Kalson v. Paterson, Docket No. 07-1243-cv.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 542 F.3d 281
• Docket Number: Docket No. 07-1243-cv.
• Parties: Michael KALSON, Plaintiff-Appellant, v. David A. PATERSON in his official capacity as the Governor of State of New York;<SMALL><SUP>1</SUP></SMALL> James A. Walsh, Douglas A. Kellner, Evelyn J. Aquila, and, Gregory P. Peterson, in their official capacities as Commissioners of the New York State Board of Elections,<SMALL><SUP>2</SUP></SMALL> Defendants-Appellees.
• Decision Date: 09 September 2008

542 F.3d 281 Michael KALSON, Plaintiff-Appellant,
v.
David A. PATERSON in his official capacity as the Governor of State of New York;¹ James A. Walsh, Douglas A. Kellner, Evelyn J. Aquila, and, Gregory P. Peterson, in their official capacities as Commissioners of the

[542 F.3d 282]

New York State Board of Elections,² Defendants-Appellees. Docket No. 07-1243-cv. United States Court of Appeals, Second Circuit. Argued: July 16, 2008. Decided: September 9, 2008.

[542 F.3d 283]

Todd C. Bank, Kew Gardens, NY, for Petitioner-Appellant.

Michelle Aronowitz, Deputy Solicitor General (Barbara D. Underwood, Solicitor General, and Richard Dearing, Assistant Solicitor General, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY.

Before: CALABRESI and B.D. PARKER, Circuit Judges, GOLDBERG, Judge of the Court of International Trade, sitting by designation.

CALABRESI, Circuit Judge:

I. Introduction

Article I of the U.S. Constitution establishes "the principle of a House of Representatives elected `by the People,' a principle tenaciously fought for ... at the Constitutional Convention." Wesberry v. Sanders, 376 U.S. 1, 8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). There is, however, "no `We the People' independent of the way the law constructs democracy." Samuel Issacharoff, Pamela S. Karlan, & Richard H. Pildes, The Law of Democracy 2 (2d ed.2002). Legislatures and courts have therefore long struggled to implement and preserve this foundational principle of democratic government.

One of the most challenging struggles has been to interpret the constitutional requirements for apportioning congressional districts. After all, "groups of voters elect representatives, individual voters do not." Davis v. Bandemer, 478 U.S. 109, 167, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part). Beginning in 1964 with Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, the Supreme Court has sought to elucidate the constitutional requirements for apportioning congressional representation. Over the course of several decades, one clear principle has emerged: congressional districts within a state must have the same population.³ See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004); Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983).⁴

The Supreme Court, however, has never precisely defined what is the relevant "population" for the purposes of apportioning

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congressional representation. And, behind this case there lies a theoretically difficult question, whether congressional districts must be of the same total population — the number of residents within each district — or some different population that represents the number of votes cast in each district. Put differently, this is a choice between two conceptions of democratic equality, "electoral equality" and "equal representation."⁵

This question, however, comes to us clothed in a peculiar procedural posture and pled in such a way as to make the claim clearly without merit. For the reasons discussed below, we therefore affirm.

II. Factual and Procedural Background

New York State last redrew its congressional districts in 2002. See New York

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State Law § 111. Based on the 2000 Census, each district had the same total population of 654,360.⁶ But, although all congressional districts in New York State have the same census data population,⁷ the voting age populations vary widely from district to district.

Plaintiff, Michael Kalson, is a registered voter in the Fifteenth Congressional District in New York. Based on the 2000 Census, Mr. Kalson's congressional district has a population of 654,361. Of these 654,361 people, 497,192 are 18 years or older (of voting age). Plaintiff is challenging any congressional district apportionment based on total population, arguing that such districts should instead be apportioned on the basis of voting-age population. He contends that his vote, cast in a district with 497,192 voting-age residents, counts for less than the votes of people in districts with fewer voting-age residents,⁸ and that this dilution denies him his right to an equally weighted vote.

Mr. Kalson sued the Governor of New York and New York election officials for injunctive relief, asserting that the difference in voting-age population between congressional districts violates Article I, § 2 of the United States Constitution. Plaintiff's claim relies primarily on dicta from Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481. In Wesberry, the Court stated that "construed in its historical context," id. at 7, 84 S.Ct. 526, Article I, § 2 requires that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's," id. at 8, 84 S.Ct. 526. From this, Plaintiff derives the principle of electoral equality, which he claims is the constitutionally governing one. Significantly, however, he does not in his complaint plead that districts must be comprised of the same number of actual voters or of eligible voters; he asserts only that they must have the same voting-age population.

Defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). In their memorandum of law supporting the motion for judgment, Defendants noted that although Plaintiff did not request a three-judge panel, 28 U.S.C. § 2284(a) normally requires that a three-judge panel adjudicate challenges to the constitutionality of congressional districts.

The District Court did not convene a three-judge panel but rather granted Defendants' motion and entered judgment for them. The court found "no basis in the case law" for the claim that Article I, § 2 requires districts of equal voting-age population and therefore reasoned that Plaintiff failed to state "a substantial Constitutional claim."

Plaintiff appealed. The appeal challenges only the merits of the District Court's ruling. In supplemental letter briefing filed at our request, however, Plaintiff also argued that under 28 U.S.C. § 2284, a three-judge panel should have been convened to rule on his claim and that, as a result, the judgment on the pleadings must be vacated for lack of jurisdiction in the court below.

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III. Discussion

A. Jurisdiction

Federal law requires that when "an action is filed challenging the constitutionality of the apportionment of congressional districts," "[a] district court of three judges shall be convened." 28 U.S.C. § 2284(a) (emphasis added). In ordinary circumstances, a single district court judge cannot adjudicate a case on the merits that is required to be heard by a three-judge court. 28 U.S.C. § 2284(b)(3). Under at least the predecessor version of the three-judge requirement, a single trial judge could decide such a case only on technical or jurisdictional grounds, such as a lack of standing or nonjusticiability. See McLucas v. De Champlain, 421 U.S. 21, 28, 95 S.Ct. 1365, 43 L.Ed.2d 699 (1975). When a single district court judge improperly adjudicates a case required to be heard by a three-judge court, a court of appeals normally lacks jurisdiction over the merits and is limited to deciding whether the district court erred by not referring the case to a three-judge court. See McLucas, 421 U.S. at 27-29, 95 S.Ct. 1365; Goosby v. Osser, 409 U.S. 512, 522-23, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Stratton v. St. Louis Southwestern Ry. Co., 282 U.S. 10, 15-16, 51 S.Ct. 8, 75 L.Ed. 135 (1930).⁹ We therefore must first determine whether we have jurisdiction to do more than vacate the judgment below and to remand the district court to convene a three-judge court.¹⁰

At argument, Defendants-Appellees contended that the three-judge requirement is no longer a jurisdictional one. They concede that an earlier statute made the requirement jurisdictional but claim that the relevant statutory provisions were amended in 1976 and thereafter became "mandatory" but not jurisdictional. They therefore assert that while a district court must convene a three-judge court at the request of any party, the District Court here did not err by adjudicating the case on its own given that no party sought a three-judge court. If that is so, we, as an appellate court, have jurisdiction to treat this case like any other appeal and consider its merits.

The defendants' position finds some support in the structure and language of 28 U.S.C. § 2284. The procedural portion of the statute, 28 U.S.C. § 2284(b), states only that "[u]pon the filing of a request for three judges" a panel must be convened. The section does not describe any procedure absent the filing of a request for three judges, thus suggesting that without such a request, a single judge might be empowered to adjudicate the case.¹¹

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We nevertheless hold that the three-judge requirement in 28 U.S.C. § 2284 is jurisdictional. The text of 28 U.S.C. § 2284 uses typically jurisdictional language. Thus, 28 U.S.C. § 2284(a) states that a three-judge court "shall" be convened, a word that generally connotes a rule that it is both mandatory and jurisdictional. And on that basis, the only Circuit we believe to rule on the issue found the requirement to be jurisdictional. See Armour v. Ohio, 925 F.2d 987, 989 (6th Cir.1991) (en banc).

There is, moreover, no reason to think that when in 1976 Congress amended the three-judge statute, it intended to make this imperative nonjurisdictional. In 1976, Congress vastly reduced the category of cases for which a three-judge court is mandated. In doing so, Congress gave no indication that it intended to alter the three-judge requirement, other than to reduce the category of cases in which it applied. Indeed, the Senate report stated that "the other powers here given the single judge, or expressly denied him, are similar to those stated in" the predecessor version of § 2284. S.Rep. No. 94-204, at 13 (1975). U.S.Code Cong...