Ala. State Conference of the NAACP v. State

• Decision Date: 31 August 2017
• Docket Number: CASE NO. 2:16–CV–731–WKW
• Citation: 264 F.Supp.3d 1280
• Parties: ALABAMA STATE CONFERENCE OF the NAACP, et al., Plaintiffs, v. STATE of Alabama, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

264 F.Supp.3d 1280

ALABAMA STATE CONFERENCE OF the NAACP, et al., Plaintiffs,

v.STATE of Alabama, et al., Defendants.

CASE NO. 2:16–CV–731–WKW

United States District Court, M.D. Alabama, Northern Division.

Signed August 31, 2017

Anson Asaka, Bradford M. Berry, NAACP, Baltimore, MD, Brendan Barrett Downes, Dorian L. Spence, Ezra David Rosenberg, Jon Marshall Greenbaum, Lawyers' Committee for Civil Rights Under Law, Jerome P. DeSanto, Jr., Keith J. Harrison, Richard Edward Schwartz, Crowell & Moring LLP, Washington, DC, James Uriah Blacksher, Attorney at Law, Wilson Edward Still, Edward Still Law Firm LLC, Birmingham, AL, Jonathan Konig, Michael C. Keats, Richard Stone, Stroock & Stroock & Lavan LLP, New York, NY, Joseph Mitchell McGuire, McGuire & Associates LLC, Montgomery, AL, for Plaintiffs.

James William Davis, Misty Shawn Fairbanks Messick, State of Alabama Office of the Attorney General, Montgomery, AL, William G. Parker, Jr., Office of the Governor Alabama State Capitol, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION & FACTUAL BACKGROUND

The state of Alabama selects appellate judges using at-large elections. This means that every Alabamian eligible to vote can do so with respect to every seat on the state appellate courts, regardless of residence, as opposed to having their votes limited by geography—as is the case, for example, in the state's legislative elections. In Alabama, African–American voters make up about 26% of the population, yet they rarely are elected to any of the 19 Alabama appellate court seats. According to Plaintiffs' complaint, only two African–American candidates ever have won an at-large election in the state of Alabama, and both were first appointed by the Governor. No African–American candidate has won an at-large election without a preceding gubernatorial appointment. (Doc. # 1, at 7.)

Plaintiffs, the Alabama State Conference of the National Association for the Advancement of Colored People ("NAACP") and four black Alabama voters, claim this election practice unfairly dilutes the black vote, which has the effect of denying African–American voters an equal opportunity to participate in the political process, thereby violating Section 2 of the Voting Rights Act ("VRA"), 52 U.S.C. § 10301 ("Section 2"). They bring this claim for declaratory and injunctive relief, asking the court to strike down Alabama's at-large election system for appellate judges and order the state to implement a new election method consisting of single-member districts. Defendants, the State of Alabama and the Alabama Secretary of State John Merrill (in his official capacity), moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. # 17.) For the reasons set forth below, the motion is due to be denied.

II. JURISDICTION & VENUE

The court has subject-matter jurisdiction under 28 U.S.C. § 1331 because this action is brought under the VRA. The parties do not contest personal jurisdiction or venue.

III. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must include "enough facts to 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, 167 L.Ed.2d 929 (2007). 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 , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the standard does not require "detailed factual allegations," a complaint will not survive by tendering "naked assertion[s] devoid of further factual enhancement" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (quotation marks omitted). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.

IV. DISCUSSION

Section 2 of the VRA "outlaws election practices that result in racial discrimination."¹ Nipper v. Smith , 39 F.3d 1494, 1509–10 (11th Cir. 1994). One way an election practice may violate Section 2 is by diluting the vote of minority groups. See Thornburg v. Gingles , 478 U.S. 30, 48–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (discussing at length Section 2 claims based on vote dilution); see also Allen v. State Bd. of Elections , 393 U.S. 544, 569, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) ("The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot."). State judicial elections fall within the ambit of Section 2. Chisom v. Roemer , 501 U.S. 380, 404, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991).

To establish a vote dilution claim under Section 2, plaintiffs challenging an at-large election system on behalf of a protected class of citizens must show that (1) the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district," (2) the minority group is "politically cohesive," and (3) the majority group "votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Gingles , 478 U.S. at 49–51, 106 S.Ct. 2752. In the Eleventh Circuit, satisfaction of the first factor also requires showing "the existence of a proper remedy." Davis v. Chiles , 139 F.3d 1414, 1419 (11th Cir. 1998) (noting in footnote 14 that "[o]ur en banc court established this principle as part of our Section Two jurisprudence in our interpretation of the first Gingles factor in Nipper "); see Nipper , 39 F.3d at 1530–31 (holding that the first Gingles factor "dictates that the issue of remedy is part of the plaintiff's prima facie case in section 2 vote dilution cases").

The Gingles factors, however, represent only the preconditions for demonstrating vote dilution—they are "necessary, but not always sufficient, to establish a claim for relief." Nipper , 39 F.3d at 1512. The other half of the analysis is heavily dependent on the facts of the case. See Johnson v. De Grandy , 512 U.S. 997, 1020–21, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) ("No single statistic provides courts with a shortcut to determine whether [an election structure] unlawfully dilutes minority voting strength."); Nipper , 39 F.3d at 1498 (declaring that Section 2 vote dilution cases "are inherently fact-intensive"); id. at 1527 ("Courts evaluating vote dilution claims ... must consider all relevant evidence."). Once the factors are met, Section 2 demands the court inquire whether, "under the totality of the circumstances," the members of the minority group "possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters."² Id. at 1512 (quoting League of United Latin Am. Citizens, Council No. 4434 v. Clements , 999 F.2d 831, 849 (5th Cir. 1993) ); see also Chisom , 501 U.S. at 399, 111 S.Ct. 2354 (1991) (rejecting the argument that the word "representative" in Section 2 excluded elected judges). Such an inquiry necessitates a "comprehensive, not limited, canvassing of relevant facts." Johnson , 512 U.S. at 1011, 114 S.Ct. 2647.

Defendants' motion to dismiss attacks Plaintiffs' Section 2 claim on three fronts. First, Defendants argue Plaintiffs have failed to suggest a proper remedy for the alleged vote dilution. In so doing, they skip over the traditional Gingles factors and go straight to this circuit's remedy requirement, claiming that prior Eleventh Circuit case law forecloses subdistricting as a possible solution. Second, Defendants maintain that the totality of the circumstances approach set forth in Gingles compels this court to hold that the State's interest in maintaining its current electoral system outweighs whatever vote dilution Plaintiffs might prove. Third, Defendants contend that, even if Plaintiffs put forth a prima facie case of Section 2 vote dilution, their lack of standing and the state's sovereign immunity bar Plaintiffs' claims. The court addresses each of these arguments in turn.

A. Remedy

1. Plaintiffs must allege a facially plausible remedy.

Plaintiffs protest that at this stage they need only establish the three traditional Gingles factors, without any remedy averment. (Doc. # 34, at 7.) This is perhaps the case in other circuits, but not here. The Eleventh Circuit in Nipper explicitly held that "the issue of remedy is part of the plaintiff's prima facie case in section 2 vote dilution cases," 39 F.3d at 1530–31, and in the process of coming to that decision, it repeatedly emphasized the "threshold nature of the Gingles factors," id. at 1512 (referring eleven times to the " Gingles threshold factors"). It is impossible to reconcile this language with Plaintiffs' statement of the law, which would have the court ignore the remedy requirement until some later procedural moment. In defending a Section 2 claim against a motion to dismiss, Plaintiffs must allege a plausible remedy. However, the burden at this stage is far from onerous. In alleging a remedy capable of surviving a motion to dismiss, as with any other sort of allegation at this stage, Plaintiffs need only demonstrate facial plausibility. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

2. Subdistricting is a facially plausible remedy at this stage.

Defendants contend Plaintiffs have failed to plead a facially plausible remedy because binding Eleventh Circuit authority forecloses their suggested remedy—subdistricting—as a viable option. They point to four cases for this proposition: Nipper v. Smith , 39 F.3d 1494 (11th Cir. 1994) ; Southern Christian Leadership Conference of Alabama v. Sessions , 56 F.3d 1281 (11th Cir. 1995) (" SCLC "); White v. Alabama , 74 F.3d 1058 (...