Alabama Legislative Black Caucus, et al v. The State of Alabama, et al (PANEL)(LEAD)
MEMORANDUM OPINION AND ORDER DENYING 350 MOTION to Intervene by Kelly and Arnold as untimely filed; further ORDERING that the motion filed by the Black Caucus plaintiffs is DISMISSED for lack of standing with respect to the racial and parti san gerrymandering claims; In the alternative, the Black Caucus plaintiffs' partisan gerrymandering claim is DENIED because the plaintiffs failed to identify a standard for evaluating this claim, as further set out in order. Signed by William H Pryor, Jr., W. Keith Watkins, and Myron H. Thompson on 10/12/17. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
BLACK CAUCUS, et al.,
THE STATE OF ALABAMA, et al.,
CONFERENCE, et al.,
THE STATE OF ALABAMA, et al.,
CASE NO. 2:12-CV-691
CASE NO. 2:12-CV-1081
MEMORANDUM OPINION AND ORDER
Before this Court are the objections of the Alabama Legislative Black Caucus
plaintiffs to the remedial redistricting plans enacted by the State of Alabama and a
motion to intervene to object to the remedial plans filed by Sandra Arnold and
Louella Kelly. (Docs. 345, 350, 363). First, we deny the motion to intervene as
untimely, Fed. R. Civ. P. 24. Second, because the Black Caucus plaintiffs lack standing
to challenge House Districts 14 and 16 and Senate District 5, we dismiss their
objections that are based on racial gerrymandering. Third, we dismiss the Black
Caucus plaintiffs’ partisan gerrymandering objection to the same districts because the
Black Caucus plaintiffs lack standing to bring a partisan gerrymandering challenge to
the relevant districts. In the alternative, we hold that the Black Caucus plaintiffs have
not articulated an adequate standard for adjudicating the partisan gerrymandering
In a memorandum opinion and order entered January 20, 2017, this Court
declared 12 of Alabama’s legislative districts unconstitutional racial gerrymanders and
enjoined the use of those districts in future elections. (Doc. 316 at 4–5). In a separate
order entered the same day, this Court directed the parties to confer and, if possible,
agree to a joint procedure for the remedial phase of this litigation, (Doc. 318 at 3),
which they did. (Docs. 326, 327). The joint procedure gave Alabama until May 23 to
enact a remedial redistricting plan and gave the Alabama Democratic Conference
plaintiffs and Alabama Legislative Black Caucus plaintiffs until June 13 to file
objections to the plan. (Doc. 326 at 2; Doc. 327 at 2, 4).
Alabama met its deadline and enacted Senate Bill 403 and House Bill 571 to
cure the constitutional violations identified by this Court. (Doc. 318 at 2; Doc. 335-1
at 273; Doc. 337-1 at 584). Although we enjoined only the use of twelve of the
majority-black house and senate districts, (Doc. 316 at 4–5), the remedial plans redrew
all of the majority-black districts. (Doc. 335 at 4). The drafters of the remedial plans
did not consider race when they initially drew the remedial districts. (Doc. 335 at 4–5).
The drafters considered the racial composition of a district only if, after changes had
been made to the district, the black voting age population fell below 50 percent. (Doc.
335 at 5).
The plaintiffs posed no objection to the majority-black districts in the remedial
plans. The Democratic Conference plaintiffs agreed with Alabama that Senate Bill 403
and House Bill 571 cured the impermissible use of race in the former majority-black
districts. (Doc. 349). The Democratic Conference plaintiffs explained that “[t]he new
plans for both the House and Senate split significantly fewer counties and precincts,
and reduce black population percentages in the vast majority of the black-majority
House and Senate districts, without compromising the ability of [Alabama Democratic
Conference] members to elect representatives of their choice.” (Id. at 1). The Black
Caucus plaintiffs also posed no objection to the majority-black districts as drawn in
Senate Bill 403 and House Bill 571. (Doc. 345 at 2).
The Black Caucus plaintiffs instead moved to object to three majority-white
districts never before challenged in this litigation—House Districts 14 and 16, and
Senate District 5. (Id.). House Districts 14 and 16 are part of the Jefferson County
House Delegation, and Senate District 5 is part of the Jefferson County Senate
Delegation. (Id. at 19, 23). The Black Caucus plaintiffs argue that the drafters included
these districts in Jefferson County to “maintain more majority-white than majorityblack districts in the Jefferson County” House and Senate delegations. (Id. at 19, 23).
The Black Caucus plaintiffs complain that all three districts protrude into Jefferson
County but none of the representatives of the districts reside in Jefferson County,
establishing that the districts are racial gerrymanders. (Id. at 2, 13, 19, 23). The Black
Caucus plaintiffs contend that their proposed alternative remedial plans, which
removed Senate District 5 and House District 14 from Jefferson County, cured the
racial gerrymanders of the Jefferson County delegations. (Id. at 2).
The Black Caucus plaintiffs also argue that the Jefferson County districts are
partisan gerrymanders that violate the First and Fourteenth Amendments. (Doc. 363
at 3). In support of this objection, the Black Caucus plaintiffs point to the possibility
that the Supreme Court will address partisan gerrymandering in the October 2017
term. (Id. at 2).
Sandra Arnold, a resident and registered voter of House District 14, and
Louella Kelly, a resident and registered voter in House District 16, moved to
intervene in the case, Fed. R. Civ. P. 24, to join the Black Caucus plaintiffs in their
challenge of these districts. (Doc. 350 at 1, 3). Arnold and Kelly assert that they have
an interest in this action now that Alabama has enacted remedial plans that altered the
design of House Districts 14 and 16. (Id. at 2). Arnold and Kelly acknowledge,
however, that if their “motion to intervene is denied, . . . the plaintiffs may be held to
lack standing to challenge” House Districts 14 and 16 because no plaintiff lives in
those districts. (Id. at 3). In their defense of the motion to intervene, the Black Caucus
plaintiffs also admit that neither intervenor resides in Senate District 5, “[s]o neither
movant nor any [Black Caucus] plaintiff has standing to pursue a racial
gerrymandering claim with respect to [Senate District] 5.” (Doc. 357 at 2).
We divide this discussion in three parts. We first explain that the motion to
intervene to challenge House Districts 14 and 16 is untimely. We next explain that the
Black Caucus plaintiffs lack standing to challenge Senate District 5 and House
Districts 14 and 16 as racial gerrymanders. Finally, we explain that the Black Caucus
plaintiffs lack standing to raise their partisan gerrymandering challenge, and we hold,
in the alternative, that the Black Caucus plaintiffs have failed to articulate a standard
for adjudicating their partisan gerrymandering objection.
A. The Motion to Intervene Is Untimely.
To succeed on their motion to intervene, Arnold and Kelly must establish as a
threshold matter that their motion is timely. See Fed. R. Civ. P. 24; Howse v. S/V
Canada Goose I, 641 F.2d 317, 320 (5th Cir. 1981) (“Timely application is a requirement
for both intervention of right and permissive intervention.”). We consider four factors
to determine if a motion to intervene is timely:
(1) the length of time during which the would-be intervenor knew or
reasonably should have known of his interest in the case before he
petitioned for leave to intervene; (2) the extent of prejudice to the
existing parties as a result of the would-be intervenor’s failure to apply as
soon as he knew or reasonably should have known of his interest; (3) the
extent of prejudice to the would-be intervenor if his petition is denied;
and (4) the existence of unusual circumstances militating either for or
against a determination that the application is timely.
United States v. Jefferson Cty., 720 F.2d 1511, 1516 (11th Cir. 1983). Although Arnold
and Kelly contend that these factors favor intervention, (Doc. 350 at 2–5; Doc. 357 at
4–5), we disagree.
First, Arnold and Kelly should have reasonably known of their interest in this
litigation in 2014, and they should have moved to intervene then. House Districts 14
and 16 changed little under the remedial redistricting plan. (Doc. 353 at 5; Doc. 355-1
at 5–6). And the issues that Arnold and Kelly seek to challenge existed under the 2012
legislative redistricting plan, which was first used in the 2014 election. (Doc. 353 at 5).
The borders of House District 14 did not change under the remedial plan. As it did
under the 2012 lines, House District 14 still includes parts of Winston, Walker, and
Jefferson counties. (Doc. 355-1 at 5). And the representative of House District 14
who was elected in 2014 resided outside of Jefferson County in Winston County.
(Doc. 353 at 5). Although the borders of House District 16 changed slightly under the
remedial plan, the district continued to include portions of Jefferson, Tuscaloosa,
Fayette, and Lamar counties. (Doc. 355-1 at 6). And the representative of House
District 16 elected in 2014 resided outside of Jefferson County in Fayette County.
(Doc. 353 at 5). Arnold and Kelly argue that their motion is timely because the 2017
remedial plan did not exist in 2014, (Doc. 350 at 2; Doc. 357 at 5), but this point
misses its mark. The issues identified by Arnold and Kelly existed under the 2012
redistricting plan and could have been challenged as early as 2014. The Black Caucus
plaintiffs also argue that Arnold and Kelly’s motion is timely because their claims “are
based on constitutional standards that were not clearly explicated” before the
Supreme decided Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015),
Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017), and Cooper v. Harris,
137 S.Ct. 1455 (2017). (Doc. 357 at 5). But the Supreme Court has long recognized
claims of racial gerrymandering. And the Black Caucus plaintiffs have litigated this
case under the more “clearly explicated” “constitutional standard” the Supreme
Court articulated in Alabama Legislative Black Caucus since remand. The Black Caucus
plaintiffs give no reason why Arnold and Kelly could not have done the same.
Second, if we granted the motion to intervene, Alabama would suffer
substantial prejudice. Intervention would cause further delay of already protracted
litigation that is in its final stage. This litigation began in 2012, proceeded through
extensive discovery, a trial, an appeal to the Supreme Court of the United States, and
two years of proceedings on remand. Arnold and Kelly now seek to challenge
majority-white districts never before challenged in this litigation on grounds that have
existed since 2014. In addition to depriving Alabama of its interest in a “prompt
disposition of the controversy,” Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302 (11th
Cir. 2008), granting the motion to intervene would delay the use of legislative districts
that all parties agree cure the constitutional violations found by this Court. (Doc. 345
at 2; Doc. 349 at 2; Doc. 354 at 1–2).
Third, Arnold and Kelly will not suffer prejudice by the denial of their motion
to intervene as untimely. A movant will suffer prejudice sufficient to support
intervention only when she has an identity of interest with a party and that party does
not sufficiently represent her interests. Jefferson Cty., 720 F.2d at 1517. Arnold and
Kelly do not assert that they have identity of interests with the Democratic Caucus
plaintiffs or the Black Caucus plaintiffs. Indeed, that Arnold and Kelly move to
intervene to challenge districts that they acknowledge the Black Caucus plaintiffs lack
standing to challenge suggests that Arnold and Kelly’s claims are beyond the scope of
this litigation. That is, the remedial plan addressed the districts at issue in this
litigation, which did not include House Districts 14 or 16. At most, Arnold and Kelly
argue that the Black Caucus plaintiffs will be prejudiced by denial of the motion to
intervene because, absent intervention, the Black Caucus plaintiffs “lack standing to
challenge districts in which they do not live.” (Doc. 350 at 3). But Arnold and Kelly
fail to point to any “common question of law or fact” that will be “determined to
[their] disadvantage” by denial of their motion. Jefferson Cty., 720 F.2d at 1517. As a
result, they will not suffer prejudice.
Fourth, neither Arnold nor Kelly identify “the existence of unusual
circumstances militating . . . for . . . a determination that the application is timely,” id.
at 1516. To the contrary, the parties agree that the remedial plans cured the
constitutional injury suffered by the residents of the twelve enjoined districts. Any
further delay would be an unnecessary protraction of the case.
Considered together, these four factors establish that the motion to intervene is
untimely. And because Arnold and Kelly’s application is untimely, we deny their
motion to intervene. Reeves v. Wilkes, 754 F.2d 965, 972 (11th Cir. 1985) (holding that
a motion to intervene should be denied if untimely).
B. The Black Caucus Plaintiffs Lack Standing for Their Racial Gerrymandering Claim.
We must also deny the motion to object to Senate District 5 and House
Districts 14 and 16 filed by the Black Caucus, (Doc. 345), because the Black Caucus
plaintiffs lack standing to challenge these districts. A plaintiff has standing to
challenge a racially gerrymandered district if he resides in that district. United States v.
Hays, 515 U.S. 737, 744–45 (1995); see also Alabama Legislative Black Caucus, 135 S. Ct. at
1268–70 (explaining that an organization may have standing to challenge a racially
gerrymandered district where members of the organization reside in the district). But
as the Black Caucus plaintiffs acknowledge, none of Black Caucus plaintiffs reside in
House Districts 14 or 16, or Senate District 5. (Doc. 350 at 3; Doc. 357 at 2, 10); see
also (Doc. 182 (listing residences of the plaintiffs)). As a result, the Black Caucus
plaintiffs lack standing to object to those districts.
The Black Caucus Plaintiffs’ Partisan Gerrymandering Objection Fails.
The Black Caucus plaintiffs do not have standing to challenge Senate District 5
and House Districts 14 and 15 as partisan gerrymanders. In the alternative, the
partisan gerrymandering challenge fails because the Black Caucus plaintiffs have not
articulated a standard for evaluating this objection.
1. The Black Caucus Plaintiffs Lack Standing.
In Hays, the Supreme Court held that a plaintiff in a racial gerrymandering case
has standing only when he or she lives in the challenged district or can “otherwise
demonstrate that [he or she], personally, ha[s] been subjected to a racial
classification.” 515 U.S. at 739. The Court identified two injuries inflicted by racial
classification in the voting context. First, the Court concluded that the very act of
racial classification “threaten[s] to stigmatize individuals by reasons of their
membership in a racial group.” Id. at 744 (quoting Shaw v. Reno, 509 U.S. 630, 643
(1993)). Second, the Court “also noted representational harms.” Id. (internal quotation
marks omitted). “When a district obviously is created solely to effectuate the
perceived common interests of one racial group, elected officials are more likely to
believe that their primary obligation is to represent only the members of that group,
rather than their constituency as a whole.” Id. (quoting Shaw , 509 U.S. at 648). The
Court reasoned that these injuries permit residents of the affected districts to
“[d]emonstrat[e] the individualized harm our standing doctrine requires.” Id. “On the
other hand, where a plaintiff does not live in such a district, he or she does not suffer
those special harms, and any inference that the plaintiff has personally been subjected
to a racial classification would not be justified absent specific evidence tending to
support that inference.” Id. at 745. Unless “other evidence in the record” establishes
that nonresidents “have been subjected to racially discriminatory treatment,” these
citizens cannot establish standing. Id.
We conclude that this analysis controls the question of standing in the context
of political gerrymandering. Id. In Hays, the Supreme Court reasoned that alleged
victims of racial gerrymandering could establish individual harm either by living in an
affected district or by proving that they had been personally classified on the basis of
race. Assuming that partisan classifications are also constitutionally suspect, an alleged
victim of partisan gerrymandering must make the same showing of residency or
individual harm. The Black Caucus plaintiffs do not allege that the new district map
has classified the Black Caucus plaintiffs in an unconstitutional manner. (See Doc.
363). Like racial gerrymandering, partisan gerrymandering has the effect of muting the
voices of certain voters within a given district. Although these district-specific power
allocations have consequences for statewide politics, the Hays Court required that
plaintiffs establish an individual harm that directly stems from an unconstitutional
We acknowledge that the Western District of Wisconsin reached a different
conclusion in Whitford v. Gill, 218 F. Supp. 3d 837, 927 (W.D. Wis. 2016), when it held
that Democratic voters had standing to pursue a statewide partisan gerrymandering
challenge. The court distinguished Hays, reasoning that Hays addressed the harm
caused “not [when] the racial group’s voting strength has been diluted, but [when]
race has been used as a basis for separating voters into districts.” Id. at 929 (internal
quotation marks omitted). According to the district court, this individual racial stigma
is different from the “statewide” injury of being unable to “translate . . . votes into
seats.” Id. The court also cited Baker v. Carr, 369 U.S. 186, 207–08 (1962), a pre-Hays
decision that held that voters in “disfavor[ed]” counties had standing to challenge a
statewide apportionment statute. Whitford, 218 F. Supp. 3d at 928.
We respectfully disagree. The Whitford court distinguished the inherent harm an
individual suffers when he is categorized on the basis of race from the universal injury
all Wisconsin Democrats suffered when the redistricting plan hindered their efforts to
“translate their votes into seats.” Id. at 929. According to the court, the first kind of
harm affects only the residents of a race-based district, while the latter injury has
statewide repercussions. This reasoning would be persuasive if the only harm Hays
addressed was the stigma of racial classification. But the Hays court also found that
racial gerrymandering creates the “special representational harm” of a district’s
“elected officials [being] more likely to believe that their primary obligation is to
represent only the members of that [racial] group.” Hays, 515 U.S. at 744–45 (quoting
Shaw, 509 U.S. at 648). Hays specifically tied racial classifications to the political
injuries that emerge when members of a group lack influence within their district. And
when “a plaintiff does not live in such a district, he or she does not suffer those
special harms” absent specific evidence that the plaintiff personally has been the
subject of an unconstitutional classification. Id. at 745. Under this analysis, the Black
Caucus plaintiffs lack standing to challenge districts in which they do not live because
they cannot establish an individual constitutional injury.
2. Alternatively, the Black Caucus Plaintiffs Have Not Articulated a Standard For
Adjudicating Their Partisan Gerrymandering Objection.
The Black Caucus plaintiffs’ partisan gerrymandering objection is familiar, and
it alternatively fails for a familiar reason. The Black Caucus plaintiffs’ original
complaint alleged unconstitutional partisan gerrymandering. (See Doc. 1 at 22; see also
Doc. 60 at 23). On August 2, 2013, we granted summary judgment in favor of the
State on this claim, basing our analysis on Justice Kennedy’s controlling concurrence
in Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring) (Doc. 174 at
16–19). Unlike the Vieth plurality, Justice Kennedy was not willing to hold that all
partisan gerrymandering claims were nonjusticiable. Id. He instead proposed a high
standard for such claims, concluding that any “determination that a [partisan]
gerrymander violates the law . . . must rest . . . on a conclusion that the classifications,
though generally permissible, were applied in an invidious manner or in a way
unrelated to any legitimate legislative objective.” Id. at 307.
In our 2013 grant of summary judgment, we applied this test and explained that
the “plaintiffs bear the burden of providing [the court with] a standard to adjudicate”
a claim of unconstitutional partisan gerrymandering. (Doc. 174 at 19). The Black
Caucus plaintiffs “failed to do so,” for they had proposed a “standard of adjudication”
that made “no distinction between racial and political gerrymandering.” (Id. at 18–19).
And because “[c]laims of racial gerrymandering ‘implicate a different inquiry’ from
claims of partisan gerrymandering,” this standard was insufficient. (Id. at 17 (quoting
Vieth, 541 U.S. at 307 (Kennedy, J., concurring))). Indeed, the Black Caucus plaintiffs
admitted “that the standard of adjudication for their claim of partisan gerrymandering
is ‘unknowable.’” (Id. at 18). After the Supreme Court later vacated our rulings that
related to racial gerrymandering claims, Alabama Legislative Black Caucus, 135 S. Ct. at
1263, “[w]e readopted our order on . . . partisan gerrymandering.” (Doc. 316 at 23
(citing Doc. 242 at 2)).
The Black Caucus plaintiffs again fail to identify a standard for evaluating their
partisan gerrymandering challenge to the new district maps. The amended objection
simply makes the following allegations: (1) “partisan reasons explain” the relevant
districts; (2) the Supreme Court might reconsider partisan gerrymandering in the
October 2017 term; and (3) “[t]he partisan purposes of the Jefferson County
gerrymanders in the instant action would violate many of the constitutional standards
that have been proposed to the Supreme Court.” (Doc. 363 at 2–3). These assertions
offer us no guidance for adjudicating the claim and do not support a conclusion that
the alleged partisan gerrymanders “were applied in an invidious manner or in a way
unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J.,
concurring). Even if the Black Caucus plaintiffs had standing, their partisan
gerrymandering objection would fail on the merits.
On consideration of the motions, replies, and response (Docs. 335, 345, 349,
350, 353, 354, 357, 363) as well as supporting and opposing authority, it is
ORDERED that the motion to intervene by Kelly and Arnold is DENIED as
untimely filed. It is further ORDERED that the motion filed by the Black Caucus
plaintiffs is DISMISSED for lack of standing with respect to the racial and partisan
gerrymandering claims. In the alternative, the Black Caucus plaintiffs’ partisan
gerrymandering claim is DENIED because the plaintiffs failed to identify a standard
for evaluating this claim.
DONE this 12th day of October, 2017.
/s/ William H. Pryor, Jr.
UNITED STATES CIRCUIT JUDGE
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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