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Common Cause v. Rucho - 240 F. Supp. 3d 376 (M.D.N.C. 2017)


Taken together, then, the splintered opinions in Bandemer and Vieth stand for, at a minimum, the following: (1) Fourteenth Amendment partisan gerrymandering claims are justiciable; (2) in order to establish a partisan gerrymandering claim under the Equal Protection Clause, a plaintiff must show both (a) discriminatory intent and (b) discriminatory effects; and (3) the effects test proposed by the Bandemer plurality is unworkable, and, therefore, no longer controlling. Furthermore, given Vieth's abrogation of Bandemer's discriminatory effects test, the Supreme Court has failed to provide lower courts with guidance as to the proper standard for assessing whether an alleged partisan gerrymander produces discriminatory effects.


In these consolidated cases, two groups of Plaintiffs alleged that North Carolina's 2016 Congressional Redistricting Plan (Plan) constituted an unconstitutional partisan gerrymander in violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and, in the case of the Common Cause Plaintiffs, Article I, Sections 2 and 4 of the Constitution. In particular, Plaintiffs alleged that in drawing district lines, the Republican-controlled North Carolina General Assembly violated the Constitution by improperly relying on "political data" – data reflecting whether the people had voted in favor of Democratic or Republican candidates for certain state-wide elections – to draw districts intended to maximize the number of Republican members of North Carolina's congressional delegation. Defendants moved to dismiss both actions under Federal Rule of Civil Procedure 12(b)(6). According to the Defendants, the Supreme Court, in Pope v. Blue, rejected factually indistinguishable First and Fourteenth Amendment partisan gerrymandering claims and, therefore, required dismissal of Plaintiffs' actions.


Should the Plaintiffs’ claims be dismissed?




The federal district court rejected the Defendants’ arguments, holding that partisan gerrymanders were incompatible with democratic principles; as such, there was need for courts to err on the side of caution in adjudicating claims where important rights were involved, such as allegations of unconstitutional bias in apportionment. According to the Court, such right required that the Plaintiffs be afforded an opportunity to develop evidence establishing the viability of their proposed—and "uncontradicted"—discriminatory effects test. Accordingly, Defendants' motions to dismiss was denied.

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