THE CITY OF NEWARK et al v. THE NEWARK WARD COMMISISON et al

Filing 16

OPINION. Signed by Judge William J. Martini on 11/28/12. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THE CITY OF NEWARK, MUNICIPAL
COUNCIL FOR THE CITY OF
NEWARK, RONALD C. RICE
(individually and in his capacity as
Councilman for the City of Newark),
DARRIN S. SHARIF (individually and in
his capacity as Councilman for the City of
Newark)

Civ. No. 12-258 (WJM)

OPINION

Plaintiffs,
v.
THE NEWARK WARD COMMISSION
AND FRAN ADUBATO, MICHAEL
CARSON, LEE FISHER, BETHANY
O’TOOLE, Secretary LINDA VON
NESSI, each individually and in their
official capacities as Commissioners for the
Newark Ward Commission
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
This matter comes before the Court on Defendants motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below,
Defendants’ motion is GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND 1

1

As this is a 12(b)(6) motion to dismiss, the following version of events assumes Plaintiff’s allegations in the
Complaint are true.

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The City of Newark is divided into five wards: North, South, East, West, and
Central. Newark’s five wards are further subdivided into various districts. For
purposes of this Opinion, it is sufficient to note that pursuant to N.J.S.A. § 40:4414, the population of Newark must be (more or less) equally divided amongst the
five wards, and that after the 2010 United States Census figures were released,
Defendant the Newark Ward Commission (the “Commission”) was responsible for
redistricting Newark’s five wards in a manner which comports with that statutory
mandate.
Plaintiffs Ronald C. Rice and Darin Sharif are elected councilmen
representing Newark’s West and Central Wards, respectively. 2 Plaintiffs seek to
challenge the ward redistricting plan approved by the Commission on November 4,
2011, which caused two predominantly Latin American districts in the Central
Ward – namely, Districts Central 16 and 19 – to be redistricted to the West Ward.
Plaintiffs allege that this plan “results in segregation of Latin American voters
from the Central Ward into the West Ward, [and alters] the racial and ethnic
makeup of [those wards].” (Compl. ¶ 49.) Plaintiffs claim that the Commission
adopted this plan in spite of the existence of two other viable ward redistricting
plans involving various other Newark districts. Plaintiffs do not indicate what the
racial make composition is for any of those other districts.
2

The Court notes that ward councilmembers are required to be residents and maintain residency in the ward that
they represent. Newark City Charter, § 40A:9-1.12, 13.

2

On December 19, 2011, Plaintiffs commenced this action in New Jersey
Superior Court by filing a Complaint in Lieu of Prerogative Writ seeking to nullify
the redistricting plan adopted by the Commission (Count One). Plaintiffs also
allege that the Commission’s actions violated New Jersey’s Open Public Meeting
Act, N.J.S.A. § 10:4-6, et seq. (Count Two), New Jersey’s Civil Rights Act,
N.J.S.A. § 10:6-2(c) (Count Three), as well as the Fourteenth and Fifteenth
Amendments of the United States Constitution 3 (Counts Four and Six,
respectively), and the Voting Rights Act (“VRA”), 42 U.S.C. § 1973 4 (Count
Five).
On January 13, 2012, Defendants removed this action to district court in the
light of the federal claims asserted by Plaintiffs. Thereafter, Defendants filed the
present motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
II. DISCUSSION
A. Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if the plaintiff fails to state a claim upon which
relief can be granted. The moving party bears the burden of showing that no claim
has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In

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42 U.S.C. § 1983 confers this Court with federal jurisdiction over civil claims against persons who, under color of
law, deprive a citizen of rights, privileges, or immunities secured by the Constitution. See, e.g., Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d. Cir. 1995).
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Plaintiff’s Complaint incorrectly seeks relief under the VRA pursuant to 42 U.S.C. § 2000(d).

3

deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations
in the complaint as true and view them in the light most favorable to the plaintiff.
See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts,
Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
Although a complaint need not contain detailed factual allegations, “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiff’s right to relief
above a speculative level, such that it is “plausible on its face.” See id. at 570; see
also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim
has “facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 556). In considering a motion to dismiss, the court generally
relies on the complaint, attached exhibits, and matters of public record. Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007).

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B. The Voting Rights Act
The Voting Rights Act of 1965 (the “VRA”) 5 was enacted “to banish the
blight of racial discrimination in voting” in the United States. South Carolina v.
Katzenbach, 383 U.S. 301, 308 (1966). In Count Five, Plaintiffs allege that the
redistricting scheme adopted by the Commission violates of Sections 2 6 and 5 7 of
the VRA.
Section 5 of the VRA
As an initial matter, the Court notes that Section 5 of the VRA only applies
geographic regions where voting discrimination has been most flagrant, which are
referred to as “covered jurisdictions.” Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193, 197 (2009). Because Newark is not a “covered
jurisdiction,” Section 5 of the VRA is inapplicable in this matter. See Section 5
Covered Jurisdictions, United States Department of Justice, at
http://www.justice.gov/crt/about/vot/sec_5/covered.phps.
Section 2 of the VRA
Section 2, on the other hand, applies nationwide, and forbids any “standard,
practice, or procedure” that “results in a denial or abridgment of the right of any
citizen of the United States to vote on account of race or color.” 42 U.S.C. §
1973(a). Such rights are abridged if:
5

42 U.S.C. §§ 1971-1974(e).
42 U.S.C. § 1973.
7
42 U.S.C. § 1973c.
6

5

based on the totality of circumstances, it is shown that the political processes
leading to nomination or election . . . are not equally open to participation by
members of a class of citizens protected by [42 U.S.C. § 1973(a)] 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.
42 U.S.C.A. § 1973(b).

In this case, Plaintiffs claim that the redistricting plan adopted by the
Commission “segregated a racial minority into one particular ward, thereby
diluting the vote of this racial minority.” (Compl. ¶ 78.) As set forth by the
Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 49-51 (1986), to make out a
claim that a legislative districting scheme has diluted a minority group’s vote in
contravention of Section 2, a plaintiff must allege that: (1) a minority group “is
sufficiently large and geographically compact to constitute a majority in a single
member district”; (2) and is “politically cohesive,” i.e., that it votes as a racial bloc;
and (3) “that the white majority votes sufficiently as a bloc to enable it . . . to
defeat the minority’s preferred candidate.” Id.at 49-51. See also Bartlett v.
Strickland, 556 U.S. 1, 10-11 (2009); Page v. Bartels, 248 F.3d 175, 196 (3d Cir.
2001).
In this matter, Plaintiffs claim that under the challenged redistricting plan,
two primarily Latin American districts – Districts Central 16 and 19 –were moved
from the Central Ward to the West Ward, and that this has altered the racial make6

up of those two wards. However, there are no facts which suggest that the Latin
American population in Districts Central 16 and 19 is sufficiently large and
geographically compact to constitute a majority in a single member district, much
less that it is politically cohesive. Nor do Plaintiffs allege that a white voting bloc
exists in the West Ward. In short, under the standard set forth in Gingles, Plaintiffs
have failed to plead sufficient facts in support of their claim that the redistricting
scheme adopted by the Commission has diluted a minority’s vote in violation of
Section 2 of the VRA.
In light of the foregoing considerations, Defendants’ motion to dismiss
Count Five will be GRANTED.
C. Plaintiff’s Constitutional Claims
Plaintiffs further allege that the reapportionment scheme adopted by the
Commission violates the equal protection clause of the Fourteenth Amendment 8
(Count Six) as well as the Fifteenth Amendment 9 (Count Four). The Third
Circuit’s standard for establishing such violations is set forth in Page v. Bartels,
248 F.3d 175, (3d Cir. 2001). Specifically:
An apportionment scheme will be subject to strict scrutiny under the
Fourteenth Amendment's Equal Protection Clause if race is the
“predominant factor” in the drawing of district lines. Bush v. Vera, 517 U.S.
8

The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
9
The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S.
Const. amend. XV, § 1.

7

952, 959, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion); see
also Shaw v. Reno, 509 U.S. 630, 649, 113 S.Ct. 2816, 125 L.Ed.2d 511
(1993) (explaining that legislative districting schemes can violate the
Fourteenth Amendment’s Equal Protection Clause if they “cannot be
understood as anything other than an effort to separate voters . . . on the
basis of race”). Such a redistricting scheme may also violate the Fifteenth
Amendment, at least if done with the purpose of depriving a racial minority
group of the right to vote. See, e.g., City of Mobile v. Bolden, 446 U.S. 55,
62–63, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion); Gomillion
v. Lightfoot, 364 U.S. 339, 346, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (holding
that “when a legislature singles out a readily isolated segment of a racial
minority for special discriminatory treatment,” such as by reconfiguring city
boundaries so as to deprive African–American residents of the right to vote
in municipal elections, such action “violates the Fifteenth Amendment.”).
Page v Bartles, at 192-93.

In this case, Plaintiffs have indicated that Districts Central 16 and 19 are
predominantly Latin American. However, as pled, it is unclear what the racial
composition of any of Newark’s other districts is, nor are there any other facts in
the Complaint which suggest that the Commission considered the racial
composition of Districts Central 16 and 19 when it adopted the challenged ward
redistricting plan. In short, as pled, the Court cannot reasonably infer that when
the Commission adopted the redistricting plan, race was the predominant factor;
that the redistricting plan can only be understood as an effort by the Commission to
separate voters on the basis of race; or that the challenged plan was adopted with
the purpose of depriving a racial minority group of the right to vote. Thus,
Plaintiffs have failed to allege sufficient facts in support of their claim that the
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challenged redistricting plan violates the Fourteenth or Fifteenth Amendment.
Accordingly, Defendants’ motion to dismiss Counts Four and Six will be
GRANTED.
D. Plaintiffs’ State Law Claims
Plaintiffs also allege that the challenged redistricting plan violates New
Jersey’s Open Public Meeting and Civil Rights Acts. However, at this time, the
Court declines to exercise supplemental jurisdiction over these state law claims.
28 U.S.C. § 1367(c)(3) (“the district court[ ] may decline to exercise supplemental
jurisdiction [if] the district court has dismissed all claims over which it has original
jurisdiction.”). Accordingly, the Court will dismiss this matter in its entirety,
without prejudice.
III. CONCLUSION
For the reasons stated above, Defendants’ Rule 12(b)(6) motion is
GRANTED and Plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE.
An appropriate order follows.

/s/William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Date: November 28, 2012.

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