of a justiciable question to reach its holding.

Consequently, we view Rules 12(b)(1) and 12(h) as additional authority

on which the district court relied for its dismissal.

'* We review de novo the decision of the district court to grant a

dismissal for lack of a justiciable question. See Ward v. City of Portland,

857 F.2d 1373, 1374 (9th Cir. 1988).

12a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

ment of the issue to a coordinate political

department; [2] or a lack of judicially discov-

erable and manageable standards for resolving

it; [3] or the impossibility of deciding without

an initial policy determination of a kind clear-

ly for nonjudicial discretion; [4] or the im-

possibility of a court’s undertaking indepen-

dent resolution without expressing lack of the

respect due coordinate branches of govern-

ment; [5] or an unusual need for unquestion-

ing adherence to a political decision already

made; [6] or the potentiality of embarrassment

from multifarious pronouncements by various

departments on one question.

Id. at 217, 82 S. Ct. at 710. Discovery that any one of these

factors is inextricable from a controversy denotes the

presence of a political question and renders it nonjusticiable.

Id.

In Davis v. Bandemer, 478 U.S. 109, 106 S. Ct.

2797, 92 L. Ed. 2d 85 (1986), the Supreme Court examined

a claim that a state legislative apportionment scheme diluted

the votes of Democrats in violation of the Equal Protection

Clause of the Fourteenth Amendment. Confronted with the

question of the power of the courts to entertain a claim of

political gerrymandering, the Court relied on decisions in

which it adjudicated claims of racial gerrymandering to

conclude that a complaint of vote dilution "by a political

group, rather than a racial group, does not distinguish it in

terms of justiciability." Jd. at 125, 106 S. Ct. at 2806.

13a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

Thus, the Court held that claims of political gerrymandering

are justiciable.'’° Jd. at 143, 106 S. Ct. at 2816.

Like Bandemer, this controversy questions whether an

electoral scheme implemented by a state legislature violates,

'S We are cognizant of the heated debate surrounding the wisdom and

reasoning of the Bandemer decision. See generally Bandemer, 478 U.S.

at 144-61, 106 S. Ct. at 2816-25 (O’Connor, J., concurring in judgment)

(arguing that practical concerns should render partisan gerrymandering

claims nonjusticiable); Political Gerrymandering and the Courts (Bernard

Grofman ed., 1990) [hereinafter Political Gerrymandering] (collecting

articles expressing diverse views on Bandemer); Dean Alfange, Jr.,

Gerrymandering and the Constitution: Into the Thorns of the Thicket At

Last, 7 Sup. Ct. Rev. 175, 192 (1986) (Bandemer explicitly accepts the

implicit holding of Baker that claims of political gerrymandering are

justiciable.); Charles Backstrom et al., Partisan Gerrymandering in the

Post-Bandemer Era, 4 Const. Commentary 285, 291 (1987) (arguing that

Bandemer "establishes an important constitutional right"); Peter H.

Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial

Regulation of Politics, 87 Colum. L. Rev. 1325, 1330 (1987) (insisting

that "[jJudicial regulation of partisan gerrymandering would be a cure

worse than the disease"); Edward Still, The Hunting of the Gerrymander,

38 UCLA L. Rev. 1019, 1020 (1991) (reviewing Political Gerrymander-

ing and arguing that Bandemer has “confounded legislators, practitioners,

and academics alike" and that while "[s]ome find the case internally

incoherent; others find a method to the madness"). Nonetheless, we

remain bound by the decision and apply it here. We are also aware of

the argument advanced by NCSBE at oral argument that had Bandemer

come before the Supreme Court in its present composition, a contrary

decision may have resulted. Perhaps, but nevertheless we are constrained

to apply the edicts of the Court that we understand now exist. See United

States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L. Ed. 49

(1801). The issue of justiciability of claims of political gerrymandering

has been decided, and the Court has recognized that equal protection

claims properly may be advanced by poiitical groups.

l4a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

by diluting votes, the right of a political party to equal

protection. Consequently, Bandemer controls, in large part,

our application of Baker. As in Bandemer, the issue present-

ed by RPNC is the consistency of state action with the

federal constitution, and thus involves no question decided,

or to be decided by a branch of government coequal with the

federal courts. See id. at 123, 106 S. Ct. at 2805-06. This

controversy does not present an issue that if addressed by the

courts, would cause a foreign or domestic disturbance, would

express a lack of respect due to a coordinate branch of

government, or would present the potential for embarrass-

ment from multifarious pronouncements by various depart-

ments. See id. at 122-23, 106 S. Ct. at 2805-06. Further,

the issues presented do not raise an unusual need for unques-

tioning adherence to a political decision already made. See

id.

NCSBE argues that this case is distinguishable from

Bandemer and constitutes a nonjusticiable political question

because judicially discoverable and manageable standards do

not exist to resolve an alleged equal protection violation in

the method of electing judges, as opposed to electing

legislators. NCSBE correctly points out that in determining

that judicially manageable standards existed for resolution of

the equal protection issues raised in Bandemer, the Court

relied on its previous decisions addressing claims of vote

dilution and violations of the one-person, one-vote rule

brought by racial groups. See id. at 123-25, 106 S. Ct. at

2805-06; see also White v. Regester, 412 U.S. 755, 93 S.

Ct. 2332, 37 L. Ed. 2d 314 (1973). The Court concluded

that because those decisions and Bandemer involved similar

questions of fair representation, judicially discoverable and

lSa

CGPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED . . .

manageable standards existed for resolution of these issues.

See Bandemer, 478 U.S. at 124, 106 S. Ct. at 2806. From

these conclusions in Bandemer, NCSBE reasons that because

Superior court judges are not representative governmental

officials, the issues presented here do not raise questions of

fair representation on the part of the elected officials, and

thus that the allegations brought by RPNC necessarily

involve a nonjusticiable political question. We disagree.

RPNC alleges a claim of vote dilution under the

Fourteenth Amendment much like that presented in

Bandemer. Baker directs us to determine the existence of

judicially discoverable and manageable standards, Baker, 369

U.S. at 217, 82S. Ct. at 710, and, as Bandemer emphasiz-

es, "‘[jJudicial standards under the Equal Protection Clause

are well developed and familiar,’"" Bandemer, 478 U.S. at

122, 106 S. Ct. at 2805 (quoting Baker, 369 U.S. at 226, 82

S. Ct. at 714-15). The standards for adjudicating constitu-

tional challenges to election schemes for legislators apply

equally to challenges to election schemes for superior court

judges. Both claims require a court to determine whether a

state has unconstitutionally diluted voting strength by

implementing and maintaining a defective election scheme.

Cf. id. at 123-25, 106 S. Ct. at 2805-06; Bernard Grofman,

Toward a Coherent Theory of Gerrymandering: Bandemer

and Thornburg [hereinafter Toward a Coherent Theory], in

Political Gerrymandering 29, 53-56 (Bernard Grofman ed.,

1990) (predicting that the Court will merge racial and

political gerrymandering to allow type of proof used in the

former to be used in the latter). Consequently, we conclude

that the standards governing other types of vote dilution

claims provide judicially discernable and manageable

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OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

standards for resolution of this case. We decline to hold that

standards are discoverable only when the election of legisla-

tors is involved.

NCSBE further argues that by adjudicating RPNC’s

claims, we shall be called upon to make an initial policy

determination of a kind clearly for nonjudicial discretion

because elected superior court judges are not representative

governmental officials. NCSBE, however, fails to identify

why the distinction between legislators and popularly-elected

judges requires an initial policy determination that lies

beyond our competence, nor do we perceive a reason why

the distinction requires such a determination. We consider

differences between the type of elected officials as pertinent

to an adjudication of the merits of the claim, rather than to

the justiciability of the case. Cf Bandemer, 478 U.S. at

125, 106 S. Ct. at 2806 (characteristics of complaining group

are relevant to merits of case, not to justiciability); United

States Dep’t of Commerce v. Montana, --- U.S. ----, ----, 112

S. Ct. 1415, 1425, 118 L. Ed. 2d 87 (1992) (noting that

justiciability focuses on the power of the court to entertain an

issue, not on the merits of the case). We conclude, there-

fore, that RPNC’s claims are justiciable.

Because we may affirm a judgment for any reason

appearing on the record, see McMahan v. International Ass’n

of Bridge, Structural & Ornamental Iron Workers, Local

601, 964 F.2d 1462, 1467 (4th Cir.1992), we next consider

whether RPNC’s complaint states a claim upon which relief

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OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

may be granted, see Fed. R. Civ. P. 12(b)(6).'® A motion

to dismiss under Rule 12(b)(6) tests the sufficiency of a

complaint; importantly, it does not resolve contests surround-

ing the facts, the merits of a claim, or the applicability of

defenses. See SA Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1356 (1990). Our inquiry

then is limited to whether the allegations constitute "‘a short

and plain statement of the claim showing that the pleader is

entitled to relief.’" Bolding v. Holshouser, 575 F.2d 461,

464 (4th Cir.) (quoting Fed. R. Civ. P. 8(a)(2)), cert.

denied, 439 U.S. 837, 99 S. Ct. 121, 58 L. Ed. 2d 133

(1978). "[A] complaint should not be dismissed for failure

to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355

U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

We must assume that the allegations of the complaint are true

and construe them in the light most favorable to the plaintiff.

See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct.

1843, 1848, 23 L. Ed. 2d 404 (1969). Finally, to state a

claim of vote dilution brought about by political gerryman-

dering under these standards, the Supreme Court requires an

elevated threshold showing of an actual discriminatory effect.

See Bandemer, 478 U.S. at 134 & n. 14, 106S. Ct. at 2811

& n. 14.

'© We review a dismissal under Rule 12(b)(6) de novo. Revene v.

Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989).

18a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

IV.

In a broad sense, "[t]he Equal Protection Clause

requires every State to govern impartially." Karcher v.

Daggett, 462 U.S. 725, 748, 103 S. Ct. 2653, 2668, 77 L.

Ed. 2d 133 (1983) (Stevens, J., concurring). The Clause

"does not take from the States all power of classification."

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 271, 99

S. Ct. 2282, 2292, 60 L. Ed. 2d 870 (1979). Instead, "[iJt

simply keeps governmental decisionmakers from treating

differently persons who are in all relevant respects alike."

Nordlinger v. Hahn, --- U.S. ----, ----, 112 S. Ct. 2326,

2331, 120 L. Ed. 2d 1 (1992). Consequently, to comport

with the Equal Protection Clause, classifications must relate

to a proper governmental purpose and may not rest upon

impermissible criteria. Cf. id. (noting that different treat-

ment of newer and older Homeowners under state acquisi-

tion-value assessment scheme for property taxes does not

' qualify for heightened review and must only rationally relate

to a legitimate state interest); Feeney, 442 U.S. at 272, 99 S.

Ct. at 2292 (noting that classifications based on race are

presumptively invalid). In the context of voting rights, the

Clause guarantees the electorate equality of participation in

the political process by prohibiting barriers to exercise of the

franchise and restrictions on access to the ballot and by

ensuring the equality of votes through the forbiddance of vote

dilution and unequal weighing of votes. See J. Harvie

Wilkinson Il, The Supreme Court, the Equal Protection

Clause, and the Three Faces of Constitutional Equality, 61

Va. L. Rev. 945, 958-59 (1975).

19a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

NCSBE contends that because the goal of equal

protection in the context of voting rights is fair and effective

representation for all citizens, see Reynolds v. Sims, 377

U.S. 533, 565-66, 84 S. Ct. 1362, 1383-84, 12 L. Ed. 2d

506 (1964), the protection afforded by the Equal Protection

Clause does not encompass claims of constitutional infirmi-

ties surrounding the election of judges since they are not

representative governmental officials. NCSBE argues that

judges do not act in a politically responsive manner or make

decisions in accordance with the views of a constituency.

Consequently, this argument concludes, judges cannot be

considered representative governmental officials for purposes

of an equal protection claim. This interpretation of the

Clause, however, misconstrues the interplay between the

fundamental protection of the Clause that prohibits classifica-

tions not related to a suitable governmental purpose, the

goal the state seeks to advance, and the justifications offered

by a state for its election scheme. To allege a prima facie

equal protection violation, it is enough that a plaintiff

complains of governmental treatment dissimilar to that

received by others similarly situated. Cf. Bandemer, 478

U.S. at 127-34, 106 S. Ct. at 2807-11 (A prima facie case of

political gerrymandering requires allegations of intentional

discrimination, disproportionate results, and exclusion from

the political process as a whole.). In order to rebut a prima

facie case, a state must demonstrate adequate justifications

that relate to the goal of the classification. Cf. Reynolds, 377

U.S. at 565, 84 S. Ct. at 1383 (noting that criteria for

differentiation in weighing of votes are insufficient to justify

discrimination "unless relevant to the permissible purposes of

legislative apportionment"). As a result, questions pertaining

to the goals and justifications offered by NCSBE for its

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OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

scheme of electing superior court judges are not presently

before us because they are not relevant to whether RPNC has

stated a claim upon which relief may be granted.

Even if we agreed with NCSBE that the position

occupied by an elected official bears on the protection

afforded by the Equal Protection Clause, we nevertheless

would be compelled to conclude that the election of superior

court judges in North Carolina implicates the goal of equal

protection and issues of fair and effective representation. In

Chisom v. Roemer, --- U.S. ----, ----, 111 S. Ct. 2354,

2367, 115 L. Ed. 2d 348 (1991),'’ the Supreme Court

responded to the argument that elected judges are immune

'7 In Chisom, the Supreme Court held that the term "representatives"

describes the winners of representative, popular elections and that state

supreme court judges are representatives for purposes of a claim of vote

dilution under § 2 of the Voting Rights Act, 42 U.S.C.A. § 1973 (West

Supp. 1992). Chisom, 111 S. Ct. at 2368; see also Houston Lawyers’

Ass'n v. Attorney Gen. of Texas, --- U.S. ----, 111 S. Ct. 2376, 115 L.

Ed. 2d 379 (1991) (Section 2 is applicable to vote dilution claims

regarding election of trial judges.); of Haith v. Martin, 618 F. Supp. 410

(E.D.N.C. 1985) (Preclearance requirements of § 5 of the Act apply to

elections of judges.), aff'd mem., 477 U.S. 901, 106 S. Ct. 3268, 91 L.

Ed. 2d 559 (1986). The Act forbids imposition of a voting qualification

on account of race or color that results in denial or abridgement of the

right to vote. Chisom, --- U.S. at ----, 111 S. Ct. at 2362. We

recognize that the issue presented in Chisom was one of statutory

interpretation; yet, in addition to reliance on its interpretation of the Act,

the Court engaged in a common-sense analysis of how elected judges fit

into the scheme of electoral politics. See id. at ----, 111 S. Ct. at

2366-67; see also Victor J. Franckiewicz, Jr., Case Note, 38 Loy. L.

Rev. 211, 222 (1992). Thus, we conclude that the analysis in Chisom

applies to claims pursued under the Equal Protection Clause.

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OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

from public opinion because they are frequently called upon

to ignore or defy popular sentiment, explaining that the state

"decided to elect its judges and to compel judicial candidates

to vie for popular support just as other political candidates

do," and thus opted to remove judges from the shelter

provided by appointment. The Court concluded:

If executive officers, such as prosecutors,

sheriffs, state attorneys general, and state

treasurers, can be considered "representatives"

simply because they are chosen by popular

election, then the same reasoning should apply

to elected judges ....

The fundamental tension between the ideal

character of the judicial office and the real

world of electoral politics cannot be resolved

by crediting judges with total indifference to

the popular will while simultaneously requir-

ing them to run for elected office... . [I]t

seems both reasonable and realistic to charac-

terize the winners as representatives .. . .

Id. at ---- U.S. ----, 111 S. Ct. at 2366-67 (footnotes

omitted). Even if judges are not representatives in the sense

that they represent the interests of their constituents, the

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OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

electorate undoubtedly considers the broad philosophical

views of candidates when voting."

NCSBE maintains that Wells v. Edwards, 347 F.

Supp. 453 (M.D. La. 1972), aff'd mem., 409 U.S. 1095, 93

S. Ct. 904, 34 L. Ed. 2d 679 (1973), requires a contrary

result. In Wells, the district court rejected a claim based on

the one-person, one-vote doctrine applied to the election of

Louisiana Supreme Court justices, reasoning that "‘[j]udges

do not represent people, they serve people.’"'® Jd. at 455

'8 Beyond this, there also lies the very real possibility that party

affiliation may reflect judicial philosophy and ultimately the outcome of

judicial decisions. See, e.g., Stuart S. Nagel, Political Party Affiliation

and Judges’ Decisions, 55 Am. Pol. Sci. Rev. 843, 847-49 (1961)

(suggesting that study results show that "in some cases, judges rely on

their personal standards of value in reaching a decision,” that "these same

personal standards also frequently account for their party affiliation,” and

that appointed judges may be more likely to vote contrary to their party

pattern); Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105,

1128 (1977) (opining that elections render state judges “vulnerable to

majoritarian pressure when deciding constitutional cases") (footnote

omitted); Andrew S. Marovitz, Note, Casting a Meaningful Ballot:

Applying One-Person, One-Vote to Judicial Elections Involving Racial

Discrimination, 98 Yale L.J. 1193, 1206-07 (1989) (arguing that "the

amount of pressure felt by a state court judge in rendering a decision will

be influenced directly by the method of judicial election utilized" and

that "[jJudges elected by partisan election are most susceptible to direct

pressure") (footnotes omitted).

'9 We are well aware of the numerous decisions like Wells, holding

that a judicial office is not a representative one in the context of voting

rights challenges. See, e.g., Holshouser v. Scott, 335 F. Supp. 928, 932

(M.D.N.C. 1971) (holding that one-person, one-vote "rule does not apply

(continued...)

23a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

(quoting Buchanan v. Rhodes, 249 F. Supp. 860, 865 (N.D.

Ohio 1960), appeal dismissed, 385 U.S. 3, 87 S. Ct. 33, 17

L. Ed. 2d 3 (1966)). Vote dilution and one-person, one-vote

claims are distinct, and therefore Wells does not mandate a

dismissal of a claim based on vote dilution.2° See Voter

Info. Project, Inc. v. City of Baton Rouge, 612 F.2d 208,

210-12 (Sth Cir.1980) (recognizing distinction between

claims grounded in one-person, one-vote and vote dilution in

'9(...continued)

to the state judiciary"), aff'd mem., 409 U.S. 807, 93 S. Ct. 43, 34 L.

Ed. 2d 68 (1972); League of United Latin Am. Citizens Council No. 4434

v. Clements, 914 F.2d 620, 626 n. 9 (Sth Cir. 1990) (citing cases

rejecting challenges to judicial elections on various grounds), rev'd sub

nom. Houston Lawyers’ Ass'n v. Attorney Gen. of Texas, --- U.S. ----,

111 S. Ct. 2376, 115 L. Ed. 2d 379 (1991); Edward A. Sheridan, Note,

The Equal-Population Principle: Does It Apply to Elected Judges?, 47

Notre Dame Law. 316, 320-326 (1971) (discussing cases rejecting

application of vote debasement principles to judicial elections); Marovitz,

supra note 18, at 1199 & n. 56 (same).

® The Supreme Court summarily affirmed the opinion of the district

court in Wells, and we are, of course, bound by it. The precedential

effect of Wells, however, “extends no further than the precise issues

presented and necessarily decided by those actions." Anderson v.

Celebrezze, 460 U.S. 780, 784 n.5 (1983) (citing Mandel v. Bradley, 432

U.S. 173, 176 (1977)). Further, the Court may "‘find it appropriate to

give full consideration to a question that has been the subject of previous

summary action.’" Bandemer, 478 U.S. at 121 (quoting Washington v.

Yakima Indian Nation, 439 U.S. 463, 477 n.20 (1979)). We believe that

the questions of whether superior court judges are governmental

representatives, and whether differences among elected officials bear on

establishing a prima facie case of discrimination, relate to the justification

offered by NCSBE for the classification rather than to whether RPNC has

presented a prima facie case of discrimination.

24a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

Rule 12(b)(6) challenge to an at-large method of electing

state and city judges).”’

Having rejected NCSBE’s contention that the Equal

Protection Clause is not implicated, we now address whether

RPNC’s complaint sets forth a prima facie case of vote

dilution brought about by political gerrymandering.” In

2! The treatment of Wells by the Supreme Court in Chisom does not

compel a different result. See Chisom, --- U.S. at ----, 111 S. Ct. at

2367-68. There, the state maintained that without reliance on the

one-person, one-vote principle, courts could not arrive at a manageable

standard to adjudicate vote dilution challenges to judicial elections.

Because Wells foreclosed such reliance, the state’s argument continued,

judicial elections should be invulnerable to claims of vote dilution. See

id.

The Court rejected this argument, emphasizing that Chisom did

not present the question of the appropriate standard to be applied in

litigation under § 2 and that, in any event, the "analysis of a proper

statutory standard . . . need not rely on the one-person, one-vote

constitutional rule.” Jd. at --- n. 32, 111 S. Ct. at 2368 n. 32. Thus,

because the Court discussed Wells in the context of the standard to be

applied to cases questioning the application of the one-person, one-vote

rule to the election of judges, we think it is clear that the Court made no

statement that Wells forecloses claims of vote dilution in regard to the

election of judges.

Although a majority of the Bandemer Court agreed that political

gerrymandering claims are justiciable, the Court did not reach a

consensus on the issue of what a” iintiff must allege, and ultimately

prove, in order to prevail on a claim of vote dilution in the context of

(continued...)

25a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

order to state such a claim, a plaintiff must allege "intention-

al discrimination against an identifiable political group and an

actual discriminatory effect on that group." Bandemer, 478

U.S. at 127, 106 S. Ct. at 2808. The effect portion of the

test "requires a showing of more than a de minimis effect."

Id. at 134, 106 S. Ct. at 2811. Consequently, a plaintiff

must complain that an actual or projected history of dispro-

portionate results exists, id. at 139, 106 S. Ct. at 2813-14,

and that "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. The intent: standard set forth in the

Bandemer plurality opinion is easily met, and we conclude

that RPNC’s complaint offers sufficient allegations of intent

to withstand dismissal under Rule 12(b)(6). See id. at

127-29 & n. 11, 106 S. Ct. at 2807-09 & n. 11; Backstrom

et al., supra note 15, at 298 (observing that the Bandemer

“plurality lowered the intent barrier essentially by presuming

intent") (footnote omitted); Alfange, supra note 15, at 248

(same).

The complaint includes numerous specific allegations

of discriminatory intent. RPNC claims that repeated efforts

by Republicans to change from statewide to districtwide

~(...continued)

political gerrymandering. Because we believe that the plurality opinion

provides the "narrowest grounds” for decision, we apply it here. Marks

v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d

260 (1977); see also Republican Party of Va. v. Wilder, 774 F. Supp.

400, 404 (W.D.Va.i991) (three-judge panel) (applying Bandemer

plurality opinion).

26a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

elections, including proposals offered during consideration of

Chapter 509, were rejected by the Democratic-controlled

General Assembly, thus revealing NCSBE’s intent to operate

the election scheme to further discrimination against those

affiliating with the Republican Party. In addition, RPNC

contends that since the turn of the century only one candidate

for superior court judge running on the Republican ticket has

been elected and that this is a significant allegation of

purposeful exclusion. Importantly, all concede that superior

court judges rarely, if ever, perform judicial duties outside

their respective districts and divisions, and that the majority

of the voters in one part of the state vote for candidates for

superior court judgeships from other parts of the state

without knowing anything about the various candidates other

than the candidates’ party affiliation as indicated on the

ballot. .RPNC avers that these allegations support an

inference of bad intent because they reveal NCSBE’s resolve

to operate an election scheme that isolates those affiliating

with the Republican party regarding the election of superior

court judges.

In reaching this conclusion, we reject NCSBE’s

contention that Bandemer does not bear on this issue.

Pointing out that Bandemer addressed intent with regard to

the treatment by a legislature of its own election scheme, see

Bandemer, 478 U.S. at 128, 106 S. Ct. at 2808, NCSBE

argues that because RPNC’s allegations pertain to a legisla-

tively mandated design for the election of judges, members

of a separate branch of government, this controversy lacks

the self-interest evident in Bandemer. We do not agree,

however, that political considerations and party allegiance so

easily separate themselves when a legislature devises a

27a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

districting scheme for another branch of government. While

the self-interest may differ because it extends beyond the

legislature to a coordinate branch, the controlling political

party may nonetheless act to further its interests throughout

the various spheres of government. Consideration of politics

is inevitable in design of election schemes because of the

political consequences, and we consequently perceive no

distinction for purposes of assessing allegations of intent

under 12(b)(6) between legislative design of election schemes

for the legislature and superior court judges.”

* NCSBE further contends that RPNC fails to satisfy the intent

element because inclusion of Democrats as plaintiffs prevents RPNC from

constituting an “identifiable political group." The plurality opinion in

Bandemer provides no insight to ascertaining the confines of an accept-

able group for purposes of bringing a claim of political gerrymandering.

Nonetheless, we consider the inclusion of two Democrats as plaintiffs to

be unobjectionable. The complaint states that these plaintiffs have and

will continue to vote for Republican candidates for superior court

judgeships, thus alleging a sufficient degree of cohesiveness between the

Democratic and Republican plaintiffs in order to withstand a motion to

dismiss. See Michael A. Hess, Beyond Justiciability: Political Gerry-

mandering After Davis v. Bandemer, 9 Campbell L. Rev. 207, 234 & n.

128 (1987) ("The most readily identifiable voting group is one based on

political affiliation and voting patterns."); of Thornburg v. Gingles, 478

U.S. 30, 56, 106 S. Ct. 2752, 2769, 92 L. Ed. 2d 25 (1986) (Under §

2 of the Voting Rights Act, that "group members usually vote for the

same candidates is one way of proving political cohesiveness" for a claim

of vote dilution.). Moreover, the Republican Party of North Carolina

alone would be sufficient to constitute an identifiable group. Cf.

Bandemer, 478 U.S. 109, 106 S. Ct. 2797 (addressing political gerry-

mandering claim of registered members of one party).

28a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED . .

Having concluded that the complaint contains suffi-

cient statements of intent, we tum to consideration of

whether RPNC has alleged an actual discriminatory effect.

The Equal Protection Clause is violated in the state political

gerrymandering context “only where a history (actual or

projected) of disproportionate results appears in" combination

with "strong indicia of lack of political power and the denial

of fair representation." Jd. at 139, 106 S. Ct. at 2814.

Thus, in order to claim an effect sufficient to state a violation

of the Equal Protection Clause, RPNC must allege that the

North Carolina voting scheme produces disproportionate

results in elections for superior court judges and consistently

degrades the influence of Republican voters “on the political

process as a whole."* Jd. at 132, 106 S. Ct. at 2810.

Clearly, its complaint alleges disproportionate results.”

RPNC claims that throughout the twentieth century, it has

* We read the phrase "the political process as a whole," Bandemer,

478 U.S. at 132, 106 S. Ct. at 2810, to speak to the alleged unconstitu-

tional effects of the challenged electoral scheme on the relevant political

sphere. See Grofman, Toward a Coherent Theory, supra, at 50-51. But

see Daniel H. Lowenstein, Bandemer’s Gap: Gerrymandering and Equal

Protection, in Political Gerrymandering 64, 82 (Bernard Grofman, ed.

1990). Thus, we confine our analysis to evaluation of the claimed effect

of the method of electing superior court judges on the political process

of election of superior court judges within North Carolina.

*> We also observe that RPNC’s allegations of effect are sufficient

to satisfy the liberal standard applied by the federal courts under Rule

12(b)(6). See Wright & Miller, supra, § 1356. Whether RPNC

ultimately prevails, however, is a matter of proof, and not merely one of

the adequacy of the pleadings. See id.

29a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

been, and continues to be, virtually impossible for a qualified

candidate for a superior court judgeship to prevail, if running

as a Republican. Specifically, RPNC states that only one

Republican superior court judge has been elected in the

approximately 220 elections held to fill this office since

1968. Yet, registered Republicans comprise approximately

27 percent of the voting population in North Carolina.

Moreover, RPNC claims that consistency of voter habits

combined with the geographical distribution of party affilia-

tion throughout the state renders it likely that this trend will

continue into the foreseeable future.

An election scheme, however, is not constitutionally

infirm merely because it makes the election of a candidate

Slated by a particular political group more difficult. Jd. at

131, 106 S. Ct. at 2810. Allegations of disproportionate

results alone are insufficient. Jd. at 131-32, 106 S. Ct. at

2810. “Rather, unconstitutional discrimination occurs only

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." Jd. at 132, 106 S. Ct.

at 2810.

RPNC’s complaint sets forth data to support its

allegations that not only are the election results dispropor-

tionate, but also that the nomination and slating of candidates

is affected. Claiming that the method of electing superior

court judges inhibits potential Republican candidates from

seeking this office, RPNC points to data revealing that in the

1984 and 1986 general elections of 40 judgeships up for

election, only four were contested by Republican candidates,

and that since 1968, of approximately 220 judgeships up for

30a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CQNTINUED .. .

election, a Republican candidate offered for election in only

ten. RPNC maintains that these data demonstrate that few

Republicans will offer to run since the chance of success is

almost nonexistent. RPNC also asserts that the method of

electing superior court judges diminishes campaign contribu-

tions for these elections because potential contributors are

unwilling to donate money or other resources to a candidate

who is perceived to be an almost certain loser. Thus, the

complaint does contain allegations of an effect that goes

beyond mere disproportionate election results.”°

Importantly, Republican success in other elected

positions in North Carolina affirms our conviction that RPNC

has sufficiently alleged more than a de minimis effect on the

political process of electing superior court judges. Data

offered by RPNC and NCSBE reveal that Republicans

prevail in statewide elections for positions that are truly

statewide offices and in districtwide elections for positions

in which the officials actually function in a local capacity.

For example, district judges in North Carolina, like superior

court judges, have statewide jurisdiction, see N.C. Gen. Stat.

§§ 7A-240, 7A-270 (Michie 1989), but are elected by

** NCSBE implores us to hold that RPNC’s complaint fails to satisfy

Bandemer_ because it lacks supporting allegations and amounts to little

more than a compilation of conclusory statements. See Badham v. March

Fong Eu, 694 F. Supp. 664, 670-71 (N.D. Cal.1988) (holding that

complaint setting forth repetitive and conclusory claims failed to satisfy

requirement of Bandemer that plaintiff allege exclusion from the political

process as a whole), aff'd mem., 488 U.S. 1024, 109 S. Ct. 829, 102 L.

Ed. 2d 962 (1989). Our review discloses, however, that the allegations

are sufficient in number, detail, and variety of particulars to avoid the

problem of repetitive or conclusory statements.

3la

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

district, see N.C. Const. art. IV, § 10; N.C. Gen. Stat. §

7A-140 (Michie 1989). According to RPNC, between 1968

and 1986, nine districts have elected Republicans to this

office. It is undisputed that Republican candidates have won

the races for Governor in three of the last five elections, that

four of the last six elections for United States Senator have

resulted in Republican victories, and that currently four of

eleven members of the United States House of Representa-

tives from North Carolina are Republicans. In addition,

numerous Republicans have been elected to the General

Assembly, the North Carolina Court of Appeals, and the

North Carolina Supreme Court. Republican Strength in

North Carolina is sufficient to elect officials when the

election base mirrors the area served by the official, focuses

the attention of the electorate, and allows the electorate to

become informed about the candidates.

Contests for superior court judgeships, on the other

hand, involve statewide elections even though the office is

essentially a local one and with very few exceptions, candi-

dates are known only within their local areas. This combina-

tion of factors -- the status as a statewide candidate for a

local office, the requirement to run in a statewide election,

and the placement on a ballot with numerous other candidates

seeking the same office but from different local districts --

encourages and as history has demonstrated, results in

straight-party voting. Voters have little incentive to focus on

individual candidates who reside in other districts and thus

will discharge their duties in areas of the state distant from

the voters’ local area.

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OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

We recognize that RPNC has not alleged that Repub-

licans have been “excluded from participating in the affairs

of their own party or from the processes by which candidates

are nominated and elected," Bandemer, 478 U.S. at 137, 106

S. Ct. at 2813, and that to the extent Bandemer might be

read to require such allegations in order for a political group

to allege exclusion from the political process as a whole,

RPNC’s claims would fail. However, we cannot conclude

that a political party that has clearly alleged an effect that

amounts to more than disproportionate election results must

also allege and ultimately prove this type of exclusion. To

do so would hold, in effect, that regardless of the specific

allegations of its complaint an identifiable political group

could not survive a motion to dismiss or prevail on the

merits of its claim. We decline to adopt a construction of

Bandemer that would render nugatory its holding that

political groups may bring claims of partisan gerrymander-

ing.

In determining whether a group has been shut out of

the political process as a whole, the Supreme Court considers

it relevant to examine the responsiveness of the elected

official to the interests of the minority political group. See

id. at 131, 106.S. Ct. at 2809-10. RPNC concedes that it

has no complaint concerning the performance of superior

court judges, that while elected judges are representative

governmental officials, they do not represent constituents in

the same sense as elected members of the legislative and

executive branches, and that consequently, superior court

judges could not be found to inadequately represent minority

group interests. Nevertheless, the fact that superior court

judges perform a different representative function does not

33a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

mean an identifiable political group should have no protected

rights in electing them once a state chooses to select judges

through an election system that allegedly fails to comport

with the Fourteenth Amendment. We hold, therefore, that

RPNC has set forth allegations of an actual discriminatory

effect sufficient to state a claim of vote dilution brought

about by political gerrymandering.

Our conclusion that RPNC has set forth sufficient

allegations of a violation of the Fourteenth Amendment to

survive a motion to dismiss for failure to state a claim, we

emphasize, is narrow and wholly dependent on the egregious

nature of the alleged systemic discrimination. See Alfange,

supra note 15, at 179 (arguing that judicial intervention

should be limited to cases displaying flagrant and obvious

abuse to avoid “exposing virtually every districting plan to

judicial scrutiny"). The confluence of the alleged facts,

including the unique claim of a near century-long dearth of

political diversity among superior court judges in North

Carolina, and the certainty of a similar future, compels our

holding. Indeed, we believe that if RPNC had alleged even

a modicum of electoral success or access to the political

process, its claim might not have withstood a challenge under

Rule 12(b)(6). And, whether RPNC ultimately will prevail

on its claim is not before us.

We remain mindful of Justice Frankfurter’s admoni-

tion that courts should remain reticent to become ensnared

in the "political thicket" of adjudicating gerrymandering

claims, Colegrove v. Green, 328 U.S. 549, 556, 66 S. Ct.

34a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

1198, 1201, 90 L. Ed. 1432 (1946), and of the more recent

concern expressed by Justice O’Connor in Bandemer that

judicial consideration of claims of political gerrymandering

will inevitably lead to a constitutional requirement of "some

form of rough proportional representation for all political

groups," Bandemer, 478 U.S. at 145, 106 S. Ct. at 2817

(O’Connor, J., concurring in judgment); see also Alfange,

supra note 15, at 186-87 (discussing evils of proportional

representation). We fully share these apprehensions.

Nonetheless, we remain bound by the dictates of Bandemer.

See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103,

110, 2 L. Ed. 49 (1801).

RPNC also maintains that the North Carolina method

of electing superior court judges infringes upon its rights to

free speech and association in violation of the First Amend-

ment. Specifically, RPNC argues that the electoral system

prevents Republicans from fully and effectively participating

in the political process, chills the desire of Republicans to

engage in vigorous debate and to seek superior court judge-

ships, and constitutes a state-imposed, de facto requirement

of political affiliation with the Democratic Party.”’ Because

77 In Badham, 694 F. Supp. at 675, the district court rejected a

similar First Amendment claim based on political gerrymandering. At

oral argument, NCSBE argued that the summary affirmance of Badham,

488 U.S. 1024, 109 S. Ct. 829, 102 L. Ed. 2d 962, bound this court and

required our rejection of this claim, see Anderson, 460 U.S. at 784 n. 5,

103 S. Ct. at 1568 n. 5 (precedential effect of summary affirmances

applies to no more than the exact issue decided). However, the First

(continued...)

35a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

the authority offered by RPNC is readily distinguishable and

its reasoning is not compelling, we conclude that RPNC fails

to state a claim under the First Amendment.”

"[T]here is practically universal agreement that a

major purpose of [the First] Amendment [is] to protect the

free discussion of governmental affairs. This of course

includes discussions of candidates, . . . the manner in which

government is operated or should be operated, and all such

matters relating to political processes." Mills v. Alabama,

384 U.S. 214, 218-219, 86S. Ct. 1434, 1436-37, 16 L. Ed.

2d 484 (1966). In addition, it is clear that "[t]he First

Amendment protects political association as well as political

expression." Buckley v. Valeo, 424 U.S. 1, 15, 96 S. Ct.

77(...continued)

Amendment issue raised before the district court was not presented to,

and consequently was not decided by, the Supreme Court, see Badham

v. March Fong Eu, 56 U.S.L.W. 3822 (U.S. May 31, 1988) (No.

87-1818). Therefore, we conduct an independent inquiry into the

sufficiency of RPNC’s First Amendment claims.

% This court has held that in voting rights cases, no viable First

Amendment claim exists in the absence of a Fourteenth Amendment

claim. See Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1359

(4th Cir.1989) (First Amendment offers no protection of voting rights

beyond that afforded by the Fourteenth and Fifteenth Amendments. ), cert.

denied, 496 U.S. 906, 110 S. Ct. 2589, 110 L. Ed. 2d 270 (1990);

Washington v. Finlay, 664 F.2d 913, 927 (4th Cir. 1981) (same), cert.

denied, 457 U.S. 1120, 102 S. Ct. 2933, 73 L. Ed. 2d 1333 (1982).

Since RPNC has stated a Fourteenth Amendment claim, we must address

the First Amendment issues.

36a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

612, 632, 46 L. Ed. 2d 659 (1976) (per curiam). RPNC

asserts that the First Amendment protects the rights of

citizens to cast an effective vote regardless of political

persuasion and to effectively associate for the advancement

of political beliefs. Because the North Carolina election

system prevents Republicans from electing the candidates of

their choice for superior court judgeships, RPNC contends

that these alleged rights have been violated.

RPNC confuses the protection offered by the First

and Fourteenth Amendments, and in so doing, attempts to

extend the guarantees of the First Amendment.”” As noted

previously, the Equal Protection Clause of the Fourteenth

Amendment ensures equal weighing of votes, or to use

RPNC’s terms, equal effectiveness of votes. See, e.g.,

Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed.

2d 506 (1964). The First Amendment, in contrast, protects

the right to cast an effective vote by prohibiting restrictions

2? We recognize that there is scholarly support for the extension of

the ballot access reasoning to political vote dilution claims. See, e.g.,

Hess, supra note 23, at 231-32 ("A first amendment analysis provides an

effective means of balancing the constitutional interests of political parties

. . . in light of the legitimate interests of the state."); Emily M. Calhoun,

The First Amendment And Distributional Voting Rights Controversies, 52

Tenn. L. Rev. 549, 588-598 (1985) (if state uses opinion as basis for

distribution of votes, state must show compelisag state interest); Harris

Weinstein, Partisan Gerrymandering: The Next Hurdle in the Political

Thicket?, 1 J.L. & Pol. 357, 373 (1984) (Political gerrymanders "strike

at the heart of the rights of free speech and free association" because they

“are designed to limit the effectiveness of organized political activity.").

We find these arguments unpersuasive, and therefore decline to apply

them here.

37a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .

on ballot access that impair the ability of citizens to express

their political preferences, or that limit the opportunity for

citizens to unite in support of the candidate of their choice.

See Anderson v. Celebrezze, 460 U.S. 780, 787-88, 794, 103

S. Ct. 1564, 1569-70, 1572-73, 75 L. Ed. 2d 547 (1983):

Illinois State Bd. of Elections v. Socialist Workers Party, 440

U.S. 173, 184, 99 S. Ct. 983, 990, 59 L. Ed. 2d 230

(1979). The North Carolina method of election for superior

court judges does not entail direct impediments prohibited by

the First Amendment. Unlike the complainants in the ballot

access cases, Republicans in North Carolina may mun for

superior court judgeships, vote for the candidate of their

choice, and associate together in support of their chosen

candidate. Although the North Carolina method of election

of superior court judges does prevent the realization of

Republican political goals, Republicans are not prevented

from participating, as individuals or as a group, in the

election of superior court judges. The First Amendment

guarantees the right to participate in the political process. It

does not guarantee political success.

RPNC also asserts that the system of electing superior

court judges chills the rights of Republicans to engage in

vigorous debate, and to seek superior court judgeships in

violation of the First Amendment. A chilling effect occurs

when a substantially overly-broad law deters persons whose

expression is constitutionally protected from exercising their

First Amendment rights. See New York v. Ferber, 458 U.S.

747, 768-73, 102 S. Ct. 3348, 3360-63, 73 L. Ed. 2d 1113

(1982). Absent a governmental action that threatens to

38a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

punish protected speech, the substantial overbreadth doctrine

does not apply, and a chilling effect does not occur. See

Broadrick v. Oklahoma, 413 U.S. 601, 611-618, 93 S. Ct.

2908, 2915-19, 37 L. Ed. 2d 830 (1973). The North

Carolina laws at issue do not subject Republicans to the

threat of civil or criminal penalties for engaging in political

expression. See N.C. Const. art. IV, § 16; N.C. Gen. Stat.

§§ 163-104, 163-106(i) (Michie 1991). Election practices

that do not threaten to penalize protected speech, but that

may have some effect on the decision whether to seek

candidacy or engage in debate, are not overly broad. Thus,

RPNC’s overbreadth claim does not give rise to a constitu-

tional infringement.

Finally, RPNC argues that because the government

may not unjustifiably require an individual to choose between

accepting public employment and taking action contrary to

their chosen political affiliation, see, e.g., Elrod v. Burns,

427 U.S. 347, 359-60, 96 S. Ct. 2673, 2683, 49 L. Ed. 2d

547 (1976), the Democratic-controlled legislature may not

similarly require individuals to choose between political

office and affiliation with the Republican Party. That the

hiring of low-level public employees may not be predicated

upon political party affiliation is clear, Rutan v. Republican

Party of Ill., 497 U.S. 62, 64-65, 110 S. Ct. 2729, 2732,

111 L. Ed. 2d 52 (1990);*° however, North Carolina superi-

* Political party affiliation may be an appropriate consideration if the

position is one that requires as a qualification for its performance,

(continued...)

39a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

or court judges are elected public officials rather than

employees hired by the government. This distinction

between the government as hiring authority versus the

electorate as hiring authority is crucial. An employee’s right

to free speech is violated only when government inappropri-

ately requires an employee to affiliate with a certain party.

Id. at 73-79, 110 S. Ct. at 2736-39. On the other hand, the

electorate does not operate under this constraint. cy.

Hudgens v. NLRB, 424 U.S. 507, 513, 96 S. Ct. 1029,

1033, 47 L. Ed. 2d 196 (1976) ("[T]he constitutional

guarantee of free speech is a guarantee only against abridge-

ment by government, federal or state."). Seeking to avoid

the result that follows from this proposition, RPNC argues

that by prescribing the current method of election the

legislature, a governmental body, has usurped the electorate’ s

selection function. We are not persuaded. The North

Carolina electorate, not the General Assembly, selects

superior court judges. Therefore, RPNC has failed to state

a Claim for the infringement of its rights to free speech and

association in violation of the First Amendment.

VI.

In sum, we hold that RPNC’s claim of political

gerrymandering in the election of North Carolina superior

court judges presents a justiciable question and that its

complaint states a claim upon which relief may be granted

under the Fourteenth Amendment. We further hold that

*(...continued)

affiliation with a particular political party. Rutan, 497 U.S. at 64-65, 110

S. Ct. at 2732.

40a

OPINION OF THE FOURTH CIRCUIT COURT OF APPEALS

CONTINUED .. .

RPNC has failed to state a claim under the First Amendment.

Thus, we reverse in part, affirm in part, and remand for

further proceedings consistent with this opinion.

REVERSED IN PART; AFFIRMED IN PART; AND

REMANDED.

4la

DISTRICT COURT ORDER OF JUNE 6, 1991

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

No. 88-263-CIV-5-F

REPUBLICAN PARTY OF NORTH

CAROLINA, et al.,

Plaintiffs,

Vv.

)

JAMES G. MARTIN, Governor of )

North Carolina, et al., )

Defendants, )

)

and )

)

NORTH CAROLINA ASSOCIATION

OF BLACK LAWYERS,

Defendant-Intervenor.

NATURE OF THE CASE

Plaintiffs have brought this action pursuant to 42

U.S.C. § 1983, claiming that the present method by which

Superior Court judges are elected in North Carolina (district

nomination followed by statewide election) denies plaintiffs

the equal protection of the laws by "structurally diluting" the

voting franchise of Republican voters and violates their First

and Fourteenth Amendment rights of freedom of speech and

association. Plaintiffs also bring a federal constitutional

42a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

challenge to the candidate residency requirement for Superior

Court judges, which since 1987 has required that a candidate

for nomination for a Superior court judgeship be resident, at

the time of filing a notice of candidacy, in the district he or

she wishes to serve. In addition, plaintiffs assert various

State law claims.

Plaintiffs herein include the Republican Party of

North Carolina, a statutorily recognized political party, see

N.C. Gen. Stat. § 163-96, registered Republican voters, and

those voters who, although not registered as Republicans,

predictably vote for Republican candidates, and are thus

Republican voters. The individual plaintiffs also include

three former unsuccessful Republican candidates for Superior

Court. Defendants herein are sued in their official capacities

as those officers and officials who are responsible for

conducting elections according to the method established by

the North Carolina General Assembly. The defendant-

intervenor, the North Carolina Association of Black Lawyers

("NCABL'"), is a statewide organization of black lawyers and

law students.

This matter is now before the court on defendants’

Motion to Dismiss this entire action, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.

STATEMENT OF FACTS

The facts, undisputed except as otherwise noted, are

as follows:

All North Carolina judges were appointed until the

State Constitution was rewritten in 1868. J. Sanders, A

43a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

Brief History of the Constitutions of North Carolina (1983).

Since 1868, the State Constitution has provided that it is the

General Assembly’s prerogative to decide whether resident

Superior Court judges are to "be elected by the qualified

voters of the State or by the voters of their respective

districts." N.C. Const. art. IV, § 16. The State Constitution

has further required, also since 1868, that a Superior Court

judge "reside in the district for which he is elected." N.C.

Const. art. IV, § 9(1). Ultimately, the legislature adopted a

statewide election system in 1877, Ch. 255, Public Laws

1876-77, and has maintained it continuously since that time.

In 1915, the General Assembly adopted a primary

system for political parties to nominate their candidates, Ch.

101, Public Laws 1915, and since that time candidates for

Superior Court have been nominated in primaries held in the

districts for which they wish to serve. Candidates in the

primary run at large within the district for that election year.

Although no statute by itself specifies district primaries, the

State Board of Elections has always used district nomina-

tions, regardless of the party holding a majority of the board.

In addition, various provisions of the State election law

indicate acceptance of the practice by the General Assembly.

For example:

-- N.C. Gen. Stat. § 163-156(c)(2) provides

that for certain vacancies occurring after filing

has begun, nomination of candidates for

Superior Court judge are to be made "by the

appropriate district executive committee of

each political party." (Emphasis added.)

44a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

-- N.C. Gen. Stat. § 163-106(i) requires

residence in a district in order to file notice of

candidacy.

-- N.C. Gen. Stat. § 163-109 provides that

county boards of elections are to furnish

ballots for all offices where district primaries

are conducted, and lists Superior Court judge

among those offices.

-- N.C. Gen. Stat. § 163-114 provides that, if

a party nominee for Superior Court judge

dies, resigns or is disqualified before the

general election, the vacancy is to be filled

only by the party executive committee mem-

bers living in the judicial district.

Finally, when North Carolina’s method of electing

Superior Court judges was challenged in Holshouser v. Scott,

335 F. Supp. 928 (M.D.N.C. 1971), aff'd mem., 409 U.S.

807 (1972), a three-judge district court apparently concluded

that the legislature intended district primaries even though no

single statute authorized the procedure. See id. at 930 ("The

General Assembly has prescribed that the regular judges shall

be nominated in a primary election conducted in their

respective districts but shall be elected in the general election

by statewide vote.").

The North Carolina Const*tution requires the General

Assembly to divide the State into Superior Court judicial

districts and to provide for the election of Superior Court

judges. N.C. Const. art. IV, § 9(1). The counties of North

Carolina are organized into four judicial divisions which,

a TT

45a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

until 1987, were divided into a total of thirty-four judicial

districts. Each division and judicial district contained one or

more counties and one or more resident Superior Court

judges. Most of the judicial districts encompassed more than

one county and all districts followed county boundary lines.

Seventeen of the judicial districts had more than one judge

and those districts had forty-three of the sixty-four resident

Superior Court judges.

Pursuant to Chapter 509 of the Session Laws of 1987

(“Chapter 509"), many of the judicial districts were split, and

there are now sixty judicial districts. In forming the new

judicial districts, counties frequently were split, and some

districts now consist of parts of more than one county.

Sixteen of the new judicial districts did not contain a court-

house and had no separate clerk of court or other official

associated with the traditional judicial districts, except for the

resident Superior Court judge assigned thereto.

This court has previously recognized that "[o]ne effect

of [Chapter 509] was to give black voters a more equal

opportunity to participate in the political process and to elect

superior court judges of their choice." Order of October 4,

1988, at 5. Plaintiffs do not challenge the new judicial

districts, but do allege that the configuration thereof was

designed to include an incumbent Democratic Superior Court

judge’, and that this configuration, coupled with continued

Statewide election, is evidence of the defendants intent to

' Inasmuch as at the time of the enactment of Chapter 509, all

Superior Court judges were Democrats, no other result could have been

obtained without the removal of an incumbent from office.

46a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

perpetuate the Democratic dominance of the Superior Court

judiciary. Defendants deny this allegation.

In its consideration of Chapter 509, the Genel

Assembly’s Democratic majority rejected amendments

offered by Republican legislators and supported by Governor

James G. Martin ("Governor Martin"), a Republican, which

would have eliminated the statewide election of resident

Superior Court judges, and, instead, would have provided for

district election. Plaintiffs contend, and defendants deny,

that the Democratic majority did so out of a desire to protect

Democratic incumbents from defeat by Republicans in the

general election.

As the court noted in its October 4, 1988, Order, on

at least eight occasions since 1961, Republican members of

the legislature have introduced and sought passage of various

types of legislation to provide for district-based (or division-

based) elections for Superior Court judges. Order at 5-6.

The Democratic-controlled General Assembly has defeated

each effort. Plaintiffs contend, and defendants deny, that the

sole reason the Democratic majority defeated the bills was its

desire to preclude any probability of a Republican ever being

elected to a Superior Court judgeship.

The North Carolina Constitution mandates that

Superior Court judges ride circuit. N.C. Const. art. IV, §

11 ("The principle of rotating Superior Court Judges among

the various districts of a division is a salutary one and shall

be observed. For this purpose the General Assembly may

divide the State into a number of judicial divisions."). As

previously stated, the state currently is divided into four

divisions, the largest of which contains thirty-two counties.

47a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

Although the geographic areas served by resident

Superior Court judges have not been constant in the historical

past, since 1915 the judges have rotated district to district

within their respective divisions. The Courts of Yesterday,

Today and Tomorrow in North Carolina, 24 Popular Govt.

11 (1958). Today, rotation of judges is carried out according

to a predetermined schedule. Periodically, the judges of each

division prepare a rotation schedule for the division and

submit it to the Chief Justice, who examines it to ensure that

a judge serves a six-month period in each district lying

within his division for each regular judgeship allotted to the

district. An effort is made to provide that, over a period of

time, each judge will preside over sessions of court in every

district of his division.”

In addition to mandated rotation, the Chief Justice

may assign the judges to hold court outside their divisions,

N.C. Const. art. IV, § 11, as said judges have statewide

jurisdiction and duties, id. at art. IV, § 12(3). Assignment

out of division occurred an average of 3.09% of the time (an

annual average of 87 times) in the years from 1980 through

1987.

> In an apparent attempt to somehow bolster their First Amendment

claim, plaintiffs bring to the court's attention the fact that the North

Carolina Administrative Office of the Courts temporarily suspended

judicial rotation from October 1, 1990, until March 31, 1991, as a cost-

cutting measure. See Exhibit A to Plaintiffs’ Memorandum. Plaintiffs

own exhibit shows that this suspension was a temporary, cost-cutting

measure; and, particularly in view of the court’s legal analysis infra. said

suspension is not relevant to the instant action.

48a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Before the enactment of Chapter 509, eight special

Superior Court judges, appointed rather than elected, were

available to be employed in districts where court overload or

protracted or sensitive litigation required assistance from

outside judges. Chapter 509 eliminated these judgeships.

Resident Superior Court judges exercise numerous

unique statutory powers in the judicial district for which they

are elected. For example, the Senior Resident Superior

Court judge for a district appoints the Public Defender, N.C.

Gen. Stat. § 7A-466, as well as fills vacancies in the Office

of Clerk of Superior Court, N.C. Gen. Stat. § 7A-100. A

Superior Court judge may also hear the return of a restrain- |

ing order in the district in which he is resident. N.C. Gen.

Stat. § 1-494.

Until Judge Howard Manning, Jr.’s 1988 election, no

Republican candidate for Superior Court judge had been

elected in this century. Since 1968, ten Republicans have

run for resident Superior Court judge, and in four of these

contests the Republican candidate would have been successful

if resident Superior Court judges were elected by the

qualified voters of the judicial district in question, rather than

by statewide election. Complaint, para. 34. But, "[bJecause

an overwhelming majority of North Carolina’s voters are

Democrats and nominees for judicial office usually have no

Statewide reputation, the nominees of the Democratic Party

invariably prevail in the statewide general elections."

Republican Party v. Martin, 865 F.2d 1259, slip op. at 3

(4th Cir. 1988) (Table) (Unpublished).

North Carolina’s system of electing Superior Court

judges has been the subject of legal challenges in the past,

}

i §

49a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

and certain legal principles have emerged from those earlier

decisions. In Holshouser_v. Scott, 335 F. Supp. 928

(M.D.N.C. 1971), aff'd mem., 409 U.S. 807 (1972), the

three-judge district court and the United States Supreme

Court rejected a Republican voter’s claim that the State’s

combination of district nomination and statewide election

violated the Fourteenth Amendment. The district court, after

concluding that Superior Court judges in North Carolina are

“hybrid officials with both local and statewide functions and

authority," id. at 933, stated that "[t]here can be no doubt as

to the validity of the provisions of the North Carolina

Constitution requiring the election of Superior Court judges

by districts or statewide as prescribed by the legislature... .

or that they reside in their respective districts." Id. at 930

(citations omitted). The court also rejected the plaintiff's

argument that the electoral system impermissibly diluted his

or other persons’ voting strength: the "hybrid" nature of

Superior Court judges’ mixture of local and statewide duties,

according to Holshouser, provides "a reasonable basis for the

election procedure" mixing district and statewide voting. Id.

at 933.

In Haith v. Martin, 618 F. Supp. 410 (E.D.N.C.

1985), aff'd, 477 U.S. 901 (1986), this court held that North

Carolina Superior Court elections are subject to the preclear-

ance requirements of Section 5 of the Voting Rights Act, 42

U.S.C. § 1973c. Thus, any changes in judicial elections

must be precleared by the United State Department of Justice

to ensure compliance with the federal Voting Rights Act.

The case of Alexander v. Martin, No. 86-1048-CIV-5

(E.D.N.C. 1987), involved a Challenge to the State’s

Superior Court elections based on both Section 2 of the

—

50a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Voting Rights Act, 42 U.S.C. § 1973(b), and the Fourteenth

Amendment. The Alexander plaintiffs, who included as a

plaintiff-intervenor the NCABL, alleged that certain features

of the election system had the purpose and effect of abridging

non-white voting strength in Superior Court elections. The

plaintiffs sought the elimination of staggered terms within

multi-member judicial districts and the redrawing of district

lines so as to enhance the ability of non-white voters to

nominate and elect judicial candidates of their choice.

Alexander was settled by a consent decree upon adoption by

the North Carolina General Assembly of Chapter 509 of the

Public Laws of 1987. Republican Party v. Martin, 866 F.2d

1259 (Table), slip op. at 4.

Defendants argue that Chapter 509, which is a target

of plaintiffs Complaint in the present action, was enacted in

part to meet the requirements of the Voting Rights Act and

the concerns of the United States Attorney General and the

Alexander plaintiffs. Defendants’ argument is supported by

the fact that the Alexander case was settled, and by the

decision of the United States Attorney General, who

precleared Chapter 509 on September 25, 1987, pursuant to

Section 5 of the Voting Rights Act. As previously noted, the

legislation maintained the State’s long-standing combination

of district nomination and statewide election of Superior

Court judges, and eliminated staggered terms. It also redrew

district lines in order to increase the number of non-white

majority districts, apparently from two out of thirty-four to

nine out of sixty. See also Republican Party v. Martin, 865

F.2d 1259 (Table), slip op. at 4 ("by design, a number of

districts were created in which there were black voting

majorities").

ial lemeemmeneiaill

i aaa

Sla

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

Chapter 509 also adopted, for the first time in the

State’s history, a requirement that a candidate for nomination

for a Superior Court judgeship be resident, at the time of

filing a notice of candidacy, in the district in which he or she

wishes to serve. The legislation states that this requirement

"implements Article IV Section 9(1) of the North Carolina

Constitution which requires regular Superior Court Judges to

reside in the district for which elected." N.C. Gen. Stat. §

163-106(i). Plaintiffs allege, and defendants deny, that this

requirement denies plaintiffs the equal protection of the laws

and violates their First and Fourteenth Amendment rights of

freedom of speech and association.

Governor Martin, a defendant in the present action,

filed a complaint in his official and individual Capacities in

State court in December 1987, claiming that certain provi-

sions of Chapter 509 violate the North Carolina Constitution.

State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d

473 (1989). In particular, the Governor asserted that

Chapter 509 infringed the State constitutional rights of

voters, and of candidates; that the legislation had usurped the

executive authority of the Governor; and that the legislation’ s

pre-candidacy residency requirement unconstitutionally denies

otherwise qualified candidates the right to seek office. A

unanimous North Carolina Supreme Court rejected all of the

Governor’s contentions, holding that Chapter 509 "does not

violate our State Constitution and is fully effective." Id. at

462, 385 S.E.2d at 486. The court found that the express

and actual purposes of Chapter 509 were to provide for

compliance with the federal Voting Rights Act and to

improve the administration of justice. Id. at 450-51 n. 2,

385 S.E.2d at 479-80 n. 2.

52a

District COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Plaintiffs initiated the present action in the United

States District Court for the Middle District of North

Carolina on November 4, 1987, and the case was transferred

to this Court on March 29, 1988. Republican Party v.

Martin, 682 F. Supp. 834 (M.D.N.C. 1988). The NCABL

filed a motion to intervene, which this court denied on April

14, 1988. Said denial was reversed by the Fourth Circuit

Court of Appeals, which observed that the NCABL "obtained

what it appears to have wanted by the enactment of Chapter |

509" and that "one may readily see" that the State’s system |

of electing Superior Court judges, as modified by Chapter

509, better serves black voters’ interests than the individual

district elections sought by plaintiffs. Republican Vv.

Martin, 865 F.2d 1259 (Table), slip op. at 5, 6.

After this ruling, discovery proceeded and plaintiffs

noticed their intention to take the depositions of several

members of the North Carolina General Assembly. On May

14, 1990, this court granted defendants’ motion to quash

plaintiffs’ deposition subpoena addressed to State Representa-

tive Daniel T. Blue, holding that Representative Blue was

"entitled to assert his common law legislative immunity to

protect himself from being deposed concerning his legislative

activities." Order of May 14, 1990, at 8.

This matter is now before the court on defendants’

March 12, 1991, Motion to Dismiss this action, pursuant to

Rule 12(b)(6), Fed. R. Civ. P., on the grounds that: (1) the

Complaint raises a non-justiciable political question, (2)

plaintiffs have not stated causes of action under either the

First or Fourteenth Amendments, and (3) the action trans-

gresses the doctrine of legislative immunity. Defendants

have set forth the grounds and authorities supporting their

53a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

motion in an accompanying memorandum (henceforth,

"Defendants’ Memorandum"). Defendant-intervenor

NCABL has submitted a memorandum joining in defendants’

Motion to Dismiss. The NCABL expressly adopts defen-

dants’ arguments that the Complaint presents a non justicia-

ble political question and that the plaintiffs have not stated

causes of action under the First and Fourteenth Amendments.

It takes no position on defendants’ alternative argument that

the action should be dismissed because of the doctrine of

legislative immunity. Defendant Intervenor’s Response to

Defendants’ Motion to Dismiss at 1. The plaintiffs have

submitted a Memorandum in Opposition to Defendants’

Motion to Dismiss (hereinafter, "Plaintiffs’ Memorandum,"

or "Response"), and defendants have tendered a Reply

Memorandum to the same. Accordingly, defendants’ Motion

to Dismiss is now ripe for ruling.

For the reasons discussed infra, the court finds

defendants’ first ground for dismissal (ie. , that the Complaint

raises a non-justiciable political question) to be persuasive,

and, accordingly, GRANTS defendants’ Motion to Dismiss

54a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

on this ground.’ The court thus need not -- and does not --

address defendants’ second and third arguments.

DISCUSSION

The Complaint in the present action could be inter-

preted as addressing a wide variety of political claims, and

it therefore is necessary to distill from it the legal issues it

attempts to raise, before turning to the merits of the issues

raised.

> Defendants’ Motion to Dismiss comes nearly three and one-half

years after the filing of this action. Defendants’ first two grounds for

dismissal are of a purely legal nature, for which little or no discovery was

necessary, and none of the relevant cases cited in Defendants’ Memoran-

dum concerning these arguments was decided after 1989. Defendants’

third argument, which concerns legislative immunity, is based on an

order entered by this court on May 14, 1990. Had this Motion to

Dismiss been filed sooner, the parties and the court would have avoided

the waste of much judicial and private resources. See, e.g., Republican

Party v. Martin, _F.R.D. _, 1991 WL 56425 (E.D.N.C. 1991)

(individual review by the court of 369 of Governor Martin’s documents

after he had opposed discovery of the same on the grounds of executive

privilege, attorney-client privilege, and work product protection).

That much having been said, the court notes that Defendants’

Memorandum and Reply Memorandum are exceptionally well briefed, as

is plaintiffs’ Response, and are in keeping with the high standard of

advocacy exhibited by all the parties throughout the course of this

litigation.

55a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

PLAINTIFFS ACTUALLY SEEK RELIEF AGAINST

ONLY SOME OF THE ELECTORAL PRACTICES

DISCUSSED IN THEIR COMPLAINT

Plaintiffs enumerate four aspects of North Carolina’s

method of electing Superior Court judges that in their view

are unlawful: Statewide general elections, Complaint, para.

46; the requirement that candidates run for judgeships in

particular districts, id. at para. 47; district nominations, id.

at para. 48; and the pre-registration residency requirement

for Superior Court candidates, id., at para. 49.

All of these practices are alleged to have the purpose

and synergistic effect of infringing the plaintiffs’ First

Amendment rights and of restricting the influence of Republi-

can voters on the political process as a whole in violation of

the Fourteenth Amendment. Plaintiffs’ Complaint also

contains a lengthy litany of grievances stemming from

actions taken by the North Carolina General Assembly’s

Democratic majority vis-a-vis the Republican minority.

However, the court perceives that plaintiff’s federal constitu-

tional argument is directed almost entirely against the

practice of statewide elections for Superior Court judgeships

as it exists in conjunction with district-wide nomination, and,

to a lesser extent, against the pre-registration residency

requirement.

Although plaintiffs assert that nomination by district

primary and statewide election to particular judgeships

violate the Fourteenth Amendment and lack State statutory

authority, Complaint, paras. 25, 26, 47, 48, the chief form

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

of relief they seek would involve enforcing by injunction one

aspect of current North Carolina law. Prayer for Relief,

para. 2.* In fact, plaintiffs are critical of district nomination

and district specific election only insofar as they exist in

conjunction with the statewide election of Superior Court

judges. Complaint, paras. 50, 51. If this court were to

grant the injunction plaintiffs request, candidates for Superior

Court judgeships would continue to seek nomination through

district primaries, as under current law; candidates for

Superior Court judgeships would continue to be elected to

serve in particular districts, as under current law’; and

* The two substantive paragraphs in the Plaintiffs’ prayer for relief,

Prayer for Relief, paras. 1, 2, read:

1. A declaration that the voting customs, practices and procedures

complained of herein constitute unlawful structural dilution of the voting

franchise of Republican Voters and an unlawful restriction of their

fundamental rights of freedom of speech and association.

2. A preliminary and permanent injunction prohibiting the defendants

from conducting elections for resident Superior Court judge under the

existing system and an order that such elections be conducted by judicial

district (without a candidacy residency requirement) for both nomination

and election in such a manner as does not unlawfully discriminate against

Republican candidates and Voters.

* Plaintiffs assert that this requirement of current law -- which, it

should be emphasized, they do not seek to change -- constitutes a

“numbered post" system. Complaint, para. 27. This is an incorrect use

of the term, which refers to the practice of requiring candidates for office

in multi-member districts to run for specific seats. As the North Carolina

Supreme Court has observed, “neither numbered seats nor staggered

terms exist in multi-seat judicial districts in North Carolina after the

passage of Chapter 509." State ex rel. Martin v. Preston, 325 N.C. at

450-51 n. 2, 385 S.E.2d at 479-80 n. 2.

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

Superior Court judges would be required to reside in their

particular districts once elected, as under current law. Thus,

plaintiffs’ Complaint boils down to a request that this court

find the State’s long-standing choice of choosing Superior

Court judges by combining district-wide primaries with

Statewide general elections, unconstitutional. See also Order

of October 4, 1988, at 1 ("Plaintiffs Challenge the voting

custom, practice, or procedure of district nomination fol-

lowed by statewide election of [Superior Court] judges as

violative of the first and fourteenth amendments to the United

States Constitution.").

Il.

PLAINTIFFS’ STATE LAW CLAIMS

The plaintiffs’ state law claims may be dealt with

summarily. The assertion that nomination by district or

election to specific districts lacks Statutory authority is

without merit. While no specific statute prescribes either

practice, the General Assembly repeatedly has enacted

Statutes predicated on the existence of both, most recently in

the candidate residency requirement at issue in this action.

See supra at pp. 3-4. Moreover, as also discussed supra at

pp. 3-4, the State Board of Elections, which is statutorily

charged with administering the State election laws, has

followed these practices continuously since 1915. See also

N.C. Gen. Stat. § 163-22(a) (empowering Board to make

reasonable rules and regulations); Comm’r of Insurance v.

N mobil Administrative Office, 294 N.C. 60,

67, 241 S.E.2d 324, 329 (1978) (according weight to the

“construction of statutes adopted by those who execute and

administer them").

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Plaintiffs’ State constitutional challenge to Chapter

509’s candidate residency requirement has been foreclosed

definitively by the North Carolina Supreme Court in Preston,

325 N.C. 438, 385 S.E.2d 473.

Il.

PLAINTIFFS’ FEDERAL CONSTITUTIONAL CHAL-

LENGE TO THE RESIDENCY REQUIREMENT

The court finds plaintiffs’ federal constitutional

challenge to the candidate residency requirement to be

unavailing. The court perceives that said challenge has been

foreclosed by the Supreme Court’s summary affirmance in

Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff'd

mem., 401 U.S. 968 (1971) and 405 U.S. 1035 (1972), even

if the court assumes, arguendo, that partisan motives played

a part in its enactment.

In Hadnott, a black plaintiff challenged Alabama’s

one-year prior residency requirement on candidates for state

circuit judgeships. Despite allegations that the residency

requirement discriminated against the political rights of black

voters and candidates, 320 F. Supp. at 122, and an undeni-

able history of racial discrimination in voting rights, the

district court and the Supreme Court upheld the requirement.

Because of the nature of the office of an Alabama circuit

judge -- an office very similar to that of a North Carolina

Superior Court judge, see id. at 119-121 -- the Hadnott

district court found "a compelling state interest in exposing

to the voters for a substantial period of time before election

the person who will be a candidate for state circuit judge."

Id. at 119-20. Where a state has chosen to elect the judges

a aeaetaianrettiaeea aaa

aan

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

of its trial courts of general jurisdiction, Hadnott holds that

imposition of a residency requirement for judicial candidates

serves important interests of the state and of the voters. Id.

at 119-121.

And, where the residency requirement is not unrea-

sonable in the length of time required, it does not violate the

Constitution. See Clements v. Fashing, 457 U.S. 957, 967-

72 (1982) (plurality) (The Court, in rejecting First Amend-

ment and Equal Protection challenges to a two-year "waiting

period" for certain officeholders seeking to run for a state

legislature, commented that "[a] ‘waiting period’ is hardly a

significant barrier to candidacy," held that "this sort of

insignificant interference" need only rest on a "rational

predicate" in order to survive constitutional challenge, and

noted that it had "upheld a 7-year durational residency

requirement for candidacy," in Chimento v. Stark, 414 U.S.

802 (1973), summarily aff’'g 353 F. Supp. 1211 (N.H.).").

See also Sununu v. Stark, 383 F. Supp. 1287 (D.N.H.

1974), aff'd mem., 420 U.S. 958 (1975) (upholding 7-year

residency requirement for state senatorial candidates). Cf.

Billington v. Hayduk, 439 F. Supp. 975, 978-79 (S.D.N.Y.

1977) (distinguishing Hadnott and invalidating a “merely

arbitrary" five-year residency requirement for county

executives), aff'd on other grounds, 565 F.2d 824 (2d Cir.

1977). North Carolina’s residency requirement for those

persons seeking to file a notice of candidacy is certainly not

unreasonable in the length of time required. All that is

required is that the potential candidate be, "at the time of

filing the notice of candidacy a resident of the judicial district

as it will exist at the time the person would take office if

elected." N.C. Gen. Stat. § 163-106(i).

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Accordingly, as the Supreme Court of North Carolina

recently found, the candidate residency requirement of

Chapter 509 is a "reasonable interpretation" of the State

Constitution’s residency requirement for judges, Preston, 325

N.C. at 462, 385 S.E.2d at 486. The existence of this valid

and important basis for the residency requirement renders it

constitutionally valid even if, as plaintiffs allege, partisan

motives also played a role in the requirement’s creation.°

In any event, the plaintiffs’ complaint against the

residency requirement appears to be that the residency

requirement "aggravates the gross mathematical inequality of

voting power among nomination districts and arbitrarily and

capriciously renders the processes leading to nomination and

election unequal for similarly situated potential candidates,"

because attorneys who live in less populated judicial districts

are given an unequal opportunity to be nominated for office

* The court notes that, while plaintiff's allegation of partisan motiva-

tion must be accepted for the purposes of the present Motion to Dismiss,

only a slim basis for the allegation is alleged, resting as it apparently does

on a letter from counsel for the NCABL to the United States Department

of Justice written during that Department’s preclearance review of

Chapter 509 under the Voting Rights Act. See Complaint, para. 12 and

Exhibit B. Read in context and as a whole, the letter expresses the belief

of counsel that the candidate residency requirement was designed to

further the ability of minority voters in the newly created non-white

majority districts to elect candidates of their choice, a purpose that

furthers the goals of the Voting Rights Act and thus, ultimately, of the

Equal Protection Clause itself. Such a reading does not indicate that its

author believed that "the residency requirement was solely and directly

intended to discriminate against Republican candidates and Voters."

Complaint, para. 12. The court also notes that a single letter from

counsel in ongoing litigation against the State (the Alexander case) is a

weak indication of the intention of the State legislature.

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

compared to those candidates who live in more heavily

populated districts. Plaintiffs’ Memorandum at 4-5. The

court perceives this to be a suggestion that the one per-

son/one vote standard applies to judicial elections, a sugges-

tion rejected by the Supreme Court in Wells v. Edwards, 409

U.S. 1095 (1973), as discussed in greater detail infra.

IV.

PLAINTIFFS’ GERRYMANDERING CHALLENGE’

’ Plaintiffs’ initial response to defendants’ justiciability argument

consists of the assertion that this court implicitly decided the question in

plaintiffs’ favor by denying their motion for a preliminary injunction.

Plaintiffs’ Memorandum at 10-11. This assertion is incorrect: this court

has not yet decided the question of justiciability. Plaintiffs themselves

quote this court’s observations at the September 21, 1988, hearing on the

motion for a preliminary injunction, in the course of which the Court

stated that "I am inclined to think that the issue is justiciable but I want

to emphasize again that these are not final opinions on my part but just

observations." Id. at 11 (emphasis added). Plaintiffs claim that the

court’s Order of October 4, 1988, "implicitly found those issues [raised

by plaintiffs] to present an appropriate occasion for judicial determina-

tion." Id. Said Order did nothing of the sort. Instead, it rejected

plaintiffs’ argument that they had demonstrated the likelihood of success

on the merits necessary to justify issuance of a preliminary injunction.

In doing so, the court wrote that Davis v. Bandemer, 478 U.S. 109

(1986), while holding that "certain group rights under the equal protection

clause are justiciable . . . d[id] not supply the answer to the issue raised

herein [as to the justiciability of the plaintiffs’ claims]." Order at 11.

The plaintiffs’ current attempt to recast this court’s explicit refusal to

decide the justiciability question in their favor as such a ruling is without

merit.

(continued...)

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Before 1986, it was widely assumed that claims of

“political gerrymandering" were “political questions" and, as

such, were not subject to judicial resolution. See, e.g., J.

Nowak, R. Rotunda and J. Young, Constitutional Law, 800

(2d ed. 1983) (contrasting political gerrymandering with

unconstitutional racial gerrymandering). The Supreme Court

has described the political question doctrine as applying to

cases in which there is present

a textually demonstrable constitutional com-

mitment of the issue to a coordinate political

department; or a lack of judicially discover-

able and manageable standards for resolving

it; or the impossibility of deciding without an

initial policy determination of a kind clearly

for nonjudicial discretion; or the impossibility

of a court’s undertaking independent resolu-

tion without expressing lack of the respect due

coordinate branches of government; or an

unusual need for unquestioning adherence to

a political decision already made; or the

potentiality of embarrassment from multifari-

7(...continued)

Plaintiffs’ citation of Bandemer in this regard, Plaintiffs’

Memorandum at 11 n. 9, is inappropriate. In that case, the Supreme

Court noted in passing that in ruling for the plaintiffs on the merits the

court below necessarily had made an implicit judgment that the plaintiffs’

claims were justiciable. Bandemer, 478 U.S. at 118. In the instant case,

this court ruled against the plaintiffs on a motion for preliminary relief.

The court does not perceive that such a ruling can be construed into a

holding in plaintiffs’ favor on a hotly contested and potentially dispositive

issue.

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

ous pronouncements by various departments

on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962).

Baker held that none of these characteristics were

present in an action challenging a state legislative apportion-

ment on the basis of disparities in the number of voters

represented by each legislator, id. at 226, and the Court

subsequently formulated the one person/one vote standard to

govern similar actions. See Reynolds v. Sims, 377 U.S. 533

(1964). At almost the same time, however, the Court was

unanimous in taking summary action amounting to a rejection

of the argument that partisan ‘gerrymandering’ may be

subject to federal constitutional attack under the Fourteenth

Amendment. WMCA, Inc. v. Lomenzo, 382 U.S. 4, 6

(1965) (Harlan, J., concurring). The Court and most

commentators agreed that it would be impossible to adjudi-

cate equal protection challenges to political gerrymanders

"without being forced to make a nonjudicial policy determi-

nation or to resort to a standard that is not judicially manage-

able." Davis _v. Bandemer, 478 U.S. 109, 148 (1986)

(O’Connor, J., concurring).

In Bandemer, however, the Supreme Court held that

a gerrymandering suit brought by Indiana Democrats against

Republican State officials did present a justiciable question of

law. In Bandemer, the plaintiffs alleged that the Republican-

controlled Indiana legislature had redrawn the state legislative

districts in 1981 for the purpose and with the effect of

minimizing or cancelling out the voting strength of an

identifiable political minority, Democratic voters. Davis v.

Bandemer, 603 F. Supp. 1479, 1482, 1490 (S.D. Ind. 1984),

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

rev'd, 478 U.S. 109 (1986). The techniques the district

court found the Republican majority had employed purpose-

fully to achieve this result were those familiar from racial

gerrymandering cases -- irregularly shaped district boundaries

obviously drawn with political demographics in mind,

disregard for traditional boundaries, and a “peculiar mix of

single-member and multimember districts." 478 U.S. at 116.

Plaintiffs, in candidly describing their attack on North

Carolina’s mode of electing Superior Court judges as a

challenge to the election system’s "fairness," Plaintiffs’

Memorandum at 7, attempt to avoid the political question bar

on judicial resolution of such challenges* by relying on an

expansive and, in this court’s view, incorrect reading of

Davis v. Bandemer. Plaintiffs treat Bandemer as if it were

a blanket repudiation of the political question doctrine in the

area of state electoral systems. See, e.g., Plaintiffs’ Memo-

randum at 7 (Bandemer “has now removed the political

question bar [on] a challenge” to the fairness of state’s mode

of electing Superior Court judges).

However, the court believes that, for the purposes of

the political question doctrine, the only difference between

Bandemer and a (clearly justiciable) racial gerrymandering

case was the fact that in Bandemer it was a group defined by

political affiliation rather than by race that was alleging

* The courts repeatedly have found that challenges to a statute’s

"fairness" are not actionable. See, e.g., Holshouser v. Scott, 335 F.

Supp. at 933-34 ("We have no authority to pass upon the fairness of the

election of Superior Court Judges in North Carolina. That is a political

question to be resolved by the people and the legislature. We can only

determine the constitutional validity of the statutes involved.").

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

invidious discrimination. The Bandemer Court’s holding

was, simply, that this difference alone did not convert a

claim courts can adjudicate into one they cannot: “that the

claim is submitted by a political group, rather than a racial

group, does not distinguish it in terms of justiciability."

Bandemer, 478 U.S. at 125. Bandemer marks a significant

development in the law of political questions and equal

protection, but it is a development, not a radical reshaping.

Bandemer did not hold that all complaints about political

influence on the electoral process are legally cognizable, but

only "decline[d] to hold that such claims are never justicia-

ble" Id. at 124. The Bandemer Court reasoned that an

allegation of political gerrymandering that tracks precisely

“the racial gerrymandering claims that we have consistently

adjudicated" could be decided using judicially manageable

standards similar to those employed in the race area, id. at

125, and raised the same legal concerns about "fair and

adequate representation" recognized in the one person/one

vote cases. Id. at 126 n. 9.

In addition, demer did not hold that claims of

political gerrymandering are subject to the same legal

standards employed in other Cases; indeed, the Justices who

believed Bandemer justiciable divided sharply on the proper

Standard. Id. at 185 n. 25 (Powell, J., joined by Stevens, J.,

concurring in part and dissenting in part) ("there is no

‘Court’ for a standard" for determining the merits). A four-

justice plurality found that the Bandemer plaintiffs had failed

to allege or demonstrate "a history of disproportionate results

. . in conjunction with strong indicia of lack of political

power and the denial of fair representation." Id. at 139

66a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

(opinion of White, J.).? The plurality would require such a

"threshold showing of discriminatory vote dilution . . . for

a prima facie case of an equal protection violation" as well

as a credible allegation of discriminatory intent. Id. at 143,

129 n. 11. Two justices would impose a "heavy burden of

proof," requiring demonstration of a different set of factors

and, under their standard, would have upheld the Bandemer

plaintiffs’ claim on the merits. Id. at 185 (Powell, J., joined

by Stevens, J., concurring in part and dissenting in part).

Despite their disagreements, however, the plurality

and Justices Powell and Stevens agreed on a number of

essential points. Most importantly, these six justices found

that it was crucial to the justiciability of the Bandemer

complaint that it presented colorable allegations that the State

of Indiana was denying the plaintiffs "fair and adequate

representation" in the state’s political process as a whole.

Id. at 126 n. 9, 131-133, and at 162 (Powell, J., concurring

in part and dissenting in part). In Bandemer, "the issue

[was] one of representation," id. at 124, and as such present-

ed a justiciable claim.

The plurality and Justices Powell and Stevens agreed,

furthermore, that the Equal Protection Clause does not

guarantee electoral success or forbid states to include

political considerations in structuring their political process-

es. The "mere fact that a particular apportionment scheme

makes it more difficult for a particular group" to win

elections, "does not render that scheme constitutionally

infirm," id. at 131. As Justices Powell and Stevens put it,

° All page cites hereinafter to Davis v. Bandemer are to Justice

White’s plurality opinion except as otherwise noted.

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

the "common practice of the party in power to choose the

redistricting plan that gives it an advantage" is not, in and of

itself, the type of unconstitutional gerrymandering Bandemer

renders suspect. Id. at 164-65 (Powell, J., concurring in

part and dissenting in part).

The plaintiffs’ efforts in the present action to satisfy

Bandemer’s justiciability requirements fall short. Bandemer

involved the claim that a legislative majority was wielding its

governmental power "to minimize or cancel out the voting

strength of . . . political elements of the voting population,"

id. at 119 (citation omitted), thereby insulating itself from the

need to accord the minority fair representation. It was the

danger of a "lack of responsiveness by those elected to the

concerns" of those they represent that justified judicial

scrutiny of the state legislative redistricting scheme. Id. at

131-34. Accord id. at 169-70 (Powell, J., concurring in part

and dissenting in part). Bandemer thus rests on the constitu-

tional obligation of representative officials to represent all of

their constituents, regardless of those ccnstituents’ racial or

political affiliations. Because representative officials ought

to take political considerations and constituents’ views into

account when they act, an electoral scheme that insulates

them from those views raises justiciable questions of consti-

tutional magnitude. See id. at 125 n.9.

In North Carolina, state senators and representatives

hold clearly political offices. Today, both are directly

elected by the citizens of North Carolina, and it is their

function as representatives to synthesize the opinions of their

constituents and reflect them in the debate and deliberation

of public issues. The executive branch of the State govern-

ment, headed by its highest officer elected at large within the

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

State, is also expected to bring the views and opinions which

he offered the State electorate in seeking the Governorship to

bear on the job of running the State machinery. A gerry-

mandered electoral scheme that insulates these representatives

from political segments of the electorate would appear to be

actionable under Davis v. Bandemer.

In the present case, in contrast, the plaintiffs’ Com-

plaint is with the State’s mode of electing judges, the

quintessentially non-representative governmental officials.

Judges are not legally obligated to act in a politically

responsive manner or to make decisions in accordance with

the views of a constituency; indeed, the judicial obligation is

to implement an impartial determination of the facts and

application of the law to a case or controversy without regard

to majority viewpoint or popular opinion. Such obligation is

the very predicate of judicial integrity, and is frequently

fulfilled to protect and enforce the constitutional rights of

minorities. A departure from these principles is not to be

lightly regarded. As the Supreme Court has observed, "[iJt

is a serious accusation to charge a judicial officer with

making a politically motivated decision. By contrast, it is to

be expected that a legislator will vote with due regard to the

views of his constituents." Clements v. Fashing, 457 U.S.

at 968 (plurality).

The Supreme Court rejected the idea that judges are

representative officials for constitutional purposes in Wells v.

Edwards, 409 U.S. 1095 (1973). Wells involved a one

person/one vote challenge to Louisiana’s method of electing

judges. A three-judge district court dismissed the complaint,

holding that

Reem

—

69a

DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

"Judges do not represent people, they serve

people." Thus, the rationale behind the one-

man, one-vote principle, which evolved out of

efforts to preserve a truly representative form

of government, is simply not relevant to the

makeup of the judiciary.

"The State judiciary, unlike the legislature , is

not the organ responsible for achieving repre-

sentative government."

Wells v. Edwards, 347 F. Supp. 453, 455-56 (M.D. La.

1972) (quoting New York State Ass’n of Trial Lawyers v.

Rockefeller, 267 F. Supp. 148, 153 (S.D.N.Y. 1967), aff'd

mem., 409 U.S. 1095 (1973)). The Supreme Court sum-

marily affirmed the district court’s decision.'® As the Fifth

Circuit recently observed:

It is impossible, given the single point at issue

and the simple reasoning stated, to believe

that the majority of the Supreme Court, in

affirming Wells, did not concur in that reason-

ing. If there were doubt, however, it would

be laid to rest by the terms of the dissent,

which attacks the district court opinion in

stern, egalitarian terms for having, like other

'0 The Supreme Court has made it clear that lower courts are not

"free to disregard . . . [vJotes to affirm summarily . . . [;] [these votes],

it hardly needs comment, are votes on the merits of a case. . . . ‘[T]he

lower courts are bound by summary decisions by this Court ‘until such

time as the Court informs [them] that [they] are not.’" Hicks v.

Miranda, 422 U.S. 332, 344-45 (1975) (citations omitted).

70a

District COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

opinions cited by it, held "that the one-person,

one-vote principle does not apply to the judi-

ciary." 409 U.S. 1095, 1096 n. 2, 93 S.Ct.

904, 905 n. 2.

Latin American Citizens Council # 4434 v. Clements, 914

F.2d 620, 627 (Sth Cir. 1990) (en banc), cert. granted, __

U.S.___, 111 S.Ct. 775 (1991). The Fifth Circuit conclud-

ed that in Wells the Supreme Court "necessarily" held that

"for purposes of the Equal Protection Clause of the Four-

teenth Amendment judges ‘do not represent people.’" Id.

Wells, furthermore, was not an isolated decision. The courts

that have addressed the issue of whether judges are represen-

tative officials for constitutional purposes unanimously have

agreed that "judges do not ‘represent’ those who elect them."

Clements, 914 F.2d at 626 n. 9 (collecting cases). The most

recent judicial discussion of this issue is that of the en banc

Fifth Circuit opinion in Clements."'

'' In their Memorandum, plaintiffs make much of the fact that the

Supreme Court has granted certiorari to resolve the disagreement between

Clements and Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988), on the

applicability of Section 2 of the Voting Rights Act to judicial elections

(specifically, whether the term “representative” as used in Section 2

applies to judges). Plaintiffs’ Memorandum at 13-15. Plaintiffs appear

to have misread the defendants’ reason for citing Clements, which was

for its reading of Wells. Clements and Mallory both were decided on the

basis of the Voting Rights Act, not the Equal Protection Clause, and thus

their disagreement and its eventual resolution by the Supreme Court are

not germane to the present case. The court does not perceive that

Mallory supports plaintiff's constitutional claim. See Mallory, 839 F.2d

at 278 ("The plaintiffs’ section 2 claim involves the construction of an

Act of Congress, a different task from construing and applying a

provision of the Constitution.") and at 277 (the 1982 amendments to the

(continued...)

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

Excluding elected state judges from the scope of

constitutional rules designed to insure "the objective of fair

and adequate representation," Bandemer, 478 U.S. at 125 n.

9, is wholly consistent with established equal protection

principles. Rules, such as the one person/one vote require-

ment and Bandemer’s prohibition of some partisan gerryman-

ders, prevent representative officials, such as legislators,

from sheltering themselves against popular influence and

pressure.

But American judicial systems are structured for the

very purpose of insulating the judiciary from political

influence and popular pressure. The United States Constitu-

tion, of course, provides for the appointment of federal

judges and guarantees their salaries and their tenure during

good behavior. The same concer to protect judges from

ordinary politics is present in North Carolina law. The State

Constitution affords Superior Court judges long terms of

office, N.C. Const. art. IV, § 16 (eight years), requires

special procedures for their removal from office, id. at § 17,

guarantees their salaries against reduction, id. at § 21, and

prohibits legislative interference with the rightful jurisdiction

of the courts, id. at § 1. The Code of Judicial Ethics forbids

"'(.. continued)

Voting Rights Act were intended to eliminate from the Act the intent

requirement of an action brought under the Equal Protection Clause).

In this regard, the court notes that although its ultimate holding in this

section of the instant order is that, since judges are not representatives for

constitutional purposes, a claim of partisan gerrymandering of judicial

elections is not logically justiciable, the court expresses no opinion as to

whether a claim of racial vote dilution in the election of judges is

actionable under Section 2 of the Voting Rights Act.

72a

District COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

candidates for judicial office from engaging in the constitu-

ent-oriented campaigning that those seeking representative

offices typically -- and appropriately -- undertake. Superior

Court judges in North Carolina, in short, are not representa-

tive officials, and the concern of Davis v. Bandemer that

representative officials be representative simply does not

apply to them.

If judges are not representatives for Fourteenth

Amendment one person/one vote purposes, as Wells held, it

is clear that the same conclusion holds in the present context.

Davis v. Bandemer recognized the justiciability of certain

challenges to the method by which a State structures its

legislature, the representative element of its government. It

did not authorize wholesale judicial intervention into "the

manner in which a State has decided to govern itself,"

Clements v. Fashing, 457 U.S. at 972, or, in particular, into

the form of a non-representative branch of state government.

An examination of the plaintiffs’ arguments in this

case reveals how remote their allegations are from the

concerns the Supreme Court addressed in Davis _v.

Bandemer. Plaintiffs do not allege any "lack of responsive-

ness" on the part of North Carolina Superior Court judges.

See Plaintiffs’ Memorandum at 15 ("Candidly, the plaintiffs

make no representation that [democratic] judges are not

‘responsive.’"). Indeed, they acknowledge that "in the

administration of justice, Republican judges may perform

similarly to Democratic judges in similar cases under like

circumstances." Plaintiffs’ Answers to Defendants’ Fourth

Set of Interrogatories, Ans. # 11. Nothing in the plaintiffs’

presentation of their case to date even suggests that North

Carolina’s method of electing Superior Court judges has led

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DISTRICT COURT ORDER OF JUNE 6, 1991 CONTINUED . . .

those judges to act unfairly or arbitrarily toward plaintiffs, or

toward Republican voters in general. Bandemer was an

attack on the use of state legislative power by the state

legislative majority, allegedly to serve the majority’s selfish

interests. By definition, nothing in plaintiffs’ case raises the

possibility that partisan political decisionmakers have taken

action to exempt themselves from their constitutional duties

toward any political segment of the State citizenry.

For the reasons discussed supra, the court does not

perceive that the rationale of Bandemer applies to this case.

Plaintiff's Complaint seeks this court’s intervention not in

order to protect any constitutional right recognized by the

Supreme Court’s decisions, but in order to restructure the

manner in which a state has chosen to elect a non-representa-

tive branch of government. Under Baker v. Carr and Davis

v. Bandemer this is a non-justiciable political question, and,

accordingly, plaintiffs’ Complaint is dismissed.’

CONCLUSION

For the reasons discussed supra, the court GRANTS

defendants’ Motion to Dismiss this action, pursuant to Rule

12(b)(6), Fed. R. Civ. P., and hereby DISMISSES this

action.

'2 The court’s ruling is not, of course, a stamp of approval on the

election system’s wisdom or fairness." In this regard, the words of the

Holshouser district court bear repeating: “We have no authority to pass

upon the fairness of the election of Superior Court Judges in North

Carolina. That is a political question to be resolved by the people and the

legislature. We can only determine the constitutional validity of the

statutes involved." 335 F. Supp. at 933-34.

74a

DisTRicT COURT ORDER OF JUNE 6, 1991 CONTINUED .. .

SO ORDERED.

This 6th day of June, 1991.

s/James C. Fox

JAMES C. FOX

United States District Judge

75a

DISTRICT COURT ORDER OF JULY 29, 1991

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

No. 88-263-CIV-5-F

REPUBLICAN PARTY OF NORTH

CAROLINA, et al.,

Plaintiffs,

JAMES G. MARTIN, Governor of

North Carolina, et al.,

Defendants,

and

NORTH CAROLINA ASSOCIATION

OF BLACK LAWYERS,

Defendant-Intervenor.

Nee Nee eee eee eee eee Ne”

This matter is now before the court on plaintiffs’

Motion for Relief from Judgment Pursuant to Rule 60(b) of

the Federal Rules of Civil Procedure, which asks this court

to reconsider its June 7, 1991, Order (the "Order"), which

dismissed the plaintiffs’ Complaint in its entirety. Defen-

dants and defendant-intervenor have filed memoranda in

opposition to said Motion, and plaintiffs have filed a Reply

Brief; accordingly, the Motion is now ripe for disposition.

The only argument which plaintiffs advance in

support of their Motion is the claim that two decisions of the

76a

DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED .. .

United States Supreme Court, decided two weeks after the

filing of the Order, undercut the reasoning contained in the

same. In Chisom v. Roemer, _—-U.S. ___, 59 U.S.L.W.

4696 (June 20, 1991), the Supreme Court held that the

"results test" of § 2 of the Voting Rights Act of 1965, as

amended in 1982, 42 U.S.C. § 1973, applies to the election

of state supreme court justices, based on an interpretation of

the word "representatives," as contained in the 1982 amend-

ment. Houston Lawyers’ Assoc. v. Attorney General of

Texas, U.S. __, 69 U.S.L.W. 4706 (June 20, 1991),

extended that holding to elections of state trial judges.

Plaintiffs assert that these two holdings are somehow broad

enough to undermine this court’s Order which found that

plaintiff's Fourteenth Amendment Equal Protection gerry-

mandering claim, which challenged North Carolina’s method

of electing judges on grounds of partisan unfairness, is not

justiciable. For the reasons that follow, the court does not

perceive that a ruling that a method of judicial election may

be the subject of attack under § 2 also implies that the same

method may be the subject of a vote dilution challenge under

the Equal Protection Clause.’

In its Order, the court explicitly rejected an earlier

version of plaintiffs’ argument that decisions construing § 2

are somehow applicable to plaintiffs’ Fourteenth Amendment

gerrymandering claim. The court, noting that "plaintiffs

make much of the fact that the Supreme Court has granted

' The court notes that, if indeed these two Supreme Court

decisions did have any relevance to the plaintiffs’ claims, it would be

only to the plaintiffs’ Fourteenth Amendment Equal Protection gerryman-

dering claim; the two decisions would not affect plaintiffs’ other federal

and state claims, which were also dismissed in the court’s Order.

T7Ta

DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED .. .

certiorari to resolve the disagreement" in the courts of

appeals over the scope of the results test, stated that

"Clements and Mallory [the conflicting appeals court

decisions] both were decided on the basis of the Voting

Rights Act, not the Equal Protection Clause, and thus their

disagreement and its eventual resolution by the Supreme

Court are not germane to the present case." Order at 31 n.

11. Plaintiffs’ present motion simply repeats, without

significant amplification or modification, the claim that

resolution by the Supreme Court of an issue of statutory

construction should determine the constitutional issue raised

herein -- the justiciability of the plaintiffs’ Complaint. As

this court already has stated, that resolution is not germane

to the present case.

The Supreme Court’s opinion in Chisom confirms this

court’s rejection of the plaintiffs’ argument. In Chisom, the

Supreme Court began its legal analysis with a careful

description of its holding:

Our decision today is limited in charac-

ter, and thus, it is useful to begin by identify-

ing matters that are not in dispute. No_

constitutional claims are before us. Unlike

Wells _v. Edwards, White v. Regester, and

Mobile v. Bolden, this case presents us solely

with a question of statutory construction.

That question involves only the scope of the

coverage of § 2 of the Voting Rights Act as

amended in 1982... .

. The only matter in dispute is

whether the test for determining the legality of

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DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED .. .

such a practice, which was added to the

Statute in 1982, applies in judicial elections as

well as in other elections.

Chisom, 59 U.S.L.W. at 4698 (emphases added and foot-

notes omitted).? As defendants state in their Memorandum

in Opposition to Plaintiffs’ Motion for Relief from Judgment,

"[ijt is difficult to imagine a more emphatic statement about

the limitations of a holding, limitations that the plaintiffs now

ask this Court to disregard." Defendants’ Memorandum at 3.

The plaintiffs’ argument for having this court disre-

gard the Supreme Court’s explicit limitations on its holdings

in Chisom and Houston Lawyers, Assoc. consists of the

bare-bones assertion that "the Supreme Court’s reasoning is

applicable to the plaintiffs’ claims under the First and

Fourteenth Amendments in the instant case." Plaintiffs’

Memorandum in Support of Motion to Extend Time for

Filing Notice of Appeal and Motion for Relief from Judg-

ment Pursuant to Rule 60(b) at 2. See also id. at 3 (stating

that the "concept" of "representative" is "no different for the

Fifteenth Amendment and the Voting Rights Act than for the

First and Fourteenth Amendments"). The court finds

plaintiffs’ assertion to be unwarranted.

2 The Supreme Court’s opinion in Houston Lawyers, Assoc. relies

on Chisom’s discussion of the main issue and simply notes that "[w]Je

granted certiorari in these cases, . . . and in Chisom v. Roemer, . . . for

the limited purpose of considering the scope of the coverage of § 2.”

Houston Lawyers’ Assoc., 59 U.S.L.W. at 4704 (emphasis added and

citations omitted).

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DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED . . .

The question presented in the Chisom and Houston

Lawyers’ Assoc. cases was whether the 1982 amendment of

§ 2 of the Voting Rights Act extends to state judicial elec-

tions. Prior to 1982, it was clear that § 2 did apply to such

elections. Chisom, 59 U.S.L.W. at 4698. Congress enacted

the 1982 amendment in response to Mobile v. Bolden, 446

U.S. 55 (1980), which had held that § 2 was coextensive

with the Fifteenth Amendment, and that as a consequence a

plaintiff must prove discriminatory intent in order to state a

§ 2 claim, just as with a constitutional claim. The 1982

amendment eliminated the need to prove discriminatory

intent, and substituted a results test for identifying violations

of § 2. Chisom, 59 U.S.L.W. at 4699. In Chisom, the

Supreme Court rejected as "anomalous" the argument that

“Congress, in an express effort to broaden the protection

afforded by the Voting Rights Act, withdrew, without

comment, an important category of elections from that

protection." Id. at 4702.

Chisom and Houston Lawyers’ Assoc. thus resolved

an important but discrete question of Statutory construction

-- what was the intent of the Congress that enacted the 1982

amendment to § 2?’ The present case involves neither the

* The specific elements of the Supreme Court’s analysis in Chisom

reflect the purely statutory nature of its holding: the Court emphasized

that neither the 1982 text nor its legislative history indicated an intent to

withdraw § 2 coverage from judicial elections; that the lower court’s

decision holding the results test inapplicable to judicial elections resulted

in "radical surgery” on the statutory text; that the purposes of the 1982

amendment make it "appropriate for § 2. . . to continue to apply . . . to

judicial elections;" and that the contrary conclusion would produce an

“anomalous result” that the 1982 Congress was “unlikely to have intended

(continued...)

80a

DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED .. .

intent of Congress nor the application of the tools of statuto-

ry construction. This court’s Order, instead, required the

resolution of a constitutional question, through the applica-

tion of the principles defining non-justiciable political

questions.

The court perceives plaintiffs’ assumption that § 2’s

statutory requirements must be identical to federal constitu-

tional requirements to be unwarranted. The very purpose of

the 1982 amendment to § 2 was to differentiate the Voting

Rights Act’s standards from those of the Constitution. See

Chisom, 59 U.S.L.W. at 4702 (the "statute was enacted to

protect voting rights . . . not adequately protected by the

Constitution itself"). The issue of § 2 coverage that Chisom

and Houston Lawyers’ Assoc. decided goes to the range of

Situations in which Congress intended courts to apply a

particular substantive test of liability; the question of justicia-

bility concerns the type of questions the Constitution permits

courts to resolve. These issues are not properly equated.

The plaintiffs have also misread the implications of

Chisom and Houston Lawyers’ Assoc. for the instant case.‘

3(...continued)

since the Supreme Court had already held § 5 of the Voting Rights Act

applicable to judicial elections. 59 U.S.L.W. 4700-01. This reasoning,

directed as it is toward construing congressional intent, is clearly

irrelevant to the constitutional question before this court.

* The plaintiffs state that "[t]hese cases do not merely hoid that the

Voting Rights Act applies to the election of judges; each case concluded

that elected judges are not to be subject to disparate treatment compared

to other elected officials." Plaintiffs’ Memorandum at 4-5. This

(continued...)

8la

DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED . . .

Rather than undermining this court’s reasoning in its Order,

Chisom reaffirms at least one important aspect of that

reasoning. In the Order, this court relied in part on Wells v.

Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd sum-

marily, 409 U.S. 1095 (1973), which held that the one-

person, one-vote rule was inapplicable to the election of

judges. In Chisom, the Supreme Court explicitly distin-

guished Wells, not by "repudiat[ing]" its reasoning, as

plaintiffs suggest’, but by stressing the difference between

an equal protection claim and a Voting Rights Act claim.

Chisom, 59 U.S.L.W. at 4702 ("Wells rejected a constitu-

tional challenge based on the Equal Protection Clause of the

Fourteenth Amendment." It has no more relevance to a

‘(...continued)

statement directly contradicts the Supreme Court's own description of the

issue it resolved in Chisom and Houston Lawyers’ Assoc., as quoted

above. See Chisom, 59 U.S.L.W. at 4698 ("The only matter in dispute”

is whether the § 2 results test applies to judicial elections).

* Indeed, in describing Wells, the Supreme Court stated that "we

have held the one-person, one-vote rule inapplicable to judicial elections,"

Chisom, 59 U.S.L.W. at 4702 (emphasis added), thus laying to rest any

doubts about the authority of Wells stemming from the fact that Wells

was a summary affirmance. Inexplicably, plaintiffs repeat their earlier

assertion, that the defendants’ argument -- and now by implication this

Court’s Order -- somehow depend on League of United Latin American

Citizens Council # 4434 v. Clements, 914 F.2d 620 (Sth Cir. 1990) (en

banc), rev’d, Houston Lawyers’ Assoc. v. Attorney General of Texas,

__ U.S. ___ 69 U.S.L.W. 4706 (June 20, 1991), rather than on Wells.

As this court observed in its Order, "[plaintiffs appear to have misread

the defendants’ reason for citing Clements, which was for its reading of

Wells," Order at 31 n. 11 (which reading the Supreme Court agreed with

in Chisom), not for its interpretation of whether or not judges are

"representatives" covered by § 2.

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DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED .. .

correct interpretation of this statute than does our decision in

Mobile v. Bolden, . . . which also rejected a constitutional

claim."). Thus, the Court recognized that the Equal Protec-

tion Clause and the Voting Rights Act are not co-extensive

and that the interpretation of the scope of one has no rele-

vance when determining the scope of the other.

In short, the Supreme Court in Chisom and Houston

Lawyers’ Assoc., rather than enunciating broad principles of

constitutional law, as plaintiffs suggest, confined itself to the

narrow question of the interpretation of a statutory term.

Thus, the court believes that its reasoning in its Order

remains dispositive in interpreting plaintiffs’ Fourteenth

Amendment Equal Protection claim. It is the lack of

responsiveness by those elected to the concerns of those they

represent that justifies judicial scrutiny of elections of

legislative and executive officials. In contrast, judges are

not supposed to be responsive and, in that sense, cannot be

said to be "representatives" for purposes of equal protection

Clause analysis. See, e.g., Order at 28-29. For these

reasons, the Chisom and Houston Lawyers’ Assoc. decisions

do not warrant setting aside the judgment of dismissal

entered in this action. Accordingly, plaintiffs’ Motion for

Relief from Judgment is hereby DENIED.°

SO ORDERED.

: Plaintiffs’ Motion for Hearing on their Motion for Relief

from Judgment is also DENIED.

83a

DISTRICT COURT ORDER OF JULY 29, 1991 CONTINUED .. .

This 29th day of July, 1991.

s/James C. Fox

JAMES C. FOX

United States District Judge

84a

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85a

ORDER AND DISSENT — PETITION FOR REHEAR-

ING WITH SUGGESTION FOR REHEARING IN BANC

FILED: April 27, 1993

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 91-1741

(CA-88-263-5-F)

REPUBLICAN PARTY OF NORTH

CAROLINA; BRUCE BRIGGS; WILLIAM R.

SIGMON; MARVIN K. GRAY; R. HOWARD

RIDDLE; LLOYD FOWLER; JOE R. WILSON;

R. WALTER WHITE; EDGAR A. READLING,

JR.; FREDERIC M. GALLAGHER; RALPH A.

WALKER, /

Plaintiffs-Appellants,

versus

JAMES B. HUNT, JR., Governor of North

Carolina, NORTH CAROLINA STATE BOARD

OF ELECTIONS; WILLIAM MARSH, JR.,

Chairman of North Carolina State Board of

Elections; GREG O. ALLEN; M. H. HOOD

ELLIS; RUTH TURNER SEMASHKO; JUNE K.

86a

ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

YOUNGBLOOD; NORTH CAROLINA

ASSOCIATION OF BLACK LAWYERS,

Defendants-Appellees,

and

DURHAM COUNTY BOARD OF ELECTIONS;

FORSYTH COUNTY BOARD OF ELECTIONS;

GUILFORD COUNTY BOARD OF

ELECTIONS,

Defendants.

ON PETITION FOR REHEARING WITH SUGGESTION

FOR REHEARING IN BANC

Appellees have filed a petition for rehearing with

suggestion for rehearing in banc and appellants filed an

answer to the petition. A member of the Court requested a

poll on the suggestion for rehearing in banc, and a majority

of the judges voted to deny rehearing in banc. Judges

Widener, Phillips and Murnaghan voted to rehear the case in

banc and Judge Phillips wrote the attached dissent. Judges

Russell, Hall, Wilkinson, Wilkins, Niemeyer, Hamilton,

Luttig and Williams voted against rehearing in banc. Chief

Judge Ervin disqualified himself from participation.

The original judicial panel voted to deny the petition

for rehearing.

87a

ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED . . .

The Court denies the petition for rehearing with

suggestion for rehearing in banc.

Entered at the direction of Judge Wilkins for a panel

consisting of Judge Russell, Judge Wilkins and Judge Glen

M. Williams, Senior United States District Judge, sitting by

designation.

For the Court

/s/Bert M. Montague

Clerk

88a

ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

PHILLIPS, Circuit Judge, dissenting from denial of re-

hearing en banc:

In 1986, a severely divided Supreme Court in Davis

v. Bandemer, 478 U.S. 109 (1986) opened a narrow door of

justiciability for claims by political parties (and possibly their

cross-over allies) that their group voting power had been

unconstitutionally degraded by partisan political gerrymander-

ing of legislative districts and, having opened that outer door

but narrowly, opened an even narrower door for the prima

facie statement and proof of such a particularized claim.

Significantly, the claim initially found justiciable by a six to

three majority of the Bandemer Court was then thought by

four of those who had thought it justiciable (and three who

disagreed on that point) not, however, proven prima facie

under the more stringent substantive sufficiency test. Though

discriminatory intent by the state legislature was so palpable

as not to be seriously questioned, see id. at 127, 140-41 and

though there was considerable evidence of adverse effect

from the gerrymander upon the challenging political party’s

proportionate success at the polls, see id. at 134, it was not

sufficient in degree to establish an equal protection violation

under the Court’s demanding test. See id. at 134-143.

A common theme runs through each of the three

different viewpoints expressed in the four separate Bandemer

opinions. Concerns of federalism and separation of powers

mandate that, if they are to exist at all, the occasions for

federal court consideration of claims of partisan political

gerrymandering by state legislatures must be strictly con-

fined. See id. at 129-134, 143 & n.14, (plurality opinion)

(though such claims justiciable, stringent prima facie claim

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ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED . . .

test required in view of "peculiar characteristics of these

political gerrymandering claims" and "the delicacy of

intruding on this most political of legislative functions"); id.

at 144 (Burger, J., concurring in judgment) (not justiciable;

claims of "injustice" from political gerrymandering do not

"belong" with federal judiciary); id. at 144 (O’Connor, J.,

concurring in judgment) (same; "judiciary should leave [such

claims] to the legislative branch"); id. at 184-85 (Powell, J.,

dissenting) (though claims justiciable in general and instant

one proven, difficulties of adjudicating such claims by

"federal judges . . . ill-equipped generally to review legisla-

tive [districting] decisions" requires that courts "impose a

heavy burden of proof” on parties making such claims).

Since Bandemer was decided in 1986 until now,

neither the Supreme Court nor, I believe, any other lower

federal court than ours had opened wider the narrow doors

of justiciability and substantive claim defined by the

Bandemer Court until the panel decision in this case. That

decision has now opened both wider in ways that I believe

are unwarranted under controlling Supreme Court authority.

Unless corrected, the decision will work great constitutional

mischief of exactly the sort recognized by every Justice who

wrote in Bandemer as the special threat to federalism and

separation of powers posed by this particular type of attack

on state legislative functions.

I think we should do the correcting, and do it now.

If we do not, and unless the Supreme Court were to under-

take review of our judgment of reversal and remand at this

time, the result will be to send this case back to the district

court under a mandate which, with all respect, I believe is

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ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

unmanageable--precisely because it is unmoored from even

the concededly uncertain moorings of Bandemer. See id. at

185 n.25 (Powell, J., dissenting) (pointing out that because

of the division of views within the court "there is no ‘Court’

for a standard that should be applied in determining whether

a challenged redistricting plan is an unconstitutional partisan

political gerrymander"). In consequence, later correction,

whether by this Court of the Supreme Court, will have been

at the expense of a great deal of essentially unguided effort

by both court and parties, one of them a sovereign state, (and

possibly by that state’s legislature) in a real political thicket

which the district court wisely had seen was one into which

it should not go. For this reason, I dissent from the court’s

decision not to rehear en banc the appeal in this case.

The first and fundamental error in our panel’s

decision is its reading of Bandemer’s narrow justiciability

holding to include claims respecting the election of state

judges. I believe that, properly read, Bandemer confines the

justiciability of claims of partisan political gerrymandering to

those involving the election of legislative officials. While

Bandemer does not expressly say so (having no need to) all

the pointers on which we commonly rely are in that direc-

tion.

The prime pointer is found in the Supreme Court’s

only direct consideration of a constitutional voting rights

claim related to the election of judges. In Wells v. Edwards,

409 U.S. 1095 (1973) the Court summarily affirmed a three-

judge district court decision that the claim, there of one-

Ola

ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED . . .

person, one-vote violation, was not a justiciable one. While

such a summary affirmance does not of course foreclose

later, full consideration of the dispositive issue by the

Supreme Court, Bandemer, 478 U.S. at 121, the decision

affirmed and its rationale are binding on this court until that

happens. It has not yet. Indeed, the continued authority of

Wells recently has been expressly recognized by the Supreme

Court in Chisom v. Roemer, 111 S.Ct. 2354, 2368 (1991).

It therefore is presently the law of the land, hence of

this circuit, that because state judges, where elected, are not

elected to provide the people with "representative govern-

ment," a claim that the process by which they are elected

violates the constitutional one-person, one-vote principle is

not a justiciable one--that principle simply being "not

relevant to the makeup of the judiciary." Wells, 347 F.

Supp. 453, 455-56 (M.D.La. 1972), aff'd mem., 409 U.S.

1095 (1973). I believe that Wells’ rationale for the non-

justiciability of one-person, one-vote claims respecting

judicial elections necessarily extends as well to the nonjustici-

ability of group vote-dilution claims respecting such elec-

tions. I do not see how, if having one’s individual vote in

judicial elections denied equal weight to that of all others in

the voting constituency is not the subject of a justiciable

constitutional claim, having an identifiable political group’s

voting power in such elections "diluted" by partisan political

gerrymandering could be. The one is no more nor less

relevant to "preserv[ing] a truly representative government"

under the Wells rationale.

I therefore read Wells as holding directly, and by

necessary implication from the rationale of the lower court

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ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

decision it affirmed, that no constitutional challenge to a

State’s districting decisions respecting the election of its

judges could present a justiciable controversy, whether based

on one-person, One-vote or on group vote-dilution grounds.

Bandemer’s later holding that equal protection

challenges by political parties to state districting decisions

respecting the election of legislators do present justiciable

controversies does not undercut this reading of Wells. It

would do so only if the necessary implication of its justi-

ciability holding was that it embraced judicial as well as

legislative elections. I believe the plurality and concurring

opinions on which the Bandemer holding is based instead

imply the opposite: that it is limited by its rationale, by its

tone, and by the precedent upon which it relies, to claims

respecting legislative elections.

The Bandemer holding, an extremely cautious one on

any reading, is expressly grounded in a late-developed

constitutional voting rights jurisprudence that was solely

concerned with the unique threat posed to truly representative

government by state apportionment and districting decisions

affecting the make-up of the very legislative bodies that are

the indispensable core of that form of government and the

ultimate instrument through which minority groups may

effectively "fend [] for themselves" in the political processes

of a state. Bandemer, 478 U.S. at 152 (O’Connor, J.,

concurring in the judgment). It is inconceivable to me that

the one-person, one-vote principles of Baker v. Carr, 369

U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533

(1964), or even the racial group vote dilution principles of

White v. Regester, 412 U.S. 755 (1973) and Whitcomb v.

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ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

Chavis, 403 U.S. 124 (1971) would ever have originated in

response to constitutional challenges respecting the makeup

of state judiciaries. Wells of course is direct evidence that

they would not have, and Bandemer’s rationale, directly

drawn from those seminal voting rights decisions, see

Bandemer, 478 U.S. at 118-27, confirms that its holding too

is totally dependent upon the fact that there too it was the

make-up of legislative bodies, hence of legislative power,

that was at stake. The whole tone of the Bandemer plurality

opinion (and of the concurring opinion providing the justicia-

bility holding) is one of great caution and anxiety about

extending federal judicial oversight of the

apportionment/districting functions of state legislatures past

the few points of absolutely felt necessity--all concerned with

the composition of legislative bodies--that had now been

identified in Baker, White, and Bandemer. I believe it is

implicit in Bandemer that it would not have been written in

response to a partisan political gerrymandering challenge to

a state’s process for electing its judiciary.

Chisom, in which the Court recently held that

amended § 2 of the Voting Rights Act did "cover" judicial

elections, does not undercut this reading of Wells and

Bandemer. Our panel’s decision relies upon Chisom as

demonstrating on the one hand that Bandemer’s justiciability

holding respecting legislative elections extends as well to

judicial elections, see slip op. p.15, n.17, and, on the other,

that Wells’ nonjusticiability holding respecting judicial

elections is confined to one-person, one-vote challenges, see

slip op. p.17. But this reliance is, with respect, simply

misplaced. Both suggestions are directly refuted or necessari-

ly belied by the Chisom opinion itself.

94a

ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

As to the suggestion that Chisom’s discussion of § 2

"coverage" of judicial elections "applies to claims pursued

under the Equal Protection Clause," slip op. 14 n.17, the

Chisom Court was at pains to disclaim any relevance of its

analysis of the concededly broader reach of § 2’s coverage

to the reach ("justiciability") of related constitutional voting

rights protections. Chisom, 111 S.Ct. at 2361, 2368.

The panel’s suggestion that Chisom’s recognition of

Wells’ continued authority on the nonjusticiability of chal-

lenges to judicial elections was confined to one-person, one-

vote challenges is belied by the Chisom Court’s discussion of

the point. That aspect of Wells was addressed in Chisom

only in response to the state-defendants’ suggestion that

because Wells had found one-person, one-vote claims

respecting judicial elections nonjusticiable, this precluded §

2 coverage of such elections, since consideration of § 2 vote-

dilution claims required an initial determination whether one-

person, one-vote principles had been observed in the chal-

lenged districting plans. See Chisom, 111 S.Ct. at 2368.

The Chisom Court rejected the argument by pointing out that

§ 2 claims of racial vote dilution could be made out irrespec-

tive of the observance of one-person, one-vote requirements.

Id. n.32. This of course says nothing about the breadth of

Wells’ nonjusticiability holding, but simply points out the

oJ "

irrelevance of that holding to questions of § 2’s "coverage".

A proper parsing of the Supreme Court decisions in

Wells, Bandemer, and Chisom thus clearly points to the

nonjusticiability of any claim by a political party that a

State’s districting design for election of its judges, as opposed

to its legislators, violates any constitutionally secured group

95a

ORDER AND DISSENT — PETITION FOR REHEARING WITH SUGGES-

TION FOR REHEARING IN BANC CONTINUED .. .

voting right of the party. The only group voting rights

recognized to date by the Supreme Court as entitled to

constitutional protection against dilution by a state’s electoral

districting design--hence as potential subjects of justiciable

controversies--are those of identifiable racial and political

groups respecting the election of legislators. At this point,

this defines the limit of constitutionally secured group voting

rights, hence of justiciable constitutional claims by racial or

political groups of voters. To the extent state districting

designs for the election of other officials may be thought to

result in unfairness or injustice to identifiable racial or

political (or other?) groups of voters, rectification has been

left by the Supreme Court’s voting rights jurisprudence to the

political processes of the states (subject always of course to

Congress’ constitutional enforcement powers in respect of

racial groups).

Even if Bandemer’s justiciability holding were

construed to extend to claims respecting the election of

judges, the claim here would not meet the most critical

aspects of Bandemer’s justiciability test: that the claim be

subject to resolution by the application of "judicially dis-

cernible and manageable standards" and that its resolution not

require the making of an “initial policy decision that the

judiciary shou

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