Alabama Legislative Black Caucus, et al v. The State of Alabama, et al (PANEL)(LEAD)

Filing 175

THOMPSON, District Judge, concurring in part and dissenting in part with 174 MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Myron H. Thompson on 8/2/2013. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ALABAMA LEGISLATIVE
BLACK CAUCUS, et al.,

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Plaintiffs,
v.
THE STATE OF ALABAMA,
et al.,
Defendants.

DEMETRIUS NEWTON, et al.,
Plaintiffs,
v.
THE STATE OF ALABAMA,
et al.,
Defendants.
THOMPSON, District
dissenting in part:

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Judge,

CIVIL ACTION NO.
2:12cv691
(Three-Judge Court)
(WO)

CIVIL ACTION NO.
2:12cv1081
(Three-Judge Court)

concurring

in

part

and

I agree with the majority’s disposition of the First
Amendment partisan gerrymandering claim and with much of
its reasoning in support of that disposition.

As for the

one-person, one-vote claim, while I agree that the issue

of justiciability has been properly raised by the court,
I respectfully disagree with the majority’s dismissal of
the claim on that ground.

And, second, I respectfully

disagree with the majority’s reasoning on the merits.

I. BACKGROUND
In Alabama, during each election for members of the
State

Legislature

Senate),

when

(the

House

Alabamians

of

cast

Representatives

a

vote

for

a

and

single

legislative representative, they are actually electing
one official who will serve in two capacities tied to the
geographic locations from which they are elected.

For

one, the legislator will represent a particular district
in

the

State

Legislature

as

a

whole.

Second,

the

legislator, depending on the location of the district,
will become a member of one or more “Local Delegations”
(or,

as

they

are

sometimes

called,

“Legislative

Delegations”), which are formally subdivisions of the
Legislature charged with the origination of “local” laws

2

generally affecting a single county alone.

See Ala.

Const. art. IV, § 110 (defining “general” and “local”
laws).

Although Alabama has created certain local bodies

of county governance, such as county commissions, see
1975 Ala. Code. § 11-3-1, state law generally vests those
bodies with very limited authority, if any at all, to
legislate for the county.
amend.

783

(affording

Compare, e.g.,

the

Baldwin

County

Ala. Const.
Commission

comparatively broad, albeit still limited, legislative
authority), with, e.g., amend. 482 (“The Limestone county
commission is hereby authorized ... to provide for the
disposal of dead farm animals, and the excavating of
human graves.”).
Rather, state law generally requires that local laws,
no matter how purely local their character may be, must
be enacted by the Legislature as a whole (and, for
reasons unnecessary to discuss here, often as amendments
to the State Constitution rather than as mere statutes).
The Alabama Constitution has been amended hundreds of

3

times with such laws addressing an enormous range of
wholly local concerns, from the mundane to the very
important.

Compare,

e.g.,

Ala.

Const.

amend.

497

(authorizing prohibition of “the overgrowth of weeds and
the storage and accumulation of junk, inoperable motor
vehicles and other litter” in Jefferson County), with,
e.g., amend. 429 (authorizing governing authorities in
Jefferson County to conduct a range of activities related
to economic and industrial development).
Because the Alabama Legislature as a whole must
address the varying interests across all of Alabama’s 67
counties, it has created a system of Local Delegations to
carry out the task efficiently.

Each Alabama county has

a corresponding Local Delegation in both houses of the
State

Legislature.

Every

legislator

elected

to

the

Senate or House, upon his election, automatically becomes
a member of the Local Delegation for every county that
lies within his district, no matter how large or small is
the

part

of

the

county

falling

4

within

the

district

boundaries.

If

a

legislator’s

district

lies

almost

entirely in one county and only slightly in another, that
legislator
Delegations

nevertheless
for

both

joins

the

counties.

respective
Within

Local

any

given

delegation, all members cast equal votes regardless of
the comparative sizes of their constituencies in the
county at issue.
In order to be enacted eventually, all proposed local
laws must be first proposed by the Local Delegation for
the county affected.

Some Local Delegations require

majority approval in the delegation and others require
unanimous

approval.

Without

the

approval

of

the

delegation for the county at issue, the bill proceeds no
further.

In

that

sense,

the

delegations

are

the

“gatekeepers” of local legislation.
Once the delegation approves a local law, the bill is
sent

to

a

legislative

committee.1

After

committee

1. Both the Alabama House and Senate have a handful
of legislative committees dedicated to local legislation,
and those committees divide up the State’s counties among
(continued...)
5

approval, the bill is sent to the Legislature as a whole.
There,

after

approval

by

the

requisite

number

of

legislators in both chambers, the bill is sent to the
governor for signature, after which it becomes binding
law.

When a proposed local law is being considered by

the Legislature as a whole, the Legislature generally
applies an unwritten rule of so-called “local courtesy”
holding

that

the

delegations

deserve

significant

deference and their proposed laws should be enacted as a
matter

of

sometimes

course.

While

the

violated,

such

violations

exception than the rule.
what

happens

in

the

rule

of

courtesy

are

more

is
the

In any event, regardless of

Legislature

as

a

whole,

the

gatekeeping requirement that the bill be first approved

1(...continued)
them. A few committees take up local legislation from a
single large county alone.
In those cases, the
membership of the delegation and the committee is
identical and the delegation and the committee are, for
all intents and purposes, one and the same. Most Local
Delegations send their bills to committees that are
responsible for reviewing the proposed laws from a large
number of smaller counties.
6

by

the

applicable

applied.

Local

Delegation

is

steadfastly

There is no indication in the record that the

gatekeeping

requirement

has

ever

been

violated.

In

short, the Local Delegations, although subdivisions of
the

Legislature

for

the

State

as

a

whole,

are

geographically based on the State’s individual counties
and are the single most important legislating bodies for
those counties.
The State Legislature is established by formal state
law.

Ala. Const. art. III, § 42 & art. IV, § 44.

The

Local Delegations, by contrast, are generally creatures
of custom.

The delegations’ core local-law-gatekeeping

function is not an enumerated power in any particular
part of Alabama’s Constitution or statutory law, and
likewise, no written law provides for the whole of the
delegations’ operations.

However, provisions scattered

throughout the State Constitution and Code appear to
recognize the existence of the delegations and control a
number of aspects of their existence.

7

See, e.g., 1975

Ala.

Code

§§

36-6-12

(relating

to

Local

Delegation

employee salaries), 36-27-5.1 (pensions), 45-22-130.02
(providing for Local Delegation involvement in certain
intra-governmental disputes), 45-24-210 (providing for
certain

Local

Delegation

funding),

(relating to town trust account).

and

45-27A-60

In particular, a

number of Constitution and Code provisions appear to
afford various Local Delegations the power to appoint
officers of various other governmental agencies.

See,

e.g., 1975 Ala. Code §§ 9-14C-3 (park commission), 45-2243.22 (tourism board), 45-5-90 (economic development
authority),
regulatory

45-6-231
board),

(prison
45-8-90

work-release
(economic

program

development

authority), 45-8-150.02 (bingo regulatory agency), 45-8A24 (water and sewage board), 45-8A-130.04 (civil service
board), 45-25-92.30 (economic development authority), 4528-91.01

(tourism

board),

45-28-244.01(d)

(taxing

agency), 45-28-244.01(e) (library committee), and 45-30101.01

(board

of

education);

8

Ala.

Const.

amend.

677

(water

and

sewage

board),

amend.

741

(judicial

commission), and 780 (judicial commission).
While the Local Delegations are formally part of the
Legislature

as

a

whole

and

are

generally

maintained

through unwritten custom, one would be mistaken to assume
that they are nothing more than amorphous practices that
can be found in the halls of Montgomery’s legislative
buildings.

While the delegations differ, at least some

appear to maintain local office space and regular paid
staff, like any typical governmental agency that serves
the public in a defined geographic region.

See, e.g.,

1975 Ala. Code §§ 45-2-190 (“There is hereby established
the

Baldwin

County

Legislative

Office.

The

County

Commission of Baldwin County shall provide office space,
office furniture, office equipment, telephone service,
and accommodation for the members of the legislative
delegation

from

the

county.

The

personnel

for

the

legislative delegation office shall be selected by the
members of the legislative delegation....”), 45-6-190

9

(similar, for Macon and Bullock counties), 45-24-190
(similar, for Dallas County), 45-27-190 (similar, for
Escambia County), and 45-29-190 (similar, for Fayette and
Lamar counties).
This Local Delegations system has existed in some
form for decades at least, if not since the enactment of
the 1901 State Constitution.

It is, in short, the mostly

unwritten law of county governance in Alabama.

II. JUSTICIABILITY
The plaintiffs’ one-person, one-vote claim contends,
essentially,
causes

that

Alabama’s

unconstitutional

Local

Delegations

discrimination

as

to

system
voters’

representation in government because all Local Delegation
members

have

equal

powers

in

the

delegation

while

representing disproportionate numbers of voters in the
county

at

issue,

and

members

often

constituencies outside the county as well.

representing
They base

their claim not on the legislative districts currently in

10

place, which are set to expire soon, but rather on the
redistricting plans that have already been enacted and
will be in effect for the next election, and under which,
the plaintiffs allege, the State divides an excessive and
unprecedented

number

of

counties

among

multiple

legislative districts. The county splitting is relevant,
the

plaintiffs

explain,

because

now,

more

than

ever

before, more Local Delegation members will represent
larger out-of-county interests over and to the detriment
of smaller in-county interests, thus diluting the ability
of a county’s residents to affect their county’s affairs.
In essence, the plaintiffs seek to have greater local
control over local affairs than the State’s redistricting
plans provide.

In response, the majority says that

Alabama’s next Legislature may choose to abandon entirely
or alter materially the whole Local Delegations system,
and

therefore,

the

voter

inequality

plaintiffs would never come to be.

11

feared

by

the

That possibility, the

majority

concludes,

means

that

the

claim

should

be

dismissed on grounds of ripeness and standing.

A.
As for ripeness, the majority states correctly the
general

proposition

that,

“A

claim

is

not

ripe

for

adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not
occur at all.”
States,

523

Ante, at 22 (quoting Texas v. United

U.S.

296,

300

(1998)).

The

majority,

however, fails to apply that principle properly.

The

mere existence of any future contingency is not enough to
render a claim unripe.
be

able

to

assert

If it were, litigants would never

claims

seeking

to

enjoin

future

injurious conduct, as there is always at least a mere
theoretical possibility that circumstances between now
and then could somehow change so as to stave off the
injury.

See Doe v. Bush, 323 F.3d 133, 138 n.4 (1st Cir.

2003) (“[The defendants’ argument] would seem to say that

12

a

case

cannot

be

ripe

on

the

predictable future injury.

basis

of

reasonably

This is not the law.

The

doctrine of ripeness asks whether an injury that has not
yet happened is sufficiently likely to happen to warrant
judicial review.”) (punctuation and citation omitted).
Rather,

when

the

plaintiffs’

feared

injury

is

contingent on future events, to determine whether the
claim creates ripeness concerns, “a court must assess the
likelihood

that

a

contingent

plaintiff of an injury.

event

will

deprive

the

In other words, it is not merely

the existence, but the ‘degree of contingency that is an
important barometer of ripeness.’”
Local

355,

618

F.3d

1279,

Mulhall v. UNITE HERE

1291-92

(11th

Cir.

2010)

(emphasis in original) (quoting Riva v. Massachusetts, 61
F.3d 1003, 1011 (1st Cir. 1995)); see also Riva, 61 F.3d
at 1011 (“[A] litigant seeking shelter behind a ripeness
defense

must

demonstrate

more

than

a

theoretical

possibility that harm may be averted.”); Martin Tractor
Co. v. Fed. Election Comm’n, 627 F.2d 375, 379 (D.C. Cir.

13

1980) (“If the injury be a future one, the occurrence of
the

injury

must

describable

for

be
the

reasonably
action

to

certain
be

deemed

and

clearly

‘ripe’

for

adjudication.”).
The

majority

ignores

this

degree-of-likelihood

inquiry, explaining that the inquiry is relevant only
where a future contingency may “deprive the plaintiff of
an injury” that is already felt; not where an inchoate
injury is dependent on a future contingency (and thus,
the question is whether the injury “will occur at all”).
Ante, at 26.

That distinction is not supported by any

case law (the majority cites none, nor can it) and is not
logically

consonant

with

the

central

purpose

of

the

ripeness doctrine: to protect courts “from engaging in
speculation or wasting their resources through the review
of potential or abstract disputes.”

E.g., United States

v. Rivera, 613 F.3d 1046, 1050 (11th Cir. 2010).
In cases where the plaintiffs’ feared injury is
contingent

on

substantially

14

uncertain

future

events,

courts cannot reliably apply legal principles to the
facts at hand, facts which may be hazy, changing, or
otherwise amorphous, to determine whether or not there is
or will be an actual violation of legal right.

See,

e.g., Elend v. Basham, 471 F.3d 1199, 1211 (11th Cir.
2006) (holding a First Amendment claim involving the
right to protest unripe where the “analysis depends so
critically

on

the

location

and

circumstances

of

the

protest zone” and “we don’t know when [the plaintiffs]
will protest, we don’t know where they will protest, and
we don’t know how they will protest”); Johnson v. Sikes,
730 F.2d 644, 649 (11th Cir. 1984) (holding a claim
unripe so as to avoid “render[ing] an opinion advising
what the law would be on an assumed set of facts”).
There, the circumstances are, in short, “not fit for
adjudication.”

Texas, 523 U.S. at 300.

By contrast, in

cases where it is anticipated that the injury will be
caused by future events that are sufficiently certain and
the relevant contours sufficiently delineated, the facts
are concrete enough to be amenable to application of law;
15

and,

there,

the

court

should

discharge

its

duty

of

declaring legal rights.

See, e.g., Riva, 61 F.3d at

1011-13

a

(holding

ripe

challenge

to

a

statute

anticipated to cause future injury: “The paramount harm
to

[the

plaintiff]--the

eventual

reduction

in

his

benefits--is distant in time, but its incidence seems
highly probable.”

“There is no basis to suppose that any

adjudication will be hampered by factual uncertainty....
The retirement scheme must now face judicial scrutiny.”).
A central goal of the ripeness doctrine is to separate
those cases amenable to legal analysis from those that
are not, and, thus, when legal claims involve future
events, it is critical to assess the likelihood of those
events occurring as anticipated.

Cf. Babbitt v. United

Farm Workers Nat. Union, 442 U.S. 289, 297 (1979) (“The
difference between an abstract question and a ‘case or
controversy’ is one of degree, of course.”).
Properly understood, the ripeness inquiry this court
faces is whether it is sufficiently likely that the State
will

carry

out

the

anticipated
16

conduct

that

the

plaintiffs
dilution:

contend
that

is,

will

cause

unconstitutional

one,

conducting

an

vote

election

for

members of the Legislature and the Local Delegations in
accordance with the already enacted redistricting plans,
and,

two,

continuing

the

operation

longstanding Local Delegations system.

of

the

State’s

As there is no

doubt that the election will occur along the lines drawn
by the redistricting plans, the only remaining question
is whether it is sufficiently likely that the Local
Delegations system will continue to operate in the same
manner it has for decades.

If the court agrees that the

system will probably continue as the plaintiffs expect
(that is, how it has historically operated), then all
relevant

facts

are

sufficiently

concrete

for

the

application of bedrock one-person, one-vote principles.
And here, based on the evidence in the record, it is
apparent

that

the

actual

likelihood

of

the

State

abandoning or materially altering the longstanding system
is essentially nonexistent.

The record shows as follows:

17

First, there is the fact that the Local Delegations
system at issue in this case is not some hypothetical
future legislative innovation, but rather, “the parties
appear to agree that the local delegations system has
been adopted by every Alabama Legislature for decades.”
Order (Doc. No. 130) at 4.

In addition to the parties

agreeing that the system is decades old, the evidence in
the record is corroborative.

According to the Clerk of

the Alabama House, who has worked for the House for over
20 years, the system has been in place the entire time.
Likewise, the Secretary of the Alabama Senate, who has
worked for or with the Legislature for 40 years, agreed
with respect to his tenure.
published

judicial

decisions

Also corroborative are
discussing

or

at

least

mentioning a Local Delegations system of some sort from
years past, one from as far back as 1936.
Wallace,

603

F.

Supp.

174,

176-77

(N.D.

See Hardy v.
Ala.

1985)

(three-judge court); Buskey v. Oliver, 565 F. Supp. 1473,
1476-77

(M.D.

Ala.

1983)

(Thompson,

J.);

Birmingham-Jefferson Civic Ctr. Auth. v. Hoadley, 414 So.
18

2d 895, 906 (Ala. 1982) (Maddox, J., dissenting); Bolden
v. City of Mobile, 423 F. Supp. 384, 397 (S.D. Ala. 1976)
(Pittman, J.); Brown v. Moore, 428 F. Supp. 1123, 1138
(S.D. Ala. 1976) (Pittman, J.); Ala. State Teachers Ass’n
v. Lowndes Cnty. Bd. of Educ., 289 F. Supp. 300, 311
(M.D. Ala. 1968) (three-judge court); Yeilding v. State
ex rel. Wilkinson, 167 So. 580, 593 (Ala. 1936) (Brown,
J., dissenting).
Second, the record also shows that, not only has the
system been in place for decades, but also the system’s
procedural rules have not changed materially throughout
that time.

According to the House Clerk, the “local

legislation rules” have been “fairly consistent” or “a
constant” throughout his tenure.
132-1) at 11:13-12:2.

Woodard Dep. (Doc. No.

Specifically, he stated that the

rule that a legislator join the delegations for all
counties in his district in any small part, no matter how
small (the key issue at the center of this litigation),
had not changed “since [he had] been involved” with the
House.

Id.

at

15:22-16:6.
19

The

Senate

Secretary’s

testimony

was

similar:

for

“as

long

as

[he

could]

remember,” the “rules regarding local legislation [had]
changed very little.”
6:10-21.

Also

in

Harris Dep. (Doc. No. 132-2) at

the

record

is

an

affidavit

of

a

legislator and Local Delegation member describing the
system’s rules, and, although he does not explicitly say
so, it is apparent from the context that he believes that
those same rules will be in effect during the next
legislative session.

See Newton Decl. (Doc. No. 35-9).

Third, because we are dealing with probabilistic
predictions,

the

gaps

in

the

evidence

are

just

as

relevant as the evidence in the record; and here, the
evidentiary gaps are telling.

For one, there has been no

testimony of anyone who remembers any time when either
house

of

the

Alabama

Legislature

actually

chose

to

abolish or materially alter the system, to take any steps
in that direction, or to even consider doing so.

And,

there has been no testimony of anyone in this case, not
the House Clerk, Senate Secretary, defendant legislators,
plaintiff legislators, or anyone else, that they think it
20

likely, or even reasonably plausible, that the system
will be abolished or materially altered at any time in
the foreseeable future.

And, there is no indication in

the record that any legislator, or even any member of the
public who intends to seek office as a legislator, has
expressed a desire to abolish or materially alter the
system.

In short, there is no evidence in the record

that anyone has ever before attempted to eliminate the
Local Delegations, or that anyone intends to do so in the
future.
Indeed,

even

the

plaintiffs

in

this

case

have

represented that they desire for the system to remain in
place in some form.

To the extent that the majority

seems to believe that the plaintiffs seek to eliminate
the system, the majority wholly misconceives what this
litigation is about.
challenged
unnecessary

While the system as used with the

redistricting
and

plans

will

unconstitutional

allegedly

vote

cause

dilution,

the

complete elimination of the Local Delegations system,
which provides at least some measure of local control,
21

would be worse.

“[G]iven the absence of home rule powers

for counties in the Alabama Constitution, eliminating the
ability of legislators to control local laws affecting
the

county

they

represent

would

further

dilute

the

ability of county residents to govern themselves and
would subject them to tighter control by central state
government in Montgomery.”
5.

Pls.’ Br. (Doc. No. 133) at

In short, the basic goal of this litigation is to

increase

local

elimination

of

control
the

over

Local

local

affairs,

Delegations

system,

and

the

if

not

replaced with something else that provides for comparable
local control, would have the precise opposite effect.
Moreover, it would have a racial dimension that would
raise serious concerns under the Voting Rights Act, as it
would have the effect of transferring power away from the
black

legislators

who

represent

the

majority-black

counties and to the white majority of the State as a
whole.

“Doing away with the Local Delegations custom ...

would impair ‘the way blacks are gaining true political
power in Alabama.’”

Id. at 6.
22

Compare Hardy v. Wallace,

603 F. Supp. 174, 175-77 (N.D. Ala. 1985) (three-judge
court) (after it became clear that the majority-black
Greene County was going to soon elect its first black
legislators, the outgoing white Local Delegation amended
a statute affording the delegation the power to make
certain

agency

appointments

to

instead

give

the

appointment power to Governor Wallace); see also Binny
Miller, Who Shall Rule and Govern? Local Legislative
Delegations, Racial Politics, and the Voting Rights Act,
102 Yale L.J. 105, 115 (1992) (discussing Hardy and
contending that its facts “powerfully demonstrate [that]
legislative delegations have often been the objects of
intense racial maneuvering aimed at undercutting their
authority”).2

2. In fact, reported cases suggest that Alabama’s
preference for centralized, rather than local, control
embedded in the State Constitution to some extent is
rooted in racist motives at the 1901 convention. It is
well known that “the Alabama Constitutional Convention of
1901 was part of a movement that swept the postReconstruction South to disenfranchise blacks.” Hunter
v. Underwood, 471 U.S. 222, 229 (1985) (citations
omitted). “[Z]eal for white supremacy ran rampant at the
(continued...)
23

Fourth, the majority states that the next Legislature
may abandon or materially alter the Local Delegations
system during the next organizational session required by
§ 48.01 of the Alabama Constitution, but it is not clear
whether

doing

so

would

even

be

lawful,

as

§

48.01

enumerates the “[only] business [that] can be transacted
at such sessions” and it does not specifically mention
Local Delegations at all.
48.01.
whether

See Ala. Const. art. IV, §

As such, there seems to be a real question as to
abolishing

or

altering

the

system

during

an

organizational session would in fact violate § 48.01.
See generally Van Hart v. deGraffenried, 388 So. 2d 1196,

2(...continued)
convention.” Id. One district court found that the 1901
Constitution’s hostility to county home rule was
“motivated at least in part by race....
[It was]
important not to have too much power in the hands of the
counties, or to make sure that the power ... that is at
the local level [was] in safe, that is, Democratic and
white hands.” Knight v. Alabama, 458 F. Supp. 2d 1273,
184-85 (N.D. Ala. 2004) (Murphy, J.) (punctuation and
citation omitted); see also Dillard v. Crenshaw Cnty.,
640 F. Supp. 1347, 1357-58 (M.D. Ala. 1986) (Thompson,
J.) (discussing efforts to keep political power out of
the hands of black voters in the heavily black counties
by favoring centralized over local authority).
24

1199

(Ala.

1980)

(discussing

the

actions

that

may

constitutionally be taken in organizational sessions).
The question seems to have never been faced because, as
mentioned, it appears that the Legislature has never once
actually

attempted

to

abolish

the

Local

system during an organizational session.

Delegations

And, while the

majority has concluded that the rules adopted by the
Alabama House and Senate at the organizational session
control whether and to what extent the delegations will
have “gatekeeping” power over local laws, in fact the
current rules of the current Legislature do not anywhere
mention Local Delegations even though, as all agree, the
current

Legislature

unquestionably

uses

the

Local

Delegations system.3 The fair inference is that the Local

3.
See Rules, Alabama State Senate, available at
http://www.legislature.state.al.us/senate/senaterules/s
enaterulesindex.html (last visited July 11, 2013); Rules,
Alabama State House of Representatives, available at
http://www.legislature.state.al.us/house/houserules/hou
serulesindex.html (last visited July 11, 2013).
25

Delegations system is separate and apart from the rules
drafted in the organizational sessions.4
Fifth, the majority’s analysis does not include the
fact that aspects of the Local Delegations system are
enshrined in written law: as already mentioned, scattered
provisions of the Alabama Constitution and Code appears
to provide for the Local Delegations to have certain
specified powers, office space, employees with salaries
and

pensions,

recognizes

and

and

more.

As

controls

the

the

State

existence

Constitution
of

Local

Delegations in certain respects, there is a state-law
issue

as

to

whether

the

next

Legislature

could

constitutionally eliminate the delegations without first
repealing these constitutional provisions that presuppose

4. Additionally, there may be evidence in the record
that the Alabama Legislature may not attach the same
importance to remaking itself anew each organizational
session that the majority seems to imply it does: the
House Clerk wanted to “[m]ake clear” during his
deposition that the House is “supposed to” adopt rules
during its organizational session, but “[i]t doesn’t
always happen.”
Woodard Dep. (Doc. No. 132-1) at
17:9-13.
26

their existence.

And the same issue would seem to be

present with respect to the Alabama Code, which also
appears

to

presuppose

numerous places.

the

delegations’

existence

in

While it is theoretically possible, of

course, that the Legislature could lawfully eliminate the
Local Delegations one way or another despite their being
recognized and controlled by provisions of the State
Constitution and Code, we should be hesitant to find it
likely that the next Legislature will do so, especially
here, where not one single legislator is on the record as
indicating any intent in this regard.
Viewing this evidence in the light most favorable to
the plaintiffs, see Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992); Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986), or viewing
the evidence without favor to either side, the conclusion
is obvious: The evidence overwhelmingly indicates that
the

Local

Delegations

system

will

almost

certainly

continue to exist with Alabama’s next Legislature and the
material aspects of the delegations will be the same as
27

they are today, the same as they were last century, the
century before that, and as far back as anybody involved
in this litigation knows.

This case, in short, bears out

the maxim that the past is prologue to the future.

The

record simply contains no good reason to think that the
next

Legislature

appears

to

have

may

abandon

never

the

happened

delegations,
before,

never

which
been

attempted before, and is not something anybody actually
wants.
defense

“[A] litigant seeking shelter behind a ripeness
must

demonstrate

more

than

a

theoretical

possibility that harm may be averted,” and that, the
State has not done.

See Riva, 61 F.3d at 1011.5

5. The majority cites evidence of a 1999 episode in
which a Democratic-controlled Alabama Senate revised its
rules to “dramatically reduce” the Republican Lieutenant
Governor’s powers and argues that, since the Legislature
made such changes then, it may make comparable changes
again, say, maybe this time by eliminating the Local
Delegations system. See ante, at 30-31. I find it quite
telling that the example of a past change to legislative
procedures is one so dramatic and unique. That this 1999
change is put forward as comparable in likelihood to a
change in the Local Delegations system shows just how
unlikely a change in the system is for the next session.
In any event, the singular, 1999 episode can hardly
(continued...)
28

While the majority states unequivocally that, “The
rules for local legislation, including the use of local
delegations, are adopted in the organizational session,”
ante, at 5, I do not read the sources on which the
majority relies, the Alabama House Clerk’s and Senate
Secretary’s

depositions,

to

say

that.

Indeed,

both

persons testified that legislative rules are adopted in
the organizational session, but as already mentioned,
those rules say nothing about whether the State will have
Local Delegations or what powers those delegations will
have.
“during

See supra, note 3.
the

organizational

The majority leaps from
session,

the

Legislature

enacts rules” to “during the organizational session, the
Legislature enacts the rules that sub silentio determine
whether Local Delegations exist,” but I do not see how
that leap is supported by anything the House Clerk or

5(...continued)
outweigh the evidence that Local Delegations have been
used for decades, nobody has ever attempted to eliminate
them, and nobody has indicated a desire to do so in the
future.
29

Senate Secretary actually said.

And, more importantly,

the leap seems to be in contradiction of all the formal
law providing that the Local Delegations “shall” exercise
certain

powers,

e.g.,

Ala.

Const.

amend.

677,

they

“shall” have offices, e.g., 1975 Ala. Code § 45-2-190,
their employees “shall” have pensions, e.g., Ala. Code
§ 36-27-5.1, etc.
As the Local Delegations continue to exist in Alabama
in

fact

and

statutes,
custom,

in

law,

as

constitutional

and

there

is

no

recognized
provisions,
reason

to

by

a

number

of

and

decades

of

think

that

that

existence will cease, the alleged harm the delegations’
malapportionment will cause in the imminent future is
ripe for review.

Cf. Glavin v. Clinton, 19 F. Supp. 2d

543, 547 (E.D. Va. 1998) (three-judge court) (“Defendants
suggest that the case is not ripe because ‘Congress has
not reached its ultimate legislative conclusion regarding
a sampling census.’

Although it is certainly possible

that Congress may seek to prevent the Department from
conducting its plan to utilize sampling, there is no
30

legal significance to this observation.

Congress may

always moot out a controversy by passing new legislation,
but that fact does not shield agency action from judicial
review.

There is always the possibility that settlement

or some external event will render a case moot, but that
hardly renders the litigation nonjusticiable before that
event occurs.”), aff’d sub nom. Dep’t of Commerce v.
House

of

Representatives,

525

U.S.

316,

329

(1999)

(“[T]he District Court below correctly found that the
case is ripe for review, and that determination is not
challenged here.”).

Unless and until the State actually

elects to eliminate the Local Delegations, they, like all
other local bodies of government, are subject to judicial
review.

See Nat’l Ass’n of Bds. of Pharmacy v. Bd. of

Regents, 633 F.3d 1297, 1309-10 (11th Cir. 2011) (once a
governmental defendant’s challenged conduct voluntarily
ceases, the defendant “enjoy[s] a rebuttable presumption
that the objectionable behavior will not recur” and, if
not rebutted, the case is moot).

31

B.
As for standing, as an initial matter, it cannot be
questioned that the plaintiffs’ asserted vote-dilution
See Fairley v.

injury is a judicially cognizable one.

Patterson, 493 F.2d 598, 603 (5th Cir. 1974) (“[T]he
Supreme

Court

has

conclusively

established

...

that

sufficient damage through underrepresentation to obtain
standing will be inflicted if population equality among
voting units is not present.”) (citations omitted).

Once

again, the only question here is whether that injury will
actually

come

to

pass.

While

the

majority

states

correctly that there is no standing if the injury is
merely

“conjectural

or

hypothetical,”

ante,

at

27

(quoting Lujan, 504 U.S. at 560-61), it is also true that
“there is no per se rule denying standing to prevent
probabilistic

injuries.”

Fla.

State

Conference

of

N.A.A.C.P. v. Browning, 522 F.3d 1153, 1162 (11th Cir.
2008);

see

plaintiffs’

also

id.

standing

(“[W]e
when

have
the

repeatedly

alleged

prospective and probabilistic in nature.”).
32

upheld

injury

was

Put another

way,

“[i]njury

sufficient

to

meet

the

standing

requirement ... may involve a contingent risk of injury.”
Ore. Envtl. Council v. Kunzman, 817 F.2d 484, 491–492
(9th Cir. 1987).

In such cases, whether the contingent

risk of injury is sufficient to support standing turns on
whether the plaintiffs are “likely” to suffer the injury
feared.

City of Los Angeles v. Lyons, 461 U.S. 95, 105

(1983); see also Cone Corp. v. Fla. Dep’t of Transp., 921
F.2d 1190, 1205 (11th Cir. 1991) (aggregating cases and
concluding, “[i]n sum, a plaintiff seeking declaratory
and injunctive relief [must] show[] that the defendant is
likely to injure the plaintiff”); cf. Va. State Corp.
Comm’n v. F.E.R.C., 468 F.3d 845, 848 (D.C. Cir. 2006)
(requiring a “substantial probability”).

The degree of

probability

standing

“undemanding.”

required

to

support

is

Fla. State Conference of N.A.A.C.P., 522

F.3d at 1163; see also Wabash Valley Power Ass’n, Inc. v.
Rural Electrification Admin., 903 F.2d 445, 451 (7th Cir.
1990) (although the likelihood of the alleged injury
occurring was “thin gruel, it [was] no thinner than”
33

other cases finding standing).

Based on the evidence

already discussed and viewing that evidence in the light
most favorable to the plaintiffs, it is clear that a
sufficient likelihood of injury to support standing has
been shown here.

See also Arrington v. Elections Bd.,

173 F. Supp. 2d 856, 861-62 (E.D. Wis. 2001) (three-judge
court) (“To achieve standing, all one needs to do is
allege

a

‘threat’

diluted....

that

[Here,]

one’s

the

voting

plaintiffs

rights
have

may
met

be
the

‘relatively modest’ burden of alleging a realistic threat
of imminent injury to their voting rights.”).
The next element of standing is causation.

The

majority concludes that there is none here because it is
the Local Delegations system’s procedural rules, not the
redistricting maps that the plaintiffs seek to enjoin,
that causes the vote-dilution injury.
misconceives the nature of the injury.
person,

one-vote

dilution

is

conjunction,

cases,

brought
one,

the

about

that

by

In all one-

unconstitutional
two

elected
34

That argument

factors
officials

vote

acting

in

represent

disproportionate numbers of voters, and two, that those
officials exercise equal power despite having unequal
constituencies.

Cf.

Roxbury

Taxpayers

Alliance

v.

Delaware Cnty. Bd. of Supervisors, 80 F.3d 42, 49 (2d
Cir. 1996) (declining to find a one-person, one-vote
violation because, even though the districts were not
equipopulous,

the

legislators

were

afforded

weighted

votes in accordance with their respective constituency
sizes); Thigpen v. Meyers, 231 F. Supp. 938, 941 (W.D.
Wash.
voting,

1964)

(three-judge

rather

than

court)

redistricting,

person, one-vote violation).

(ordering
to

weighted

remedy

a

one-

The injury alleged in this

case is caused by the redistricting plans as much as it
is by the rules affording all Local Delegation members
equal power.
Likewise, the injury is redressable for purposes of
standing.

It cannot be questioned that a redistricting

remedy by itself could remedy the one-person, one-vote
violation in at least some Local Delegations.

Given the

tension between the State’s competing one-person, one35

vote obligations vis-à-vis the Local Delegations and the
Legislature as a whole (since one individual serves in
both capacities), redistricting alone could probably not,
without some additional other sort of remedy, eliminate
the violation in all Local Delegations across the full
length of the State.
standing.

But, that fact does not defeat

See Massachusetts v. E.P.A., 549 U.S. 497, 526

(2007) (“[The risk of global warming causing harm] would
be reduced to some extent if petitioners received the
relief they seek.”); Chiles v. United States, 69 F.3d
1094, 1096 (11th Cir. 1995) (Florida had standing to
pursue

claims

unlawfully

that

failing

the
to

U.S.
stem

Attorney
the

tide

General
of

was

illegal

immigration because, even though “illegal immigration is
dependent on many other factors outside the control of
the Attorney General,” the court “could offer some relief
to Florida”).6

6.
The majority’s argument that “one person, one
vote is not the sort of injury that can be redressed by
partial compliance,” ante, at 35-36, forgets that the
(continued...)
36

Even if the majority is correct that this court could
not order any of the named defendants to remedy the full
extent of the one-person, one-vote violation across the
entirety of the State, that does not defeat standing; it
is enough that, one, the court’s decree would alter legal
duties such that the injury would be remedied in part
(that is, in some Local Delegations), and two, “the
practical

consequences”

of

the

decree

would

be

“a

significant increase in the likelihood that” the injury
would

be

remedied

in

full

Delegations across the State).
452,

464

(2002)

(finding

an

(that

is,

in

all

Local

Utah v. Evans, 536 U.S.
injury

redressable

even

though the President, who had ultimate power over whether
the injury would continue, was not a named defendant and
would not be bound by any decree issued by the court, but

6(...continued)
standing doctrine itself often precludes plaintiffs from
challenging the full makeup of a governmental body and
rather limits the legal challenge to discrete districts.
See, e.g., United States v. Hays, 515 U.S. 737 (1995).
Despite the majority’s dicta without citation to
authority, there never has been an “all-or-nothing”
requirement in redistricting cases.
37

would

nevertheless

likely

honor

the

judiciary’s

judgment); see also Duke Power Co. v. Carolina Envtl.
Study

Grp.,

438

U.S.

59

(1978)

(finding

an

injury

redressable when the injury was caused by a third party,
not the defendants against whom the desired decree would
run,

because

of

the

possibility

reacting

voluntarily

to

the

injurious

conduct).

If

this

Alabama’s

Local

of

decree

so

court

Delegations

the

third
as

were

system

to

to
to

party
cease

declare
violate

constitutional requisites, it is substantially likely
that State officials, even those not formally bound by
this court’s decree, would take the message to heart, and
it is plainly apparent that the State could, should it
desire,

eliminate

the

violation

in

full

through

any

number of procedural devices, whether having weighted
voting in the Local Delegations, having different persons
serve in the Local Delegations and the Legislature as a
whole, or otherwise.7

7.

Indeed,

the

State
38

has

repeatedly argued
(continued...)

In sum, the vote-dilution injury alleged by the
plaintiffs

is

both

likely

and

redressable,

and

the

plaintiffs have standing to seek that redress.

C.
While the State may currently feel discontent over
the existing degree of federal judicial involvement in
its redistricting, I fear that the majority’s ripeness
and standing analysis may unintentionally sentence the
State to a quagmire of perpetual litigation much greater
than that occurring now.
until

after

redistricting

the

Suppose the plaintiffs wait

election

plans

as

to

they

challenge
relate

to

the
the

State’s
Local

Delegations (as the majority says they must), and the

7(...continued)
throughout this litigation that the redistricting plans
challenged in this case were the result of a good-faith
attempt at complying with principles of law explicated by
a three-judge district court in Georgia, Larios v. Cox,
300 F. Supp. 2d 1320 (N.D. Ga. 2004) (three-judge court).
While Alabama was, of course, not bound by the Georgia
court’s decree, it nevertheless claims to have put great
effort into honoring it.
39

court finds the case to have merit and orders remedial
redistricting.

Because each member of a Local Delegation

is also a member of the Legislature as a whole, the
remedial redistricting may then invite a claim that, as
a

result

Delegations

of

the

attempt

violation,

the

at

remedying

redistricting

the

Local

plans

now

violate one-person, one-vote in the Legislature as a
whole.

If that claim has merit and a second round of

remedial redistricting is required, the State may, once
again, be open to a new round of litigation over the
Local

Delegation

districts.

This

may

proceed

ad

infinitum until the State succumbs to a drastic remedy,
replacing the current system with something entirely
different.

In short, I think the law not only allows

this court to consider at the same time the redistricting
plans as they relate to the Local Delegations and the
Legislature as a whole, but furthermore, sound public
policy prefers that this court do so.

40

III. MERITS
A.
I now turn to the merits. The “one-person, one-vote”
rule under the equal protection clause of the Fourteenth
Amendment requires that “the vote of any citizen [be]
approximately

equal

in

citizen in the State.”

weight

to

that

of

any

other

Reynolds v. Sims, 377 U.S. 533,

579 (1964) (holding that the Alabama Legislature as a
whole must adhere to one-person, one-vote).

While that

principle was at first applied to state legislatures, it
is

now

“beyond

question”

that,

because

“[t]he

Equal

Protection Clause reaches the exercise of state power
however manifested, whether exercised directly or through
subdivisions of the State,” the one-person, one-vote rule
applies with equal force to the State’s subdivisions as
well, including city, county, and other bodies of local
government.

Avery v. Midland Cnty., 390 U.S. 474, 479-80

(1968); see also Bd. of Estimate v. Morris, 489 U.S. 688
(1989); Hadley v. Junior College Dist., 397 U.S. 50
(1970).
41

Where the State has, without rational justification,
through its districting plans or other forms of state
action, created preferred classes of citizens who cast
votes of a greater weight than others, the State has
See Reynolds,

denied the equal protection of the laws.

377 U.S. at 563 (the “right to vote” of “individual
voters living in disfavored areas” “is simply not the
same right to vote as that of those living in a favored
part of the State”).

“The idea that one group can be

granted greater voting strength than another is hostile
to the one man, one vote basis of our representative
government.”
Here,
clear

Moore v. Ogilvie, 394 U.S. 814, 819 (1969).

Alabama’s

differences

citizens,

and

of

the

Local

Delegations

voting

power

system

among

“discrimination

the

against

creates
State’s
those

individual voters living in disfavored areas is easily
demonstrable mathematically.” Reynolds, 377 U.S. at 563.
The Local Delegations system results in several forms of
discrimination

among

Alabamians

elected to serve their interests.
42

and

the

legislators

The first distinction is between Alabamians of a
particular county.

After discounting the out-of-county

voters who have no interest in a foreign county’s local
affairs

(but

elect

members

to

the

county’s

Local

Delegation anyways), there is a difference of voting
power among any given county’s residents with respect to
their

ability

Delegation.

to

select

members

of

their

own

Local

For example, in Jefferson County, the most

populous county in Alabama, reside approximately 658,000
people.

As

explained,

the

Jefferson

County

Local

Delegation’s core function, legislating, and its lesser
functions,

such

as

agency

appointments,

relate

to

a

single geographic region’s population alone: the 658,000
residents

of

Jefferson

County.

However,

under

the

challenged redistricting plans, those county residents
will have dramatically different voices in the delegation
charged
Jefferson

with

legislating

County

Local

in

their

Delegation

interest.
in

the

The

House

of

Representatives will include the legislators from 18
districts (HD 14-16, 43-48, 51, 52, and 54-60).
43

All of

those districts will contain approximately 45,000 people
each.

Some of the districts, however, will be made up of

Jefferson County residents exclusively (that is, about
45,000 Jefferson County residents per district), while
others will include large numbers of people residing in
other counties as well.

One district in the delegation,

HD 43, for example, will include only 200 or so Jefferson
County residents and about 44,800 neighboring Shelby
County residents who, as residents of an area in which
the

Jefferson

County

Local

Delegation

exercises

no

powers, lack a legitimate interest in the delegation’s
affairs.
of

the

It is apparent that, when selecting members
Jefferson

Jefferson

County

discounting
voters,

the

cast

Jefferson

County
voters
44,800

votes

County

of

Local

Delegation,

residing

in

disinterested
far

voters

greater
residing

HD

the

43,

Shelby

after
County

strength

than

in

of

any

200

do
the

delegation’s other districts “merely because of where
they happen to reside” in the county.
at 563.

Reynolds, 377 U.S.

Those 200 voters exercise the same power over
44

county affairs (a single vote on the Local Delegation) as
do

45,000

others.

In

short,

the

Local

Delegation

“give[s] the same number of representatives to unequal
numbers of constituents” in the county, id. at 563, and
that discrimination among county residents seeking to
influence their county’s affairs “is hostile to the one
man, one vote basis of our representative government.”
Moore, 394 U.S. at 819.
The

second

Depending

on

distinction

whether

a

is

between

legislator’s

legislators.

district

lies

entirely within a single county or instead crosses county
lines, the legislator exercises differing powers in the
Legislature: he has either the ability to serve as the
“gatekeeper” of local laws for either a single county (if
his district falls within a single county alone) or
multiple

counties

counties).

(if

his

district

touches

multiple

As for Jefferson County, again, some of the

county’s Local Delegation districts lie entirely within
the county; the representatives of those districts will
be able to legislate for Jefferson County and no other.
45

By contrast, the representative of HD 43 will have equal
ability to influence the affairs of both Jefferson County
and Shelby County, even though only about 200 of the
legislator’s constituents will live in the former and
about 44,800 will live in the latter.

It is obvious

that, in a political body like the State Legislature,
where horse trading is a necessary part of business,
affording some members greater powers than others is not
without consequence.

Cf. Bannister v. Davis, 263 F.

Supp. 202, 209 (E.D. La. 1966) (three-judge court) (“[A]
representative
legislation.

does

more

than

will

vote

for

He [also] exerts personal influence on

other representatives ....”).
who

simply

legislate

for

The HD 43 representative,

both

Jefferson

and

Shelby

counties, simply does not stand on an equal footing with
a representative empowered to legislate for Jefferson
County

alone;

the

former

is

empowered

to

influence

legislation affecting the latter’s constituents, but the
latter lacks a corresponding power.

And, of course, that

power differential is not a result of political acumen,
46

but is rather predetermined at the time of every election
on

the

basis

of

nothing

more

than

whether

the

legislator’s district is in a favored or disfavored part
of the State.
The third distinction is between the Alabamians who
elect legislators to represent their interests.

Because

of the fact that some legislators are afforded greater
legislative powers than others, it is, correspondingly,
also the case that, within a particular area of the
State,

certain

Alabamians

may,

through

their

representatives, influence the local legislative affairs
of their neighbors in other counties, although those
neighbors cannot do the same for them.
Estimate,

489

U.S.

at

698

(“[A]

Cf. Bd. of

citizen

is

...

shortchanged if he may vote for only one representative
when

citizens

in

a

neighboring

district,

of

equal

population, vote for two.”).
Consider the following example. Jefferson County has
approximately 658,000 residents and neighboring Shelby
County has approximately 195,000; together, the combined
47

two-county area contains about 853,000 people.

Among

those 853,000 people, about 45,000 of them, the residents
of HD 43, will be able to, through their representative,
exercise legislative power over themselves and all of
their neighbors in both counties in the area; they will
have a voice in the local affairs of all 853,000 people.
Others, those residing slightly further down the road, in
a district wholly in Jefferson County, will be able to
legislate for about 658,000 people, the residents of
Jefferson County alone.

And, finally, a third group,

those residing in a district wholly in Shelby County,
will be able to legislate for about 195,000 people, the
residents of Shelby County alone.

There is simply no

rational justification for the State affording the HD 43
voters such an amplified voice, giving them dominion over
their neighbors who are not similarly empowered.
short,

the

Local

Delegations

system

divides

In
this

community of about 853,000 people into classes, affording
the “individual voters living in disfavored areas” a
“right to vote [that] is simply not the same right to
48

vote as that of those living in [the] favored [areas].”
Reynolds, 377 U.S. at 563; see also id. at 563-64 (“To
say that a vote is worth more in one district than in
another would run counter to our fundamental ideas of
democratic

government.”)

(punctuation

and

citation

omitted).
Although I have focused on Jefferson County and its
neighbors, lest I be misunderstood, I emphasize here that
such discrimination will exist across Alabama.

In the

challenged redistricting plans, 50 of the State’s 67
counties are split among multiple legislative districts
in the State House of Representatives and 33 are split in
the State Senate, and this is far more county splits than
had

occurred

in

prior

redistrictings.

What

I

have

described is found in each of those places.
While

the

three

forms

of

discrimination

already

discussed are enough to show the constitutional infirmity
in this case, there is a fourth, closely related, reason
to think the State’s legislative delegations scheme may
be unconstitutional.

That is, the State has given people
49

(say, the HD 43 voters who reside in Shelby County) the
power to influence a governmental body that they have no
legitimate interest in (say, the Jefferson County Local
Delegation),

thereby

diluting

legitimately interested voters.

the

votes

of

the

Although the Supreme

Court has never directly addressed the matter, other
courts

have

suggested

that

such

circumstances

are

E.g., Cantwell v. Hudnut, 566 F.2d 30,

unconstitutional.

36 (7th Cir. 1977) (“Although there are no decisions on
the

point,

we

shall

assume

the

correctness

of

the

District Court’s view that a state law allowing strangers
to participate in the vote for representatives to a local
legislative body having general governmental powers over
a particular territory would offend the equal protection
rights of the resident voters in that territory.”).
Under

the

law

of

the

Eleventh

Circuit

Court

of

Appeals, the State unconstitutionally violates the rights
of

voters

with

legitimate

interests

in

a

particular

governmental body when the State extends the franchise to
other persons lacking a “substantial interest.”
50

Sutton

v. Escambia Cnty. Bd. of Educ., 809 F.2d 770, 772 (11th
Cir.

1987)

(“The

test

for

whether

the

statute

is

irrational as applied to the particular county is whether
the city residents have a substantial interest in the
operation of the county school system.

If the city

residents do not have a substantial interest, then the
state must exclude the city residents from voting.”).
Other circuits have come to similar conclusions.

See

Creel v. Freeman, 531 F.2d 286, 288 (5th Cir. 1976)
(same); Duncan v. Coffee Cnty., 69 F.3d 88, 94 (6th Cir.
1995) (same); cf. Locklear v. North Carolina State Bd. of
Elections, 514 F.2d 1152 (4th Cir. 1975) (“compelling
state interest”).
Here,

there

“substantial”)
residents
Delegation.

has

been

interest

voting

for

no

legitimate

proffered

for

Shelby

County

Jefferson

County

Local

the

(let

alone

(In fact, there is reason to think that

residents of Shelby County may have adverse interests to
those of the neighboring Jefferson County.)

A quick look

at the State’s redistricting plans reveals that, across
51

the State, residents of numerous counties are authorized,
through their representatives, to legislate for other,
neighboring, and, in many cases, even distant, counties.
In the case of HD 16, residents of the rural Lamar
County,

which

is

on

Alabama’s

western

border

with

Mississippi, may legislate for the distant, comparatively
urban, Jefferson County, the third county to the east, in
the middle of the State.
County

residents

Marengo

may

County.

In the case of HD 68, Conecuh

legislate

There

instances to list.

are

for

too

three-county-away

many

other

similar

(And of course, other voters, by

contrast, do not extend such reach; in the case of HD 86,
for example, the voters of Houston County may legislate
for themselves alone.)

It strains credulity to imagine

that this hodgepodge of authorizing certain Alabamians to
cast

votes

for

“local”

(a

misleading

term

here)

delegations that do not affect them and only affect faraway others is justified by legitimate state interests.
In

fact,

McClendon,

who

defendant
served

State
on
52

the

Representative
State’s

Jim

legislative

reapportionment committee that drew the redistricting
plans challenged in this case, raised his own similar
concerns

in

this

regard

at

one

of

the

committee’s

hearings: “I am now speaking as a representative of St.
Clair County and not a member of this board....

I want

to get this on the record on behalf of my home county.
Right now we have six legislators from St. Clair County.
Five of them do not live in St. Clair County.

Five of

them have a majority of their voters in some other
counties.

That affects accountability....

In St. Clair

County, any one of those six legislators, whether they
live

in

the

county

legislation....

or

[T]hat

not,
is

not

can

veto

right.”

any

local

Legislative

Reapportionment Comm. Hr’g Tr. (Doc. No. 30-26) at 7.
The irrational scheme for enacting local legislation
about

which

McClendon

complains

violates

the

constitutional rule of Sutton and related circuit court
decisions.
In sum, Alabama has discriminated against certain of
its

citizens

as

to

their

opportunity
53

for

democratic

participation merely because of where they live in the
State

and

it

has

done

so

without

any

rational

justification. That discrimination denies Alabamians the
equal protection of the law.

B.
As

McClendon

acknowledged,
legislation

has

Alabama’s
obvious

scheme

for

enacting

local

deleterious

effects.

The plaintiffs in this case allege that the

most drastic instance of a Local Delegation failing to
respond to the needs of its citizens can be found in
Jefferson County.

Based on the present record, it is

impossible to determine whether the allegations about
Jefferson County have merit, but, in the interest of
illustrating what may be at stake in this case, it is
worth noting the contentions.
As the plaintiffs explained it, until recent years,
Jefferson County collected an “occupational tax” from
persons who resided outside the county and commuted in
for business.

The Alabama Supreme Court invalidated the
54

tax for reasons unrelated to the issues in this case,
thereby causing Jefferson County to lose a significant
source

of

revenue.

See

Jefferson

Cnty.

Comm’n

v.

Edwards, 32 So. 3d 572 (Ala. 2009); Jefferson Cnty. v.
Weissman, 69 So. 3d 827 (Ala. 2011).

Although it was

clear that new revenue was needed, the county’s Local
Delegation, which, of course, included legislators whose
primary constituencies were outside the county, failed to
reenact the occupational tax (in a manner permissible
under

state

alternative.

law,

that

is)

or

to

provide

for

any

That failure was, as the bankruptcy court

would describe it, a “major cause” of Jefferson County’s
subsequent

bankruptcy,

the

largest

governmental

bankruptcy in American history at the time.

In re

Jefferson Cnty., 484 B.R. 427, 434 (Bankr. N.D. Ala.
2012) (Bennett, J.); see also id. at 436 (“All those who
attribute Jefferson County’s bankruptcy case ... only to
conduct and actions by the County are ill-informed.

The

State of Alabama and its legislators are a significant,
precipitating cause.”).

According to a newspaper story
55

in the record, a legislator from Shelby County credited
legislators

like

herself,

representing

out-of-county

interests, with averting reenactment of the occupational
tax:

“When

you

add

up

those

people

that

represent

counties surrounding Jefferson, that’s a lot of folks....
They don’t want their constituents to have to pay an
occupational tax for Jefferson County.”

Barnett Wright,

Jefferson

Try

County

Lawmakers

to

Meet,

Again

for

Solution [to] County Financial Crisis, The Birmingham
News, April 22, 2012 (Doc. No. 35-4).
Whether the Jefferson County bankruptcy could have
been avoided had the county been governed by a system
that respected the rule of one-person, one-vote cannot be
known but, as this court adjudges the constitutionality
of Alabama’s Local Delegations scheme, the possibility
should be considered.8

8. Additionally, given the history of racism to some
extent underlying the Local Delegations system’s roots,
see
supra,
note
2,
and
issues
with
racially
discriminatory governance in this part of the State in
the recent past, see Shelby Cnty. v. Holder, ___ S. Ct.
(continued...)
56

C.
For the foregoing reasons, I believe that Alabama’s
Local Delegations scheme, which irrationally empowers
certain of the State’s citizens to the disadvantage of
others,

violates

the

equal

protection

clause.

The

majority, however, in its alternative holding on the
merits, erroneously decides otherwise because, as the
majority

explains

it,

the

Local

Delegations

do

not

exercise “governmental functions.”

8(...continued)
___, ___, 2013 WL 3184629, at *34 (June 25, 2013)
(Ginsburg, J., dissenting) (discussing Dillard v.
Crenshaw Cnty., 748 F. Supp. 819 (M.D. Ala. 1990)
(Thompson, J.)), the appearance of the Local Delegation
for Jefferson County, a black population center, being
diluted
by
interests
from
Shelby
County,
an
overwhelmingly white constituency, is troubling. Another
county split may be even more questionable. In the case
of HD 61, which is approximately 80 % white, that
district
crosses
into
Greene
County,
which
is
approximately 80 % black, to capture a mere 12 people.
The effect is, a majority-white constituency can exercise
a veto over a majority-black county’s residents’ wishes,
all because a mere 12 people were placed in one district
rather than another.
Whether these circumstances are
evidence of race discrimination, however, is a question
for this court for another day.
57

1.
Like the majority, I begin my analysis regarding
“governmental functions” with Hadley v. Junior College
Dist., 397 U.S. 50 (1970).

Hadley was decided in 1970,

six years after Reynolds, which, for the first time,
applied

the

one-person,

legislature.

one-vote

rule

to

a

state

During the intervening six years between

Hadley and Reynolds, there was uncertainty in the lower
courts regarding the sorts of state governmental bodies
besides legislatures, if any, to which the one-person,
one-vote

rule

applied.

For

example,

some

courts

distinguished between “legislative” and “administrative”
bodies, assuming that the rule applied to the former but
not the latter.
475,

483

n.13

See, e.g., Hyden v. Baker, 286 F. Supp.
(M.D.

Tenn.

1968)

(three-judge

court)

(collecting cases).
In Hadley, the Court, addressing this confusion,
repudiated

distinctions

based

on

the

nature

of

a

governmental body’s functions, repeatedly eschewing the
58

distinctions that were proposed to limit application of
the one-person, one-vote rule: “When a court is asked to
decide whether a State is required by the Constitution to
give each qualified voter the same power in an election
open to all, there is no discernible, valid reason why
constitutional distinctions should be drawn on the basis
of the purpose of the election....

While there are

differences in the powers of different officials, the
crucial consideration is the right of each qualified
voter to participate on an equal footing in the election
process.”

397 U.S. at 54-55.

The Court declined to

recognize a distinction based on the “importance” of the
Id. at 55.

governmental body.

It also declined to

recognize a distinction based on whether governmental
bodies

exercised

functions.

or

“administrative”

Id. at 55-56.

Immediately
narrowing

“legislative”

after

principles

having
on

the

rejected

these

application

of

possible
the

one-

person, one-vote rule, the Court announced its holding in
the very next sentence:
59

“We therefore hold today that as a
general rule, whenever a state or local
government decides to select persons by
popular election to perform governmental
functions, the Equal Protection Clause
of the Fourteenth Amendment requires
that each qualified voter must be given
an equal opportunity to participate in
that election, and when members of an
elected body are chosen from separate
districts,
each
district
must
be
established on a basis that will insure,
as far as is practicable, that equal
numbers
of
voters
can
vote
for
proportionally
equal
numbers
of
officials.”
Id. at 56.
This holding contains two essential teachings.

The

equal protection clause reaches “an elected body,” first,
whose “members ... are chosen from separate districts”
and, second, which performs a “government function.”

If

these two factors are present, the “district[s] must be
established on the basis that will insure, as far as is
practicable, that equal numbers of voters can vote for
proportionally equal numbers of officials,” or to put it
more succinctly, the one-person, one-vote rule applies.

60

As to the first teaching, the Court is essentially
saying that the clause reaches multi-member bodies whose
members are elected from separate districts.

This, to

me, is the quintessential entity to which the one-person,
one-vote rule should apply.

It should be emphasized

that, Hadley’s language is quite narrowly confined to
those circumstances where “a state or local government
decides to select persons by popular election” to serve
in the governmental body at issue (and, within that
category, “when members of [a governmental] body are
[elected]

from

separate

districts”).

Id.

at

56.

Excluded from the rule would, therefore, be appointed
officials, for they are not elected, and legislative,
executive, and administrative committees and other intrastructural bodies, for officials are not elected to those
bodies (although they may nevertheless be elected to a
different body, i.e., the legislature itself, and then
“appointed,”

in

a

sense,

to

61

the

other,

i.e.,

the

legislative committee).9 See Sailors v. Bd. of Educ., 387
U.S. 105 (1967) (one-person, one-vote rule does not apply
to appointed officials).
As to the second teaching, that the Court used the
word “governmental,” a word that literally reaches all
aspects of what the government does, to modify the word
“functions” reflects that the court was emphasizing that
the

former

narrowing.

word
This

should

be

broadening

makes

sense

since,

rather
as

the

than
Court

indicates, the nature of the bodies’ functions is not the

9.
The majority says that it “see[s] no logical
distinction between the manner in which local delegations
are created and the manner in which all legislative
committees are created” because the members of both “are
all appointed in the same organizational session that
occurs each quadrennium.” Ante, at 61. The difference
is obvious: even assuming that committee and Local
Delegation “appointments” happen at the same time, the
Local
Delegations
system
assigns
legislators
to
delegations “automatically” on the basis of geography,
versus the committee system, in which legislators are
appointed to committees based on political acumen. As
for committees, even though not every legislator will
ultimately serve on, say, the agriculture committee, all
legislators have the opportunity to seek to do so. In
turn, all voters have the equal opportunity to influence
the business of the agriculture committee.
62

decisive factor, but rather, it is the structure of the
means of selecting the body (that is, that members are
selected

by

voters)

that

determines

whether

requirements of one-person, one-vote are triggered.

the
If

the entity is a multi-member body whose members are
elected from separate districts, it makes no difference
whether

its

functions

are

administrative,

executive,

legislative or whatever, as long as they are governmental.
The Court could have used a more limiting modifier, such
as

by

requiring

“important,”

“plenary,”

or

“final”

See Hadley, 397 U.S. at 60

functions, but it did not.

(Harlan, J., dissenting) (“[This] case forebodes, if
indeed it does not decide, that the [one-person, one-vote]
rule is to be applied to every elective public body, no
matter what its nature.”); Twp. of Marlboro v. Bd. of
Educ., 992 F. Supp. 756 (D.N.J. 1998) (Wolin, J.) (“In
essence, the Supreme Court held [in Hadley] that all
elections must comply with the ‘one person, one vote’

63

principle.”).10

The

Court

imposed

no

such

limiting

modifier, instead concluding simply that, “[w]hile there
are differences in the powers of different officials,”
“there is no discernible, valid reason why constitutional
distinctions should be drawn on [that] basis.”

Hadley,

397 U.S. at 55-56.
If Hadley itself is not enough to show that the oneperson, one-vote rule is broadly applicable to multimember bodies whose members are elected from separate
districts,

additional

Supreme

bolster that conclusion.

Court

decisions

should

The first case is Board of

Estimate v. Morris, 489 U.S. 688 (1989), where the Court
held that the New York City “Board of Estimate” was

10.
In Chief Justice Burger’s dissenting opinion
criticizing the majority’s holding, the Chief Justice
restated the holding with a notable omission as follows:
“‘[A] general rule, (that) whenever a state or local
government decides to select persons by popular election
* * *,’ the Constitution commands that each qualified
voter must be given a vote which is equally weighted with
the votes cast by all other electors.” Hadley, 397 U.S.
at 70 (Burger, C.J., dissenting). Apparently, the Chief
Justice thought the “governmental functions” language was
not important enough to warrant repeating.
64

subject

to

one-person,

one-vote.

There,

the

Court

discussed a broad array of the board’s functions, but it
did so only insofar as those functions were relevant in
determining that the board did, in fact, have some sort
of “sufficient impact throughout the district” to invoke
the requirements of one-person, one-vote.

Id. at 696

(quoting Hadley, 397 U.S. at 54).
Importantly, in a footnote in the Court’s opinion,
the Court, quoting from a party submission, listed the
board’s functions, dividing them between plenary functions
that the board handled “exclusively” and non-plenary
functions that the board handled “in conjunction with the
New York City Council.” Id. at 694 n.4. In the opinion’s
body text to which that footnote was appended, the Court,
referring to these functions, stated simply that, “New
York law assigns to the board a significant range of
functions common to municipal governments.”

Id. at 694.

Again, the Court here had the opportunity to draw a
distinction of constitutional significance based on the
nature of those functions, but the Court did not do so.
65

Moreover, in deciding that the board’s functions were
“governmental” ones invoking the one-person, one-vote
rule, the Court did attach “major significance” to one of
the board’s non-plenary powers in particular: that is,
that “the board shares legislative functions with the city
council with respect to modifying and approving the city’s
capital and expense budgets.”
“recommend[ed]”

a

budget,

but

Id. at 696.
did

not

The board

have

plenary

authority to enact its recommendation; rather, “[a]pproval
or

modification

of

the

proposed

budget

require[d]

agreement between the board and the city council.”

Id.

at 694 n.4, 696.
In short, Board of Estimate reflects that, as for the
nature of a governmental body’s functions, the relevant
inquiry for determining whether those functions invoke the
one-person, one-vote rule is whether those functions cause
the body to have some sort of impact in the geographic
area

it

serves,

whatever

that

impact

may

be,

and,

furthermore, even non-plenary legislative functions may
be highly significant in causing such an impact.
66

So long

as the threshold “impact” requirement is met, courts
should not second guess whether, given the nature of the
body’s

functions,

the

effect

of

the

impact

is

felt

strongly enough to warrant equal voting requirements. See
also

Hadley,

397

U.S.

at

55

(“If

the

purpose

of

a

particular election were to be the determining factor in
deciding whether voters are entitled to equal voting
power, courts would be faced with the difficult job of
distinguishing between various elections.

We cannot

readily perceive judicially manageable standards to aid
in such a task.... If there is any way of determining the
importance of choosing a particular governmental official,
we think the decision of a State to select that official
by popular vote is a strong enough indication that the
choice is an important one.”).
In all its years of adjudicating one-person, one-vote
cases

since

these

decisions,

the

Supreme

Court

has

recognized a single limitation on the one-person, one-vote
rule’s application to multi-member bodies whose members
are

elected

from

separate
67

districts,

the

so-called

“special-purpose”

exception.

The

special-purpose

exception was first invoked as a possibility in Avery, the
first Court decision to apply the one-person, one-vote
rule to a local governance body: “Were the Commissioners
Court a special-purpose unit of government assigned the
performance of functions affecting definable groups of
constituents more than other constituents, we would have
to confront the question whether such a body may be
apportioned in ways which give greater influence to the
citizens most affected by the organization’s functions.”
390 U.S. at 483-84. Next, in Hadley, after announcing the
general rule that the one-person, one-vote rule applies
to

all

elected

functions”

in

officials
defined

that

“perform

geographic

areas,

governmental
the

Court

revisited the possibility although, again, did not apply
it: “It is of course possible that there might be some
case in which a State elects certain functionaries whose
duties

are

so

far

removed

from

normal

governmental

activities and so disproportionately affect different

68

groups that a popular election in compliance with Reynolds
[] might not be required.”

397 U.S. at 56.

The exception, as described in those cases, is common
sense.

Although place of residence within a State is an

irrational basis for discriminating as to voting power
when electing members of the statewide legislature, a body
charged with duties impacting all of the State’s citizens,
Reynolds, 377 U.S. at 563, the special-purpose exception
simply

recognizes

that,

in

other

cases,

where

a

governmental body’s more narrow functions (that is, not
“typical”

governmental

functions)

disproportionately

affect some citizens to a greater extent than others, it
is entirely rational, perhaps even sensible, that those
citizens

disproportionately

impacted

exercise

correspondingly disproportionate voting power in electing
the members of that body.
The first of three Supreme Court cases to actually
apply the exception was Salyer Land Co. v. Tulare Lake
Basin Water Storage Dist., 410 U.S. 719 (1973).

There,

the Court concluded that, because the operations of a
69

California “water storage district,” distributing water
and charging for it according to land ownership, affected
citizens to varying degrees according to the amount of
land they owned, the State may constitutionally weigh its
citizens’ votes accordingly to allow those most affected
to have the loudest voice when electing members of the
body.

Id. at 729-30; see also Ball v. James, 451 U.S.

355, 362 (1981) (“[T]he question in this case [is] whether
the

purpose

sufficiently

of

the

[governmental

specialized

and

body

narrow

and

at

issue]

whether

is
its

activities bear on landowners so disproportionately as to
distinguish the [body] from those public entities whose
more general governmental functions demand application of
the Reynolds principle.”); Associated Enters., Inc. v.
Toltec Watershed Improvement Dist., 410 U.S. 743, 744
(1973) (similar).
Years later, in Quinn v. Millsap, 491 U.S. 95 (1989),
rev’g 757 S.W.2d 591 (Mo. 1988), the Court revisited these
special-purpose cases (albeit not in the context of oneperson, one-vote).

There, the Court reversed a Missouri
70

state-court decision holding that the Missouri “Board of
Freeholders” may constitutionally limit its membership to
landowners.

The

state

court,

relying

on

the

three

special-purpose cases, read those decisions to stand for
the principle that the equal protection clause applied to
the board only if it had “general governmental powers.”
757 S.W.2d at 594-95 (citing Salyer, Associated Enters.,
Inc., and Ball).

The board did not have such “general

governmental powers,” the state court held, because “[t]he
Board of Freeholders serves only to recommend a plan of
reorganization to the voters of St. Louis City and St.
Louis County.”

Id. at 595.

implement

a

such

concluded,

“the

relevancy.”

plan;
Equal

It could not, by itself,

therefore,
Protection

the

state

Clause

court

[had]

no

Id.

The Supreme Court reversed because the state court’s
“ruling

reflect[ed]

a

significant

misreading

of

our

precedents.” Quinn, 491 U.S. at 96. The Court explained,
“In holding the board of freeholders exempt from the
constraints of the Equal Protection Clause, the Missouri
71

Supreme Court [] relied [in part] on the fact that the
Board of Freeholders serves only to recommend a plan of
reorganization to the voters of St. Louis City and St.
Louis County and does not enact any laws of its own.

But

this fact cannot immunize the board of freeholders from
equal protection scrutiny”; the special-purpose cases “do
not support that conclusion.”

Id. at 104-05 (punctuation

omitted). Rather, in each of those special-purpose cases,
“the Court expressly applied equal protection analysis and
concluded that the voting qualifications at issue passed
constitutional

scrutiny.”

Id.

at

105.

In

short,

regardless of whether a governmental body “enact[s] laws
directly”

or

merely

“recommends

a

proposal,”

that

distinction does not allow the body to escape the ordinary
equal-protection scrutiny, and the Court’s special-purpose
exception jurisprudence does not provide otherwise.
In sum, these decisions, read together, create the
following framework. As an initial matter, the Fourteenth
Amendment’s

equal

protection

clause

reaches

all

governmental bodies regardless of what functions those
72

bodies exercise or what purposes they serve (Quinn).
Because all governmental bodies (state or local) are
subject to equal-protection requirements, those bodies
consisting

of

multiple

members

each

elected

from

a

discrete geographical district are subject to the oneperson, one-vote rule (e.g., Reynolds, Hadley), unless
there is a rational basis warranting otherwise (Salyer,
Associated Enterprises, and Ball).

If the body has a

meaningful impact throughout the geographic region it
serves, affording unequal votes on the basis of where
within

the

irrational

region
(e.g.,

the

voters

Reynolds,

happen

Hadley).

to

reside

That

is

is

true

regardless of whether the body is important, whether its
functions

are

best

characterized

as

administrative,

legislative, or otherwise (Hadley), or whether its powers
are plenary or are instead limited by some manner of
checks and balances (Board of Estimate).

Simply stated,

so long as a governmental body is popularly elected in a
defined geographic region and has some sort of meaningful
presence across that region, it is subject to one-person,
73

one-vote.

In general, almost all governmental multi-

member bodies whose members are elected from separate
districts

will

meet

that

description

because,

in

a

democratic system like ours, where government is expected
to respond to the people, it is a rare occasion when
politicians are elected to do nothing.
U.S.

at

55

(“[I]n

our

country

Cf. Hadley, 397

popular

election

has

traditionally been the method followed when government by
the people is most desired.”).
The

Supreme

circumstances

Court

when

it

has
is

recognized

only

these

rational,

and

thus

constitutional, to give voters unequal votes: they are
when the governmental body at issue does not sufficiently
impact all persons in its defined geographic region, but,
on the contrary, serves a narrow purpose that, one,
affects only some and not others, or two, affects all,
albeit disproportionately, and persons have recognizably
different stakes in the governmental body than others.
See Salyer, 410 U.S. at 736-37 (only landowners, not nonlandowners, had stake in water district because there was
74

“no way that the economic burden of district operations
[could]

fall

on

residents

qua

residents,

and

the

operations of the district primarily affect[ed] the land
within [the district] boundaries”); Associated Enters.,
Inc.,

410

U.S.

at

745

(“landowners

[were]

primarily

burdened and benefitted by the establishment and operation
of

watershed

district”

and

thus,

the

“State

could

rationally” “condition the vote accordingly”); Ball, 451
U.S. at 370 (while water district had some impact on nonlandowners denied the franchise, the voting scheme was
nevertheless constitutional because landowners, who had
the franchise, had disproportionately high stakes in the
body as they “[were] the only [persons] whose lands [were]
subject to liens to secure [] bonds,” were the only
residents “subject to the ... taxing power of the [body],”
and “[were] the only residents who ha[d] ever committed
capital to the [body] through stock assessments”).

In

those cases, it is rational to preclude from the franchise
those not affected by the body or to otherwise tie the
franchise to the degree to which persons are affected.
75

There, the persons not affected cannot contend that they
are being refused representation that should be fairly
expected

under

principles

of

democratic

governance.

Whenever a governmental body that is popularly elected in
a defined geographic area seeks to avoid the mandate of
one-person, one-vote, the sole inquiry before the court
is

whether

the

body

has

such

a

narrow

purpose

and

disproportionate effect and, if so, whether the voting
scheme is rationally related to those circumstances.
other inquiries are without matter.

All

See Ball, 451 U.S.

at 377 (White, J., dissenting) (“[N]othing in Salyer
changed the relevant constitutional inquiry.

Rather, the

Court held the Reynolds-Avery[] line of cases inapplicable
to the water district because of its ‘special limited
purpose’ and the disproportionate effect of its activities
on landowners as a group.”) (emphasis in original).
Therefore, the initial critical question here is
whether

Alabama’s

Local

Delegations

are

multi-member

bodies whose members are elected from separate districts.
That the answer to this question is yes is dictated not
76

only by the facts in this case but also by Eleventh
Circuit precedent.

As stated, when Alabamians cast a

vote for a single legislative representative, they are
actually electing one official who will serve in two
capacities tied to the geographic locations from which
they are elected: for one, the legislator will represent
a particular district in the State Legislature as a whole,
and, second, the legislator, depending on the location of
the district, will become a member of one or more Local
Delegations.

That one legislator is elected to two

offices is of no consequence.

See Morris v. Bd. of

Estimate, 707 F.2d 686, 689 (2d Cir. 1983) (“We are
impelled to the realistic recognition that a citizen
entering the voting booth chooses at one and the same time
a

member

of

supervisor.”

the

Board

of

Supervisors

and

his

town

“The mere fact that board members may be

characterized as ‘delegates’ and perform functions in
addition to their duties on the board, does not provide
a meaningful distinction.”) (punctuation and citation
omitted), aff’d, 489 U.S. 688, 694 (1989) (“All eight
77

officials become members as a matter of law upon their
various

elections.”).

Likewise,

that

the

Local

Delegations are mostly not maintained through written law
is also without consequence.

See Nashville, C. & St. L.

Ry. v. Browning, 310 U.S. 362, 369 (1940) (“It would be
a narrow conception of jurisprudence to confine the notion
of ‘laws’ to what is found written on the statute books,
and to disregard the gloss which life has written upon it.
Settled state practice ... can establish what is state
law.

The equal protection clause did not write an empty

formalism

into

the

Constitution.

Deeply

embedded

traditional ways of carrying out state policy ... are
often tougher and truer law than the dead words of the
written text.”); Adickes v. S. H. Kress & Co., 398 U.S.
144, 168 (1970) (similar).
Moreover, Eleventh Circuit precedent addressing a
Local Delegations scheme virtually identical to Alabama’s
likewise concluded that the delegations were multi-member
bodies elected from separate districts.

See DeJulio v.

Georgia, 290 F.3d 1291, 1295 (11th Cir.) (holding that,
78

with respect to Georgia’s Local Delegations, Hadley’s
requirement
satisfied”

that

officials

because,

“[w]hen

be

“elected”

public

is

“clearly

officials

become

members of [the delegations] simply by virtue of their
popular election to the legislature, they are deemed
popularly elected [to the delegations] for the purposes
of the one person, one vote requirement”) (punctuation and
citation omitted), cert. denied, 537 U.S. 948 (2002).
Thus, Alabama’s Local Delegations are on a par with
all other Alabama elected multi-member bodies, such as
city

governments,

county

commissions,

school

boards,

regulatory boards, etc. whose members are elected from
separate districts.
delegations’

And, it is quite clear that the

powers

that

they

have

a

meaningful

and

significant impact throughout the counties they serve.
The

second

question

is

whether

to

treat

the

Local

Delegations, multi-member bodies whose members are elected
from separate districts, differently from other similar
bodies.

Absent some special circumstances justifying the

refusal

to

afford

equal

voting
79

power,

Supreme

Court

precedent

says

no,

and

there

are

no

such

special

circumstances with regard to Local Delegations--or, at
least, Alabama has not articulated any.
In

stark

contrast

to

that

legal

framework,

the

majority today decides that Alabama’s Local Delegations
are not subject to the one-person, one-vote rule because
they do not perform “the kind of governmental functions”
that invoke the rule.

Ante, at 49.

Several paragraphs,

in particular, in the majority’s opinion demonstrate best
the flaw in its reasoning.

The first paragraph reads in

part:
“The local delegations in Alabama do not
exercise general governmental powers or
functions of the kind that the Supreme
Court has identified as necessary to
invoke the requirement of one person,
one vote.... [L]ocal delegations cannot
enact laws for the counties.
Local
legislation must be passed by a majority
of the legislature and signed by the
governor, or passed by a majority of the
legislature over a governor’s veto.”
Ante, at 53-54 (citations omitted).

However, neither of

the houses of the Alabama Legislature, acting alone, has
these powers either.

Each house alone, without approval
80

from the other house, “cannot enact laws”; rather, laws
“must be passed by a majority of the legislature [of both
houses] and signed by the governor, or passed by a
majority of the legislature [of both houses] over a
governor’s

veto.”

In

short,

the

State

House

of

Representatives, the State Senate, and the Governor each
play a role in the legislating process and none, acting
alone, can “enact laws.”

And yet, elections for each of

these are subject to the requirements of voter equality.
The majority goes on the say that:
“[L]ocal delegations cannot enact laws
for the counties....
Although the
practice of local courtesy makes it
likely
that
local
legislation
recommended by the local delegations
will
be
passed
by
the
Alabama
Legislature, that likelihood depends
entirely on the will of the whole body,
which need not continue or honor the
practice of local courtesy. Because ...
the power of lawmaking is reserved to
the legislature as a whole, we cannot
conclude that local delegations perform
important governmental functions that
are general enough and with sufficient
impact to justify the extension of
Reynolds to the election of local
delegations.”

81

Ante, at 53-54 (punctuation and citation).

However, this

language misses the point for two reasons.
the

plaintiffs

talk

about

a

practice

First, when

that

is

never

breached, it is not the local courtesy rule (which comes
into play after proposed legislation makes it out of the
Local

Delegation)

that

is

at

issue

but

rather

the

gatekeeper function (which allows or prohibits local
legislation from emerging from the Local Delegations to
be considered by the Legislature).

But, second, and most

importantly, it is not the nature of the governmental
function alone that triggers the application of the oneperson, one-vote rule, but rather it is, as discussed, the
electoral structure.
The

majority

seems

to

suggest

that,

given

that

passage of local legislation requires at least two steps,
initial approval by the delegation and then subsequent
approval by the full legislature, so long as the second
step satisfies the mandate of voter equality, then there
is no harm caused by any inequality at the first step.
See ante, at 62 (“The Equal Protection Clause is satisfied
82

by the apportionment of the legislature in accordance with
the requirement of one person, one vote. Instrastructural
bodies, [including] local delegations, need not satisfy
the same requirement.”).

Put another way, even if there

is inequality in the delegations, whatever harm that
inequality causes is remedied at the second step, in the
properly

apportioned

Legislature

as

a

whole.

That

argument is without merit. As I have described, the Local
Delegations are the sole bodies charged with beginning the
local legislating process. If the delegations do not send
a bill proposing a local law to the Legislature as a
whole, the desired law will never be enacted.11

As such,

11.
The majority repeatedly uses the word
“recommend” to describe the legislative function of the
delegations.
See, e.g., ante, at 53 (“As a matter of
courtesy, local delegations review and recommend local
legislation to the Alabama Legislature as a whole.”). It
should be emphasized here that use of the word
“recommend” can be misleading insofar as it may imply
that the Legislature itself is in the business of
independently drafting local laws and the delegations
merely suggest proposals for the legislature to consider.
But that is not the case. The Local Delegations are the
sole bodies charged with beginning the local legislating
process.
If a delegation does not propose a desired
(continued...)
83

the harm caused by the inequality in the delegations has
an obvious continuing effect that is not remedied in the
legislature as a whole.

See Baker v. Reg’l High Sch.

Dist. No. 5, 520 F.2d 799, 802 (2d Cir. 1975) (“While [the
board’s decision to borrow money] must be [subsequently]
approved by the voters of the regional district in a
referendum, it is or should be clear that this does not
substantially undercut the significance of the boards’
function....

While the voters have the final word, what

they ratify or disapprove can be only what the board
decides to present to them.”); cf. Avery, 390 U.S. at 481
(“That

the

state

apportioned

does

legislature
not

exempt

may

itself

be

subdivisions

properly
from

the

Fourteenth Amendment.”).
The next paragraph of the majority’s opinion with
which I find fault is as follows:
“[I]n Ball, the Court said more than in
either Salyer or Associated Enterprises.
The Court explained that the water

11(...continued)
local law, the Legislature will never enact it.
84

district in Ball ‘did not exercise the
sort of governmental powers that invoke
the strict demands of Reynolds.’
And
the Court reasoned, in the alternative,
that, ... ‘as in Salyer, the nominal
public character of the entity could not
transform
it
into
the
type
of
governmental
body
for
which
the
Fourteenth Amendment demands a oneperson, one-vote system of election.’”
Ante, at 52 (punctuation and citations omitted). In Ball,
like the earlier special-purpose cases, while the Supreme
Court did address the governmental body’s functions, it
did so for the purpose of explaining why it was reasonable
and thus constitutional for the weight of voters’ votes
to differ.

As I described earlier in my discussion of

Ball and the other special-purpose cases, the central
issue is still voters and whether their votes are equal,
and,

if

not,

justified.

whether

that

inequality

is

rationally

The critical determination in Ball was not

just that the body exercised functions that were, in
certain respects, more limited than other bodies, but
rather that, those narrow functions had a disproportionate
effect.

See Ball, 451 U.S. at 362 (“[T]he question in

85

this case [is] whether the purpose of the [body] is
sufficiently

specialized

and

narrow

and

whether

its

activities bear on landowners so disproportionately as to
distinguish [it] from those public entities whose more
general governmental functions demand application of the
Reynolds principle.”) (emphasis added); see also id. at
377

(White,

constitutional

J.,

dissenting)

inquiry

[is

(“[T]he

whether

the

body

relevant
has

a]

‘special limited purpose and [] disproportionate effect.”)
(emphasis in original).

Ball did not create some sort of

freestanding and freewheeling “governmental functions”
limitation

divorced

from

functions are relevant.

the

reason

for

which

those

Such a restricted view of the

reach of the one-person, one-vote rule is, as I have
already explained, wholly inconsistent with the Supreme
Court’s jurisprudence.
Indeed, the Local Delegations scheme before this
court does the precise opposite of that which the specialpurpose cases like Ball allow: In special-purpose cases,
the State affords unequal voting power because doing so
86

allows people uniquely affected by government operations
to have greater influence over those operations; but,
here, Alabama has taken a class of citizens uniquely
affected

by

a

governmental

body’s

operations

(the

residents of a particular county with respect to their
county’s Local Delegation) and has, through extending the
franchise to entirely disinterested citizens (those in
other,

sometimes

far

away,

counties),

diluted

their

influence such that it is lesser than it otherwise would
be.

In other words, the majority’s reasoning imposes an

exception to the one-person, one-vote rule’s application
to geographically elected bodies that is precisely the
opposite of the single exception the Supreme Court has
recognized.
While purporting to rely on Ball and other cases, the
majority states conclusorily that the limited legislative
functions of Alabama’s Local Delegations are not “the kind
of governmental functions” that invoke the one-person,
one-vote rule, ante, at 49, but the majority offers
entirely no principled basis for determining what “kind”
87

of functions are the right kind.

Instead of offering a

principle of some sort that can be applied in later cases,
the

majority

rattles

off

a

series

of

good

and

bad

functions with no apparent unifying principles at play:
for

unexplained

system,”

reasons,

“provid[ing]

[]

“administer[ing]
police,

fire,

a

school

[and

other

services],” and “impos[ing] ad valorem property taxes or
sales taxes,” are all the right kind, but “provi[ding] []
electricity” is the wrong kind.

Ante, at 52-53.

For

reasons I am at a loss at understanding, the majority
seems to think that Alabama’s Local Delegations’ countylaw-gatekeeping function is more akin to that wrong kind
of function than it is to the right kinds of functions.
The

majority’s

inability

to

articulate

any

sort

of

principled basis for its reasoning is unsurprising since,
as the Supreme Court has said, “judicially manageable
standards” for “distinguishing between [the purposes of]
various

elections”

Hadley,

397

U.S.

are
at

not

55;

see

“readily
also

perceiv[able].”

id.

(refusing

to

distinguish between “legislative” and “administrative”
88

functions because requiring lower courts to do so “would
leave courts with an equally unmanageable principle since
governmental activities cannot easily be classified in the
neat categories favored by civics texts”) (punctuation and
citation omitted).

To the extent that the majority seems

to think that it has found such a judicially manageable
standard in this regard, it should say what it is.
And furthermore, the majority’s reasoning that Local
Delegations “exercise no general regulatory powers over
counties,” ante, at 53, overlooks the numerous statutes
allowing Local Delegations to appoint the officials who
do.

If “administer[ing] a school system” is the right

kind of function, as the majority says it is, ante, at 52,
it is relevant that the Franklin County Local Delegation
appoints an official to the board of education which does
just that.

See 1975 Ala. Code. § 45-30-101.01.

If

“impos[ing] ad valorem property taxes or sales taxes” is
the right kind of function, ante, at 53, it is relevant
that the Etowah County Local Delegation appoints the
members of an agency that “receive[s] and administer[s]
89

[certain] tax proceeds” and “issue[s] bonds, secure[s]
financing, and retire[s] debt.” See 1975 Ala. Code. § 4528-244.01(d).

If “the power to administer sanitation

[and] health [] services” is the right kind of function,
ante, at 53, it is relevant that the Calhoun County Local
Delegation appoints members of the water and sewer board.
See

1975 Ala. Code. § 45-8A-24; Ala. Const. amend. 677.

The list goes on.
Next, the majority turns to a series of state court
and lower federal court opinions that it contends “have
concluded that state and local government officials do not
exercise government functions of the sort that trigger the
requirement of one person, one vote for their elections
when the officials only recommend action to voters or to
another

governmental

body

that

is

apportioned

in

compliance with the requirement of one person, one vote.”
Ante, at 55. But those decisions do not lend the majority
the support it believes.
For one, the majority cites a Second Circuit Court of
Appeals decision, Kessler v. Grand Cent. Dist. Mgmt.
90

Ass’n, 158 F.3d 92 (2d Cir. 1998).

This case, however,

applies the special-purpose exception. Thus, for the same
reasons already explained, Kessler, like Ball and the
other

special-purpose

cases,

does

not

support

the

majority’s reasoning; it highlights its wrongfulness.
Moreover, the Kessler court even cited approvingly the
Second Circuit’s earlier Baker decision, a case rejecting
expressly the reasoning the majority adopts today.

See

Kessler, 158 F.3d at 103 (citing Baker, 520 F.2d at 802,
and stating that, there, the circuit court “concluded that
[the one-person, one-vote] rule applied to elections for
a regional school board that had ‘the exclusive power to
initiate and propose’ expenditures and borrowing”).

Much

like the governmental body the Baker court decided was
subject

to

one-person,

one-vote,

Alabama’s

Local

Delegations have the “exclusive power to initiate and
propose” certain governmental action (in Baker, borrowing

91

money, here, enacting local laws).

In sum, Kessler in no

way supports the majority.12
Next, the majority points to Polk Cnty. Bd. of Sup’rs
v. Polk Commonwealth Charter Comm’n, 522 N.W.2d 783 (Iowa
1994).

What the majority does not say, however, is that

that case, in adopting reasoning like the majority’s,
relied on the overturned Missouri state-court decision in
Quinn v. Millsap: “Like the Board of Freeholders in [Quinn
v. Millsap], the Mayors’ Commission does not exercise
general governmental powers” because “its purpose is to
collate information [and] mak[e] a recommendation to
[another body].”
790.

Polk Cnty. Bd. of Sup’rs, 522 N.W.2d at

That case, in short, did nothing but perpetuate bad

12.
As for the second opinion from the Second
Circuit the majority cites, Educ./Instruccion, Inc. v.
Moore, 503 F.2d 1187 (2d Cir. 1974), there, the circuit’s
opinion is so terse, it is difficult to discern what were
the functions of the governmental body at issue. But if
I read the case properly, it seems that the body’s sole
duties were to propose non-binding recommendations wholly
without legal effect, which is obviously distinguishable
from Alabama’s Local Delegations. See supra, note 11. In
any event, both Baker and Kessler were decided after that
case, so surely those decisions are better indicators of
the circuit’s current thinking.
92

law that the majority seeks to revive, closing its eyes
to the fact that the Supreme Court has already spoken.
Lastly, it must be conceded that the majority has
indeed found two cases with reasoning similar to its own.
In Driskell v. Edwards, 413 F. Supp. 974 (W.D. La.)
(three-judge court), aff’d mem., 425 U.S. 956 (1976), the
district court concluded that the makeup of Louisiana’s
state constitutional convention was not subject to oneperson, one-vote, reasoning that, since the convention’s
proposed revised constitution would not be enacted until
ratified by the voters, the rule did not apply.
at 977-78.

See id.

For the reasons I have explained at length,

I think that the district court’s reasoning there, like
the majority’s today, is inconsistent with the present
body of Supreme Court jurisprudence.

Moreover, “summary

affirmances have considerably less precedential value than
an opinion on the merits....

[U]pon fuller consideration

of an issue under plenary review, the Court has not
hesitated to discard a rule which a line of summary
affirmances may appear to have established.”
93

Illinois

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

173,

180-81

(1979)

(punctuation

and

citations

omitted).

And finally, the majority cites McMillan v.

Love,

A.2d

842

790

(Md.

2004),

which,

in

reasoning

similarly to the majority, relied on the Eleventh Circuit
Court of Appeals decision in DeJulio v. Georgia, 290 F.3d
1291 (11th Cir. 2002), the same decision from which this
court draws its analysis and which I contend below is,
like the majority’s reasoning today, erroneous.

2.
The

majority

also

faults

the

plaintiffs

for

“fail[ing] to identify the constitutional standard that
we should employ to adjudicate [the] claim under the Equal
Protection Clause.”

Ante, at 38.

The standard for

adjudicating the one-person, one-vote rule is far from
unresolved: “[E]very district must be established on a
basis that will insure, as far as is practicable, that
equal numbers of voters can vote for proportionally equal
numbers of officials.”

Hadley, 397 U.S. at 56.
94

Admittedly, Alabama may not be able to achieve oneperson, one-vote equally for all Local Delegations while
doing the same for both houses of the Legislature.
then again it may.

(But

See, e.g., Thigpen v. Meyers, 231 F.

Supp. 938, 941 (W.D. Wash. 1964) (three-judge court) (“The
weighting

of

a

legislator’s

vote

is

but

a

form

of

reapportionment, and hence is within the equitable powers
of this court, and such weighting gives constitutional
validity to the statutes creating legislative districts
which we have heretofore declared unconstitutional.”)
(citation

omitted)).

And

I

fully

agree

with

the

majority’s criticism of the plaintiffs’ suggestion that,
“when a state enacts voting districts that elect members
‘for both the state legislature and for local legislative
delegations, ... the state can deviate from the principle
of one-person, one-vote for the local delegations only to
the extent that such deviations are necessary to comply
with one-person, one-vote ... for the legislature as a
whole.’”
at 1).

Ante, at 38 (quoting Pls.’ Br. (Doc. No. 106)
Not only do I agree that the plaintiffs fail to
95

define “necessary,” I also cannot find anything in the
law, constitutional or statutory, that says that achieving
one-person, one-vote for Local Delegations should be
subordinated to achieving one-person, one-vote for both
houses of the Legislature or vice versa.
Instead,

that

the

State

is

confronted

conflicting legal demands is not new.

with

Compare, e.g.,

Thornburg v. Gingles, 478 U.S. 30 (1986) (the Voting
Rights Act requires the State to, when redistricting,
consider race and ensure minority voting strength to a
certain extent), with Miller v. Johnson, 515 U.S. 900
(1995) (the State violates the equal protection clause
where race is the “overriding and predominant force” in
redistricting).

What the State must do is resolve that

conflict “as far as is practicable.”

Hadley, 397 U.S. at

56; cf. id. at 58 (“We have said before that mathematical
exactitude is not required, but a plan that does not
automatically discriminate in favor of certain districts
is.”).

To the extent that the State falls short in one

regard or in another regard or both, that failure, as long
96

as rationally justified, does not violate the one-person,
one-vote rule.

What the State cannot do is to fail to

recognize at all its one-person, one-vote obligations to
the voters residing in the Local Delegations across the
State.

3.
The

majority’s

reasoning

regarding

“governmental

functions” was drawn from an Eleventh Circuit Court of
Appeals decision, DeJulio v. Georgia, 290 F.3d 1291 (11th
Cir.), cert. denied, 537 U.S. 948 (2002).

As explained

by the majority, that case decided that Georgia’s Local
Delegations system, which, all parties in this case agree,
functioned identically to Alabama’s system in all material
respects,

was

not

subject

to

one-person,

one-vote.

Although the plaintiffs attempt to distinguish DeJulio on
the basis of the remedy requested in that case, I agree
with the majority that the distinction is without merit
because both cases involved identical claims: one-person,
one-vote challenges.

Thus, although I think DeJulio’s
97

reasoning, which the majority now adopts as its own,
contravenes the law as explained by the Supreme Court, I
nevertheless recognize that that decision is on point
here.13

***
Accordingly, I believe that this court should have
reached the merits of the one-person, one-vote claim, and

13. There is a separate question as to whether this
three-judge district court convened under 28 U.S.C.
§ 2284, for which appellate jurisdiction bypasses the
Eleventh Circuit and proceeds directly to the Supreme
Court, must apply the case law of the Eleventh Circuit.
See Parker v. Ohio, 263 F. Supp. 2d 1100, 1112 n.3 (S.D.
Ohio 2003) (three-judge court) (Gwin, J., concurring);
Poe v. Werner, 386 F. Supp. 1014, 1016-17 (M.D. Pa. 1974)
(three-judge court).
Under the circumstances of this
case, where no party has argued or briefed (or, as they
conceded at oral argument, even researched) what I
consider to be a very complicated issue; where the
majority has decided that it will apply DeJulio’s
reasoning regardless of whether it must; where a threejudge court from our own circuit has already stated that
this circuit’s law was binding on it, Ala. NAACP State
Conf. of Branches v. Wallace, 269 F. Supp. 346, 350 (M.D.
Ala. 1967) (three-judge court); and where whether DeJulio
is binding would not, as a practical matter, be
determinative in the resolution of any appeal, I think it
unnecessary for me to take issue with the majority’s
statement that DeJulio is binding precedent.
98

not merely as an alternative holding, and, based on my
understanding of Supreme Court jurisprudence, the claim
has merit.
Now,

I respectfully dissent.
only

the

Supreme

Court

can

correct

this

injustice to thousands and thousands of citizens across
all of Alabama whose votes are being inequitably and
greatly discounted.
DONE, this the 2nd day of August, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE