Georgia State Conference of the NAACP et al v. The State of Georgia et al
Filing
28
MEMORANDUM OPINION AND ORDER granting defendants' 20 Motion to Dismiss. Count One, to the extent it brings a Fourteenth Amendment claim against the State, is dismissed without prejudice for lack of jurisdiction. Count One, to the exten t it brings a Section 2 claim against the State, is dismissed without prejudice for failure to state a claim. Counts One and Three against Secretary Kemp are dismissed without prejudice for failure to state a claim. Signed by Circuit Judge Beverly B. Martin and District Judges William S. Duffey, Jr. and Timothy C. Batten, Sr. on 08/25/17. (aaq)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GEORGIA STATE CONFERENCE
OF THE NAACP, as an organization;
et al.,
1:17-cv-1427-TCB-WSD-BBM
Plaintiffs,
v.
STATE OF GEORGIA; et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before MARTIN, Circuit Judge, and DUFFEY and BATTEN, District Judges.
MARTIN, Circuit Judge:
Georgia State Conference of the NAACP, Lavelle Lemon, Marlon Reid,
Lauretha Celeste Sims, Patricia Smith, and Coley Tyson (“plaintiffs”) bring this
action alleging that Georgia’s 2015 redistricting of Georgia House of
Representatives Districts 105 and 111 resulted from racial and partisan
gerrymandering that violates the Constitution and Section 2 of the Voting Rights
Act, 52 U.S.C. § 10301. Doc. 1 ¶¶ 1–4, 20–25. The redistricting challenged here
is embodied in Georgia Act No. 251, 2015 Ga. Laws 1413 (“H.B. 566”). Id. ¶ 1.
These plaintiffs have sued the State of Georgia and Georgia Secretary of State
Brian Kemp (“defendants”), seeking to enjoin H.B. 566. Id. ¶¶ 1, 26–27.
The plaintiffs’ complaint sets forth three counts. Count One alleges that
H.B. 566 was enacted with a discriminatory purpose, or an intent to dilute the vote,
in violation of the Fourteenth Amendment (asserted under 42 U.S.C. § 1983) and
Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Id. at 22. Count One is
brought against both the State and Secretary Kemp. Id. Count Two alleges that
H.B. 566 constitutes racial gerrymandering, which violates the Fourteenth and
Fifteenth Amendments. Id. at 24. Count Two is asserted under § 1983 and against
only Secretary Kemp. Id. Count Three alleges that H.B. 566 creates partisan
gerrymandering in violation of the Fourteenth Amendment right to equal
protection. Id. at 25. Count Three is also brought under § 1983, and it too is
against only Secretary Kemp. Id.
The defendants have moved to dismiss Counts One and Three under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 20. They ask us to dismiss
Count One against the State, because the Eleventh Amendment to the U.S.
Constitution grants sovereign immunity to states. Doc. 20-1: 2. The defendants
also move to dismiss Counts One and Three for failure to state a claim. Id. at 2.
After careful review, we find the State is not entitled to sovereign immunity
against the Count One claim brought under Section 2 of the Voting Rights Act.
2
The State is, however, entitled to sovereign immunity for the Count One claim
brought under § 1983 (asserting a violation of the Fourteenth Amendment). We
also hold that the plaintiffs failed to state a claim upon which relief may be granted
for Counts One and Three. As a result, the defendants’ partial motion to dismiss is
granted without prejudice.
I. THE FACTS
We take the plaintiffs’ factual allegations in the complaint as true, and
construe them in the light most favorable to the plaintiffs. Hill v. White, 321 F.3d
1334, 1335 (11th Cir. 2003) (per curiam). The facts we recount here have not
therefore been subjected to the rigors of proof, but instead are taken from the
plaintiffs’ complaint.
The Georgia General Assembly makes up the legislative branch of Georgia
government, and is composed of the Senate and the House of Representatives. See
Ga. Const. Art. III § II. The House of Representatives is comprised of 180
members, each elected from a single district. Doc. 1 ¶ 28. Georgia legislative
elections are partisan and require a candidate to get a majority of the vote. Id. ¶ 31.
If no candidate receives a majority, then a runoff election is held between the two
candidates who got the most votes. Id. Because non-white voters are a minority of
Georgia’s overall electorate, this system makes it more difficult for them to elect
candidates of their choice. Id.
3
Plaintiffs allege a long history of discrimination against non-white voters in
Georgia, especially as to African Americans. Id. ¶¶ 32–33. One way that this
discrimination has been carried out, plaintiffs say, is through redistricting plans.
Id. ¶ 34. Racial and partisan gerrymandering has caused the underrepresentation of
minorities in the Georgia House of Representatives, both now and in the past. Id. ¶
34–35. According to a 2015 survey, Georgia’s voting age population is 62.8%
white, 31.6% African-American, 4.4% Hispanic/Latino, and 2.6% AsianAmerican. Id. ¶ 35. In contrast, the make-up of the Georgia House is 72.8%
white, 25.6% African-American, 1.1% Hispanic/Latino, and 0.6% AsianAmerican. Id. ¶ 36.
Race and party have long been highly correlated in Georgia. Id. ¶ 37. Of
the 119 Republicans in the Georgia House, 99.2% of them are white, and none are
African-American or Asian-American. Id. There is one Hispanic/Latino
Republican in the House. Id. Of the 61 Democrats in the House, 75.4% of them
are African-American and 21.3% are white. Id. There is one Asian-American
Democrat and one Hispanic/Latino Democrat. Id.
Typically, redistricting plans are adopted every ten years so that the districts
accord with new census data. Id. ¶¶ 29–30. For example, the Georgia General
Assembly adopted a new plan after the 2010 census. Id. ¶¶ 38–40. This plan was
4
finalized in February 2012 by Georgia Act No. 277 (“the 2012 plan”), and it was
precleared by the United States Department of Justice. Id. ¶¶ 40–41.
Despite the 2012 plan, the Georgia General Assembly redrew districts again
in May 2015, with H.B. 566 reflecting those changes.1 Id. ¶ 42. H.B. 566 revised
17 districts of the Georgia House of Representatives, including Districts 105 and
111. Id. ¶¶ 43, 60, 75. It was enacted largely along party lines and adopted outside
of the normal legislative procedures. Id. ¶ 47–48. Some legislators criticized H.B.
566 as racial gerrymandering. Id. ¶ 45. Indeed, African-American legislators were
excluded from the process of drawing and negotiating the redistricting in H.B. 566,
and minority residents of Georgia were denied any opportunity for public comment
on the measure. Id. ¶¶ 49–50. H.B. 566 redrew House districts along racial and
party lines. Id. ¶¶ 2, 4, 5. For purposes of this Order, we accept the complaint’s
allegation that H.B. 566 redrew district lines to make certain districts safer for
white Republican incumbents. Id. ¶¶ 7–8, 10–12.
H.B. 566 changed the racial make-up of Districts 105 and 111 in ways that
reduced the ability of African-American and other minority voters to elect
candidates of their choice. Id. ¶¶ 51–52. Under the 2012 plan, District 105’s
1
On June 25, 2013, the Supreme Court’s decision in Shelby County v. Holder, 570 U.S.
___, 133 S. Ct. 2612 (2013), held that the Voting Rights Act’s preclearance coverage formula in
Section 4(b) was unconstitutional. Id. at 2631. The Georgia General Assembly’s May 2015
redistricting plan therefore did not require preclearance.
5
voting age population was 48.4% white, 32.4% African-American, 12.6%
Hispanic/Latino, and 4.6% Asian-American. Id. ¶ 55. Under H.B. 566, the
redrawn District 105 became 52.7% white, 30.4% African-American, 10.8%
Hispanic/Latino, and 4.2% Asian-American. Id. ¶ 61. The changes to the racial
make-up of the voting age population of District 105 are summarized here:
2012 plan
H.B. 566
Change
White
17,712
48.4%
19,204
52.7%
+1,492
+4.3%
African-American
11,841
32.4%
11,071
30.4%
-770
-2.0%
Hispanic/Latino
4,612
12.6%
3,945
10.8%
-667
-1.8%
Other
2,415
6.6%
2,229
6.1%
-186
-0.5%
Total
36,580
36,449
-131
Id. at 17. The 2012 plan was in effect for the District 105 elections in 2012 and
2014. Id. ¶ 54. In both elections, Joyce Chandler, a white Republican, defeated
Renita Hamilton, an African-American Democrat, by narrow margins: 554 votes in
2012 (2.7 percentage points) and 789 votes in 2014 (5.6 percentage points). Id.
¶¶ 56–58. The voting patterns in these elections were racially polarized. Id. ¶ 59.
After H.B. 566 took effect for the District 105 election in 2016, Ms. Chandler
defeated Donna McLeod, who is also an African-American Democrat, by just 222
votes (0.9 percentage points) in another racially divided election. Id. ¶¶ 63–66.
6
Had the 2012 plan still been in effect, the plaintiffs allege Ms. McLeod would have
likely defeated Ms. Chandler. Id. ¶ 67.
Under the 2012 plan, the voting age population of District 111 was 56.1%
white, 33.2% African-American, 5.6% Hispanic/Latino, and 3.3% AsianAmerican. Id. ¶ 69. After H.B. 566 redrew District 111, it became 58.1% white,
31% African-American, 5.2% Hispanic/Latino, and 3.7% Asian-American. Id. ¶
77. The changes to the racial make-up of the voting age population of District 111
are summarized here:
2012 plan
H.B. 566
Change
White
21,638
56.1%
22,228
58.1%
+590
+2.0%
African-American
12,798
33.2%
11,852
31.0%
-946
-2.2%
Other
4,109
10.7%
4,155
10.9%
+46
+0.2%
Total
38,545
38,235
-310
Id. at 20.2 The 2012 plan was in effect for the District 111 elections in 2012 and
2014. Id. ¶ 68. In the 2012 election, Brian Strickland, a white Republican,
defeated Bill Blackmon, an African-American Democrat, by 1,477 votes (5.9
2
The information in this table was taken from the complaint, and is intended to reflect
the changes resulting from H.B. 566. The plaintiffs’ table included the change that would have
resulted from enactment of H.B. 515, a bill introduced during the 2017–2018 legislative session
that would have further redrawn District 111. H.B. 515 never became law, however, so while we
understand this information is relevant to the plaintiffs’ allegations of intent, it is less useful for
our purposes here. The table therefore excludes the H.B. 515 data.
7
percentage points). Id. ¶¶ 70–71. In the 2014 election, Mr. Strickland defeated
Jim Nichols, a white Democrat, by 1,124 votes (6.3 percentage points). Id. ¶¶ 72–
73. Both elections were racially polarized. Id. ¶ 74. After H.B. 566 took effect for
the District 111 election in 2016, Mr. Strickland defeated Darryl Payton, an
African-American Democrat, by 946 votes (3.4 percentage points) in another
racially polarized election. Id. ¶¶ 79–82. Had the 2012 plan still been in effect, the
plaintiffs allege Mr. Payton may have defeated Mr. Strickland. Id. ¶ 83.
The plaintiffs’ complaint also sets out that the Georgia General Assembly
tried to enact another bill in 2017, known as H.B. 515, which would have
decreased the African-American population in District 111 even further. Id. ¶ 53.
H.B. 515 would have been yet another mid-census redistricting plan. Id. It failed
to pass, however, largely due to backlash from African-American Democrats in the
Georgia legislature as well as negative media coverage. Id. at 20, ¶ 53.
Among the plaintiffs is the Georgia State Conference of the NAACP, which
alleges that its members have been subjected to racial and partisan
gerrymandering. Id. ¶ 20. The other plaintiffs are Ms. Lemon, Mr. Reid, Ms.
Sims, Ms. Smith, and Mr. Tyson, who are all registered Democratic AfricanAmerican voters residing in either District 105 or 111. Id. ¶¶ 21–25. The plaintiffs
say that because of H.B. 566, they did not have an equal opportunity to elect the
candidate of their choice in 2016, and that they will continue to be so deprived in
8
the 2018 or 2020 elections. Id. They also say they were injured by the racial and
partisan based redistricting in H.B. 566. Id.
The plaintiffs have sued the State of Georgia and Georgia Secretary of State
Brian Kemp, Georgia’s chief election officer, in his official capacity. Id. ¶¶ 26–27.
Count One claims intentional vote dilution, and is brought under § 1983 (alleging a
violation of the Fourteenth Amendment) and Section 2 of the Voting Rights Act.
Id. at 22. Under this claim, the plaintiffs assert there was no legitimate non-racial
reason for H.B. 566’s redistricting and that it was done with the intent to dilute
minority voting strength. Id. ¶¶ 91–92. They allege that minority voters were on
the verge of electing a Democrat, and H.B. 566 was enacted in order to keep
Districts 105 and 111 from being competitive for Democrats. Id. ¶¶ 93–94.
Count Two is a racial gerrymandering claim brought under § 1983, alleging
a violation of the Fourteenth and Fifteenth Amendments. Id. at 24. It is brought
against Secretary Kemp. Id. For this claim, the plaintiffs assert that race
predominated H.B. 566’s redistricting for the purpose of minimizing minority
voter participation and influence in the Georgia House of Representatives. Id.
¶ 96. The context of the recent elections in these districts is evidence that racial
considerations were the controlling reason for H.B. 566’s changes. Id. ¶ 97.
Count Three is a partisan gerrymandering claim brought under § 1983,
alleging a violation of the Fourteenth Amendment. Id. at 25. For this claim, the
9
plaintiffs assert that H.B. 566’s redistricting was intended to remove Democratic
voters from Districts 105 and 111 so as to ensure electoral victory for the
Republican incumbents. Id. ¶ 103. They say there was no legitimate reason for the
redistricting, and that race was used as a proxy for partisan affiliation in order to
redraw the lines and minimize Democratic voting strength. Id. ¶¶ 103–105.
The plaintiffs seek declaratory and injunctive relief. Id. at 27–28. Among
other things, they ask for a declaration that H.B. 566 violates the U.S. Constitution
and Section 2; an injunction against defendants implementing H.B. 566; an order
requiring Georgia to preclear voting changes; a reasonable deadline for a new
redistricting plan; and attorney’s fees. Id.
II. JURISDICTION
The State has moved to dismiss Count One for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Because the State
asserts only a facial challenge to subject matter jurisdiction, we accept the
allegations in the complaint as true. See Houston v. Marod Supermarkets, Inc.,
733 F.3d 1323, 1335–36 (11th Cir. 2013). Specifically, the State says both the
Fourteenth Amendment claim (brought under 42 U.S.C. § 1983) and the Section 2
claim against the State are barred by the Eleventh Amendment. Doc. 20-1: 2–8.
The plaintiffs respond that their Section 2 claim is not barred on immunity
grounds, and they are right. Doc. 22: 3–7.
10
The Eleventh Amendment deprives federal courts of jurisdiction to decide
suits that private individuals bring against nonconsenting states. Bd. of Trs. Of the
Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 962 (2001). However,
Congress can do away with states’ Eleventh Amendment immunity through
legislation. Id. In determining whether Congress has abrogated the states’
sovereign immunity, we ask first, whether Congress has “unequivocally expressed
its intent to abrogate [] immunity”; and second, whether in doing so Congress
“acted pursuant to a valid exercise of power.” Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 55, 116 S. Ct. 1114, 1123 (1996) (quotations omitted and alteration
adopted). Under the first inquiry, the intent to abrogate must be “unmistakably
clear in the language of the statute.” Id. at 56, 116 S. Ct. at 1123 (quotation
omitted).
Our reading of the text of Section 2 of the Voting Rights Act, 52 U.S.C.
§ 10301, tells us it “unequivocally expresse[s]” an intent to abrogate state
sovereign immunity. Id. at 55, 116 S. Ct. at 1123 (quotation omitted). The statute
specifically forbids “any State or political subdivision” from discriminating against
voters “on account of race or color.” 52 U.S.C. § 10301 (emphasis added). Our
reading comports with that of the Sixth Circuit, the only federal court of appeals to
have considered this issue. In making its decision, the Sixth Circuit relied, as we
11
do, on the explicit textual reference to “State[s]” in the statute. See Mixon v. Ohio,
193 F.3d 389, 398 (6th Cir. 1999).
The State, on the other hand, points us to two district court opinions to argue
that Section 2 does not indicate a clear intent to abrogate Eleventh Amendment
immunity because it provides only an implied (not express) right of action. Doc.
20-1: 7 (citing Greater Birmingham Ministries v. Alabama, No. 2:15-CV-02193,
2017 WL 782776, at *10–13 (N.D. Ala. Mar. 1, 2017); Lewis v. Bentley, No. 2:16CV-690-RDP, 2017 WL 432464, at *9–10 (N.D. Ala. Feb. 1, 2017)). This
argument fails to persuade us. Among other things, we reject the notion that
“because Section 2 . . . is silent as to whether it creates a private right of action, it
is also necessarily silent as to the parameters of such a right.”3 Greater
Birmingham Ministries, 2017 WL 782776 at *12. Even though the statute does not
explicitly provide a private right of action, it is clear from the text that if the statute
offers a right of action to an individual, then that right must be one that is
enforceable against a “State or political subdivision.” 52 U.S.C. § 10301
3
As we see it, the fact that private causes of action may be implied alone contradicts this
reasoning. The Supreme Court has said that a statute can confer a private right of action even if
it doesn’t explicitly say so, as long as its text, structure, and “contemporary legal context” clearly
indicate that Congress intended to provide such a right. See Alexander v. Sandoval, 532 U.S.
275, 286–91, 121 S. Ct. 1511, 1519–22 (2001). We know, therefore, that a statute can have text
and structure clear enough to show Congress’s intent to provide a private right of action. That
being the case, we reject the notion that a statute clear enough to establish a private right of
action would “necessarily” be so vague as to be “silent as to the parameters” of that right.
Greater Birmingham Ministries, 2017 WL 782776 at *12 (emphasis added).
12
(emphasis added). Given that Section 2 contains an implied private right of action,
see Morse v. Republican Party of Va., 517 U.S. 186, 232, 116 S. Ct. 1186, 1212
(1996), we find that its text includes an “unmistakably clear” signal of Congress’s
intent to abrogate Eleventh Amendment immunity. Seminole Tribe, 517 U.S. at
56, 116 S. Ct. at 1123 (quotation omitted).
As for the second part of the inquiry, we find that Congress “acted pursuant
to a valid exercise of power” in enacting the Voting Rights Act and (in the process)
abrogating state sovereign immunity in Section 2, id. at 55, 116 S. Ct. at 1123.
The State does not argue to the contrary. The Supreme Court has recognized that
Congress can abrogate Eleventh Amendment immunity when enacting legislation
under the enforcement provision (§ 5) of the Fourteenth Amendment. See
Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S. Ct. 2666, 2671 (1999). Although
Section 2 was enacted under the enforcement provision (§ 2) of the Fifteenth
Amendment, “the two enforcement provisions are identical, and both Amendments
share the common goal of eradicating discrimination.” Mixon, 193 F.3d at 399.
Indeed, the Supreme Court has noted that the Voting Rights Act was “designed to
implement the Fifteenth Amendment and, in some respects, the Fourteenth
Amendment,” United States v. Board of Comm’rs of Sheffield, 435 U.S. 110, 126–
27, 98 S. Ct. 965, 976–77 (1978), and has also held that “Congress had the
authority to regulate state and local voting through the provisions of the Voting
13
Rights Act.” City of Rome v. United States, 446 U.S. 156, 179–80, 100 S. Ct.
1548, 1563 (1980), abrogated on other grounds by Shelby Cty., 133 S. Ct. 2612.
As a result, we agree with the Sixth Circuit that “Congress may abrogate sovereign
immunity by passing legislation under the Fifteenth Amendment.” Mixon, 193
F.3d at 399; see also id. (“We can see no reason to treat the enforcement provision
of the Fifteenth Amendment differently than the identical provision of the
Fourteenth Amendment and the Supreme Court has not held to the contrary.”).
Because Section 2 effects a valid abrogation of state sovereign immunity, we
have jurisdiction to entertain the plaintiffs’ Section 2 claim against the State. In
contrast, 42 U.S.C. § 1983 does not abrogate Eleventh Amendment immunity. See
Quern v. Jordan, 440 U.S. 332, 342, 99 S. Ct. 1139, 1146 (1979). We therefore
dismiss the plaintiffs’ Fourteenth Amendment claim against the State, which they
brought pursuant to § 1983, for lack of subject matter jurisdiction. This dismissal
is without prejudice.4 We now turn to the merits of the plaintiffs’ claims against
the State and Secretary Kemp.
III. PLEADINGS
The defendants move to dismiss Counts One and Three under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be
4
“A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and
is entered without prejudice.” Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., 524
F.3d 1229, 1232 (11th Cir. 2008) (per curiam).
14
granted. Doc. 20-1: 8, 17. To survive the motion to dismiss, the plaintiffs’
allegations, taken as true, must “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). A
claim meets this standard when the pleaded “factual content [] allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). A
recital of the elements of a cause of action, supported only by conclusory
statements, is not enough to adequately plead a claim. Id.
A. COUNT ONE: INTENTIONAL DILUTION OF THE VOTE
The defendants move to dismiss Count One of the plaintiffs’ complaint for
failure to state a claim. Doc. 20-1: 8–9. Count One alleges a violation of the
Fourteenth Amendment right to equal protection. Doc. 1: 22. Count One also
asserts a claim under Section 2 of the Voting Rights Act. Id. The plaintiffs allege
that H.B. 566 was adopted for the discriminatory purpose of “disadvantaging
African-American and other minority voters relative to white voters” in Districts
105 and 111. Id. ¶ 92. The plaintiffs also allege there is “no legitimate, non-racial
reason” for the mid-census changes that H.B. 566 made. Id. ¶ 91. While the
plaintiffs label Count One as a “discriminatory purpose” claim, we understand it to
claim discriminatory intent. See Doc. 1: 22. For that reason, we refer to this claim
as one of intentional dilution of the vote.
15
The defendants argue that the plaintiffs have failed to state a claim of
intentional dilution of the vote under the Fourteenth Amendment and Section 2
because they did not sufficiently allege any discriminatory effect as required by the
Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986).
Doc. 20-1: 9–10. We first address what showing of discriminatory effect is
required for an intentional vote dilution claim. Then, we determine whether the
plaintiffs have stated a claim upon which relief may be granted.
1. Required Showing of Discriminatory Effect
Whether brought under the Fourteenth Amendment or Section 2, an
intentional vote dilution claim alleges that a particular redistricting plan was
crafted “invidiously to minimize or cancel out the voting potential of racial or
ethnic minorities.” See City of Mobile v. Bolden, 446 U.S. 55, 66, 100 S. Ct.
1490, 1499 (1980) (plurality opinion).5
In Bolden, a plurality of the Supreme Court held that neither the Fourteenth
Amendment nor Section 2 prohibited electoral practices which merely produced
racially discriminatory results. 446 U.S. at 66, 100 S. Ct. at 1499 (plurality
5
In single-member districts like Districts 105 and 111, “the usual device for diluting
minority voting power is the manipulation of district lines.” Voinovich v. Quilter, 507 U.S. 146,
153, 113 S. Ct. 1149, 1155 (1993). There are two primary methods by which that manipulation
is done: “cracking” and “packing.” “Cracking” refers to “the dispersal” of minority voters “into
districts in which they constitute an ineffective minority of voters.” Id. at 153–54, 113 S. Ct. at
1155 (quotation omitted). “Packing” refers to “the concentration” of minority voters “into
districts where they constitute an excessive majority.” Id. (quotation omitted).
16
opinion); see also Gingles, 478 U.S. at 35, 106 S. Ct. at 2758. The Court required
a showing of both discriminatory intent and discriminatory effect, not just one or
the other. See id. In response to the Supreme Court’s Bolden ruling, Congress
amended Section 2. See Gingles, 478 U.S. at 35, 106 S. Ct. at 2758. As amended,
Section 2 allowed plaintiffs to prove a case either in the way the Court recognized
in Bolden—an intentional vote dilution claim showing discriminatory intent and
effect—or a separate “results” vote dilution claim that could establish a Section 2
violation “by showing discriminatory effect alone.” See id.
Gingles was the first case in which the Supreme Court looked at the new
“results” type of vote dilution claim under Section 2. The Gingles Court held this
type of claim could proceed in cases where “‘the totality of the circumstances’
reveal that ‘the political processes leading to nomination or election . . . are not
equally open to participation by members of a [protected class] . . . in that its
members have less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.’” Id. at 43, 106
S. Ct. at 2762 (quoting 52 U.S.C. § 10301(b)). The Court instructed that the
“totality of the circumstances” was to be determined by considering a number of
factors listed in the Senate Report associated with the amendment to Section 2. Id.
at 48, 106 S. Ct. at 2765. But in order to bring a “results” claim, plaintiffs would
first need to show three “necessary preconditions.” Id. at 50, 106 S. Ct. at 2766.
17
They are: (1) “a ‘minority group’ must be sufficiently large and geographically
compact to constitute a majority in some reasonably configured legislative
district”; (2) “the minority group must be politically cohesive”; and (3) “a district’s
white majority must vote sufficiently as a bloc to usually defeat the minority’s
preferred candidate.” Cooper v. Harris, 581 U.S. ___, 137 S. Ct. 1455, 1470
(2017) (quotations omitted and alteration adopted).
Because the amendment was to Section 2, but the Constitution remained the
same, the holding in Bolden is still good law as to intentional vote dilution claims
brought under the Fourteenth Amendment. That means, in order to make a
Fourteenth Amendment claim, a plaintiff must still show both discriminatory intent
and effect. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1188–89 (11th
Cir. 1999). What the Supreme Court has never addressed, however, is how
Gingles might affect an intentional vote dilution claim brought under the amended
version of Section 2. Another three-judge district court recently explained:
Because intent is not an element of results-only claims and resultsonly claims are usually easier to prove, few voters have asserted
intentional vote dilution claims since § 2 of the [Voting Rights Act]
was amended, and thus the Supreme Court has not had occasion to
establish a specific analytical framework for intentional vote dilution
claims post-amendment and post-Gingles. Thus, while there is
Supreme Court guidance regarding what plaintiffs must show to prove
dilutive effects under the § 2 results test (e.g., Gingles and its
progeny) and there is precedent concerning the proof required to show
discriminatory intent in intentional vote dilution cases under the
Fourteenth Amendment, the level of proof of dilutive effects required
in a § 2 intentional vote dilution claim is less clear.
18
Perez v. Abbott, ___ F. Supp. 3d ___, No. SA-11-CV-360, 2017 WL 1787454, at
*53 (W.D. Tex. May 2, 2017) (footnotes omitted). Demonstrative of this
observation by the Perez court, the Supreme Court has specifically left this
question open. See Bartlett v. Strickland, 556 U.S. 1, 20, 129 S. Ct. 1231, 1246
(2009) (plurality opinion) (“We therefore need not consider whether intentional
discrimination affects the Gingles analysis.”); Voinovich, 507 U.S. at 158, 113 S.
Ct. at 1157–58 (“We need not decide how Gingles’ first factor might apply
here . . . .”).
Because the defendants here argue that the plaintiffs have not sufficiently
alleged the three Gingles preconditions necessary to show discriminatory effect,
we must address what the Supreme Court has not. That is, whether all three
Gingles preconditions must be alleged in order to bring an intentional vote dilution
claim under Section 2.
The plaintiffs’ argument for relaxing at least the first Gingles precondition
has its appeal. Indeed, the federal courts have almost uniformly accepted that the
first Gingles precondition should be relaxed in the way the plaintiffs ask us to do
here. See Garza v. Cty. of Los Angeles, 918 F.2d 763, 771 (9th Cir. 1990);
Abbott, 2017 WL 1787454, at *55; Comm. For a Fair & Balanced Map v. Ill. Bd.
of Elections, 835 F. Supp. 2d 563, 581 (N.D. Ill. 2011) (per curiam); Cano v.
Davis, 211 F. Supp. 2d 1208, 1249 (C.D. Cal. 2002) (per curiam) (“We agree that,
19
where invidious intent exists in a vote dilution case, it may be appropriate to relax
the first or even second of the Gingles pre-conditions, as well as to consider intent
in connection with the ‘totality of the circumstances’ inquiry.”). In doing so, these
courts heeded the Supreme Court’s instruction that “the Gingles factors cannot be
applied mechanically and without regard to the nature of the claim.” Voinovich,
507 U.S. at 158, 113 S. Ct. at 1157.
The Gingles factors were crafted in response to a “results” claim—that is, a
claim that alleges discriminatory effect without showing discriminatory intent.
The idea is that if courts impose all of the Gingles factors on an intentional
discrimination claim, this would require both intent claims and “results” claims to
make the same showing of discriminatory effect, but also require intent claims to
make an additional showing of discriminatory intent. And if both claims require
the same proof of effect, but intent claims then require something more, there
would have been no reason for Congress to have allowed both intentional and
result claims to survive the amended version of Section 2. See S. Rep. 97-417, at
107–09 (explaining that the “results test” is an alternative to intentional
discrimination claims).6 To hold otherwise renders intentional vote dilution claims
superfluous and would prevent a claim under Section 2, like the one here, that
6
Although reliance on legislative history is generally not favored, the Supreme Court in
Gingles made clear that this Senate Report is “the authoritative source for legislative intent” on
Section 2. 478 U.S. at 43 n.7, 106 S. Ct. at 2762 n.7.
20
alleges racial gerrymandering with a group that is slightly less than large enough to
constitute a majority in a given district.
However we are obliged to resist the appeal of plaintiffs’ argument. We do
not write on a clean slate, and we are bound by Eleventh Circuit precedent. See
Ala. Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285, 1305–06 (M.D.
Ala. 2013).7 Under this circuit’s law, Section 2 “expressly requires a showing of
7
Cases challenging the constitutionality of the apportionment of congressional or state
legislative districts like this one, which require a three-judge district court, demonstrate an oddity
in the federal jurisprudence which results in the slow and incomplete development of a cohesive
body of law in voting rights cases. See 28 U.S.C. § 2284. Decisions from panels like ours are
reviewed only by the Supreme Court, and not the relevant U.S. Court of Appeals. See id.
§ 1253. Only certain cases are decided by three-judge district court panels like this one. Other
cases (that do not challenge congressional or state legislative districts) can bring the same claims,
but those cases go through the normal appellate process. First they are heard by a district court,
then the U.S. Court of Appeals hears the appeal, and sometimes the case is reviewed by the
Supreme Court. In light of this, some say the traditional rationale for stare decisis—following
the precedent of courts that review the lower court’s decisions—does not make sense for threejudge district courts like ours. For example, several judges have expressed doubt as to whether
three-judge district courts are bound by their circuit’s precedent. See Ala. Legislative Black
Caucus, 988 F. Supp. 3d at 1342 n.13 (Thompson, J., concurring in part and dissenting in part);
Parker v. Ohio, 263 F. Supp. 2d 1100, 1112 n.3 (S.D. Ohio 2003); Poe v. Werner, 386 F. Supp.
1014, 1016–17 (M.D. Pa. 1974). And at least one three-judge district court has concluded it was
not. See Jehovah’s Witnesses in the State of Wash. v. King Cty. Hosp. Unit No. 1, 278 F. Supp.
488, 504–05 (W.D. Wash. 1967) (per curiam) (“In this special three-judge court [] we are not
bound by any judicial decisions other than those of the United States Supreme Court.”).
Nevertheless, this panel elects to follow Eleventh Circuit precedent.
At the same time, we realize that what we decide here cannot be reviewed by the
Eleventh Circuit sitting en banc, even if the en banc court were to disagree with us. And our lack
of guidance extends beyond the en banc court, because the Supreme Court routinely issues
summary affirmances of three-judge district courts in voting cases. Those summary opinions
often tell us nothing more than that a judgment was correct “but not necessarily the reasoning.”
Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 2240 (1977) (per curiam) (quotation
omitted). Thus, in this area of voting rights, we are left to fill in gaps where we have little or
incomplete guidance from the courts that may ultimately resolve these issues.
21
discriminatory results, and it admits of no exception for situations in which there is
discriminatory intent but no discriminatory results.” Johnson v. DeSoto Cty. Bd.
of Comm’rs, 72 F.3d 1556, 1563 (11th Cir. 1996) (“DeSoto I”). Although intent
“is circumstantial evidence of discriminatory results that should be considered,” id.
at 1565, it does not “lessen[] the amount of discriminatory results that must be
shown” in this circuit. Id. at 1564; see also Johnson v. DeSoto Cty. Bd. of
Comm’rs, 204 F.3d 1335, 1338 (11th Cir. 2000) (“DeSoto II”) (requiring all three
Gingles preconditions be shown in an intentional vote dilution case under Section
2). And that “is not the end of the story.” Negrón v. City of Miami Beach, 113
F.3d 1563, 1566 (11th Cir. 1997). The plaintiffs must also ultimately establish a
discriminatory effect under the totality of the circumstances based on the Senate
Report factors. See id.
2. Application to Count One
We next consider whether the plaintiffs have sufficiently alleged their
intentional vote dilution claim. For the purposes of our ruling on their motion to
dismiss, the defendants do not dispute that the plaintiffs have sufficiently alleged
discriminatory intent. Doc. 20-1: 9 n.7. After reviewing the complaint as well as
the factors set forth by the Supreme Court for finding intent in Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266–68, 97 S.
22
Ct. 555, 564–65 (1977), we agree that plaintiffs’ allegations of discriminatory
intent are sufficient.
We must therefore turn to consider discriminatory effect. The defendants
argue that the plaintiffs failed to allege all three of the Gingles preconditions
required to bring a Section 2 claim. Doc. 20-1: 10. Because the first two Gingles
preconditions were not properly alleged by the plaintiffs, we need not address the
third.
The first Gingles precondition requires the plaintiff to show the minority
group “is sufficiently large and geographically compact to constitute a majority in
a single-member district.” Gingles, 478 U.S. at 50, 106 S. Ct. at 2766. For the
purposes of determining whether a single-member district is “sufficiently large,”
this circuit uses the voting age population as opposed to the registered voter
population. Negrón, 113 F.3d at 1568–69. For District 111, the complaint alleges
that the voting age population was 56.1% white under the 2012 plan and 58.1%
white under H.B. 566. Doc. 1: 20. Thus, for District 111, the plaintiffs failed to
allege how any minority coalition could be “sufficiently large” to constitute a
majority in this district. See Gingles, 478 U.S. at 50, 106 S. Ct. at 2766.
23
For District 105, we assume the “minority group” is all non-white voters.8
See Doc. 1 ¶ 92 (referring to “African-American and other minority voters relative
to white voters”). This group was sufficiently large to constitute a majority.
Under the 2012 plan, 48.4% of the voting age population was white voters, but
under H.B. 566, white voters became 52.7%. Doc. 1: 17. Accepting the plaintiffs’
allegations as true, we find they properly alleged the first Gingles precondition for
District 105. Under the 2012 plan, District 105 would have had a sufficiently large
non-white voting population to constitute a majority, and the district as drawn
under the 2012 plan is clearly geographically compact enough to meet this
precondition.9
The second Gingles precondition requires the plaintiff to show the minority
group is “politically cohesive.” Gingles, 478 U.S. at 51, 106 S. Ct. at 2766. The
plaintiffs made no allegations as to the political cohesiveness of all non-white
voters for either district. As we’ve said, we believe it appropriate to assume here
8
For our ruling on this motion to dismiss, we assume all non-white voters is a cognizable
“minority group” for an intentional vote dilution claim. See Growe v. Emison, 507 U.S. 25, 41,
113 S. Ct. 1075, 1085 (1993) (“Assuming (without deciding) that it was permissible for the
District Court to combine distinct ethnic and language minority groups for purposes of assessing
compliance with § 2 . . . .”).
9
We reject the defendants’ argument that the Hispanic voting age population numbers
based on U.S. Census data must be reduced based on conjecture about legal citizenship. See
Doc. 20-1: 13–14. The defendants are correct that the relevant voting age population applies
only to U.S. citizens. Negrón, 113 F.3d at 1569. But the data from Gwinnett County they
provide are not specific enough to District 105 to cause us to reject the allegations in the
complaint. We decline the defendants’ invitation to take judicial notice of a county-wide
Hispanic citizenship rate and apply it to a smaller area.
24
that all non-white voters could be considered a “minority group.” But the plaintiffs
did not allege any facts to support the notion that all non-white groups, including
African-American, Hispanic/Latino, Asian-American, and any other ethnic
minority’s voters, are politically cohesive in Districts 105 and 111. Rather, the
plaintiffs offered only allegations of political cohesion with regard to AfricanAmerican voters. See Doc. 1: ¶¶ 5, 11; see also Doc. 22: 11–12 (“Plaintiffs allege
that African-Americans in the relevant geographic areas are a politically cohesive
minority group. That is all that is required here . . . . (citation omitted)).
The problem for these plaintiffs is that in order to satisfy the first Gingles
precondition the relevant “minority group” must be sufficiently large to constitute
a majority. African-Americans constitute about one-third of the voting age
population in Districts 105 and 111. Doc. 1: ¶¶ 55, 61, 69, 77. Thus if we consider
them to be the relevant “minority group,” then the first precondition cannot be met
because they are not sufficiently large to constitute a majority. On the other hand,
if all non-white voters are the relevant “minority group,” then the second
precondition cannot be met because the plaintiffs failed to allege these widely
varying ethnic groups are politically cohesive. For this reason, we must dismiss
Count One of plaintiffs’ complaint to the extent it is brought under Section 2 of the
Voting Rights Act. This dismissal is without prejudice.
25
We come to the same result for Count One, to the extent it asserts a
Fourteenth Amendment claim. The Eleventh Circuit has questioned whether “vote
dilution can be established under the Constitution when the pertinent record has
not proved vote dilution under the more permissive section 2.” DeSoto II, 204
F.3d at 1344–45. That’s because if the Gingles preconditions cannot be shown,
neither can the causation requirement necessary for a Fourteenth Amendment
claim under the law of this circuit. See id. at 1345–46.
We have already dismissed (without prejudice) the portion of Count One in
which the plaintiffs asserted § 1983 claims of a Fourteenth Amendment violation
by the State of Georgia. We now dismiss for failure to state a claim (also without
prejudice) the remainder of the plaintiffs’ Count One claim against the State, to the
extent it is brought under Section 2. We also dismiss Count One against Secretary
Kemp for the failure to state a claim. This dismissal of Count One against
Secretary Kemp is without prejudice.
B. COUNT THREE: PARTISAN GERRYMANDERING
The defendants move to dismiss Count Three of the plaintiffs’ complaint.
Doc. 20-1: 17. As we’ve set out above, Count Three is brought under § 1983 and
alleges partisan gerrymandering in violation of the Fourteenth Amendment right to
equal protection. Doc 1: 25, ¶ 103. The plaintiffs’ more detailed allegation is that
“H.B. 566 intentionally and surgically remove[d] Democratic voters” from
26
Districts 105 and 111 “for the purpose of making them noncompetitive and
ensuring electoral victory for their Republican incumbents.” Id. ¶ 103. The
plaintiffs allege there “was no legitimate legislative reason” for the redistricting.
Id. They also allege that racial demographics from past elections were used to
minimize the electoral power of voters who were more likely to vote for
Democratic legislators. Id. ¶ 105.
The defendants argue the plaintiffs improperly rely on a new constitutional
test from Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) (“Whitford
II”).10 Doc. 20-1: 17–18, 20–21. And even if the Whitford test applies, the
defendants assert the plaintiffs have not alleged facts to support a plausible claim
of partisan gerrymandering. Id. at 18.
As the defendants acknowledge, the Supreme Court has consistently held
that partisan gerrymandering claims are justiciable and not barred by the political
question doctrine. Id. A majority of the Supreme Court first held in Davis v.
Bandemer, 478 U.S. 109, 106 S. Ct. 2797 (1986), that claims “that each political
group in a State should have the same chance to elect representatives of its choice
as any other political group” were justiciable. Id. at 124, 106 S. Ct. at 2806; see id.
10
Whitford I and Whitford II are, unsurprisingly, two decisions made in the same case.
Whitford I is the three-judge district court’s decision on the defendants’ motion to dismiss.
Whitford II is that panel’s final order after trial. In our discussion of these cases, we will also
use the term “Whitford standard” when we refer to the test, developed in the Whitford cases, for
discerning whether redistricting lines were drawn in a constitutional manner.
27
at 165, 106 S. Ct. at 2827 (Powell, J., joined by Stevens, J., concurring in part and
dissenting in part) (“I agree with the Court that . . . the allegations in this case raise
a justiciable issue.”). Then in every partisan gerrymandering case that has come
before the Court since Bandemer, a majority of the Justices have reaffirmed that
these claims are indeed justiciable, at least in some form. In Vieth v. Jubelirer, 541
U.S. 267, 124 S. Ct. 1769 (2004), “five Members of the Court [were] convinced”
that “it would be contrary to precedent and profoundly unwise to foreclose all
judicial review” of political gerrymandering claims. Id. at 317, 124 S. Ct. at 1799
(Stevens, J., dissenting); id. at 306, 124 S. Ct. at 1793 (Kennedy, J., concurring in
the judgment); id. at 346, 124 S. Ct. at 1817 (Souter, J., joined by Ginsburg, J.,
dissenting); id. at 364, 124 S. Ct. at 1827 (Breyer, J., dissenting). And in League
of United Latin American Citizens v. Perry, 548 U.S. 399, 126 S. Ct. 2594 (2006)
(“LULAC”), the Court reaffirmed that “an equal protection challenge to a political
gerrymander presents a justiciable case or controversy.” Id. at 413, 126 S. Ct. at
2607; see also Shapiro v. McManus, 577 U.S. ___, 136 S. Ct. 450, 456 (2015)
(acknowledging a majority of the Court had held partisan gerrymandering claims
justiciable).
The justiciability of partisan gerrymandering claims is therefore certain
under current caselaw. However, the Supreme Court has never agreed on “what
substantive standard to apply.” LULAC, 548 U.S. at 414, 126 S. Ct. at 2607. So
28
we look elsewhere. The three-judge district court in Whitford II concluded that a
redistricting scheme would be unconstitutional if it “(1) is intended to place a
severe impediment on the effectiveness of the votes of individual citizens on the
basis of their political affiliation, (2) has that effect, and (3) cannot be justified on
other, legitimate legislative grounds.” 218 F. Supp. 3d at 884. With this in mind,
the court set forth a three-part test (the “Whitford standard”) for showing a
constitutional violation. Step one—discriminatory intent against an identifiable
political group— is drawn from Bandemer. See Whitford v. Nichol, 151 F. Supp.
3d 918, 927–28 (W.D. Wis. 2015) (“Whitford I”). Steps two and three are
modeled after the “one-person, one-vote” gerrymandering cases that require states
to show any population deviations over ten percent are justified by a legitimate
state interest. See id. at 928 (citing Brown v. Thompson, 462 U.S. 835, 842–43,
103 S. Ct. 2690, 2696 (1983)). More specifically, step two requires that plaintiffs
show a discriminatory effect. Id. Then, if the plaintiff has made the showings
necessary for steps one and two, step three shifts the burden to the defendants to
show the discriminatory effect “was the necessary result of either a legitimate state
policy or the state’s underlying political geography.” See id. (quotation omitted).
Another three-judge district court concisely articulated this standard by
saying: “In order to establish a partisan gerrymandering claim under the Equal
Protection Clause, a plaintiff must show both (a) discriminatory intent and (b)
29
discriminatory effects.” Common Cause v. Rucho, ___ F. Supp. 3d ___, 2017 WL
876307, at *10 (M.D.N.C. Mar. 3, 2017) (per curiam).
1. Applicability of Whitford
At the outset, we reject the defendants’ arguments that the Whitford standard
is too unsettled in the law. In their partisan gerrymandering claim, the plaintiffs
generally allege that they meet the same standards set by the Whitford and
Common Cause courts when those courts found redistricting challenges were
sufficient to survive a motion to dismiss. See Common Cause, 2017 WL 876307,
at *13; Whitford I, 151 F. Supp. 3d at 931. We agree that, at least at this stage of
the litigation, if properly alleged and supported, this “proposed standard is
judicially manageable.” Whitford I, 151 F. Supp. 3d at 931. Like our fellow threejudge district courts, we acknowledge that our judgment could change as the record
develops. But for now, “current law does not foreclose plaintiffs’ claims” if they
“are modeled after a standard that the Supreme Court has adopted in other
contexts.” Id.11
Alternatively, defendants ask us to stay consideration of this claim until the
Supreme Court rules in Whitford, which is currently on direct appeal to the
11
Defendants recognize in their reply brief that “[a]t best, lower courts can only count on
the Supreme Court agreeing that a plaintiff must establish discriminatory intent and
discriminatory effect to succeed on a partisan gerrymandering claim.” Doc. 24: 8. The Whitford
standard encompasses this basic showing.
30
Supreme Court. Doc. 20-1: 25; see 28 U.S.C. § 1253. They point out that the
parties in Whitford have raised issues relevant to our appeal, including what test
should be used in that case for determining if improper partisan gerrymandering
took place. Doc. 20-1: 25. We decline their invitation to stay this action. Just as a
grant of certiorari does not change the law, neither does a pending appeal. See
Schwab v. Sec’y, Dep’t of Corr., 507 F.3d 1297, 1298–99 (11th Cir. 2007) (per
curiam) (“We don’t know how the Supreme Court is going to decide the issues on
which it has granted review in the [] case, and the Supreme Court itself probably
does not know given the fact that briefing has not even been completed in that
case.”). The Supreme Court’s jurisprudence on partisan gerrymandering teaches
us that the Court could rule in a variety of ways on the issues before it in Whitford,
including not ruling on them at all. We will not delay consideration of this case for
possibly a year or more, waiting for a decision that may not ultimately affect it. If
the Supreme Court’s ruling in Whitford impacts any ruling in this case, that ruling
can be adjusted accordingly.
2. Application to Count Three
Turning to the plaintiffs’ allegations in support of Count Three, the
defendants next argue those allegations fail to state a claim upon which relief may
be granted. Doc. 20-1: 22–24. After thoroughly reviewing the complaint, we
31
conclude that the plaintiffs have properly alleged discriminatory intent but failed to
meet their burden in alleging discriminatory effect.
With respect to discriminatory intent, the plaintiffs allege that H.B. 566
intentionally removed Democratic voters from Districts 105 and 111 for the
purpose of making them “noncompetitive” and “ensuring electoral victory for their
Republican incumbents.” Doc. 1 ¶ 103. They also allege the proponents of H.B.
566 used racial demographics and analyses of past elections to predict support for
Democratic candidates and minimize the strength of Democratic voters. Id. ¶ 105.
And they allege that H.B. 566 was enacted by Republican legislators, id. ¶¶ 42, 47,
outside of the normal procedures and without an opportunity for public review and
comment. Id. ¶¶ 48, 50. The plaintiffs say that African-American legislators—all
of whom are Democrats—were excluded from the drawing and negotiating process
for H.B. 566. Id. ¶¶ 37, 49. These allegations are sufficient to allege
discriminatory intent against an identifiable political group: Democratic voters.
See Whitford I, 151 F. Supp. 3d at 927–28.
In order to survive a motion to dismiss, however, the plaintiffs must give us
a judicially manageable method for measuring the discriminatory effect of partisan
gerrymandering. See LULAC, 548 U.S. at 414, 126 S. Ct. at 2607. This is their
burden, despite the fact that the Supreme Court has never agreed on one. As we’ve
said, the Supreme Court has made clear that political gerrymandering claims are
32
justiciable. But since it has not yet arrived at such a method for measuring
discriminatory effect in partisan gerrymandering, the lower courts are left to search
for one. See Shapiro, 136 S. Ct. at 456 (indicating that plaintiffs may go forward
on a political gerrymandering claim if they provide “a plea for relief based on a
legal theory put forward by a Justice of this Court and uncontradicted by the
majority in any of our cases”).
That brings us to the so-called “efficiency gap.” “The efficiency gap is the
difference between the [political] parties’ respective wasted votes in an election,
divided by the total number of votes cast.” Whitford I, 151 F. Supp. 3d at 921; see
also id. at 928–30 (explaining the metric in further detail); Nicholas O.
Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency
Gap, 82 U. Chi. L. Rev. 831 (2015) (same). The courts in Whitford and Common
Cause have held that partisan symmetry, measured by the efficiency gap, is one
way to make a political gerrymandering claim, and we agree. See Common Cause,
2017 WL 876307, at *3–4; Whitford I, 151 F. Supp. 3d at 928–29. Several
Justices have indicated that “the symmetry standard, a measure social scientists use
to assess partisan bias [] is undoubtedly a ‘reliable standard’ for measuring” the
burden on a plaintiff’s representative rights. See LULAC, 548 U.S. at 466, 126 S.
Ct. at 2637 (Stevens, J., concurring in part and dissenting in part); see also id. at
468 n.9, 126 S. Ct. at 2638 n.9 (“I appreciate Justice Kennedy’s leaving the door
33
open to the use of the [symmetry] standard in future cases . . . .”); id. at 483, 126 S.
Ct. at 2647 (Souter, J., joined by Ginsburg, J., concurring in part and dissenting in
part) (“[N]or do I rule out the utility of a criterion of symmetry as a test . . . .”).
Neither has a majority of the Supreme Court ever rejected this standard. Cf. id. at
417, 126 S. Ct. at 2609 (plurality opinion) (rejecting a rule or presumption “of
invalidity when a mid-decade redistricting plan is adopted”); Vieth, 541 U.S. at
284, 124 S. Ct. at 1780 (plurality opinion) (rejecting a predominant- intent-toachieve-partisan-advantage standard shown by direct or circumstantial evidence of
subordinating neutral redistricting criteria); Bandemer, 478 U.S. at 129–30, 106 S.
Ct. at 2808–09 (rejecting a proportional representation requirement).
So while we are comfortable that the efficiency gap is a method of analysis
gaining acceptance, these plaintiffs have not engaged it. Indeed, their complaint
alleges only that the defendants minimized “the electoral strength of voters who
seek to be represented by Democratic legislators.” Doc. 1 ¶ 105. This complaint
stands in contrast with those of the plaintiffs in Whitford and Common Cause, who
affirmatively alleged that they would rely on the “efficiency gap” as the metric by
which partisan symmetry could be measured. Common Cause, 2017 WL 876307,
at *3–4; Whitford I, 151 F. Supp. 3d at 928–29. Both of those groups of plaintiffs
also supported their allegations of discriminatory effect with statistics on the
efficiency gaps in the redistricting plans they challenged. See id. Our plaintiffs
34
have fallen far short of carrying this burden. They have given us no metric by
which we can measure discriminatory effect. Neither have they made clear
whether they intend to rely on partisan symmetry as their test. Finally, they have
supplied the court with no explanation or statistical analysis to support their
partisan gerrymandering claim or show that it is judicially manageable. Instead
they offer only the conclusory allegation that the Whitford test “is satisfied here.”
Doc. 1 ¶ 102.
We therefore dismiss the plaintiffs’ complaint with regard to Count Three
for failure to state a claim.12 This dismissal, like the others, is without prejudice.
CONCLUSION
It is ORDERED that the motion to dismiss filed by the defendants, Doc. 20,
is GRANTED. Count One, to the extent it brings a Fourteenth Amendment claim
against the State, is dismissed without prejudice for lack of jurisdiction. Count
One, to the extent it brings a Section 2 claim against the State, is dismissed without
prejudice for failure to state a claim. Counts One and Three against Secretary
Kemp are dismissed without prejudice for failure to state a claim.
12
If the plaintiffs file an amended complaint, they may wish to elaborate on some of the
statistical and judicial manageability issues the defendants raise in their motion to dismiss. For
example, the defendants point out that the efficiency gap measure in Whitford was designed to
analyze a statewide redistricting plan as a whole, as opposed to two individual redrawn districts.
Docs. 20-1: 22–23; 24: 10. Plaintiffs could aid the court in responding to this observation.
35
DUFFEY, District Judge, concurring in the judgment:
I concur with the majority’s ultimate holding that the claims in Counts One
and Three should be dismissed for their failure to state a plausible claim, and that
Plaintiffs’ Fourteenth Amendment claim against the State, asserted under § 1983,
should be dismissed because we have no subject matter jurisdiction to consider it.
I do not join in the decision to recite the long list of allegations in the Complaint
because most are not germane to the legal issues before this Court and because
many of the allegations are conclusory and opinionated.
I write separately to underscore my regret that Eleventh Circuit precedent
requires courts in our circuit to engage in a decision-making process antithetical to
judicial restraint, economy, and otherwise practical results. These precedents here
required us to address an assertion of Eleventh Amendment immunity even where
other grounds exist to dismiss a claim. The Eleventh Amendment immunity
asserted by the State was considered because the defense was not expressly
asserted as “conditional” in the State’s pleadings and the State was not otherwise
given the opportunity to advise us whether it requested its Eleventh Amendment
arguments be addressed even if the Court found, as it does, that Count One fails to
state a claim. I find the inflexible precedent in Seaborn v. State of Fla., Dep’t of
Corr., 143 F.3d 1405 (11th Cir. 1998) and McClendon v. Georgia Dep’t of Cmty.
36
Health, 261 F.3d 1252 (11th Cir. 2001) illogical as applied, and, in this case,
results in the expenditure of judicial time and resources to express obligatory dicta.
Before discussing our circuit’s case law on this issue, I consider first the threshold
question whether our three-judge panel is bound by Eleventh Circuit law at all.
Whether Circuit Authority is Binding on Three-Judge District Courts
The doctrine of stare decisis generally requires a lower court to follow the
precedent of the courts that review its decisions. See Parker v. Ohio, 263 F. Supp.
2d 1100, 1112 n.3 (S.D. Ohio 2003). As the majority notes, where a three-judge
district court considers the constitutionality of a redistricting plan, its decisions are
reviewed directly by the United States Supreme Court, not the United States Court
of Appeals in which the district court is located. See 28 U.S.C. § 1253. Because
of this unique appellate process, some judges have doubted whether a three-judge
district court is bound by its circuit’s precedent. See Ala. Legislative Black
Caucus v. Alabama, 988 F. Supp. 2d 1285, 1342 n.13 (M.D. Ala. 2013)
(Thompson, J., concurring in part and dissenting in part); Parker, 263 F. Supp. 2d
at 1112 n.3; Poe v. Werner, 386 F. Supp. 1014, 1016-17 (M.D. Pa. 1974).
I am aware of only one three-judge district court that concluded it was not
bound by its circuit’s precedent. See Jehovah’s Witnesses in the State of Wash. v.
King Cty. Hosp. Unit No. 1, 278 F. Supp. 488, 504-505 (W.D. Wash. 1967) (per
37
curiam) (“In this special three-judge court [] we are not bound by any judicial
decisions other than those of the United States Supreme Court.”). The majority of
three-judge district courts and circuit courts opine, albeit with little reasoning, that
three-judge district courts are bound by the precedent in their circuit. See Finch
v. Miss. State Med. Ass’n., Inc., 585 F.2d 765, 773 (5th Cir. 1978); Lewis
v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970); Baksalary v. Smith, 579 F. Supp.
218, 227 (E.D. Penn. 1984); Russell v. Hathaway, 423 F. Supp. 833, 835 (N.D.
Tex. 1976); Hopson v. Schilling, 418 F. Supp. 1223, 1234-35 n.15 (N.D. Ind.
1976); Athanson v. Grasso, 411 F. Supp. 1153, 1157 (D. Conn. 1976); Alabama
NAACP State Conference of Branches v. Wallace, 269 F. Supp. 346, 350 (M.D.
Ala. 1967).
The majority here elects to follow circuit precedent. I reach this conclusion
reluctantly in this case because I find that following circuit precedent promotes,
albeit to an uncertain degree, uniformity of the law at least within a circuit. I also
follow it knowing that application of circuit precedent in this case leads to a
practically illogical result. There is scant guidance from the Supreme Court
regarding cases challenging the constitutionality of the apportionment of
congressional or state legislative districts, and the law in this area is not
well-settled. As the majority notes, this is in part the result of the Supreme Court
38
routinely issuing summary affirmances of three-judge district courts in voting
cases. Those summary opinions most often state that a judgment was correct “but
not necessarily the reasoning.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct.
2238, 2240 (1977) (per curiam) (quotation omitted). Circuit courts, however,
have, on limited occasions, considered and ruled on similar claims in cases in
which congressional or state legislative districts are not challenged, because these
cases go through the normal appellate process. It seems the rationale for following
circuit precedent is because courts have found that some law is better than no law.
I note also that, in other contexts, courts are, for various reasons, required to
follow precedent that “does not perfectly track the power of revisory review[.]”
Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal
Court Precedent on the Meaning of Federal Law? 68 Vand. L. Rev. 53, 78 (2015).
For instance, the Erie doctrine requires federal courts to follow state high court
precedent on questions of state law, see Erie R. Co. v. Tompkins, 304 U.S. 64
(1938), and the Federal Circuit considers its decisions on matters of patent law to
bind the other federal courts of appeals, despite that the courts of appeals are not
subordinate to the Federal Circuit, see Midwest Indus., Inc. v. Karavan Trailers,
Inc., 175 F.3d 1356, 1361 (Fed. Cir. 1999) (en banc). I conclude that, though it is
unclear whether a three-judge panel is bound by its circuit’s precedent, I agree it
39
should be followed here, even though in this case it leads to judicial inefficiency to
do so.
Whether Courts Must Address Eleventh Amendment Immunity
Having agreed to follow Eleventh Circuit precedent, the next question is
whether Eleventh Circuit cases require the Court to consider Eleventh Amendment
immunity before addressing the merits of a claim. In Steel Co. v. Citizens for
Better Env’t, 523 U.S. 83, 94 (1998), the Supreme Court held that federal courts
are required to determine whether Article III jurisdiction exists prior to proceeding
to the merits of the case. Id. The prohibition stated in the Eleventh Amendment,
however, is a “‘rather peculiar kind of jurisdictional bar.’” McClendon v. Georgia
Dep’t of Comm’ty Health, 261 F.3d 1252, 1257 (11th Cir. 2001) (internal citations
omitted) (quoting United States v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892
(D.C. Cir. 1999)). “Unlike most subject matter jurisdiction issues, which cannot be
waived by the parties and must be raised by a court on its own initiative, the
Eleventh Amendment does not automatically deprive a court of original
jurisdiction.” Id. (citing Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389
(1998)). While courts have the discretion to raise Eleventh Amendment questions
sua sponte, they are not required to do so. See Schacht, 524 U.S. at 387-89;
Nair v. Oakland Cty. Cmty. Mental Health Auth., 443 F.3d 469, 474 (6th Cir.
40
2006) (distinguishing Eleventh Amendment immunity from Article III
jurisdiction).
In view of the unique nature of the Eleventh Amendment bar, the circuit
courts are split on whether the Eleventh Amendment immunity question, like an
Article III jurisdiction question, must be resolved before reaching the merits of a
case. Nair, 443 F.3d at 476 (describing circuit split). “[T]he trend in this area
seems to favor giving federal courts discretion over the issue[.]” Id.
The rule in our circuit, however, is that “[a]n assertion of Eleventh
Amendment immunity essentially challenges a court’s subject matter
jurisdiction[,]” and thus “an assertion of Eleventh Amendment immunity must be
resolved before a court may address the merits of the underlying claim(s).”
Seaborn, 143 F.3d at 1407. In McClendon, the Eleventh Circuit announced an
exception to what appeared to be a bright-line subject matter jurisdiction rule. In
McClendon, the defendants argued that the Eleventh Circuit could affirm the
district court’s dismissal of the plaintiffs’ claims either on Eleventh Amendment
grounds or because the plaintiffs’ complaint failed to state a claim. 261 F.3d at
1257. After summarizing their Eleventh Amendment defense, the defendants
stated that the “dismissal of [the plaintiffs’] complaint can also be affirmed on the
ground that [their] complaint failed to state a claim upon which relief could be
41
granted.” Id. at 1257-58. At oral argument, counsel for the defendants stated that
either the Eleventh Amendment or failure to state a claim was a sufficient basis to
affirm the district court’s decision. Id. at 1258. The Eleventh Circuit
“interpret[ed] the defendants’ position as a conditional assertion of Eleventh
Amendment sovereign immunity—they insist upon that defense only if it is
necessary to prevent judgment against them on the merits.” Id. (emphasis added).
The court found that, “[b]ecause the Eleventh Amendment ‘grants the State a legal
power to assert a sovereign immunity defense should it choose to do so,’ the
defendants are free to conditionally assert that defense in order to allow a federal
court to decide in their favor on the merits.” Id. (quoting Schacht, 524 U.S. at
389).
The Eleventh Circuit specifically noted its holding in McClendon was
“limited to the conclusion that the conditional assertion of the Eleventh
Amendment gives a federal court the discretion to dispose of the merits favorably
to the state or its officials if it chooses to do so.” Id. at 1259 (emphasis added).
The court noted that its holding does not conflict with Seaborn, because, “in
contrast to the defendants here, there is no indication that the defendants in
Seaborn expressed a willingness to permit the court to reach the merits instead of
considering the Eleventh Amendment issue.” Id. at 1258-59. McClendon appears
42
to require an expression of a conditional assertion, at least in a written pleading or
during oral argument.
Here, as in Seaborn, there is “no indication that [Defendants] . . . expressed a
willingness to permit the court to reach the merits instead of considering the
Eleventh Amendment issue.” Id. In the absence of a written or other expression
that Defendants’ assertion of Eleventh Amendment immunity is conditional, we
are bound to apply Seaborn, which requires us to resolve Defendants’ “assertion of
Eleventh Amendment immunity . . . before [we] may address the merits of the
underlying claim(s).” Seaborn, 143 F.3d at 1407.1
I strongly disagree with the bright-line rule in Seaborn, including because
the opinion fails to consider the substantial differences between Eleventh
Amendment immunity and traditional Article III jurisdiction. In McClendon, the
Eleventh Circuit, though recognizing these differences, was nevertheless
constrained by its prior holding in Seaborn until there were statements made at oral
argument allowing the court to find a conditional assertion exception—an
exception unique to our circuit. The McClendon court favorably cited the First
Circuit’s decision in Parella v. Ret. Bd. of Rhode Island Emps.’ Ret. Sys., 173 F.3d
1
It seems the majority opinion could have been more focused and this concurrence not
necessary if the State was asked to advise us if its assertion of its Eleventh Amendment
immunity was conditional or not.
43
46 (1st Cir. 1999), in which the First Circuit held a court may bypass the Eleventh
Amendment issue where other dispositive grounds exist. In Parella, the court
reasoned that the distinctions between the Eleventh Amendment bar and ordinary
restrictions on subject matter jurisdiction suggest “that Eleventh Amendment
issues do not fall into the category of Article III questions that Steel Co. would
define as necessarily antecedent.” Id. at 55. The Parella court noted that the
Supreme Court in Steel Co. rejected the assertion of “hypothetical jurisdiction”
where a court’s Article III jurisdiction is in doubt, because a court without
Article III jurisdiction has no power to declare the law, and any opinion would thus
be an advisory opinion. Id. (citing Steel Co., 523 U.S. at 101). The First Circuit
explained that, in the Eleventh Amendment context, there is not the same risk of
rendering an advisory opinion. The court reasoned:
[B]ecause Eleventh Amendment immunity can be waived, the
presence of an Eleventh Amendment issue does not threaten the
court’s underlying power to declare the law. If this were not the case,
sua sponte consideration of a possible Eleventh Amendment bar
would have to be obligatory, not discretionary—but the Supreme
Court has now clearly stated that courts are free to ignore possible
Eleventh Amendment concerns if a defendant chooses not to press
them.
Id. (citation omitted).
Based on this reasoning, the First Circuit suggested that the “relevant maxim
in the Eleventh Amendment context is not that federal courts cannot act without
44
first establishing their jurisdiction, but rather that courts should ‘not reach
constitutional questions in advance of the necessity of deciding them.’” Id. at 56
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 62 (1999) (Ginsurg, J.,
concurring in part and concurring in the judgment)). The Parella court also noted
that avoiding Eleventh Amendment questions where there are other dispositive
issues would produce two positive outcomes: (1) avoiding squandering judicial
resources, and (2) avoiding forcing defendants to expend their resources on
Eleventh Amendment questions in situations in which they would rather not do so.
Id. Finally, the Parella court noted that requiring courts to rule on Eleventh
Amendment questions would require them, “under certain circumstances, to begin
their opinions with the equivalent of ‘obligatory dicta.’” Id. at 57. The reasoning
in Parella allowed the Eleventh Circuit to interpret an exception to the Seaborn
bright-line test. The result in the majority opinion here is that the Court elected to
engage in the Eleventh Amendment application analysis, which ultimately is
unnecessary dicta in this case. I find the reasoning and the result in Parella legally
and practically sound, as have the majority of the circuit courts. See Nair, 443
F.3d at 476.
I believe our circuit, if confronted with the facts here, would find a
conditional assertion is implied where a state moves to dismiss counts for failure to
45
state a claim, or an en banc panel of the Eleventh Circuit would overturn the
inflexible rule in Seaborn altogether. This conclusion is supported by the circuit’s
favorable review of Parella and its practical approach to evaluating Eleventh
Amendment issues when other dispositive arguments are asserted. In Ramos
v. Tomasino, ___ F. App’x ___, 2017 WL 2889472 (11th Cir. July 7, 2017), a
decision issued just last month, the defendant asserted several grounds for
dismissal, including one based on Eleventh Amendment sovereign immunity. In
choosing not to consider the defendant’s Eleventh Amendment sovereign
immunity argument, the court stated: “Because all of Ramos’s claims are barred
by Rooker-Feldman and Parker immunity grounds, we decline to address Ramos’s
additional argument concerning Eleventh Amendment immunity, and those
arguments that do not involve the application of immunity.” Id. at *5 n.4. Though
it is an unpublished decision, the circuit in Ramos, by declining to address the
Eleventh Amendment immunity issue even in the absence of “conditional”
language, accomplished the same practical results reached in McClendon, because
“avoiding Eleventh Amendment questions where there are other dispositive issues
. . . permits courts to avoid squandering judicial resources.” McClendon, 261 F.3d
at 1259 (alteration not adopted) (quoting Parella, 173 F.3d at 56).2
2
The judicially created “conditional” assertion of an Eleventh Amendment sovereign
46
In view of the Eleventh Circuit’s practical approach in declining to consider
the Eleventh Amendment immunity issue in McClendon and in Ramos, I believe it
would today decline to apply the inflexible standard in Seaborn. Instead, it is the
logical and reasonable next step for the circuit either to overrule Seaborn or to
“interpret” a failure to state a claim defense in a case like ours to imply a
conditional assertion of the State’s Eleventh Amendment immunity defense and
allow courts to decline to address Eleventh Amendment immunity where, as here,
the claim against the State is dismissed on the merits. If we were not bound to
apply Seaborn, I would avoid addressing an opinion on the application of the
Eleventh Amendment and whether Section 2 abrogates Eleventh Amendment
immunity, which, as it turns out, is the equivalent of “obligatory dicta” in this
opinion. See Parella, 173 F.3d at 57. Such a result also is consistent with the
historic principles of judicial restraint.
immunity defense promotes inconsistent results that do not promote stability. For example, if in
one case a state defendant asserted Eleventh Amendment and Rule 12(b)(6) failure to state a
claim grounds for dismissal and said the Eleventh Amendment defense was “conditional,” but in
another case the state failed to state this apparently obligatory “conditional” language, even
though it seeks for the Rule 12(b)(6) grounds to be determined first, the Court has to go through
two different analytical processes even if in both cases there is a finding that the claim fails to
meet the Rule 12(b)(6) standard. In the case here where the obligatory “conditional” assertion
language is not used, the Court and the parties wasted time and effort to address the now
inconsequential Eleventh Amendment argument. The better rule in cases where there is a motion
to dismiss under Rule 12(b)(6) is always to first determine if a complaint even asserts plausible
claims before deciding if the Eleventh Amendment bars them.
47
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