Common Cause v. David Lewis, 956 F.3d 246

Plaintiffs (Common Cause, NC Democratic Party, and voters) sued in NC state court alleging the 2017 state legislative redistricting plans are unconstitutional partisan gerrymanders under the North Carolina Constitution and sought injunctions, invalidation of the plans, and court-drawn maps for upcoming elections.
Defendants included four legislative leaders (President Pro Tempore Berger; chairs Hise, Lewis; Speaker Moore) and State election officials; Plaintiffs’ claims rested solely on state constitutional provisions (Equal Protection, Free Elections, Speech/Assembly).
The Legislative Defendants removed to federal court under 28 U.S.C. §§ 1441(a) and 1443(2) (the Refusal Clause), arguing federal-question jurisdiction and that removal was authorized because they allegedly have an enforcement role and compliance with Plaintiffs’ requested relief would conflict with federal law (e.g., Covington, VRA, U.S. Constitution).
The district court remanded, holding removal under § 1443(2) was doubtful because the Refusal Clause applies to officers who enforce state law (not legislators), any claimed refusal to act was inapplicable, and asserted conflicts with federal law were speculative; the court denied Plaintiffs’ request for fees and costs.
Both sides appealed: Legislative Defendants appealed the remand; Plaintiffs cross-appealed the district court’s denial of fees. The Fourth Circuit affirmed both the remand and denial of fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether removal under § 1443(2) (Refusal Clause) is available to state legislators sued over state-law partisan-gerrymandering claims	Refuse: legislators lack enforcement authority; §1443(2) applies only to officers who enforce laws	Legislative defendants: §1443(2) does not distinguish executive vs. legislative actors; they can be "state officers" subject to the clause	Held: §1443(2) unavailable to legislators; applies to officers with enforcement duties (remand affirmed)
Whether the defendants’ asserted "refusal to act" or colorable conflict with federal law satisfies §1443(2)	No: plaintiffs said there was no actionable refusal and conflicts were speculative	Yes: defendants said they have refused to enact/administer plaintiffs’ plans and that relief would conflict with Covington, VRA, and the U.S. Constitution	Held: Court did not need to reach merits after ruling legislators lack enforcement role; additionally characterized asserted conflicts as speculative
Whether the district court abused its discretion by denying fees and costs under 28 U.S.C. § 1447(c)	Plaintiffs: removal was objectively unreasonable and fees are needed to deter baseless, delay-causing removals	Defendants: removal had an objectively reasonable basis; they complied with removal timing and expedited briefing	Held: Affirmed denial of fees—defendants had an objectively reasonable (though unsuccessful) basis and court did not abuse discretion

Baines v. City of Danville, Va., 357 F.2d 756 (4th Cir. 1966) (interpreting the Refusal Clause as intended for state officers who refuse to enforce discriminatory state laws)
City of Greenwood v. Peacock, 384 U.S. 808 (1966) (Refusal Clause removal available only to state officers; legislative history confirms focus on officers who refuse to enforce discriminatory laws)
Wright v. North Carolina, 787 F.3d 256 (4th Cir. 2015) (state constitution assigns enforcement of laws to the executive; county and state boards enforce election plans)
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148 (4th Cir. 1994) (removal statutes strictly construed; doubts resolved in favor of remand)
Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) (attorney’s fees under §1447(c) only when removing party lacked an objectively reasonable basis)
Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (partisan-gerrymandering claims under the Federal Constitution present political questions outside federal courts)