Parrott et al v. Lamone et al

Filing 30

OPINION. Signed by Judge George Levi Russell, III on 8/24/2016. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NEIL PARROTT, et al.,
Plaintiffs,
v.
LINDA H. LAMONE, et al.,
Defendants.

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Civil Action No. GLR-15-1849

Robert D. Popper, Chris Fedeli, and Lauren M Burke, JUDICIAL
WATCH, INC., Washington, D.C., for Plaintiffs.
Julia Doyle Bernhardt and Jeffrey Lewis Darsie, OFFICE OF THE
ATTORNEY
GENERAL
OF
MARYLAND,
Baltimore,
Maryland,
for
Defendants.
Filed:

August 24, 2016

Before Niemeyer, Circuit Judge, and Bredar and Russell, District
Judges:
OPINION OF THE THREE-JUDGE COURT
Judge Russell wrote the opinion in which the Court concluded it
does not have subject-matter jurisdiction over this action
because Plaintiffs do not have standing to pursue their claims.
RUSSELL, District Judge:
Plaintiffs

(“Voters”)1

challenge

the

constitutionality

of

Maryland’s 2011 congressional redistricting law under Article I,
§ 2 of the United States Constitution and the Due Process Clause
of the Fifth and Fourteenth Amendments.
1

Pending before the Court

Voters consist of one voter from each of Maryland’s eight
congressional districts. They include: Neil Parrott, Ann Marvin,
Lucille Stefanski, Eric Knowles, Faith Loudon, Matt Morgan, Ellen
Sauerbrey, and Kerinne August.

is Defendants’, Linda H. Lamone, in her official capacity as the
State Administrator of Elections, and David J. McManus, Jr., in
his official capacity as Chairman of the Maryland State Board of
Elections (collectively, the “State”), Motion to Dismiss (ECF No.
7).

The

Motion

is

ripe

for

disposition.

For

the

reasons

outlined below, the Court will grant the Motion.
I
In October 2011, following the 2010 decennial census, the
Maryland General Assembly enacted a congressional redistricting
plan (the “Plan”), establishing the districts to be used for the
election of Maryland’s eight representatives in the United States
House of Representatives.
et seq. (West 2016).

See Md.Code Ann., Elec. Law §§ 8–701

Following its enactment, the Plan has been

subject to numerous challenges.2

On June 24, 2015, Voters brought

the instant challenge, arguing the Plan is an unconstitutional
political

2

gerrymander3

that

transfers

the

power

to

select

See, e.g., Benisek v. Mack, 11 F.Supp.3d 516 (D.Md.),
aff’d, 584 F.App’x 140 (4th Cir. 2014), cert. granted sub nom.
Shapiro v. Mack, 135 S.Ct. 2805 (2015), and rev’d and remanded
sub nom. Shapiro v. McManus, 136 S.Ct. 450 (2015); Olson v.
O’Malley, No. WDQ-12-0240, 2012 WL 764421 (D.Md. Mar. 6, 2012);
Gorrell v. O’Malley, No. WDQ-11-2975, 2012 WL 226919 (D.Md. Jan.
19, 2012); Fletcher v. Lamone, 831 F.Supp.2d 887 (D.Md. 2011),
aff’d, 133 S.Ct. 29 (2012).
3
“The term ‘political gerrymander’ has been defined as ‘the
practice
of
dividing
a
geographical
area
into
electoral
districts, often of highly irregular shape, to give one political
party an unfair advantage by diluting the opposition's voting
2

representatives from the people -- all Maryland voters -- to the
Maryland General Assembly.

(ECF No. 1).

On July 20, 2015, the State filed a Motion to Dismiss under
Federal Rules of Civil Procedure 8(c), 12(b)(1), and 12(b)(6).
(ECF No. 7).

Voters submitted an Opposition on September 21,

2015 (ECF No. 13), and the State filed a Reply on October 21,
2015 (ECF No. 17).

In accordance with Shapiro v. McManus, 136

S.Ct. 450 (2015) and 28 U.S.C. § 2284 (2012), the Chief Judge of
the

United

States

Court

of

Appeals

for

the

Fourth

Circuit

designated a three-judge court to hear the State’s Motion to
Dismiss.

(ECF Nos. 21, 22).

hearing on July 12, 2016.

The three-judge court conducted a

(ECF No. 29).
II
A

The State advances two principal arguments for why the Court
should

dismiss

Voters’

claims.

First,

Voters

lack

standing

because they allege a generalized grievance on behalf of all
Maryland voters.

Second, Voters fail to state a claim upon which

relief can be granted because their claims are not justiciable.
The Court begins by reviewing the threshold issue of standing.

strength.’”
Vieth v. Jubelirer, 541 U.S. 267, 271 n.1 (2004)
(quoting Black’s Law Dictionary 696 (7th ed. 1999)).
3

Motions to dismiss for lack of standing are governed by Rule
12(b)(1), which pertains to subject matter jurisdiction.

See

CGM, LLC v. BellSouth Telecomm’s, Inc., 664 F.3d 46, 52 (4th Cir.
2011).

A defendant challenging a complaint under Rule 12(b)(1)

may advance a “facial challenge, asserting that the allegations
in the complaint are insufficient to establish subject matter
jurisdiction,

or

a

factual

jurisdictional

allegations

of

challenge,
the

asserting

complaint

[are]

‘that
not

the

true.’”

Hasley v. Ward Mfg., LLC, No. RDB-13-1607, 2014 WL 3368050, at *1
(D.Md. July 8, 2014) (alteration in original) (quoting Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009)).
Here, because the State raises a facial challenge, the
Court

will

[they]

afford

would

Voters

receive

“the

under

same

a

procedural

Rule

12(b)(6)

protection

as

consideration.”

Kerns, 585 F.3d at 192 (quoting Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982)).

As such, the Court will take the facts in

Voters’ Complaint as true and deny the State’s Rule 12(b)(1)
Motion to Dismiss if the Complaint alleges sufficient facts to
invoke subject matter jurisdiction.

Id.

B
Article III of the United States Constitution limits the
judicial

authority

“Controversies.”

of

federal

courts

to

“Cases”

and

U.S. Const. art. III, § 2, cl. 1; Spokeo, Inc.
4

v.

Robins,

2016).

136

S.Ct.

1540,

1547

(2016),

as

revised

(May

24,

Thus, the threshold question in every federal case is

whether the court has authority under Article III to entertain
the suit.

Warth v. Seldin, 422 U.S. 490, 498 (1975).

apply the standing doctrine to resolve this question.

Courts

Bishop v.

Bartlett, 575 F.3d 419, 423 (4th Cir. 2009).
The party invoking federal jurisdiction bears the burden of
establishing standing.

Id. at 424 (citing FW/PBS, Inc. v. City

of Dallas, 493 U.S. 215, 231 (1990)).
general

factual

allegations

of

“At the pleading stage,

injury

resulting

from

the

defendant’s conduct may suffice, for on a motion to dismiss [a
court] presume[s] that general allegations embrace those specific
facts that are necessary to support the claim.”

Id. (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
must

dismiss

an

action

when

the

party

invoking

The Court
federal

jurisdiction does not include the necessary allegations in the
pleading.

Id. (citing McNutt v. Gen. Motors Acceptance Corp.,

298 U.S. 178, 189 (1936)).
The

standing

doctrine

comprises

constitutional

and

prudential components.

Id. at 423 (citing Allen v. Wright, 468

U.S. 737, 751 (1984)).

To satisfy the constitutional component,

a party must have suffered an injury in fact

that is fairly

traceable to the challenged conduct of the defendant and likely
5

to be redressed by a favorable judicial decision.
S.Ct. at 1547 (citing Lujan, 504 U.S. at 560–61).

Robins, 136
“To establish

injury in fact, a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and
particularized’

and

‘actual

or

imminent,

not

conjectural

hypothetical.’”

Id. at 1548 (quoting Lujan, 504 U.S. at 560).

or
A

“particularized” injury is an injury that affects the plaintiff
“in a personal and individual way.”
at 560 n.1).

A “concrete” injury is one that is not abstract and

actually exists.

Id.

To be concrete for purposes of standing,

an injury need not be tangible.
As

for

Id. (quoting Lujan, 504 U.S.

the

prudential

Id. at 1549.
component

of

standing,

courts

generally recognize three circumstances under which a party does
not have standing: (1) when the party asserts a harm that “is a
‘generalized grievance’ shared in substantially equal measure by
all

or

a

large

class

of

citizens,”

Bishop,

575

F.3d

at

423

(quoting Warth, 422 U.S. at 499); (2) when the party “rest[s] his
claim

to

relief

on

the

legal

rights

or

interests

of

third

parties,” id. (quoting Warth, 422 U.S. at 499); and (3) when the
party’s grievance does not “arguably fall within the zone of
interests protected or regulated by the statutory provision or
constitutional

guarantee

invoked

in

the

Bennett v. Spear, 520 U.S. 154, 162 (1997)).
6

suit,”

id.

(quoting

That an injury is widely shared does not necessarily mean
that the injury is a “generalized grievance” precluding standing.
A widely shared injury can be an injury in fact, but only if the
injury is concrete.

Id. at 424–25 (quoting FEC v. Akins, 524

U.S. 11, 24 (1998)).

The deprivation of the right to vote is a

concrete

injury

notwithstanding
Akins,

524

that

can

that

the

at

24).

U.S.

constitute

injury

is

Examples

an

injury

widespread.
of

widely

in

Id.

shared

fact

(citing
abstract

injuries that do not confer standing include injuries

to the

“common concern for obedience to the law,” Akins, 524 U.S. at 23
(quoting L. Singer & Sons v. Union Pac. R. Co., 311 U.S. 295, 303
(1940)),

and

injuries

to

“the

public’s

interest

in

the

administration of the law,” id. at 24 (quoting Perkins v. Lukens
Steel Co., 310 U.S. 113, 125 (1940)).
Throughout their Complaint, Voters consistently allege they
are

asserting

a

harm

that

all

Maryland

voters

endure.

(See

Compl. ¶ 31, ECF No. 1) (alleging Voters “are suing as Maryland
voters for injuries . . . that all Maryland voters endure because
of

the

egregious

districts”);

(id.

gerrymandering
¶

35)

of

the

(“Maryland’s

State’s

congressional

gerrymander

harms

all

Maryland voters, regardless of their party preferences or how
they

would

vote

in

a

particular

election[.]”);

(id.

¶

36)

(“Maryland’s gerrymander inflicts particular, intentional harm on
7

partisan

and

non-partisan

voters

of

every

description[.]”).

Voters, however, do not allege that the Plan has deprived all
Maryland

voters

elections.

of

Instead,

their

right

Voters

to

assert

vote

that

in

the

congressional

Plan

harms

all

Maryland voters because it mechanically manipulates Maryland’s
congressional districts in a manner that transfers the power to
select representatives from the people to the Maryland General
Assembly.

While

this

alleged

harm

is

not

as

concrete

as

the

deprivation of the right to vote, the Court concludes that at
this

pleading

stage,

this

harm

is

adequately

concrete

and

particularized.
To sufficiently allege standing, however, Voters must assert
more than a concrete and particularized injury -- they must also
allege “an invasion of a legally protected interest.”
136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560).

Robins,
Voters do

not cite any cases, and the Court’s exhaustive search reveals
none,

in

which

a

court

expressly

held

that

the

Constitution

protects the right to reside in a district that has not been
mechanically

manipulated

to

transfer

the

power

to

select

representatives away from the people.
Voters

have

not

unequal population.

alleged

the

Plan

created

districts

of

Nevertheless, they rely on Baker v. Carr,

369 U.S. 186 (1962), Wesberry v. Sanders, 376 U.S. 1 (1964), and
8

Reynolds v. Sims, 377 U.S. 533 (1964) (the “One Person, One Vote
Cases”), arguing they stand for more than the proposition that
congressional
populations.

districts

within

a

state

must

have

equal

Voters assert that “properly understood, [the One

Person, One Vote Cases] stand for the principle that legislators
and their agents may not manipulate districts to arrogate to
themselves the power reserved to the people of choosing their
legislators.”
13).

(Pls.’ Opp’n Mot. Dismiss [“Opp’n”] at 12, ECF No.

Voters

further

contend

that

these

cases

“should

be

understood as a set of practical constitutional limitations on
legislators’

ability

to

entrench

notwithstanding the wishes of voters.”
In

Baker,

allegations

of

the

United

disparities

States
of

themselves

power

(Opp’n at 15).
Supreme

population

districts raise justiciable claims.

in

Court

in

state

held

that

legislative

369 U.S. at 206, 237.

Two

years later, in Wesberry, the Court applied Baker to strike down
Georgia’s

congressional

district

plan

because

districts comprising vastly disparate populations.
5, 18.

it

created

376 U.S. at

The Court held that the constitutional requirement that

representatives be chosen “by the People of the several States,”
U.S. Const. art. I, § 2, “means that as nearly as is practicable
one man’s vote in a congressional election is to be worth as much
as another’s.”

Wesberry, 376 U.S. at 7–8.
9

The Court explained

that

the

Constitution’s

“plain

objective”

is

to

make

“equal

representation for equal numbers of people the fundamental goal
for the House of Representatives.”
That same year, in
state

legislative

Id. at 18.

Reynolds, the Court applied
districts,

invalidating

malapportioned House and Senate districts.
U.S.

at

577

(1964).

The

Baker

Court

held

to

Alabama’s

See Reynolds, 377
that

“as

a

federal

constitutional requisite both houses of a state legislature must
be apportioned on a population basis,” meaning that states 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.

The plaintiffs’ claims in the One Person, One Vote Cases all
centered on the population disparities in legislative districts.
See

Baker,

369

U.S.

at

192–93;

Reynolds, 377 U.S. at 540.
reading

those

cases

as

Wesberry,

376

U.S.

at

2–3;

That fact alone militates against
establishing

that

the

Constitution

protects the right to reside in districts that have not been
mechanically manipulated.

What is more, nothing in the language

of the One Person, One Vote Cases suggests that the Court should
apply those cases to claims not asserting unequal population.

As

such, the Court rejects Voters’ reading of the One Person, One
Vote Cases, finding it untenable.
10

In sum, Voters fail to identify a constitutional provision
or case that establishes a right to reside in a district that has
not been mechanically manipulated in a manner that transfers the
power to elect representatives away from the people.
Court

concludes

standing

to

alleged

an

that

assert

Voters

their

invasion

of

have

claims
a

not

because

legally

Thus, the

sufficiently
have

they

protected

alleged
have

not

interest.4

Accordingly, the Court will grant the State’s Motion to Dismiss
for lack of subject matter jurisdiction.
III
For the foregoing reasons, the State’s Motion to Dismiss
(ECF

No.

7)

is

GRANTED.

Voters’

Complaint

(ECF

No.

1)

is

DISMISSED, and the Court will direct the Clerk to CLOSE this
case.

A separate Order follows.

Entered this 24th day of August, 2016
/s/
_____________________________
George L. Russell, III
United States District Judge

4

Because the Court concludes that Voters
standing, the Court need not determine whether
claims upon which relief may be granted.
11

do not have
Voters state