Harris et al v. Arizona Independent Redistricting Commission et al

Filing 54

ORDER that Defendants' 40 Motion to Dismiss is DENIED; Defendants' 41 Motion for Judicial Notice is DENIED; Plaintiffs' 46 Rule 56(d) Motion is DENIED as moot. ORDERED that the 27 Motion to Intervene by the Navajo Nation and L eonard Gorman is DENIED. IT IS FURTHER ORDERED that the Navajo Nation is granted leave to participate as amicus curiae and may file a brief at the same time as the Commission's principal brief is filed. Plaintiffs are granted leave to amend their complaint by November 16, 2012, solely to amend their allegations concerning legislative district 8. Signed by Chief Judge Roslyn O Silver on 11/16/2012.(LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wesley W. Harris, et al., Plaintiffs, 10 11 12 13 No. CV-12-0894-PHX-ROS-NVW-RRC ORDER v. Arizona Independent Redistricting Commission, et al., Defendants. 14 15 16 17 18 This action brought by voters challenges the 2012 redistricting of the Arizona legislature on the grounds that the districts— 21 violate the one-person/one-vote requirement of the equal protection clause of the Fourteenth Amendment to the United States Constitution, and violate the equal population requirement of Ariz. Const. art. 4, pt. 2, § 1(14)(B), by systematically overpopulating Republican plurality districts and systematically under-populating Democrat plurality districts with no lawful state interest justifying such deviations from equality of population among Arizona legislative districts. 22 First Amended Complaint ¶ 2 (Doc. 35). The principal pending motion is Defendants’ 23 Motion to Dismiss for failure to state a claim upon which relief can be granted and on 24 other grounds (Doc. 40). Also pending are Defendants’ Motion for Judicial Notice (Doc. 25 41), Plaintiffs’ Rule 56(d) Motion (Doc. 46), and the Motion to Intervene by the Navajo 26 Nation and Leonard Gorman (Doc. 27). The motions will be denied. The Navajo Nation 27 may participate as an amicus curiae. 19 20 28 1 I. The Arizona Redistricting Process 2 By an initiative measure in the 2000 election, Arizona voters removed legislative 3 and congressional redistricting from the legislature and entrusted them to an Independent 4 Redistricting Commission under set processes with substantive standards. See Ariz. 5 Const. art. IV, pt. 2, § 1. Four party members of the Commission are appointed, one each 6 by the highest ranking majority and minority member of the Senate and the House of 7 Representatives. They choose an independent fifth member from nominees made by 8 another commission. 9 The Commission must follow a four-step process. Ariz. Minority Coal. for Fair 10 Redistricting v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587, 597, 208 P.3d 676, 686 11 (2009). First, the Commission must create “districts of equal population in a grid-like 12 pattern across the state.” Ariz. Const. art. IV, pt. 2, § 1(14). Second, the Commission 13 must adjust the equally populated grid map “as necessary to accommodate” six goals 14 enumerated in the Arizona Constitution to create a draft map. To do so, the Commission 15 must begin by ensuring that the configuration of the districts complies with the United 16 States Constitution and the Voting Rights Act. Ariz. Const. art. IV, pt. 2, § 1(14)(A). 17 Then the Commission must adjust the map to accomplish the remaining five goals “to the 18 extent practicable”: (1) equal population in congressional and legislative districts; (2) 19 geographically compact and contiguous districts; (3) district boundaries that respect 20 communities of interest; (4) district lines drawn using visible geographic features, city, 21 town and county boundaries, and undivided census tracts; and (5) competitive districts, 22 where such districts would create no significant detriment to the other factors. Ariz. 23 Const. art. IV, pt. 2, §§ 1(14)(B)-1(14)(F). 24 candidates may not be identified or considered. Ariz. Const. art. IV, pt. 2, § 1(15). Places of residence of incumbents or 25 Third, the Commission must advertise its adjusted draft map for at least 30 days 26 and consider both public comments and any recommendations made by the Arizona 27 legislature. Ariz. Const. art. IV, pt. 2, § 1(16). Lastly, the Commission must establish 28 final district boundaries and certify the new districts to the Arizona Secretary of State. -2- 1 Ariz. Const. art. IV, pt. 2, §§ 1(16)-1(17). 2 The Commission approved a map by a vote of three to two, the independent chair 3 and the two Democratic Party appointees against the two Republican Party appointees. It 4 has a maximum population deviation of 8.8%. On April 26, 2012, the United States 5 Department of Justice pre-cleared the plan under Section 5 of the Voting Rights Act, and 6 Plaintiffs filed this action the next day. 7 II. Motion to Dismiss 8 Defendants, who are the Commission and its members, move to dismiss Plaintiffs’ 9 First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) and Rule 8 for 10 11 failure to state a claim upon which relief can be granted. A. Legal Standard 12 To state a claim for relief under Federal Rule of Civil Procedure 8(a)(2), a plaintiff 13 must make “‘a short and plain statement of the claim showing that the pleader is entitled 14 to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the 15 grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 16 This “short and plain statement” must also be “plausible on its face.” Ashcroft v. Iqbal, 17 556 U.S. 662, 678 (2009). 18 “Determining whether a complaint states a plausible claim for relief . . . [is] a 19 context-specific task that requires the reviewing court to draw on its judicial experience 20 and common sense.” Id. at 679. A claim is plausible if it contains “[f]actual allegations 21 [sufficient] to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 22 555, and to permit a reasonable inference that the defendant is liable for the conduct 23 alleged. Iqbal, 556 U.S. at 678. A plaintiff’s plausible factual allegations are taken as 24 true, but legal conclusions or conclusory factual allegations are not. Id. “Threadbare 25 recitals of the elements of a cause of action, supported by mere conclusory statements, do 26 not suffice.” Id. Rather, the plaintiff must at least “allege sufficient facts to state the 27 elements of [the relevant] claim.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 28 1116, 1122 (9th Cir. 2008). -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Federal Equal Protection Claims for Population Deviation Plaintiffs allege that the adopted legislative map violates the Equal Protection Clause of the Fourteenth Amendment by diluting the Plaintiffs’ votes through unequal population distribution in legislative districts for an impermissible purpose. A challenge to state legislative apportionment under the Equal Protection Clause presents a justiciable controversy. Baker v. Carr, 369 U.S. 186 (1962). The Equal Protection Clause requires that both houses of a state legislature “must be apportioned on a population basis.” Reynolds v. Sims, 377 U.S. 533, 577 (1964). A state must “make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” Id. But mathematical precision in legislative districts is not a workable constitutional requirement. In light of that practical concern, states may exercise some flexibility in constructing legislative districts. “So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible.” Id. at 579. Any divergence from equality among districts must therefore result from “factors that are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. 695, 710 (1964). A “maximum population deviation under 10%” does not, without more, make out a prima facie case under the Equal Protection Clause. Brown v. Thomson, 462 U.S. 835, 842 (1983). There is a rebuttable presumption that a population deviation less than 10% was the result of an “honest and good faith effort to construct districts . . . as nearly of equal population as is practicable.” Daly v. Hunt, 93 F.3d 1212, 1220 (4th Cir. 1996) (quoting Reynolds, 377 U.S. at 577). The result is a burden-shifting framework for population deviation claims under the Equal Protection Clause. If the maximum population deviation in a legislative apportionment plan is less than 10%, the burden shifts to the plaintiff to prove that the apportionment was arbitrary or discriminatory. Daly, 93 F.3d at 1220. To meet that burden, a plaintiff must show any deviation is “an arbitrary or discriminatory policy.” -4- 1 Larios v. Cox, 305 F. Supp. 2d 1335, 1339 (N.D. Ga. 2004) (citing Roman, 377 U.S. at 2 710), aff’d, 542 U.S. 947 (2004). Further, the plaintiff must prove that “the asserted 3 unconstitutional or irrational state policy is the actual reason for the deviation.” 4 Rodriguez v. Pataki, 308 F. Supp. 2d 346, 365 (S.D.N.Y. 2004) (quoting Marylanders for 5 Fair Representation v. Schaefer, 849 F. Supp. 1022, 1032 (D. Md. 1994)). 6 Plaintiffs allege that the Commission systematically overpopulated Republican 7 districts and under-populated Democratic districts for the sole purpose of maximizing 8 Democratic Party strength in the state legislature. Their only federal challenge is that 9 bare partisan political advantage is not a rational state policy justifying population 10 11 deviation under the federal constitution and is a prohibited policy under Arizona law. C. Discussion 12 On a motion to dismiss, the facts alleged must be taken as true unless conclusory 13 or implausible. Plaintiffs have alleged data, details, context, and motivations arguably 14 inferable from conduct. Regardless of what they can prove at trial, Plaintiffs have 15 sufficiently alleged that the Commission added to some people’s votes and diluted other 16 people’s votes based only on their expected party preference. 17 Under existing Supreme Court precedent, it is unclear whether pure partisanship is 18 an arbitrary or discriminatory purpose and would therefore be an impermissible basis for 19 population deviation. 20 legitimate state policy in the eyes of federal constitutional law if state law itself bars this 21 purpose for population deviation. Both sides argue from the force of general principles, 22 but neither side has Supreme Court authority on point. See, e.g., Cox v. Larios, 542 U.S. 23 947, 949-50 (2004) (Stevens, J, concurring in summary affirmance) (“[T]he equal- 24 population principle remains the only clear limitation on improper districting practices, 25 and we must be careful not to dilute its strength”); id. at 951 (Scalia, J., dissenting from 26 summary affirmance) (“No party here contends that . . . this Court has addressed the 27 question” of whether a redistricting plan with less than 10% population deviation may be 28 invalidated on the basis of evidence of partisan political motivation); League of United Likewise, it is unclear whether pure partisanship can be a -5- 1 Latin Am. Citizens v. Perry, 548 U.S. 399, 423 (2006) (“Even in addressing political 2 motivation as a justification for an equal-population violation . . . Larios does not give 3 clear guidance.”). 4 The Arizona Constitution mandates equal population in the redistricting process, 5 and that too may bear on the federal Equal Protection claim from population deviation. 6 The Arizona Constitution requires the mapping process to begin with equal population, 7 with adjustments to meet only six permitted goals, none of which clearly allows for 8 partisan political advantage or proportional political influence.1 One of the goals is equal 9 population to the extent practicable. Ariz. Const. art. IV, pt. 2, § 1(14)(B). At oral 10 argument, all parties acknowledged that the question of whether § 1(14)(B) is more 11 stringent than the 10% burden-shifting standard under federal law has never been 12 adjudicated. Language bearing on the issue in Arizona Minority Coalition, 220 Ariz. 13 587, 208 P.3d 676, is dictum. Whether any of these issues matter will turn on the actual 14 facts proven at trial. 15 In light of the foregoing, we cannot say to a certainty that Plaintiffs have stated no 16 federal Equal Protection claim upon which relief can be granted. Nor can we now say to 17 a certainty that the Arizona equal population claim fails as a matter of law, whether on its 18 own or in connection with the federal claim. We must therefore deny the Motion to 19 Dismiss without prejudice and leave the issue and the case to be decided after trial and 20 full briefing. 21 D. Other Pleading Challenges 22 The Commission contends that the First Amended Complaint exceeds the “short 23 and plain statement of the claim showing the pleader is entitled to relief” required by 24 Federal Rule of Civil Procedure 8(a)(2) and that the allegations are not “simple, concise, 25 26 27 28 1 The final goal under the Arizona constitution is the creation of “competitive districts.” Ariz. Const. art. IV, pt. 2, § 1(14)(F). The parties have not addressed what “competitive” means in this context and whether that goal requires the Commission to assess partisan consideration. -6- 1 and direct” as required by Rule 8(d)(1). Some allegations are said to be irrelevant, 2 immaterial, impertinent, inflammatory, or scandalous. 3 adjectivally aggressive in places, but the challenged substance is permissible pleading 4 under Twombly and Iqbal. It alleges a pattern of actions from which one might plausibly 5 infer the actual and sole purpose of the Commission in ultimately effecting the population 6 deviation it adopted. 7 [sufficient] to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 8 555. They need not and may not rely on bare conclusory allegations alone. 9 III. The Complaint may be Parties are permitted to try to plead “[f]actual allegations Motion for Judicial Notice 10 The Commission’s Motion for Judicial Notice (Doc. 41) of selected portions of the 11 record of Commission meetings is misplaced; but even if granted it would not make a 12 difference in deciding the Motion to Dismiss. The Commission offers selected portions 13 of the record of Commission meetings to establish conclusively that it had legitimate 14 bases for its redistricting decisions—and to bar any pleading to the contrary. But the 15 selections the Commission offers may be materially incomplete. Moreover, that things 16 were said by or before the Commission does not make them necessarily true. Judicial 17 notice is permitted only if the fact is generally known or capable of accurate and ready 18 determination by resort to “sources whose accuracy cannot reasonably be questioned.” 19 Fed. R. Evid. 201(b). If the statements were judicially noticed, it would prove only that 20 statements were made, not that they are true or reflect the Commission’s actual purpose. 21 Defendants’ Motion for Judicial Notice (Doc. 41) will be denied. 22 Plaintiffs’ Rule 56(d) Motion (Doc. 46) for a continuance to obtain additional 23 evidence will be denied as moot, as the Court has not converted the Motion to Dismiss to 24 a motion for summary judgment under Federal Rule of Civil Procedure 56 and 12(d) or 25 granted Defendants’ Motion for Judicial Notice (Doc. 41). 26 IV. Motion to Intervene by the Navajo Nation 27 The Motion to Intervene by the Navajo Nation and Leonard Gorman (Doc. 27) 28 will be denied for failure to show that disposition of this action may, as a practical matter, -7- 1 impair or impede their ability to protect their interest in this action and because their 2 interest is adequately represented by the Commission. The Arizona portion of the Navajo 3 Reservation lies within Legislative District 7 (“LD7”), the most under-populated district 4 in the adopted plan and the sole majority-minority Native American legislative district. 5 The Navajo Nation was an active participant in the Arizona redistricting process and 6 coordinated its efforts through Mr. Gorman, Director of the Navajo Human Rights 7 Commission. 8 A. Intervention as a Matter of Right 9 To intervene as a matter of right a party must establish that: (1) the motion is 10 timely; (2) the intervenor possesses a significant interest in the subject matter of the 11 action; (3) the intervenor is so situated that the disposition of the action may, as a 12 practical matter, impair or impede its ability to protect its interests; and (4) the interests of 13 the intervenor may not be adequately represented by existing parties. 14 Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). “Failure to 15 satisfy any one of the requirements is fatal to the application.” Perry v. Proposition 8 16 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2011). Each of the requirements must 17 be interpreted broadly in favor of intervention, Prete v. Bradbury, 438 F.3d 949, 954 (9th 18 Cir. 2006), and “our review is guided primarily by practical considerations, not technical 19 distinctions.” 20 Diversity v. Berg, 268 F.3d 810, 818 (9th Cir.2001)). 21 Citizens for Mont. Wilderness, 647 F.3d at 897 (quoting Sw. Ctr. for Biological The Navajo Nation’s Motion is timely. The Nation has an interest in maintaining 22 a majority-minority Native American district. 23 protectable under some law and . . . there is a relationship between the legally protected 24 interest and the claims at issue.” Id. at 897. However, the Nation cannot plausibly show 25 that its interest would be impaired absent intervention—that it would “be substantially 26 affected in a practical sense by the determination made in an action.” Id. (quoting Fed. R. 27 Civ. P. 24 advisory committee’s note). Eliminating the under-population in LD7 could 28 not change the overwhelming majority-minority Native American character of LD7. -8- Generously read, its interest “is 1 In the prior redistricting plan there was one Native American majority-minority 2 legislative district (the “benchmark district”) with Native American population of 63.7% 3 and Native American voting age population of 59.6%. In the new LD7, Native American 4 population is 66.9%. (Doc. 27 at 7.) There is an insignificant discrepancy in the record 5 as to whether LD7 has a Native American voting age population of 63.1% (Doc. 44 at 6) 6 or 63.7% (Doc. 27 at 7), which does not affect the analysis. Further, there was an 7 immaterial difference in Native American voting age population between the 8 Commission’s draft legislative map and the adopted final map, which increased from 9 61.9% to either 63.1% or 63.7%. (Doc. 44 at 6.) Both the draft map and the final map 10 thus increased the Native American voting age population over the benchmark district. 11 Even if the LD7 Native American voting age population returned to that of the equal 12 population draft map, it would not retrogress from the prior benchmark district. There is 13 no plausible outcome of this action that would impair the interest upon which the Navajo 14 Nation and Mr. Gorman predicate their intervention—avoidance of retrogression and 15 maintenance of a majority-minority Native American district. 16 Of course, if Plaintiffs prevail in this action and the Commission is ordered to 17 revise the plan to reduce the population deviation, the Nation can participate in further 18 proceedings before the Commission on all matters, not just population deviation, on an 19 equal footing with all others. But the Nation’s interest in all matters does not entitle it to 20 intervene here, any more than those matters would entitle everyone who participated in 21 the Commission proceedings to intervene in this action. 22 23 The Navajo Nation has not met its burden to show that its ability to protect its interests would be impaired by the disposition of this case. 24 The Navajo Nation also fails to show that the Commission may not adequately 25 represent the Nation’s interest. “The burden of showing inadequacy of representation is 26 ‘minimal’ and satisfied if the applicant can demonstrate that representation of its interests 27 ‘may be’ inadequate.” Mont. Wilderness, 647 F.3d at 898 (quoting Arakaki v. Cayetano, 28 324 F.3d 1078, 1086 (9th Cir. 2003)). Adequacy of representation considers: “(1) -9- 1 whether the interest of a present party is such that it will undoubtedly make all of a 2 proposed intervenor’s arguments; (2) whether the present party is capable and willing to 3 make such arguments; and (3) whether a proposed intervenor would offer any necessary 4 elements to the proceeding that other parties would neglect.” Arakaki, 324 F.3d at 1086. 5 Because the Navajo Nation and the Commission “share the same ultimate objective” of 6 upholding the Commission’s final legislative map, “a presumption of adequacy of 7 representation arises.” Mont. Wilderness, 647 F.3d at 898 (citing League of United Latin 8 Am. Citizens v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997)). “To rebut the presumption, 9 an applicant must make a ‘compelling showing’ of inadequacy of representation.” Id. 10 (quoting Arakaki, 324 F.3d at 1086). 11 The Commission’s interest in defending the entire plan does not weaken its shared 12 interest with the Nation in defending LD7. The Nation has not shown that it would offer 13 anything that the Commission would neglect. Further, the adequacy of the Commission’s 14 representation of the Nation’s interest is not an abstraction. The Court invited the Navajo 15 Nation to file a proposed motion to dismiss that was “focused on matters affecting their 16 purported separate interest” and made clear that “repetitive briefing or other repetitive 17 presentation would not be helpful to the Court.” (Doc. 38 at 2.) Despite this warning, the 18 Navajo Nation’s proposed brief is largely repetitive of the Commission’s Motion to 19 Dismiss. 20 B. Permissive Intervention 21 In its discretion, the Court may permit a party to intervene who “has a claim or 22 defense that shares with the main action a common question of law or fact.” Fed. R. Civ. 23 P. 24(b)(1)(B). The decision is discretionary and “subject to considerations of equity and 24 judicial economy.” Garza v. Cnty. of Los Angeles, 918 F.2d 763, 777 (9th Cir. 1990). 25 One consideration is whether intervention will unduly delay the proceedings or prejudice 26 the adjudication of the original parties’ rights. Fed. R. Civ. P. 24(b)(3). 27 An intervenor has most of the rights of a party, including presentation of its own 28 motions and evidence. Time is critical in this action, as it must be concluded with relief - 10 - 1 implemented or denied, and appellate review taken, without disrupting the 2014 2 elections. Six months have already passed, and the pleadings are not even closed. A trial 3 must be had by March and a prompt ruling thereafter. An unnecessary party adds 4 complexity and risk of delay without countervailing benefit. 5 intervention will be denied. The Motion to Intervene by the Navajo Nation and Leonard 6 Gorman (Doc. 27) will be denied. Therefore, permissive 7 The benefit of the Navajo Nation’s voice can be had by amicus curiae 8 participation, without complicating the expeditious processing of the case. Therefore, the 9 Navajo Nation will be granted leave to file a brief as amicus curiae at the same time as 10 11 12 13 14 15 16 17 18 the Commission’s principal brief is filed. IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 40) is DENIED. IT IS FURTHER ORDERED that Defendants’ Motion for Judicial Notice (Doc. 41) is DENIED. IT IS FURTHER ORDERED that Plaintiffs’ Rule 56(d) Motion (Doc. 46) is DENIED as moot. IT IS FURTHER ORDERED that the Motion to Intervene by the Navajo Nation and Leonard Gorman (Doc. 27) is DENIED. 19 IT IS FURTHER ORDERED that the Navajo Nation is granted leave to participate 20 as amicus curiae and may file a brief at the same time as the Commission’s principal brief 21 is filed. 22 / 23 / 24 / 25 26 27 28 - 11 - 1 IT IS FURTHER ORDERED that Plaintiffs are granted leave to amend their 2 complaint by November 16, 2012, solely to amend their allegations concerning 3 legislative district 8. 4 Dated this 16th day of November, 2012. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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