                          PUBLISHED

                UNITED STATES COURT OF APPEALS
                    FOR THE FOURTH CIRCUIT


                         No. 14-1329


CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L.
WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G.
DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN;
WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN;
BEVERLEY S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN
CHILDREN,   d/b/a Coalition  of   Concerned   Citizens   for
African-American   Children;    RALEIGH     WAKE    CITIZENS
ASSOCIATION,

                Plaintiffs – Appellants,

     v.

STATE OF NORTH CAROLINA; WAKE COUNTY BOARD OF ELECTIONS,

                Defendants – Appellees.



Appeal from the United States District Court           for the
Eastern District of North Carolina, at Raleigh.        Terrence
W. Boyle, District Judge. (5:13-cv-00607-BO)



Argued:   December 10, 2014                 Decided:    May 27, 2015


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Affirmed in part, reversed in part, and remanded by
published opinion.  Judge Wynn wrote the majority opinion,
in which Judge Gregory joined.       Judge Motz wrote a
dissenting opinion.
ARGUED: Anita Sue Earls, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina, for Appellants. Alexander
McClure Peters, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina; Scott Wood Warren, WAKE COUNTY
ATTORNEY'S OFFICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Roger A. Askew, Claire A. Hunter, WAKE COUNTY
ATTORNEY'S OFFICE, Raleigh, North Carolina, for Appellee
Wake County Board of Elections.




                              2
WYNN, Circuit Judge:

       “The right to vote is protected in more than the initial

allocation of the franchise.          Equal protection applies as well

to the manner of its exercise.            Having once granted the right to

vote on equal terms, the State may not, by later arbitrary and

disparate    treatment,    value     one      person’s    vote    over    that   of

another.”    Bush v. Gore, 531 U.S. 98, 104-05 (2000) (citation

omitted).

       Thirteen citizens of Wake County, North Carolina challenge

a   state   law   redrawing    the    Wake      County    Board    of     Education

electoral   districts.        Plaintiffs       contend    that    under    the   new

redistricting plan, some citizen’s votes will get significantly

more    weight    than   other’s     in       violation   of     the     Fourteenth

Amendment’s guarantees of one person, one vote and the North

Carolina Constitution’s promise of equal protection.                       For the

reasons explained below, we conclude that Plaintiffs have stated

a claim upon which relief could be granted against the Wake

County Board of Elections and that the district court therefore

erred in dismissing their suit.               However, we affirm the denial

of the motion to amend because the state officials Plaintiffs

proposed to add as named defendants are not amenable to suit.



                                      I.



                                          3
     Accepting the facts in Plaintiffs’ complaint as true, as we

must on a motion to dismiss, Plaintiffs allege that until 2013,

the Wake County Board of Education (“Board of Education”) was

composed of members elected from nine single-member districts.

The Board of Education’s functioning and selection was governed

by North Carolina General Assembly Session Law 1975-717, which

required,    among   other    things,       that   the   Board    of   Education

redistrict    itself   every    ten     years      following     the   decennial

census.

     In 2010, the census showed that Wake County’s population

had grown by 43.51% over the preceding decade, with a maximum

population    deviation      among    the     then-existing      school   board

districts of 47.89%. 1       The Board of Education thus redrew its

districts in 2011, resulting in geographically compact districts

with a maximum population deviation of 1.66% and no district


     1
       “To determine compliance with the one person, one vote
principle courts usually analyze the apportionment plan in terms
of the maximum population deviation among the districts.
Generally, to calculate maximum deviation, the court first
constructs a hypothetical ideal district by dividing the total
population of the political unit (e.g., state or county) by the
total number of representatives who serve that population.
Then, the court determines how much the actual population of
each district varies from the population of the ideal district.
This deviation is expressed as a percentage of the ideal
population. Maximum deviation is the sum of the absolute value
of the deviation of the district with the smallest population
and that of the district with the largest population.” Daly v.
Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996).



                                        4
deviating from the ideal district population by even 1%.                                 See

Appendix 1 (from Plaintiffs’ complaint at J.A. 19).

       The plan was put into place by a Board of Education that

was majority Republican.              But under the new plan, the fall 2011

elections resulted in a Board of Education with a Democratic

majority.         Plaintiffs allege that because the new plan resulted

in     a    Democratic      majority,         the      Republican-controlled         North

Carolina General Assembly, in turn, “over the objection of a

majority of the Wake County School Board, passed a local bill

making numerous changes in the method of selection.”                              J.A. 11.

“No Democratic member of the legislature voted for it, and no

African-American member of the legislature voted for it.”                             J.A.

21.

       The     bill,   Session     Law        2013-110       (“Session      Law”),    made

“numerous”        changes    to   the    Wake       County    Board   of     Education’s

methods      of    election.      Central         to   Plaintiffs’    complaint,         the

Session Law changed the Board of Education’s make-up from nine

single-member districts to seven single-member districts and set

less       geographically      compact    boundaries         for    this    new    set   of

districts.         See Appendix 2 (from Plaintiffs’ complaint at J.A.

23).       The maximum population deviation among the single-member

districts is 7.82%.

       Further,      the    Session     Law    created       two   “super    districts.”

One super district forms a donut of “outer, rural areas of the

                                              5
county,”    while     the    other       forms       a    donut      hole      in    the   “inner,

urban”    area.       J.A.        11.         See    Appendix        3    (from      Plaintiffs’

complaint at J.A. 25).             The maximum population deviation between

the superdistricts is 9.8%.

      The Session Law also prohibits the Board of Education from

“making any        further    changes          in    its    method        of    election     until

2021,” something it previously could do.                           J.A. 11.          Wake County

is   thus    burdened        with        some        “substantially             over-populated”

districts,     where        votes        will        be     diluted         vis-à-vis        other

“substantially       under-populated”                districts.           J.A.       26.     Those

districts    are     “visually          and    mathematically             less      compact”     and

“split 21 unique precincts in the county” (as opposed to the

prior districts, which split only 11 precincts).                                J.A. 28.

     Plaintiffs sued the State of North Carolina and the Wake

County Board of Elections (“Board of Elections”), the entity

charged with administering the Board of Education’s elections.

Plaintiffs    complained           that        the       Session     Law        “overpopulates,

without justification, certain districts, causing the vote of

Plaintiffs     living        in     those       overpopulated             districts        to    be

weighted    less     than    votes       of     citizens        in       districts     that      are

unjustifiably       under-populated.”                    J.A.   11.            Plaintiffs       thus

claimed     that     the     Session          Law     violates           the     United     States

Constitution’s one person, one vote guarantees and the North

Carolina Constitution’s equal protection clause.

                                                6
     Defendants answered and moved to dismiss.                     Plaintiffs, in

turn,     sought    leave     to    amend       their   complaint,    substituting

Governor    Patrick       McCrory,    Senate       President   Pro    Tem   Phillip

Berger, and General Assembly Speaker Thom Tillis (“individual

state officials”) in their official capacities for the State of

North Carolina.

     The district court granted Defendants’ motions to dismiss

and denied Plaintiffs’ motion to amend as futile.                    Specifically,

the district court held that it had no jurisdiction over the

State,    that     Eleventh    Amendment         immunity   also     insulated   the

individual state officials from suit, and that Plaintiffs’ one

person, one vote claims were really “partisan gerrymandering”

claims,    which    it    considered        non-justiciable     under    both    the

United    States    and     North    Carolina      Constitutions.       Plaintiffs

timely appealed.



                                        II.

     We first consider Plaintiffs’ argument that the district

court erred in ruling that Proposed Defendants Tillis and Berger

(“Proposed Defendants”) were not proper parties to their suit. 2


     2
        Plaintiffs have not challenged the district court’s
dismissal of the State from their suit.      Further, Plaintiffs
conceded in their reply brief that Defendant McCrory lacked a
“sufficient connection to the enforcement of the redistricting
plan at issue here” to constitute a proper defendant. Reply Br.
(Continued)
                                            7
And we do so de novo.         Franks v. Ross, 313 F.3d 184, 192-93 (4th

Cir. 2002) (noting that “the existence of sovereign immunity is

a question of law that we review de novo” and that “we review de

novo a . . . legal determination [of] whether Ex parte Young

relief is available”) (quotation marks and citations omitted).

     Under the Eleventh Amendment, “[t]he judicial power of the

United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United

States by Citizens of another State or by Citizens or Subjects

of any Foreign State.”            U.S. Const. amend. XI.             The United

States Supreme Court has read the Eleventh Amendment to render

States immune from being hauled into federal court by private

parties.     Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S.

743, 760 (2002).

     While        the     Eleventh      Amendment    provides        significant

protections       to    States,   the   immunity    it    provides     to   state

officials    is    less    robust.       Specifically,     a   state    official

“ceases to represent the state when it attempts to use state

power in violation of the Constitution.”                 Sch. Bd. of City of

Charlottesville, Va. v. Allen, 240 F.2d 59, 63 (4th Cir. 1956).

See also Ex parte Young, 209 U.S. 123 (1908).                  Such officials



at 22.    We therefore do not address the propriety of these
parties as defendants.



                                         8
thus “may be enjoined from such unconstitutional action”—sued

and    stopped,       in    other        words—but         only    if      they    have     “some

connection      with       the    enforcement”        of     an    unconstitutional          act.

Id. at 157; see also Fla. Dep’t of State v. Treasure Salvors,

Inc., 458 U.S. 670, 685 (1982).

       To be amenable to suit under the Eleventh Amendment, there

must exist a “special relation” between the state official being

sued and the challenged action.                       Ex parte Young, 209 U.S. at

157.       See also, e.g., Waste Mgmt. Holdings, Inc. v. Gilmore, 252

F.3d   316,     331    (4th       Cir.     2001)     (“Ex     parte       Young     requires    a

‘special      relation’          between    the      state        officer     sued    and     the

challenged      statute       to    avoid    the      Eleventh       Amendment’s          bar.”).

This       requires    “proximity           to       and     responsibility           for     the

challenged state action.”                 S.C. Wildlife Fed’n v. Limehouse, 549

F.3d   324,     333    (4th       Cir.     2008)     (emphasis        in    original).         By

contrast, “[g]eneral authority to enforce the laws of the state

is    an    insufficient         ground     for      abrogating          Eleventh     Amendment

immunity.”      Id. (quotation marks omitted).

       For    example,       in     McBurney         v.     Cuccinelli        we    held    that

Virginia’s      attorney         general    did      not    have     a     specific    duty    to

enforce the state’s freedom of information act and thus was not

subject to suit under Ex parte Young.                        616 F.3d 393, 400-02 (4th

Cir. 2010).       We noted that Virginia had vested such authority in

local prosecutors as opposed to the attorney general.                                 Further,

                                                 9
we     likened    the        attorney     general’s       duty        to    issue        advisory

opinions     to        the    governor’s        duty     to     uphold       state        law—not

sufficient to impose the required “special relation” to enforce

the law so as to make him a proper defendant.                          Id. at 401.

       By contrast, in S.C. Wildlife Federation, we held that the

sued    state     official—there          the        director    of        South    Carolina’s

Department         of        Transportation—had            a         sufficiently             close

relationship with the challenged law or action to be amendable

to suit.         549 F.3d at 332-34.                  In that case, the plaintiffs

alleged    violations          of   the   National        Environmental            Policy       Act

arising    from     the      proposed     construction          of    a    bridge        in   South

Carolina.         We    held      that   both    state    and        federal       law    imposed

specific duties upon the director that gave rise to the required

special relation.            Id. at 333-34.

       Turning to the case at hand, we agree with the district

court    that     neither      Proposed     Defendant          had    a    special       duty    to

enforce the challenged Session Law, and thus neither is amenable

to suit.         The North Carolina Constitution clearly assigns the

enforcement of laws to the executive branch.                               N.C. Const. art.

III, § 5.         The General Assembly retains no ability to enforce

any of the laws it passes.                Cf. id.       And Proposed Defendants are

merely      members          of     North        Carolina’s           General        Assembly.

Additionally, as is the case with all election plans in North

Carolina, the county Board of Elections, in cooperation with the

                                                10
State Board of Elections, has the specific duty to enforce the

challenged redistricting plan.                   N.C. Gen. Stat. §§ 163-22, 163-

33.

        Plaintiffs counter that if the Proposed Defendants are not

party to their suit, there will be no mechanism for forcing a

constitutionally              valid     election,           should    they       succeed       in

enjoining             the   Session    Law. 3        This     assertion        is,    however,

incorrect.             The district court could, for example, mandate that

the Board of Elections conduct the next election according to

the scheme in place prior to the Session Law’s enactment until a

new and valid redistricting plan is implemented.                             State law also

provides, for example, that the State Board of Elections can

make reasonable interim rules with respect to pending elections.

N.C. Gen. Stat. § 163-22.2                      (“In the event . . . any State

election law . . . is held unconstitutional or invalid by a

State or federal court or is unenforceable . . ., the State

Board       of    Elections       shall   have       authority       to   make       reasonable

interim          rules      and   regulations        with    respect      to    the       pending

primary          or     election.”).        Without         question,     then,       a    valid

election could take place if Plaintiffs succeed on the merits

and successfully enjoin the Session Law.

        3
       Plaintiffs make various other arguments relating to, for
example, the availability of attorneys’ fees, which we summarily
reject.


                                                11
     In    sum,     neither     Proposed       Defendant      has    any        enforcement

authority over election proceedings, and, accordingly, neither

falls     within     the    Eleventh      Amendment         exception          to     immunity

established in Ex parte Young.                   We thus affirm the district

court’s determination that adding Speaker Tillis and President

Pro Tem Berger as defendants would be futile.



                                          III.

     With their main argument on appeal, Plaintiffs contend that

the district court erred when it dismissed their complaint for

failure to state a claim upon which relief could be granted.                                  We

review     the     district     court’s        dismissal      of     the        Plaintiffs’

complaint    de     novo,   “accept[ing]         as    true   all        of    the     factual

allegations        contained        in   the    complaint”         and        drawing       “all

reasonable inferences in favor of the plaintiff.”                             E.I. du Pont

de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th

Cir. 2011) (quotation marks and citations omitted).                                   Further,

while the complaint “must contain sufficient facts to state a

claim that is plausible on its face,” it nevertheless “need only

give the defendant fair notice of what the claim is and the

grounds     upon    which      it    rests.”          Id.    (quotation             marks    and

citations omitted).

     To the extent Plaintiffs’ claims do “not fall within the

four corners of our prior case law,” this “does not justify

                                           12
dismissal under Rule 12(b)(6).                        On the contrary, Rule 12(b)(6)

dismissals      ‘are      especially            disfavored         in   cases        where         the

complaint    sets      forth     a    novel       legal      theory     that       can    best      be

assessed     after       factual       development.’”               McGary         v.     City      of

Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (quoting Baker v.

Cuomo, 58 F.3d 814, 818–19 (2d Cir. 1995), vacated in part on

other grounds, 85 F.3d 919 (2d Cir. 1996) (en banc)).                                     See also

5B    Charles   Alan      Wright       &    Arthur      R.    Miller     et        al.,      Federal

Practice & Procedure § 1357 (3d ed. 2015) (noting that courts

should “be especially reluctant to dismiss on the basis of the

pleadings when the asserted theory of liability” is “novel” and

thus should be “explored”).                     Indeed, as the law “firm[s] up” in

unsettled    areas,       “it    may       be    more    feasible       to    dismiss         weaker

cases on the pleadings;” otherwise, plaintiffs should be given

“an    opportunity       to     develop          evidence     before         the    merits         are

resolved.”      Metts v. Murphy, 363 F.3d 8, 11 (1st Cir. 2004).

       Finally,     we    bear       in    mind       that   “‘a    complaint           is    to    be

construed liberally so as to do substantial justice.’”                                           Pub.

Employees’ Ret. Ass’n of Colo. v. Deloitte & Touche LLP, 551

F.3d 305, 311 (4th Cir. 2009) (quoting 5 Charles Alan Wright &

Arthur R. Miller et al., Federal Practice and Procedure § 1202

(3d    ed.   2004)).          See      also,       e.g.,     Anderson         v.    Found.         for

Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 505



                                                 13
(4th Cir. 1998) (noting that “pleading standards require that

the complaint be read liberally in favor of the plaintiff”).

                                              A.

     The     Fourteenth             Amendment’s          equal        protection        clause

guarantees not only “the initial allocation of the franchise”—

that is, the right to vote.                   Bush, 531 U.S. at 104.                 Rather,

equal protection “applies as well to the manner of its exercise.

Having once granted the right to vote on equal terms, the State

may not, by later arbitrary and disparate treatment, value one

person’s vote over that of another.”                    Id. at 104-05.

     Inherent       in       the     equal     protection          of     voting    is     the

requirement      that    all       citizens’       votes     be    weighted      equally,    a

principle    that       is   commonly        known      as   one      person,     one    vote.

Reynolds    v.    Sims,       377     U.S.    533,       563,     565    (1964).         “This

principle ensures that every voter, no matter what district he

or   she    lives   in,       will     have        an   equal      say    in    electing    a

representative.”             Daly,     93    F.3d       at   1216.        “A     citizen,    a

qualified voter, is no more nor no less so because he lives in

the city or on the farm.               This is the clear and strong command

of our Constitution’s Equal Protection Clause.”                             Reynolds, 377

U.S. at 568.

     The one person, one vote principle applies not just to the

federal    government         but    also     to    state       and     local    government.

Avery v. Midland Cnty., 390 U.S. 474, 480 (1968).                              Of particular

                                              14
note in this case, the Supreme Court has left no doubt that one

person, one vote applies to school boards.                            Id.      (“If voters

residing in oversize districts are denied their constitutional

right   to   participate           in   the    election     of       state   legislators,

precisely the same kind of deprivation occurs when the members

of a city council, school board, or county governing board are

elected    from     districts       of   substantially          unequal      population.”

(emphasis added)).

     The courts have recognized that “[m]athematical exactness

or precision is hardly a workable constitutional requirement”

and do not hold state or local government districts to such a

standard.     Daly, 93 F.3d at 1217 (quoting Reynolds, 377 U.S. at

577).     Nevertheless, governments must “make an honest and good

faith     effort”      to       construct      districts        as     close    to   equal

population “as is practicable.”                    Daly, 93 F.3d at 1217 (quoting

Reynolds, 377 U.S. at 577).

     Generally, therefore, a district apportionment plan with a

maximum population deviation under 10% will not, “by itself,”

support an equal protection claim.                       Daly, 93 F.3d at 1217-18.

The 10% threshold does not, however, “insulate” a state or local

districting       plan      from    attack.          Id.   at    1220.         Rather,   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

                                              15
arbitrariness.     To survive summary judgment, the plaintiff would

have to produce further evidence to show that the apportionment

process had a ‘taint of arbitrariness or discrimination.’”                     Id.

(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). 4

     Here, Plaintiffs allege such a “taint of arbitrariness or

discrimination.”         Id.    Specifically, Plaintiffs complain that

the challenged districts discriminate between urban and rural

voters,      “overpopulat[ing],        without     justification,        certain

districts,     causing    the   vote      of   Plaintiffs     living   in   those

overpopulated     districts     to   be     weighted   less    than    votes   of


     4
       The Supreme Court has admonished courts not to confuse
evidentiary standards that govern plaintiffs’ burden at summary
judgment with the liberal pleading requirements established by
Rule 8(a) of the Federal Rules of Civil Procedure.           In
Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the Supreme
Court reversed the Second Circuit’s requirement that the
plaintiff plead a prima facie case of Title VII discrimination
under the framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The Court stated that “[t]he prima
facie case under McDonnell Douglas . . . is an evidentiary
standard, not a pleading requirement.”    Id. at 510.  See also
McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin.,
780 F.3d 582, 585 (4th Cir. 2015) (stating that the district
court erred in requiring the plaintiff “to plead facts
establishing a prima facie case of discrimination to survive a
motion to dismiss”).
     Our task is to determine whether Plaintiffs have pled a
plausible violation of the state and federal constitutions.
E.I. du Pont de Nemours, 637 F.3d at 440 (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That task does not
hinge on the determination of whether Plaintiffs have pled a
maximum population deviation exceeding 10%, which is merely one
way in which Plaintiffs can prove their prima facie case at the
evidentiary stage.



                                       16
citizens in districts that are unjustifiably under-populated.”

J.A.   11.       See      Reynolds,        377    U.S.    at    568        (stating      that   “a

qualified voter[] is no more nor no less so because he lives in

the city or on the farm”).                 The district court itself recognized

that   “Plaintiffs            allege   a    favoritism         of   rural      areas      of    the

county over urban areas[,]” J.A. 88, and even Defendants agree

that   Plaintiffs         “do    allege      that     the      plan    pits       urban   voters

against rural voters.”                 Appellees’ Br. at 20.                  It is hard to

square all of this with the dissenting opinion’s assertion that

“Plaintiffs      do      no    such    thing.”        Post     at     7.      In    any   event,

Defendants’ concession highlights that Plaintiffs here fulfilled

Rule   8’s    core       requirement:       they      “‘g[a]ve        the    defendant         fair

notice of’” their claims.                  Erickson v. Pardus, 551 U.S. 89, 93

(2007) (quoting Twombly, 550 U.S. at 555).

       Further,          Plaintiffs         complain           that         the     districts,

particularly when compared to the previous districts that had

been     drawn      up    just     two      years     prior,        were      “visually         and

mathematically less compact,” “confusing,” and had significantly

higher population deviations.                     J.A. 15, 28.               Plaintiffs also

alleged      that     the      challenged        redistricting         “split       21    unique

precincts,” whereas the prior plan divided only 11.                                    J.A. 28.

Plaintiffs point out that not only did the Board of Education

itself    oppose         the    redistricting,           but    that       “[n]o    Democratic

member,” and “no African-American member” of North Carolina’s

                                                 17
General    Assembly        supported        the       redistricting,    suggesting,         for

Rule 12(b)(6) review, that it was neither racially nor otherwise

neutral.       J.A. 21.

       Finally,        Plaintiffs            contend           that    the        challenged

redistricting         is   intended         “to       disfavor    incumbents          who    are

registered        Democrats          and         support        progressive        education

policies.”       J.A. 28.        According to Plaintiffs, the redistricting

“further[s]       Republican         interests          and    advance[s]     conservative

agenda policies—over the wishes of the Wake County electorate”—

which    they    contend       is   “not     a    legitimate      state     interest        that

justifies       the   population          deviations.”          Id.    Again,      even      the

district court recognized that Plaintiffs allege “the targeting

of    democratic      incumbents”          and    “impermissible       political        bias.”

J.A. 88.

       When Plaintiffs’ complaint is viewed through the forgiving

lens    mandated      at    the      motion-to-dismiss            stage,     it    states      a

plausible claim for which relief can be granted.                                  Plaintiffs

allege in       detail     a    redistricting           that    resulted     in   a    maximum

population deviation of nearly 10%.                       Plaintiffs describe how and

why     that     deviation          was     unjustified,          discriminatory,           and

unconstitutional.              They do not allege that the apportionment

plan with a maximum population deviation just barely under 10%

“by itself” supports their equal protection claim, but rather

they plead facts indicating that the apportionment “had a taint

                                                 18
of arbitrariness or discrimination.”                  Daly, 93 F.3d at 1217,

1220 (quotation marks and citation omitted).

     The dissenting opinion is quick to reject the complaint for

its failure to engage in talismanic incantations of magic words

like “arbitrary.”         Post at 2 (making much ado of the fact that

the “complaint does not even contain the words ‘bad faith’ [or]

‘arbitrariness’”).          That   Plaintiffs         chose   to    plead    facts

sounding in arbitrariness rather than simply invoking the word

demonstrates to us only that Plaintiffs have heeded the Supreme

Court’s warning that “formulaic recitation of the elements of a

cause of action will not do.”            Twombly, 550 U.S. at 555.           It is

clear   to    us   that    Plaintiffs        pled   arbitrariness     when    they

alleged, for example, that the redistricting was done “without

justification,” J.A. 11, and that the deviations “do not further

any legitimate redistricting criteria,” J.A. 28.

     Similarly,      the      district        court     rejected     Plaintiffs’

allegations    and   dismissed     their      complaint.      In   doing    so,   it

cited not a single case on all fours with this one nor any case

mandating such an outcome.         Defendants similarly have identified

no precedent that suggests that dismissing Plaintiffs’ complaint

at this stage is warranted, much less required.

     To the contrary, a closer look at the precedent Defendants

and the district court cite underscores that Plaintiffs’ claims

should survive.      For example, both Defendants and the district

                                        19
court rely on Daly, 93 F.3d 1212, to justify dismissal here.

Tellingly, however, we held in Daly that a plaintiff in a case

falling below the 10% population disparity mark may not “rely on

it alone to prove invidious discrimination or arbitrariness.                To

survive summary judgment, the plaintiff would have to produce

further evidence to show that the apportionment process had a

‘taint    of    arbitrariness   or    discrimination.’”        Id.   at   1220

(quoting Roman, 377 U.S. at 710) (emphasis added). 5                 Thus, in

Daly, rather than dismiss the plaintiffs’ claims, we remanded

the matter, stating that “[w]hether Plaintiffs can produce any

credible evidence to establish that the apportionment plan at

issue    here   was   the   product   of    bad   faith,   arbitrariness,   or

invidious discrimination should be addressed on remand.”               Id. at

1222.

     Similarly, Roman, 377 U.S. 695, on which we relied in Daly,

was decided after a trial.            And Gaffney v. Cummings, on which

the district court relied and in which the Supreme Court held

that an otherwise acceptable reapportionment plan was not made

constitutionally vulnerable by the fact that its purpose was to

     5
       Defendants use similar verbiage in their appellate brief,
arguing   that   “because   plaintiffs    have   failed   to   show
arbitrariness   or   discrimination,   these   claims   should   be
dismissed.”    Appellees’ Br. at 8.      But Plaintiffs need not
“show” anything at this point; rather, they need only allege
facts that make arbitrariness or discrimination plausible in
addition to population disparities under 10%.



                                       20
achieve political fairness between the major political parties,

was decided after “[c]onsiderable evidence was introduced.”                412

U.S. 735, 739 (1973). 6

     By contrast, both Defendants and the district court try to

distinguish and dispense with Cox v. Larios, a case notably more

similar to the one at hand and illustrative of the district

court’s error in dismissing Plaintiffs’ complaint.              300 F. Supp.

2d 1320 (N.D. Ga. 2004) (three judge panel), summarily aff’d,

542 U.S. 947 (2004).       In Larios, a federal court struck down a

statewide    legislative    redistricting       plan    in   Georgia.       The

plaintiffs    there    alleged    that    the    plan    disproportionately

favored Democrats in the state by under-populating districts in

the urban Atlanta region and the rural south-Georgia area—both

Democratic    strongholds—while         overpopulating       districts    with

Republican-leaning     voters.      The     redistricting      plan     thereby

created a maximum population deviation of 9.98%.                Id. at 1327.

Additionally,    the      new    plan     disproportionately          protected

     6
       The district court cited Gaffney to support its assertion
that “differences in population disparities between the old 2011
plan and the new Session Law [] plan are of no consequence”
because the “Supreme Court has expressly rejected the argument
that the possibility of drafting a ‘better’ plan alone is
sufficient to establish a violation of the one person, one vote
requirement.”   J.A. 87.   Of course, the complaint here, on its
face,   belies   any  suggestion   that  Plaintiffs  allege  the
possibility of a better plan “alone.” What is more, that would
not logically make the differences in disparities “of no
consequence.”



                                    21
Democratic incumbents.               Id. at 1329-30.          The district court in

Larios found that the state purposefully drew districts in a way

to exist within “what they perceived to be a 10% safe harbor”

and struck the plan as unconstitutional.                           Id. at 1328.              The

Supreme Court summarily affirmed the Larios decision.

      We recognize that “the precedential effect of a summary

affirmance       can     extend      no   further     than     ‘the         precise     issues

presented     and       necessarily       decided    by   those        actions.’”           Ill.

State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,

182   (1979)      (quoting      Mandel       v.    Bradley,       432       U.S.     173,   176

(1977)).         Such    summary     actions      “should     not      be     understood     as

breaking new ground but as applying principles established by

prior decisions to the particular facts involved.”                              Mandel, 432

U.S. at 176.

      While      sensitive      to    its   limitations,          we    can    nevertheless

glean    several        lessons      from    the    Larios        summary          affirmance.

First,     the     Supreme      Court       has    not    created        a     10%     maximum

population       deviation      threshold,        below   which        all    redistricting

decisions are inherently constitutional.                          This point was made

clear by Justice Stevens’s opinion concurring in the affirmance

and highlighting          the   court’s      rejection       of    a    safe       harbor   for

districting plans that rest within the 10% threshold:

      [A]ppellant invites us to weaken the one-person, one-
      vote standard by creating a safe harbor for population
      deviations of less than 10 percent, within which

                                             22
      districting decisions could be made for any reason
      whatsoever.   The    Court   properly    rejects   that
      invitation. After our recent decision in Vieth v.
      Jubelirer, 541 U.S. 267, 124 S. Ct. 1769, 158 L.Ed.2d
      546 (2004), the equal-population principle remains the
      only   clear   limitation   on   improper   districting
      practices, and we must be careful not to dilute its
      strength.

542 U.S. at 949-50 (emphasis added).                     Second, the Supreme Court

necessarily           believed     to    be    correct        the     district          court’s

rejection        of    discriminatory        treatment    of    incumbents          from      one

party over those of another, the district court’s rejection of

allowing      citizens        in   certain     areas     to    have    disproportionate

electoral influence, or both, since the lower court’s ruling

relied      on        those    bases    in    striking        the     redistricting           as

unconstitutional.             Larios, 300 F. Supp. 2d at 1338.

      Here,       Plaintiffs       allege      that,     as    in     Larios,       a     state

legislature           designed     a    redistricting         plan    with      a       maximum

deviation in population of just under 10%, designed to pit rural

and   urban      voters       against   one    another,       and    intended       to    favor

incumbents of one political party over those of another.                                   Even

if Larios does not control this case (though neither Defendants

nor the district court point to anything else squarely on point

and controlling, either), we nevertheless find it persuasive.

      The     district        court’s    rejection       of    Larios    rested          on   an

altogether arbitrary distinction.                  The district court declared

that “Larios dealt with state-wide elections whereas this case


                                              23
deals only with Wake County.                      The broad geographic differences

found within a state are not found within one county.”                                J.A. 89.

The    lack    of    a    factual         basis    for      this     statement      aside,   the

district court failed to identify how such a difference in scale

might justify rejecting Plaintiffs’ claims as a matter of law.

Indeed, the Supreme Court recently reaffirmed that courts should

analyze       redistricting           plans     “district-by-district,”              reasoning

that    the     nature        of    the       harms    is        “personal”   and    “directly

threaten[s] a voter who lives in the district attacked” but not

“a voter who lives elsewhere.”                     Alabama Legislative Black Caucus

v. Alabama, 135 S. Ct. 1257, 1265 (2015); see also Dickson v.

Rucho, No. 14-839, 2015 WL 223554, at *1 (U.S. Apr. 20, 2015)

(vacating      judgment         and    remanding        North       Carolina’s      legislative

redistricting in light of Alabama Legislative Black Caucus v.

Alabama).       We see no reason why such a “district-by-district”

analysis       applies        any     differently           at    the   county    level,     and

Defendants point to none.

       Similarly, the district court found it “plainly apparent in

Larios that [R]epublican incumbents were being targeted, whereas

here the targets are less clear.”                           J.A. 89.      But certainty is

not    required      to       survive     a    motion       to    dismiss.       Notably,    the

district court did not find it implausible that such targeting

occurred here.            Twombly, 550 U.S. at 570.                     While “the factual

allegations         in    a    complaint        must     make       entitlement      to   relief

                                                  24
plausible,” Rule 12(b)(6) does not countenance “dismissals based

on a judge’s disbelief of a complaint’s factual allegations.”

McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009).

                                                    B.

      The district court also sought to justify dismissal here by

viewing     Plaintiffs’          complaint          as         “stat[ing]      a     political

gerrymandering claim” that Plaintiffs had merely dressed “in the

language of a one person, one vote claim.”                             J.A. 88.      According

to    the   district       court,    political            gerrymandering           claims   are

“nonjusticiable” per Vieth v. Jubelirer, 541 U.S. 267 (2004).

J.A. 88.     We disagree.

      In    stark    contrast       to     a    mere       “political       gerrymandering

claim,” Plaintiffs allege that the Session Law violates the one

person,      one     vote        principle          by         creating     “non-compact,”

“confusing”        districts        with       maximum           population         deviations

reaching almost 10% and that the deviation from one person, one

vote is “unjustifi[ed]” and results in discrimination amongst

not only political interests but also “rural” versus “urban”

populations.        J.A. 11, 15.         In other words, Plaintiffs here have

pled an equal protection claim.

      Further,      even    if    Plaintiffs             had    pled    only   a     political

gerrymandering claim—which they did not—we could not agree with

the   district      court    that    such      a     claim       is    necessarily     a    non-

justiciable political question mandating dismissal.                                Indeed, the

                                               25
district     court’s       assertion       that          “the    Supreme          Court        found

political gerrymandering claims to be nonjusticiable in Vieth v.

Jubelirer,     541    U.S.       267,    281        (2004),”         J.A.    88,     fails        to

appreciate that Vieth was a plurality opinion only, onto which

just four     justices       signed.          As    the     plurality        opinion       itself

recognized,        Justice       Kennedy,          in     his     concurring          opinion,

“conclude[d]       that    courts       should      continue         to     adjudicate          such

[political gerrymandering] claims.”                      Id. at 301.             See also, id.

at   306   (Kennedy,       J.,    concurring)            (“While      agreeing       with        the

plurality     that    the     complaint            the    appellants         filed        in    the

District Court must be dismissed, and while understanding that

great   caution      is    necessary      when       approaching          this     subject,        I

would not foreclose all possibility of judicial relief if some

limited     and     precise      rationale           were       found       to    correct        an

established violation of the Constitution in some redistricting

cases.”) (emphasis added).                The face of the plurality opinion

also makes plain that the four dissenting justices, too, viewed

political gerrymandering claims as being justiciable.                                     Id. at

292-301.      In     other    words,      a    majority         of    the     Supreme          Court

refused to deem political gerrymandering claims to be per se

nonjusticiable.           And the Court has since recognized as much.

See League of United Latin Am. Citizens v. Perry, 548 U.S. 399,

414 (2006) (“A plurality of the Court in Vieth would have held



                                              26
[political        gerrymandering]            challenges          to     be    nonjusticiable

political questions, but a majority declined to do so.”).

       At the end of the day, we cannot say whether Plaintiffs

will ultimately succeed with their equal protection claim.                                    But

we   can    say    that       they   have      made       allegations         sufficient       to

withstand a motion to dismiss for failure to state such a claim.

The district court erred in holding otherwise.

                                              C.

       Separately but relatedly, Plaintiffs claim that they have

been     denied       equal      protection             under     the        North     Carolina

Constitution,         which     also    “guarantees             the   principle        of    one-

person, one-vote and demands that the vote of each citizen be

valued     equally.”          J.A.     30.      As       the     district      court        noted,

“Plaintiffs allege the same supporting facts for their North

Carolina       Constitutional          claim       as     for     their       United    States

Constitutional claim.”           J.A. 90.

       North    Carolina’s       courts        have       unequivocally         stated       that

under the North Carolina Constitution, “[t]he right to vote on

equal terms in representative elections—a one-person, one-vote

standard—is a fundamental right.”                       Blankenship v. Bartlett, 681

S.E.2d     759,     762-63      (N.C.        2009)       (citing        Northampton         Cnty.

Drainage Dist. No. One v. Bailey, 392 S.E.2d 352, 356 (N.C.

1990)).     Further, the Supreme Court of North Carolina’s analysis

regarding      “the    State     Constitution’s             Equal       Protection      Clause

                                              27
generally    follows    the    analysis       of   the     Supreme      Court    of   the

United States in interpreting the corresponding federal clause.”

Blankenship, 681 S.E.2d at 762.               In fact, North Carolina courts

have even found the one person, one vote principle to apply in

instances where the federal courts have not.                       See id. at 763

(finding the one person, one vote principle applicable in North

Carolina’s    election       of    superior        court    judges       even    though

“federal courts have articulated that the ‘one-person, one-vote’

standard is inapplicable to state judicial elections”).

     As   with   the    federal      constitutional         claim,      the     district

court   shoe-horned    Plaintiffs’       state-law         one   person,      one     vote

contentions into a political gerrymandering claim it then deemed

nonjusticiable.        The    district    court      stated      that    “plaintiffs’

factual allegations amount to a claim of impermissible political

bias which is a claim of political gerrymandering.”                           J.A.    91.

While the district court candidly admitted that it had “found no

North Carolina case law which supports a finding that such a

claim is nonjusticiable,” it nevertheless dismissed this claim,

too, citing Vieth.       Id.       Its failure to find state law support

for dismissal at the Rule 12(b)(6) stage should have given the

district court pause.             In any event, for the reasons that we

hold Plaintiffs’ claims under the Equal Protection Clause of the

Federal Constitution should not have been dismissed, we likewise



                                         28
hold that Plaintiffs’ North Carolina constitutional claim should

not have been dismissed.



                                     IV.

      Plaintiffs’ allegations in support of their claim that the

Session Law violates the one person, one vote principle suffice

to survive a motion to dismiss for failure to state a claim.

The     district    court   thus    erred   in    dismissing     Plaintiffs’

complaint.         The   district   court   did   not    err,   however,   in

determining that the Proposed Defendants are not amenable to

suit.

                                                        AFFIRMED   IN   PART,
                                                        REVERSED   IN   PART,
                                                        AND REMANDED




                                      29
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

       No matter how liberally construed, and notwithstanding the

majority’s vigorous attempts at resuscitation, the complaint in

this   case    fails      to   state     a    claim       upon   which      relief       can   be

granted.      The district court properly dismissed it.



                                              I.

       Plaintiffs         allege       that     a     redistricting              plan,    which

establishes     districts        for    a     non-partisan        county         school   board

election      with   a    maximum       population         deviation        of    under     10%,

violates the Constitution.               Over 30 years ago, the Supreme Court

expressly held that “a maximum population deviation under 10%

falls within th[e] category of minor deviations” that render a

redistricting        plan      presumptively          constitutional.               Brown      v.

Thomson,      462    U.S.      835,    842     (1983).           The    Court      has    never

retreated     from     this     presumption         and    the    circuit        courts     have

faithfully applied it.                See, e.g., Daly v. Hunt, 93 F.3d 1212,

1219-20 (4th Cir. 1996); see also League of Women Voters of

Chicago v. City of Chicago, 757 F.3d 722, 725 (7th Cir. 2014);

Chen v. City of Houston, 206 F.3d 502, 523 n.15 (5th Cir. 2000).

       To rebut the presumption, a plaintiff must “produce . . .

evidence to show that the apportionment process had a ‘taint of

arbitrariness        or    discrimination.’”               Daly,       93   F.3d     at     1220

(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)).                               To escape

                                              30
summary judgment, this standard requires that challengers offer

evidence     that       the     plan    “was         the     product     of    bad     faith,

arbitrariness, or invidious discrimination.”                           Daly, 93 F.3d at

1222.     To withstand a motion to dismiss, challengers need not

“forecast    evidence         sufficient        to    prove     the    elements       of   [a]

claim,” but their complaint must “allege sufficient facts to

establish those elements.”                Walters v. McMahen, 684 F.3d 435,

439   (4th   Cir.       2012)       (internal    quotation        marks       and    citation

omitted).    Plaintiffs have utterly failed to do this.

      The complaint does not even contain the words “bad faith,”

“arbitrariness,” or “invidious discrimination,” let alone allege

facts supporting such claims.               What Plaintiffs do allege is that

the North Carolina legislature created a redistricting plan for

the Wake County School Board designed to “disfavor incumbents

who are registered Democrats and support progressive education

policies,”       and    to    instead    “further           Republican    interests        and

advance conservative agenda policies.”

      Plaintiffs        concede,       however,        that    Wake     County’s       school

board elections are non-partisan.                          Candidates in non-partisan

elections run only under their own names, without “involving,

representing, or supporting the ideas of any political party or

group.”      Black’s          Law    Dictionary        (10th     ed.    2014)       (defining

“nonpartisan”).          Thus, Plaintiffs’ challenge boils down to a

claim     that    the        plan    governing        this     non-partisan          election

                                            31
disfavors incumbents who prefer certain “education policies” and

advances those who prefer different “policies.”                          A presumptively

constitutional       redistricting         plan    certainly        cannot          be     found

unconstitutional          simply    because        it    affords         a     de        minimis

apportionment advantage to those who prefer certain “policies”

over other “policies.”

     In holding to the contrary, the majority plunges federal

judges into precisely the sort of dispute that the Supreme Court

has told us to avoid.            Because “the apportionment task” concerns

“fundamental choices about the nature of representation,” that

task is to be left to the states’ legislative branches absent a

compelling reason to usurp it.                  Gaffney v. Cummings, 412 U.S.

735, 749 (1973) (internal quotation marks and citation omitted).

And when population deviations are less than 10%, compelling

reasons are few and far between.                   Thus, the Supreme Court has

long instructed federal courts not to wade into “the political

thicket” simply to correct “minor deviations . . . that no one,

with confidence, can say will deprive any person of fair and

effective representation.”           Id. at 749-50.

     By    asking    us     to   referee    a     dispute      as   to       “policy,”       the

complaint    urges     us    to    enter     just       this    sort      of    “political

thicket.”     In Plaintiffs’ view (which the majority apparently

shares), they can avoid dismissal of their complaint simply by

alleging    that    the     redistricting       alters      the     political            balance

                                           32
among those favoring different “policies.”                          If this were so,

then this and every other redistricting challenge of this sort

would recast federal judges as pollsters.                     It would make federal

judges employ granular scrutiny of voting patterns even in non-

partisan   elections       to     determine      if    those       preferring    certain

“policies” have been disadvantaged by redistricting.                             And it

would require federal judges to probe the state legislature’s

motivation in adopting the plan.                      Until today, no court had

suggested that a presumptively constitutional redistricting plan

requires this level of supervision by a federal court.

       Moreover, the fate of the school board incumbents, about

whom    Plaintiffs       evince       great     concern,       is    irrelevant    when

assessing a one person, one vote claim.                      As the Seventh Circuit

recently     explained,         the     one     person,       one     vote     principle

“protect[s] an individual’s right to vote.”                           League of Women

Voters,    757    F.3d     at    726    (emphasis        in       original)    (internal

quotation marks and citation omitted).                       It does not “insulate

individual     politicians       from    the     threat      of    political    reprisal

once    redistricting      occurs.”            Id.       “Simply       alleging”   that

redistricting hands “the short end of the proverbial stick” to

certain incumbents “is not enough to overcome a presumptively

constitutional map.”        Id.

       Plaintiffs apparently prefer another redistricting plan, a

plan   which     creates   districts          with    less    population      deviation,

                                          33
districts that are more “compact,” less “confusing,” and split

fewer    “unique        voting    precincts.”                 That     plan     may        be    “more

constitutionally perfect.”                   Daly, 93 F.3d at 1221.                        But “the

possibility of drafting a ‘better’ plan” does not provide the

basis for finding the plan created by the duly elected state

legislature unconstitutional.                 Id.



                                               II.

        The   majority        attempts       to    rectify         the      complaint’s          fatal

shortcomings       in    two     ways:       by    lowering          the     federal        pleading

standard to remove hurdles the complaint cannot clear, and by

rewriting the complaint to contain facts never alleged.

                                                  A.

     The      majority        offers     a    lengthy          discourse        on     a    court’s

obligations when reviewing the dismissal of a complaint.                                        But it

fails to grapple with requirements the law imposes on parties

seeking to state a federal claim.

     Of course, a court must construe complaints liberally.                                        But

it must also ensure that, in them, plaintiffs “raise a right to

relief     above    the       speculative          level.”            Bell     Atl.        Corp.    v.

Twombly, 550 U.S. 544, 555 (2007).                          A complaint must permit “the

reasonable      inference        that        the       defendant       is      liable       for    the

misconduct     alleged.”          Ashcroft             v.    Iqbal,      556    U.S.       662,    678

(2009).       Thus,      to   escape     dismissal,            a   complaint         must       allege

                                                  34
facts sufficient to “nudge[]” a plaintiff’s claims “across the

line from conceivable to plausible.”                 Twombly, 550 U.S. at 570.

“[T]ender[ing     only]    ‘naked     assertions[s]’       devoid   of    ‘further

factual enhancement’” does not suffice.                Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557) (second alteration added).

The majority ignores these requirements.                 Instead, it relies on

a view that a complaint need only provide “fair notice” of the

claim alleged (notwithstanding the meritlessness of the claim)

to escape dismissal, and may survive on even less if it espouses

a   “novel    legal     theory.”      The     majority’s      treatment   of   the

pleading standard mandated by the federal rules simply does not

reflect the law.

      Chief among a court’s obligations during 12(b)(6) review is

its mandate to dismiss any complaint that fails to meet the

pleading     standard    articulated    by     the    Supreme   Court.      Judged

against this standard, the complaint here unquestionably fails.

Far from permitting a “reasonable inference” of liability, it

hangs its hopes on an unprecedented expansion of the one person,

one   vote    doctrine      in     conflict    with     the     Supreme   Court’s

teachings.     The district court correctly dismissed it.

                                        B.

      Even were the pleading bar as low as the majority insists,

the complaint would not clear it.              In an attempt to remedy this

deficiency, the majority invents allegations never pled.

                                        35
       First, the majority asserts that “Plaintiffs complain that

the challenged districts discriminate between urban and rural

voters.”      But Plaintiffs do no such thing.                       Their sole reference

to   a     divide    between        urban    and       rural        voters     comes     in     the

complaint’s       first     paragraph,       which      characterizes              the   plan    as

creating      “two   ‘super-districts’             .    .   .    with     an    inner,        urban

super-district and an outer, rural super-district.”                                 Neither the

word       “urban”   nor     the     word     “rural”           appears        again     in     the

complaint.           Nowhere         do     Plaintiffs           allege        a     claim       of

discrimination based on geography, let alone facts sufficient to

make such a claim plausible.

       Next    the   majority        insists        that    “Plaintiffs            allege”      the

redistricting        plan    was     “intended         to   favor      incumbents        of     one

political party over those of another.”                               But again, this is

simply      not   the     case. *         Rather,      as   plaintiffs          concede,        the

challenged        redistricting       plan     governs          a    non-partisan         school


       *
       Of course if the complaint did, as the majority asserts,
challenge the plan as favoring one political party over another,
then the Supreme Court’s judgment in Vieth v. Jubelirer, 541
U.S. 267 (2004), would, as the district court concluded, seem
critical.    There, a plurality of the Court agreed that
political-party gerrymandering claims are nonjusticiable, id. at
281, and a fifth Justice agreed that such claims should not
merit relief until “workable standards . . . emerge” to govern
them, id. at 317 (Kennedy, J., concurring).         The concerns
animating a majority of the Court in Vieth are not assuaged
simply by rerouting the path into the political thicket through
an apportionment claim, rather than a gerrymandering claim.



                                              36
board    election      in    which       no    candidate    is    affiliated       with    any

party.

       The    motive        for     adding      these     two     allegations         to   the

complaint      seems    clear.           They    are    critical    to     the    majority’s

attempt to align this case with Larios v. Cox, 300 F. Supp. 2d

1320 (N.D. Ga. 2004) (three-judge panel), summarily aff’d, 542

U.S. 947 (2004), on which it so heavily relies.                                  There, the

district      court    held       unconstitutional         a     Georgia    redistricting

plan because it was the product of “a deliberate and systematic

policy of favoring rural and inner-city” areas over “suburban

areas,” and nominees of the Democratic party over those of the

Republican        party.          Id.     at    1327,     1329.          Even    if    Larios

constituted binding precedent, which it does not, it provides no

help    to    Plaintiffs          here.        For,    stripped     of    the     majority’s

additions, the complaint here contains no allegations of either

regional or political-party favoritism.

       The majority’s response to this conclusion is telling.                              The

majority does not, because it cannot, cite or quote any portion

of the complaint giving lie to this conclusion.                              Instead, the

majority relies on statements about the complaint made by the

district court and the Defendants.                      But such statements provide

no substitute for allegations missing from the complaint itself.

Indeed, the majority’s need to rely on outside sources in its

attempt      to   establish        the    complaint’s      allegations          demonstrates

                                                37
still again how deficient the complaint is.                           Just as outsiders

could   not    supply      the    Emperor      with    new       clothes,       they    cannot

supply the complaint with new allegations.



                                          III.

     In sum, the allegations in the complaint, taken in the best

light for     Plaintiffs,         do    not    set    forth      facts    that    plausibly

rebut the presumption of constitutionality afforded this plan.

Contrary      to     the     majority’s        contention,           dismissal         of   the

complaint here is not for want of “an opportunity to develop

evidence before the merits are resolved.”                            It is for want of

allegation     of     facts      that    would       permit      a    court     to     believe

Plaintiffs could establish a viable claim.                             See Walters, 684

F.3d at 439.

     The right to vote is precious.                   But its invocation does not

empower federal courts to commandeer state legislative functions

or eliminate federal pleading requirements.                           The Supreme Court

has long held that the Constitution, while affording enormous

protection to the right to vote, tolerates minor apportionment

deviations.          The     majority         today    replaces          this    considered

judgment      with     its       own,    preferring          a       “vast,     intractable

apportionment slough,” Gaffney, 412 U.S. at 750, to the well-

worn path the Supreme Court has forged and mandated we follow.

     With respect, I dissent.

                                              38
APPENDIX 1
APPENDIX 2
APPENDIX 3
