Goldman v. Northam
| Decision Date | 12 October 2021 |
| Docket Number | CIVIL 3:21-cv-420 (DJN) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | PAUL GOLDMAN, Pro se Plaintiff, v. RALPH NORTHAM, et ai, Defendants. |
Pro se Plaintiff Paul Goldman ("Plaintiff') brings this action against Defendants Ralph Northam ("Governor Northam"), the Virginia State Board of Elections ("the Board"), Robert Brink ("Brink") John O'Bannon ("O'Bannon"), Jamilah D LeCruise ("LeCruise") and Christopher Piper ("Piper") (collectively, "Defendants") alleging violations of Article II, §§ 6 and 6-A of the Constitution of Virginia and of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This matter now comes before the Court on Defendants' Motion to Dismiss the Second Amended Complaint (ECF No. 23). For the reasons set forth below, the Court hereby GRANTS IN PART and DENIES IN PART the Motion to Dismiss.[1]
A motion made pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the court's jurisdiction over the subject matter of the complaint. A defendant moving for dismissal for lack of subject matter jurisdiction may either attack the complaint on its face, asserting that the complaint "fails to allege facts upon which subject matter jurisdiction can be based," or, as here, may attack "the existence of subject matter jurisdiction in fact, quite apart from any pleadings." White v. CMA Const Co., Inc., 947 F.Supp. 231, 233 (E.D. Va. 1996) (internal citations omitted). When deciding a Rule 12(b)(1) motion to dismiss, a federal court may resolve factual questions to determine whether it has subject matter jurisdiction. Thigpen v. United States, 800 F.2d 393, 396 (4th Cir.1986), overruled on other grounds, Sheridan v. United States, 487 U.S. 392(1988).
As explained below, the parties dispute whether Defendants have the power to set an election or establish legislative district lines. The resolution of that dispute determines whether Plaintiff has named the correct defendants in the Second Amended Complaint. As such, the Court accepts the factual allegations of the Second Amended Complaint as true, except to the extent that they relate to Defendants with regard to these responsibilities.
Article II, §§ 6 and 6-A of the Constitution of Virginia require the Virginia Redistricting Commission ("the Commission") to redraw the electoral districts for the state House of Delegates for the November 2, 2021 election using the population data from the 2020 U.S. Census. (2d Am. Compl. ¶¶ 78, 82.) According to the Commission's website, the new electoral districts for the House of Delegates will come into effect in time for the election. (2d Am. Compl. ¶ 82.) However, the Commonwealth of Virginia allegedly intends to hold the upcoming election using a House of Delegates district apportionment plan enacted during the 2011 Special Legislative Session. (2d Am. Compl. ¶ 68.) The Virginia General Assembly ("the General Assembly") based this plan on the 2010 Census data, and then-Governor Bob McDonnell signed the plan into law in April 2011. (2d Am. Compl. ¶ 69.) The General Assembly adjusted this plan's congressional districts after a legal challenge several years later. (2d Am. Compl. ¶¶ 75-77 (citing Bethune-Hill v. Va State Bd. of Elecs., 137 S.Ct. 786 (2017).)
Pro se Plaintiff Paul Goldman ("Plaintiff) resides in Richmond, Virginia. (2d Am. Compl. ¶ 55.) He alleges that he is a "qualified voter" in House of Delegates District 68, and he "is contemplating ... run[ing] for the House of Delegates in a constitutionally drawn 68th district (or whatever the district... wherein he would reside)." (2d Am. Compl. ¶¶ 57-58.) Plaintiff identifies as defendants Governor Northam, the Board, Brink, O'Bannon, LeCruise and Piper. (2d Am. Compl. at 1.) Plaintiff sues Governor Northam, Brink, O'Bannon, LeCruise and Piper in their official capacities. (2d Am. Compl. at 1.)
Governor Northam serves as the Governor of Virginia. (2d Am. Compl. ¶ 60.) The Board has its headquarters in Virginia and exists to ensure "legality and purity in all elections" and to "ensure that major risks to election integrity are ... addressed as necessary to promote election uniformity, legality and purity." (2d Am. Compl. ¶ 66 Brink, O'Bannon and LeCruise ("the Board members") serve as the Chair, Vice Chair and Secretary of the Board, respectively.[2] (2d Am. Compl. ¶¶ 62-64.) Piper serves as the Commissioner of the Virginia Department of Elections.[3] (2d Am. Compl. ¶ 65.) The Virginia Department of Elections - which Plaintiff has not named as a defendant - functions as the Board's "operational arm" and carries out its duties. (2d Am. Compl. ¶ 67.) Governor Northam, Brink, O'Bannon, LeCruise and Piper have their offices in Richmond, Virginia, and citizenship in Virginia. (2d Am. Compl. ¶¶ 60, 62-65.)
Plaintiff attached to his Complaint spreadsheets that he received from the Commission showing the current total population in the state House of Delegates, state Senate and congressional districts based on the results of the 2020 Census. ( According to that data, House of Delegates District 68, where Plaintiff currently resides, has a population of 85, 223 people.[4] (2d Am. Compl. ¶ 58.) This district has a population 19.8% larger than that of House of Delegates District 3, which has a population of 71, 122. (2d Am. Compl.
Ex. 1. at 3-4.) Plaintiff alleges that, because of this deviation, holding the 2021 House of Delegates election using the current electoral maps violates both the state and federal constitutions. (2d Am. Compl. ¶¶ 121-43.) In Count One, Plaintiff alleges a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.[5] (2d Am. Compl. ¶¶ 121-34.) In Count Two, Plaintiff alleges a violation of Article II, §§ 6 and 6-A of the Constitution of Virginia. (2d Am. Compl. ¶¶ 135-43.)
Based on these claims, Plaintiff requests that the Court declare that Defendants violated the Constitution of Virginia by choosing to conduct the 2021 general election using an old legislative district map based on stale Census data, and declare that those who win election to the House of Delegates serve one-year terms. (2d Am. Compl. at 13.) Additionally, Plaintiff asks the Court to order Defendants to hold new elections for the House of Delegates on the date of the November 2022 general election using a reapportionment plan based on the 2020 Census data. (2d Am. Compl. at 13.) Finally, Plaintiff requests that the Court order any other required relief, including reimbursement of costs, attorney's fees and other appropriate measures. (2d Am. Compl. at 13.)
Plaintiff grounds his claim for relief primarily on Cosner v. Dalton. (2d Am. Compl. ¶¶ 2, 9, 17-35 (citing 522 F.Supp. 350 (E.D. Va. 1981).) That case included several consolidated cases in which counties, organizations and individuals challenged the constitutionality of the House of Delegates reapportionment plan that the Virginia General Assembly enacted in 1981. Cosner, 522 F.Supp. at 353. The plaintiffs brought suit against various state election officials, including the Governor of Virginia, the Chairman of the Board and other members of the Board. Id. at 350. They argued - among other claims - that the reapportionment plan violated the Equal Protection Clause of the Fourteenth Amendment, "because it [did] not provide for substantial population equality in electoral districts," and Article II, § 6 of the Virginia Constitution, which required districts to "be composed of contiguous and compact territory and ... give ... representation in proportion to the population of the district." Id. at 353-54. They sought several forms of relief, including a declaration of the reapportionment plan as unconstitutional, an injunction prohibiting the Board from conducting the 1981 House of Delegates elections using that map and an order requiring the Board to conduct the election using the 1971 apportionment act. Id. at 354.
A three-judge panel in the United States District Court for the Eastern District of Virginia found that the 1981 reapportionment plan violated the Equal Protection Clause under Reynolds v. Sims, which required states to "make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable." Id. at 356 (quoting Reynolds v. Sims, 377 U.S. 533, 577 (1964)). While the Supreme Court permitted "some deviation from strict numerical equality," the court reasoned that the deviations between the House of Delegates districts' populations exceeded constitutional limits, and the reasons that the defendants provided for these deviations did not pass constitutional muster. Id. at 357-61.
The court considered a myriad of possible solutions to this problem, noting that "[a]ny remedy must... be considered in light of the imminence of the 1981 elections." Id. at 363. The court issued its decision on August 25, 1981, just a few weeks before the primary election on September 8, 1981, and the general election on November 3, 1981. Id. The court decided not to devise its own reapportionment or have the General Assembly create a new plan before the 1981 elections. Id. Rather, it directed the defendants to hold the 1981 elections using the contested maps and gave the General Assembly until February 1982 to craft and implement constitutional maps. Id. at 364. If the General Assembly did not complete new, constitutional maps by that deadline, the court would consider drawing its own legislative maps and retained jurisdiction for that purpose. Id. The court also limited the terms of those elected to the...
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