Rose et al v. Raffensperger

Filing 204

OPINION AND ORDER DENYING 189 Motion to Amend and DENYING AS MOOT 195 Motions for Relief Under Rules 59 and 60. The Clerk is DIRECTED to close this case. Signed by Judge Steven D. Grimberg on 3/7/2025. (tas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICHARD ROSE, et al.,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his capacity as
Secretary of State of the State of Georgia,
Defendant.

Civil Action No.
1:20-cv-02921-SDG

OPINION AND ORDER
After completion of a five-day bench trial, entry of judgment, an appeal, and
two petitions for review to the Supreme Court, Plaintiffs now move to amend their
complaint [ECF 189] and for relief under Fed. R. Civ. P. 59 and 60 [ECF 195] to seek
a new and different remedy for their claim under Section 2 of the Voting Rights
Act. For the reasons set forth below, the motions are DENIED.
I.

Applicable Legal Standard
To begin, the parties dispute the standard of review that applies to Plaintiffs’

request—Rule 15, 59, or 60. Rule 15(a)(2) provides that a party may amend its
pleading with the Court’s leave, which should be granted when justice so requires.
In contrast, Rule 59(e) permits a court to alter or amend a judgment based only on
newly discovered evidence or manifest errors of law or fact. Arthur v. King, 500
F.3d 1335, 1343 (11th Cir. 2007). Rule 60(b)(1) permits relief from a final judgment

due to mistake, inadvertence, surprise, or excusable neglect. Even under the most
lenient standard available—Rule 15(a)—Plaintiffs’ proposed amendment fails.1
II.

Background
The procedural history of this case is relevant to understanding the

extraordinary nature of Plaintiffs’ request and why the Court declines to grant it.
Plaintiffs are Black voters registered in the State of Georgia. In July 2020, they filed
suit against the Georgia Secretary of State, challenging the state-wide, at-large
method of electing members of the Public Service Commission—the body
responsible for supervising and regulating common carriers, railroads, and public
utilities.2 To prove their substantive claim and satisfy the Gingles’s preconditions,
Plaintiffs had to demonstrate a viable remedy. Nipper v. Smith, 39 F.3d 1494, 1530–
31 (11th Cir. 1994) (“The inquiries into remedy and liability, therefore, cannot be

1

The Court entered the first scheduling order four years ago and discovery
started on February 25, 2021. ECF 40. The last day for Plaintiffs to amend was
therefore March 29, 2021. LR 7.1(A)(2), NDGa. Given the current posture of the
case, then, Plaintiffs would have to show good cause under Rule 16 before they
could travel under Rule 15(a). Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”). The good-cause
standard precludes modification of the Court’s schedule unless it cannot be
met despite the party’s diligence. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418
(11th Cir. 1998) (citing Fed. R. Civ. P. 16 advisory committee’s note). Since
Plaintiffs cannot succeed even under the permissive standard of Rule 15(a), the
Court does not address whether Plaintiffs have shown good cause (they have
not), or if Rules 59 or 60 should be applied (they should not).

2

See generally ECF 1.

separated: A district court must determine as part of the Gingles threshold inquiry
whether it can fashion a permissible remedy in the particular context of the
challenged system.”). They thus asked the Court to order that the Secretary
administer future Commission elections “using a method of election that complies
with Section 2 of the Voting Rights Act,” i.e., to require the Secretary to employ
single-member districts rather than at-large elections.3
The Secretary moved to dismiss, arguing (among other things) that Plaintiffs
could not state a claim because their proposed remedy was impermissible.4
Plaintiffs, naturally, disagreed. Not only did they assert that single-member
district elections were the proper cure for the alleged Section 2 violation, Plaintiffs
argued that such districting was the required remedy.5 They further emphasized
that they were only challenging the statewide—i.e., the at-large—nature of
Commission elections.6 After full briefing and argument on the Secretary’s motion,
the Court concluded that single-member districting was not, as a matter of law, a
prohibited remedy.7 The Court therefore denied the Secretary’s motion.

3

Id. at 10.

4

ECF 22-1, at 1. See also id. at 16–19.

5

ECF 23, at 14. See also id. at 14–18.

6

ECF 35, at 20–22.

7

ECF 36, at 34–42.

Plaintiffs then litigated their case on the theory that the at-large election of
Commission members had to be replaced by single-member districting.8 The
Secretary, in turn, consistently objected that Plaintiffs’ proposal failed as a matter
of law.9 At summary judgment, Plaintiffs asserted that they had satisfied the
Gingles preconditions, in part, because Black voters in Georgia were “sufficiently
numerous and geographically compact to constitute a majority of the voting-age
population in at least one single-member district” (the first precondition).10 For his
part, the Secretary continued to argue that single-member districts were not a
viable form of relief.11 The Court reserved ruling on that issue for trial, noting that
its assessment of the proposed remedy required consideration of the totality of the
circumstances.12 After trial, the Court held that single-member districts were
appropriate and permissible, and entered a permanent injunction against at-large
elections for members of the Commission.13 The Secretary appealed,14 and sought

8

See, e.g., ECF 39, at 1 ¶ 1.

9

ECF 56-1, at 2–3, ¶ 3 (“Plaintiffs also seek to alter the method of election of
statewide constitutional officers in Georgia. This impinges on the proper role
of states and is improper for a federal court to order as a remedy.”).

10

ECF 79, at 3–4, 15–16.

11

ECF 80-1, at 15–21.

12

ECF 97, at 16 (citing Davis v. Chiles, 139 F.3d 1414, 1419–20 (11th Cir. 1998)). See
generally id. at 16–24.

13

ECF 151, at 56–60; ECF 159.

14

ECF 152.

and was granted a stay of the injunction by the Eleventh Circuit.15 The stay was
then vacated by the Supreme Court (allowing the injunction to take effect).16
Despite that loss, the Secretary prevailed on the substance of his appeal.17 A
panel of the Eleventh Circuit concluded that Plaintiffs had failed to propose a
viable remedy and thus “failed to satisfy Gingles’s first precondition.”18 The Court
of Appeals declined to rehear the case en banc,19 and Plaintiffs’ second petition for
review by the Supreme Court was denied. 144 S. Ct. 2686, reh’g denied, 2024 WL
3851078 (2024). The appellate mandate issued, and this Court adopted it—as
undersigned is obligated to do.20
III.

Discussion
Plaintiffs now seek leave to amend their Complaint to propose different

remedies, such as cumulative voting, limited voting, ranked-choice voting, or
single-transferable voting,21 rather than single-member districting. Despite their
characterization of this proposal as an “easy fix” to the “narrow legal question”

15

ECF 160.

16

ECF 162.

17

ECF 178.

18

Id. at 18–19.

19

ECF 183.

20

ECFs 190, 193.

21

ECF 189.

ruled on by the Eleventh Circuit,22 what Plaintiffs are really asking for is a
complete redo of this litigation. Plaintiffs’ argument ignores that a viable remedy
was both a necessary element of establishing liability in the first instance and a
significant factor in the Court’s totality-of-the-circumstances analysis. By
removing the viable remedy from the equation, the Court’s analysis is no longer
viable either.
Although Rule 15(a) generally favors permitting amendments, leave may be
denied when there has been undue delay, where the amendment would result in
prejudice to the opposing party, or the proposed amendment is futile. Reese v.
Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008). The Eleventh Circuit has made clear
that “[p]rejudice and undue delay are inherent in an amendment asserted after the
close of discovery and after dispositive motions have been filed, briefed, and
decided.” Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999) (citing
Jameson v. Arrow Co., 75 F.3d 1528, 1534 (11th Cir. 1996) (noting that the facts on
which the amendment was based were available when the complaints were filed)).
This case is well beyond those points. The delay, prejudice, and futility here are
more than sufficient grounds on which to deny the relief Plaintiffs seek.

22

Id. at 2–3.

A.

Delay

Plaintiffs assert that they did not unduly delay and that this would be the
first amendment to the Complaint.23 As the Secretary notes, however, Plaintiffs
have long been on notice that the proposed single-member-district remedy was
potentially problematic.24 The case was not decided at an early stage before the
parties had the opportunity to develop their evidence—the Court held a five-day
bench trial and issued an extensive opinion on its rulings.25 Plaintiffs never
suggested that any other form of relief might be appropriate until after the
Secretary prevailed on appeal.26
Having proceeded through trial, an appeal, and the denial of certiorari by
the Supreme Court on their chosen remedy of single-member districts, Plaintiffs
want to re-litigate a substantive aspect of their cause of action. But the Court “need
not allow itself to be imposed upon by the presentation of theories seriatim.”
Freeman v. Cont’l Gin Co., 381 F.2d 459, 469 (5th Cir. 1967) (“The facts on which the
claim of fraud is based were fully known to Freeman from the outset of the lawsuit
and, indeed, were relied on by him, though under a different theory, in his original

23

Id. at 5–8.

24

ECF 196, at 9.

25

ECF 151.

26

ECF 23, at 14; ECF 35, at 27–28.

answer. It was not until that theory was rejected by the trial court—correctly as we
have held above—that the amendment was tendered seeking to make out a
showing of fraud from those facts.”). Parties cannot freely rely on one theory in an
attempt to prevail on their claims and then, “should that theory prove unsound,
come back long thereafter and fight on the basis of some other theory.” Id. at 470.
That an entirely new challenge to Georgia’s method of electing Commissioners
based on different theories and evidence could be brought is of no import. In this
challenge, Plaintiffs were aware of the possible pitfalls of relying solely on singlemember districting as a remedial theory. Dissatisfaction with the results of that
decision is not a basis for the Court to grant a do-over.
B.

Prejudice

Plaintiffs also argue that it would be prejudicial to them for the Court not to
allow the proposed amendment because the Eleventh Circuit ruled only on a
narrow issue that can be corrected. In their view, the Court need “only” permit
new discovery and motion practice related to the newly proposed remedies.27 But
as the Secretary points out, permitting Plaintiffs’ amendment would (at a
minimum) require reopening both discovery and the trial record,28 since the
Secretary did not have any opportunity to defend against the alternative remedies

27

See generally ECF 200, at 3–5.

28

ECF 196, at 13 (citing ECF 189, at 15–16).

Plaintiffs now propose. Section 2 challenges are fact-intensive inquiries that
require assessing the totality of the circumstances. The Secretary presented his
arguments and prevailed. It would be extremely prejudicial to reopen discovery
and retry the case under a theory Plaintiffs could have presented from the outset.
C.

Futility

Finally, and perhaps most fundamentally, Plaintiffs’ arguments minimize
what the Eleventh Circuit actually held in reversing this Court’s judgment and
ignore that the appellate court’s ruling necessarily affected this Court’s finding of
liability. Proposing a viable remedy is a substantive element of a Section 2 claim.
Nipper, 39 F.3d at 1530–31. The Eleventh Circuit held that Plaintiffs failed to
establish the first Gingles precondition, concluding that it was an error of law to
hold that single-member districts were a viable remedy to the alleged vote dilution
caused by Georgia’s method of conducting Commission elections.29 That
conclusion overruled this Court’s substantive liability determination.
Without Plaintiffs having established a viable remedy, the Secretary cannot
be liable under Section 2. So, the Court cannot leave all its prior determinations in
place, exchanging only the originally proposed remedy with a new one. This is not
a narrow technical issue—it is a substantive defect in Plaintiffs’ case-in-chief.
Further, the Court is not entirely convinced that it could pursue Plaintiffs’

29

ECF 178, at 18–19.

proposed course of action without violating the mandate rule. Winn-Dixie Stores,
Inc. v. Dolgencorp, LLC, 881 F.3d 835, 843 (11th Cir. 2018) (“The law of the case
doctrine and the mandate rule ban courts from revisiting matters decided
expressly or by necessary implication in an earlier appeal of the same case. It has
its greatest force when a case is on remand to the district court. . . . A district court
when acting under an appellate court’s mandate, cannot vary it, or examine it for
any other purpose than execution; or give any other or further relief; or review it,
even for apparent error, upon a matter decided on appeal; or intermeddle with it,
further than to settle so much as has been remanded.”) (cleaned up).
IV.

Conclusion
Plaintiffs’ proposed amendment is unduly delayed, inherently prejudicial,

and futile. Accordingly, Plaintiffs’ motion for leave to amend the complaint
[ECF 189] is DENIED. Plaintiffs’ motion for relief under Rules 59 and 60 [ECF 195]
is DENIED as moot. The Clerk is DIRECTED to close this case.
SO ORDERED this 7th day of March, 2025.

Steven D. Grimberg
United States District Judge