Redistricting 101: Suing the Correct Parties – Eleventh Amendment
A key issue in a redistricting case is whether the plaintiff has sued the correct parties. This was an issue in a recent Fourth Circuit case, Wright v. North Carolina, 787 F.3d 256 (4th Cir. 2015). In Wright, plaintiffs, a group of thirteen North Carolina residents, brought a section 1983 action against the state and county board of elections alleging violation of equal protection under both the United States Constitution and the North Carolina Constitution. According to plaintiffs, a state law which redrew the Wake County Board of Education electoral districts gave some citizen’s votes significantly more weight than others in violation of the Fourteenth Amendment’s guarantee of one person, one vote and the North Carolina Constitution’s promise of equal protection. Defendants answered the complaint and moved to dismiss. Plaintiffs subsequently moved to amend their complaint, substituting the Governor, President Pro Tem of the Senate, and Speaker of the General Assembly in their official capacities for the State of North Carolina.
The district court granted defendants’ motions to dismiss and denied plaintiffs’ motion to amend as futile. On appeal, the Fourth Circuit held that the district court erred in dismissing plaintiffs’ suit but affirmed the denial of the motion to amend.
Turning first to the district court’s denial of plaintiffs’ motion to amend, the Fourth Circuit noted that under the Eleventh Amendment, state officials may be “sued and stopped” from engaging in unconstitutional acts “only if they have ‘some connection with the enforcement’ of an unconstitutional act.” Thus, to be amenable to suit under the Eleventh Amendment, “there must be a ‘special relation’ between the state official being sued and the challenged action.” This special relation “requires ‘proximity to and responsibility for the challenged state action.’” On the other hand, the court found that it is not enough that that state official merely have “‘[g]eneral authority to enforce the laws of the state . . .’” The court concluded that the North Carolina Constitution “clearly assigns the enforcement of laws to the executive branch.” Neither the state general assembly nor individual members of the general assembly have this power. Instead, the county board of elections “has the specific duty to enforce the challenged redistricting plan.” The president Pro Tem and the Speaker “are merely members of North Carolina’s General Assembly[,]” and therefore, “neither falls within the Eleventh Amendment exception to immunity established in Ex parte Young.
Turing to the main issue on appeal, the court noted that given the population growth in Wake County, there was a maximum population deviation among the then-existing school board districts of 47.89%. After the districts were redrawn, there were “geographically compact districts with a maximum population deviation of 1.66% and no district deviating from the ideal district population by even 1%.” Although “a district apportionment plan with a maximum population deviation under 10% will not, ‘by itself,’ support an equal protection claim” this 10% threshold “does not, however, ‘insulate” a state or local districting plan from attack.” Instead, “it determines the ‘allocat[ion of] the burden of proof’” with a plaintiff in a case below the 10% population disparity mark unable to ‘rely on it alone to prove invidious discrimination or arbitrariness . . . .’” Thus, if, as here, plaintiffs allege a “taint of arbitrariness or discrimination,” that is enough to survive a motion to dismiss.
What does this mean?
For future redistricting suits, plaintiffs will have to mine carefully the field of suing the proper defendants. The Fourth Circuit’s analysis of whether a defendant has some connection to the enforcement of the alleged unconstitutional act will require prospective plaintiffs to think long and hard about whom can be a defendant in a redistricting action.
Read the full opinion here.