Ala. State Conference of the Nat'l Ass'n v. Alabama, No. 17-14443

• Citation: 949 F.3d 647
• Decision Date: 03 February 2020
• Docket Number: No. 17-14443
• Parties: ALABAMA STATE CONFERENCE OF the NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Sherman Norfleet, Clarence Muhammad, Curtis Travis, John Harris, Plaintiffs-Appellees, v. State of ALABAMA, Secretary of State for the State of Alabama, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

949 F.3d 647

ALABAMA STATE CONFERENCE OF the NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Sherman Norfleet, Clarence Muhammad, Curtis Travis, John Harris, Plaintiffs-Appellees,

v.State of ALABAMA, Secretary of State for the State of Alabama, Defendants-Appellants.

No. 17-14443

United States Court of Appeals, Eleventh Circuit.

February 3, 2020

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

James W. Davis, Edmund Gerard LaCour, Jr., Misty Shawn Fairbanks Messick, Alabama Attorney General's Office, Montgomery, AL, for Defendants-Appellants.

Cara McClellan, Deuel Ross, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Amici Curiae NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., CAMPAIGN LEGAL CENTER, LATINOJUSTICE PRLDEF, INC., ASIAN AMERICAN LEGAL DEFENSE & EDUCATION FUND.

Before WILSON and BRANCH, Circuit Judges, and VINSON,^* District Judge.

WILSON, Circuit Judge:

The Voting Rights Act (VRA) is widely considered to be among the most effective civil rights statutes ever passed by Congress.¹ Its success is largely due to the work of private litigants. For more than fifty years, private parties have sued states and localities under the VRA to enforce the substantive guarantees of the Civil War Amendments. Today, private parties remain the primary enforcers of § 2 of the VRA,² which prohibits states from imposing election practices that result in racial discrimination. In this appeal, Alabama argues that states are immune from these suits. The district court—like every circuit to decide this question—rejected that argument, holding that Congress abrogated state sovereign immunity in the VRA. After careful review of the statutory text, and with the benefit of oral argument, we affirm.

I.

We review issues of federal subject matter jurisdiction and sovereign immunity de novo. Summit Med. Assocs., P.C. v. Pryor , 180 F.3d 1326, 1333–34 (11th Cir. 1999). A district court’s denial of a motion to dismiss on sovereign immunity grounds is immediately appealable. Id . at 1334. We therefore have jurisdiction to resolve Alabama’s sovereign immunity claim in this interlocutory appeal.³

The Eleventh Amendment, as interpreted by the Supreme Court, generally prohibits suits against a state by its own citizens in federal court. See Hans v. Louisiana , 134 U.S. 1, 10–15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). But state sovereign immunity is not absolute. In Fitzpatrick v. Bitzer , 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Supreme Court explained that Congress can abrogate state sovereign immunity pursuant to its Fourteenth Amendment enforcement powers to redress discriminatory state action. Recognizing that the Civil War Amendments intentionally changed the balance of power between the federal government and the States, the Court affirmed that those amendments permitted Congress to intrude "into the judicial, executive, and legislative spheres of autonomy previously reserved to the States." Id. at 455, 96 S.Ct. 2666.

To determine whether Congress abrogated state sovereign immunity, we ask whether Congress (1) expressed its unequivocal intent to do so and (2) acted "pursuant to a valid grant of constitutional authority." Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (internal quotation marks omitted).

II.

Under the first prong, Congress must make its intention to abrogate sovereign immunity "unmistakably clear in the language of the statute." Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). The expression of Congress’s intent must be textual; legislative history is not proper evidence of abrogation. Dellmuth v. Muth , 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989). But an express abrogation clause is not required. Instead, a court may look to the entire statute, and its amendments, to determine whether Congress clearly abrogated sovereign immunity. See Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 76, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ("[O]ur cases have never required that Congress make its clear statement in a single section or in statutory provisions enacted at the same time."); Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (reading the Indian Gaming Regulatory Act (IGRA) as a whole and concluding that Congress’s intent to abrogate was unmistakably clear, although ultimately holding that Congress had not acted pursuant to a valid grant of authority).

The Supreme Court’s cases addressing abrogation are instructive here. In Atascadero , the Court held that the Rehabilitation Act of 1973—which provided remedies against "any recipient of Federal assistance" but did not explicitly refer to the States—contained only a general authorization for suit in federal court and was "not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." 473 U.S. at 245–46, 105 S.Ct. 3142. The Court concluded that, given the States’ unique constitutional role, "[w]hen Congress chooses to subject the States to federal jurisdiction, it must do so specifically ." Id. at 246, 105 S.Ct. 3142 (emphasis added). Likewise, in Welch v. Texas , the Court held that the Jones Act, which extended remedies to "any seaman who shall suffer personal injury in the course of his employment," contained only a general authorization for suit and lacked an expression of congressional intent to abrogate sovereign immunity. 483 U.S. 468, 475–76, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (alteration accepted) (emphasis omitted).

Similarly, the Court in Dellmuth acknowledged that the references to the States in the Education of the Handicapped Act (EHA) made them "logical defendants" under the Act, but held that such a "permissible inference" did not amount to an unequivocal declaration abrogating sovereign immunity. 491 U.S. at 232, 109 S.Ct. 2397. In particular, the Court explained that the EHA’s judicial review provision allowed aggrieved parties to "bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States," but did not indicate that the States were subject to suit. Id. at 228, 231, 109 S.Ct. 2397.

In contrast, the Court in Kimel held that the Age Discrimination in Employment Act (ADEA) made Congress’s intent to abrogate state sovereign immunity unmistakably clear. 528 U.S. at 67–68, 120 S.Ct. 631. The Court relied on the ADEA’s language that an individual may bring a civil action "against any employer (including a public agency)" and that a "public agency" includes "the government of a State or political subdivision thereof." Id. ; see also Nev. Dep’t of Human Res. v. Hibbs , 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (holding that Congress made clear its intent to abrogate sovereign immunity in the Family Medical Leave Act (FMLA) by using similar language).

And, finally, in Seminole Tribe , the Court held that Congress clearly expressed its intent to abrogate state sovereign immunity in the IGRA. 517 U.S. at 57, 116 S.Ct. 1114. The Court noted that the IGRA gives the United States district courts "jurisdiction over ... any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe" and provides a detailed remedial scheme for such a failure. Id. at 49–50, 116 S.Ct. 1114. For example, the IGRA states that the burden of proof shifts to the State if a suing tribe meets its burden of proof, and it provides guidance for the State and the tribe to submit claims to mediation if a compact cannot be reached. Id. at 50, 116 S.Ct. 1114. Thus, the Court concluded that "the numerous references to the ‘State’ in the text of the [IGRA] ma[d]e it indubitable that Congress intended ... to abrogate the States’ sovereign immunity from suit." Id. at 57, 116 S.Ct. 1114.

With that background, we turn to the text of the VRA. Section 2 of the VRA, as amended over the years, prohibits "any State or political subdivision" from imposing any "voting qualification or prerequisite to voting or standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race." 52 U.S.C. § 10301(a). Section 3 of the VRA provides the general enforcement mechanisms of the Act. See 52 U.S.C. § 10302. Originally, § 3 gave enforcement authority only to the Attorney General of the United States. Shortly after it was passed, the Supreme Court recognized an implied private right of action in the VRA consistent with the purposes of the Act. See Allen v. State Bd. of Elections , 393 U.S. 544, 549, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Congress then amended § 3 in 1975 to make what was once implied now explicit: private parties can sue to enforce the VRA. Section 3, entitled "Proceeding to enforce the right to vote," now sets forth the appropriate judicial procedures for whenever "the Attorney General or an aggrieved person " institutes a proceeding "to enforce the voting guarantees of the [F]ourteenth and [F]ifteenth [A]mendment in any State or political subdivision." 52 U.S.C. § 10302(a), (b), and (c).

Against this backdrop, both the Fifth and Sixth Circuits—the only other circuits that have considered this issue—held that Congress validly...