UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPUBLICAN PARTY OF NORTH
CAROLINA; MARVIN K. GRAY; BRUCE
BRIGGS; FREDERIC M. GALLAGHER;
LLOYD FOWLER; JOE R. WILSON;
R. WALTER WHITE; RALPH A.
WALKER; EDGAR A. READLING, JR.;
R. HOWARD RIDDLE; WILLIAM R.
SIGMON,
Plaintiffs-Appellees,

v.

JAMES B. HUNT, Governor of North
Carolina; JUNE K. YOUNGBLOOD;
EDWARD J. HIGH; JEAN H. NELSON;                           No. 94-2410
LARRY LEAKE; DOROTHY PRESSER;
NORTH CAROLINA STATE BOARD OF
ELECTIONS,
Defendants-Appellants,

and

NORTH CAROLINA ASSOCIATION OF
BLACK LAWYERS; DURHAM COUNTY
BOARD OF ELECTIONS; FORSYTH
COUNTY BOARD OF ELECTIONS;
GUILFORD COUNTY BOARD OF
ELECTIONS,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-88-263-5-F)
Argued: December 6, 1995

Decided: February 12, 1996

Before RUSSELL, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Remanded with instructions by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Norma Smithwick Harrell, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellants. C. Allen Foster, PATTON BOGGS,
L.L.P., Greensboro, North Carolina, for Appellees. ON BRIEF:
Michael F. Easley, North Carolina Attorney General, Edwin M.
Speas, Jr., Senior Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lants. Robert N. Hunter, Marshall Hurley, PATTON BOGGS, L.L.P.,
Greensboro, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The North Carolina State Board of Elections and others (collec-
tively "NCSBE") appeal a decision of the district court in favor of the
Republican Party of North Carolina and others (collectively
"RPNC"), holding that the method of electing superior court judges
in North Carolina constitutes a political gerrymander intended to

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deprive members of the Republican Party rights guaranteed under the
Equal Protection Clause of the Fourteenth Amendment. Specifically,
by order dated November 3, 1994, the district court ruled, inter alia,
that the discriminatory impact of the requirement that superior court
judges stand for election on a statewide basis had resulted in Republi-
can candidates experiencing a consistent and pervasive lack of suc-
cess and exclusion from the electoral process as a whole and that
these effects were likely to continue unabated into the future. In the
elections of superior court judges conducted only five days later,
every Republican candidate standing for the office of superior court
judge was victorious at the state level. Because when it ruled the dis-
trict court did not have the benefit of these election results, which
were not certified until December 1994, and because we conclude that
these results may substantially affect its decision, we remand for the
district court to consider them in the first instance.

I.

RPNC brought this action against NCSBE, claiming that the
method of electing superior court judges in North Carolina violated
the First Amendment and the Equal Protection Clause of the Four-
teenth Amendment. In an earlier appeal, this court reversed a decision
of the district court that had dismissed RPNC's complaint on the basis
that it raised a nonjusticiable controversy. Republican Party of N.C.
v. Martin, 980 F.2d 943 (4th Cir. 1992), cert. denied, 114 S. Ct. 93
(1993) (RPNC I). After concluding that the controversy was justicia-
ble, we determined that the complaint failed to state a claim for which
relief could be granted for violations of the First Amendment, but that
the complaint adequately stated a claim under the Fourteenth Amend-
ment. See id. at 961. Accordingly, we reversed in part, affirmed in
part, and remanded for further proceedings. Id.

On remand, RPNC sought preliminary injunctive relief. Applying
the balancing-of-the-hardships test set forth in Blackwelder Furniture
Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir.
1977), the district court ruled that preliminary relief was appropriate.
Republican Party of N.C. v. Hunt, 841 F. Supp. 722, 726-33
(E.D.N.C. 1994). In considering NCSBE's appeal from that decision,
this court concluded that the district court had not abused its discre-
tion in determining that some form of preliminary injunctive relief

                    3
was appropriate, but held that the preliminary relief ordered by the
district court went too far. Accordingly, we modified the preliminary
relief ordered by the district court. Republican Party of N.C. v. North
Carolina State Bd. of Elections, Nos. 94-1057, 94-1113, 1994 WL
265955 (4th Cir. June 17, 1994) (per curiam).

Subsequently, the district court tried the case based on 311 stipula-
tions submitted by the parties, as well as documentary evidence con-
sisting of 132 witness statements, depositions for cross-examination
and redirect, and approximately 300 exhibits. Following the submis-
sion of proposed findings of fact and conclusions of law, the court
heard two days of oral argument. Thereafter, on November 3, 1994,
just five days before the next scheduled elections of superior court
judges, the district court entered its 134-page decision in favor of
RPNC on the merits.

The district court found that RPNC had proven that the electoral
system for superior court judges was implemented and maintained
with a discriminatory motive of promoting the political agenda of the
Democratic Party. Further, the court found that RPNC had adequately
demonstrated discriminatory effects that were more than de minimis:

          The evidence shows an actual history of disproportionate
          results from the present electoral system--that is, despite
          Republicans' consistent and predictable levels of voter reg-
          istration and localized support, RPNC consistently and pre-
          dictably has been unable to succeed in electing a candidate
          to the superior court bench.

          This exclusion has been pervasive and systematic and affir-
          matively illustrates the consistent degradation of plaintiffs'
          influence on the political process as a whole. Such degrada-
          tion has risen to the level of a fundamental impairment to
          the integrity of the current political system. Moreover, the
          discriminatory impact of this system on plaintiffs is not tran-
          sient but is likely to continue unabated under the present
          electoral scheme.

J.A. 5316a. After rejecting the justifications proffered by NCSBE as
facially valid but not rationally related to the statewide election

                    4
scheme, the court determined that the proffered justifications were
pretextual in nature and did not justify the scheme.

Having thus concluded the merits of the litigation in RPNC's favor,
the district court ordered a permanent injunction, requiring that tallies
of the November 1994 election results be maintained for the state,
division, and district levels. The court further ordered that judicial
elections would be conducted such that the winners of the elections
would be declared based on the results of the districtwide election
"until such time as the North Carolina General Assembly takes steps
to fashion an alternative remedial plan for the election of superior
court judges that meets with applicable constitutional requirements."
J.A. 5320a. It further enjoined NCSBE from reinstituting the district-
wide primary/statewide general election system in the future. NCSBE
appealed these decisions.1

The November 1994 elections produced results that were directly
at odds with the recent prediction by the district court that Republican
electoral exclusion would continue unabated into the future: All eight
of the Republican candidates vying for superior court judgeships pre-
vailed at the state level.2 NCSBE did not move the district court to
consider the results of the election pursuant to Federal Rules of Civil
Procedure 59(a) or 60(b).

II.

The Equal Protection Clause of the Fourteenth Amendment guaran-
tees that no state shall "deny to any person within its jurisdiction the
equal protection of the laws." U.S. Const. amend. XIV, § 1. In RPNC
I, this court held that in order to state an equal protection claim based
on political gerrymandering, a plaintiff must allege"`intentional dis-
crimination against an identifiable political group and an actual dis-
_________________________________________________________________
1 The district court later denied NCSBE's motion to stay implementa-
tion of the order pending appeal, and a single judge of this court denied
NCSBE's pre-election request for an emergency stay.
2 Only five of these candidates were seated as superior court judges,
however. Two Republican candidates lost at the district level and the
candidacy of a third was invalidated in a separate proceeding because he
was not a resident of the district.

                     5
criminatory effect on that group.'" RPNC I , 980 F.2d at 955 (quoting
Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality)).3 In
addressing the showing necessary to satisfy the effects portion of the
test, we explained that "`a showing of more than a de minimis effect'"
is required. Id. (quoting Bandemer, 478 U.S. at 134 (plurality)). Con-
sequently, a plaintiff must demonstrate "that an actual or projected
history of disproportionate results exists 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.
(citation omitted) (quoting Bandemer, 478 U.S. at 132 (plurality)). In
holding that RPNC had stated a claim, we stressed:

          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 cer-
          tainty of a similar future, compels our holding. Indeed, we
          believe that if RPNC had alleged even a modicum of elec-
          toral 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.

Id. at 958 (emphasis added).

Although NCSBE challenges the decision of the district court on
several bases, it first maintains that RPNC failed to carry its burden
of showing unconstitutional discriminatory effects resulting from the
statewide election of superior court judges.4 Central to this argument
is NCSBE's contention that the district court ignored the undisputed
evidence of growing Republican strength and increasing competitive-
_________________________________________________________________
3 Although a majority of the Bandemer Court agreed that political ger-
rymandering claims were justiciable, the Court did not reach a consensus
on the issue of what a plaintiff must allege--and ultimately prove--in
order to prevail on a claim of vote dilution in the context of political ger-
rymandering. In RPNC I, we determined that the plurality opinion in
Bandemer provided the narrowest grounds for decision and, hence,
applied it. RPNC I, 980 F.2d at 955 n.22.
4 In light of our resolution of this issue, we need not address the
remaining arguments raised by NCSBE at this juncture.

                    6
ness of Republican candidates as demonstrated by an increase in the
percentage of voters registered as Republicans; a decrease in the per-
centage of voters registered as Democrats; an expansion in the per-
centage of the vote captured by Republican candidates for office; and
a reduction in the number of votes separating the candidates in those
races in which the Republican candidates were not successful.
According to NCSBE, this evidence of a statewide trend toward
Republican competitiveness rendered it likely that Republican candi-
dates for superior court judgeships would experience electoral success
and refuted RPNC's claim that Republican influence on the electoral
process as a whole would continue to be degraded. NCSBE now
asserts that definitive confirmation of the accuracy of its position was
demonstrated by the results of the elections conducted only five days
after the district court ruled--in which all eight of the Republican
candidates running for superior court judgeships were victorious at
the state level.

RPNC contends that it would be inappropriate for this court to con-
sider the 1994 election results. First, it claims that NCSBE has waived
any argument that the 1994 election results should be injected into the
mix by failing to timely move the district court pursuant to Federal
Rules of Civil Procedure 59(a) or 60(b) to consider them. Second,
RPNC maintains that because this information was not weighed by
the district court in reaching its conclusion, we should not consider
it. We disagree.

Generally, only facts or evidence in existence when the trial
occurred, but undiscovered despite the due diligence of the moving
party, may properly form the grounds for a Rule 59(a) or a Rule 60(b)
motion based upon the newly discovered evidence. E.g., In re Abijoe
Realty Corp., 943 F.2d 121, 124 n.3 (1st Cir. 1991); New England
Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 652 (10th Cir. 1989);
see also 11 Charles A. Wright et al., Federal Practice & Procedure
§§ 2808, 2859 (1995) (collecting cases). Since the 1994 election
results obviously would not have satisfied this standard, we do not
believe that NCSBE waived consideration of the results by failing to
move the district court.

Further, although it is true that ordinarily this court will not con-
sider issues that have not been raised below, see, e.g., Singleton v.

                     7
Wulff, 428 U.S. 106, 120-21 (1976); Maryland Dep't of Human
Resources v. United States Dep't of Agric., 976 F.2d 1462, 1473-74
(4th Cir. 1992), an exception to this general rule exists when the fail-
ure to consider an issue would result in the denial of justice,
Singleton, 428 U.S. at 121. Stated differently, a showing of excep-
tional circumstances must be made before this court will consider
matters that were not raised below. See United States v. Vanhorn, 20
F.3d 104, 114 (4th Cir. 1994).

Under these circumstances, the unique nature of voting rights liti-
gation makes appropriate consideration of the election results occur-
ring after the district court decision. See Westwego Citizens for Better
Gov't v. City of Westwego, 906 F.2d 1042, 1045 (5th Cir. 1990)
("[G]iven the long term nature and extreme costs necessarily associ-
ated with voting rights cases, it is appropriate to take into account
elections occurring subsequent to trial.") (footnote omitted); Collins
v. City of Norfolk, Va., 883 F.2d 1232, 1243 (4th Cir. 1989) (referring
to election results occurring after the district court decision in support
of panel's conclusion that the finding of no white bloc voting by dis-
trict court was clearly erroneous), cert. denied , 498 U.S. 938 (1990).
The failure to consider the 1994 election results may produce a mis-
carriage of justice. The conclusion of the district court that the North
Carolina method of electing superior court judges is unconstitutional
was based on a prediction concerning the future. Subsequent events,
however, have demonstrated that this prediction is, at the very least,
subject to serious doubt. Because the election results cast significant
doubt on the finding by the district court that the history of electoral
failure by Republican candidates for superior court judgeships and
exclusion from the political process as a whole will continue into the
future, the 1994 election results must be taken into consideration.
And, since the district court is better suited to consider this issue in
the first instance, a remand for further proceedings is appropriate.

III.

For the reasons set forth above, we remand for further proceedings
consistent with this opinion.

REMANDED WITH INSTRUCTIONS

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