League of Women Voters of Mich. v. Johnson

• Decision Date: 30 August 2018
• Docket Number: No. 18-1437,18-1437
• Citation: 902 F.3d 572
• Parties: LEAGUE OF WOMEN VOTERS OF MICHIGAN ; Roger J. Brdak; Frederick C. Durhal, Jr.; Jack E. Ellis; Donna E. Farris; William "Bill" J. Grasha; Rosa L. Holliday; Diana L. Ketola; Jon "Jack" G. LaSalle; Richard "Dick" W. Long; Lorenzo Rivera ; Rashida H. Tliab, Plaintiffs-Appellees, v. Ruth JOHNSON, in her official capacity as Michigan Secretary of State, Defendant, Jack Bergman; Bill Huizenga; John Moolenaar; Fred Upton; Tim Walberg ; Mike Bishop; Paul Mitchell; David Trott, Republican Congressional Delegation, Proposed Intervenors-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

902 F.3d 572

LEAGUE OF WOMEN VOTERS OF MICHIGAN ; Roger J. Brdak; Frederick C. Durhal, Jr.; Jack E. Ellis; Donna E. Farris; William "Bill" J. Grasha; Rosa L. Holliday; Diana L. Ketola; Jon "Jack" G. LaSalle; Richard "Dick" W. Long; Lorenzo Rivera ; Rashida H. Tliab, Plaintiffs-Appellees,
v.
Ruth JOHNSON, in her official capacity as Michigan Secretary of State, Defendant,

Jack Bergman; Bill Huizenga; John Moolenaar; Fred Upton; Tim Walberg ; Mike Bishop; Paul Mitchell; David Trott, Republican Congressional Delegation, Proposed Intervenors-Appellants.

No. 18-1437

United States Court of Appeals, Sixth Circuit.

Argued: August 1, 2018
Decided and Filed: August 30, 2018

ARGUED: Jason Brett Torchinsky, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY, Warrenton, Virginia, for Appellants. Ryan M. Hurley, FAEGRE BAKER DANIELS LLP, Indianapolis, Indiana, for Appellees. ON BRIEF: Jason Brett Torchinsky, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY, Warrenton, Virginia, Brian D. Shekell, CLARK HILL, Detroit, Michigan, for Appellants. Joseph H. Yeager, Harmony Mappes, Jeffrey P. Justman, Matthew K. Giffin, FAEGRE BAKER DANIELS LLP, Indianapolis, Indiana, Mark Brewer, GOODMAN ACKER P.C., Southfield, Michigan, for Appellees.

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

SILER J., delivered the opinion of the court in which GRIFFIN, J., joined. MOORE, J. (pp. 580-84), delivered a separate dissenting opinion.

SILER, Circuit Judge.

In this suit, Democratic voters from Michigan and a nonpartisan voting-rights organization allege that the state’s congressional and legislative districts are unconstitutionally gerrymandered in favor of Republicans. Eight Republican Congressmen from Michigan moved to intervene, seeking to defend the lawfulness of the state’s apportionment schemes. The three-judge district court panel denied the Congressmen’s motion, finding they were not entitled to intervene as a matter of right (under Rule 24(a) ) or with the court’s permission (under Rule 24(b) ). Because the district court abused its discretion by denying permissive intervention, we REVERSE and REMAND.

I.

Following the 2010 census, Michigan’s Republican-controlled government created and enacted new legislative and congressional districting plans. Plaintiffs allege the district maps violate the Equal Protection Clause by diluting the voting power of Democratic voters in Michigan. Specifically, they claim the district lines "pack" some Democratic voters "into a few supermajority districts" and "crack[ ]" other Democratic voters "into a large number of districts where [Republicans] can command a safe but more modest majority of the vote." The result, Plaintiffs say, is a scheme that "destroys fair and effective representation, minimizing [Democratic] voters’ ability to influence elections and to have a fair chance to affect the political process." Plaintiffs also claim the apportionment plan "violates the First Amendment because it intentionally diminishes

902 F.3d 576

and marginalizes the votes of [Democrats] ... based on party affiliation." If left unchanged, the current maps will remain in effect through 2020.

Plaintiffs brought suit in December 2017 against the Michigan Secretary of State, Ruth Johnson, "the ‘chief election officer’ ... responsible for the conduct of Michigan elections." They ask the three-judge district court to declare the current district maps unconstitutional and to enjoin Johnson from allowing any state or federal representatives to be elected or nominated based on those maps in the 2020 election cycle.

In January 2018, Johnson moved to dismiss the suit for lack of standing. She also asked the district court to stay the case pending the Supreme Court’s decision in two then-pending redistricting cases, Gill v. Whitford , ––– U.S. ––––, 138 S.Ct. 1916, 201 L.Ed.2d 313 (2018), and Benisek v. Lamone , ––– U.S. ––––, 138 S.Ct. 1942, 201 L.Ed.2d 398 (2018).

In February, while the district court’s decision on Johnson’s motion was pending, eight Republican Congressional representatives from Michigan moved to intervene. The Congressmen pursued both intervention of right under Federal Rule of Civil Procedure 24(a) and permissive intervention under Rule 24(b). They argued that they stood "to be irrevocably harmed by any redrawing of congressional districts" and asserted that none of the original parties to the action adequately represented their interests. Attached to the Congressmen’s motion to intervene were two proposed motions, one to dismiss and one to stay. Johnson supported the Congressmen’s motion to intervene, but Plaintiffs did not.

In March, while the Congressmen’s motion to intervene was being briefed, the district court denied Johnson’s motion to stay. Recognizing that "[v]oting rights litigation is notoriously protracted" and that a remedial plan would have to be in place by March 2020 if Plaintiffs succeeded, the court found there was "a fair possibility that a stay would prejudice Plaintiffs as well as the public interest."

In April, the district court denied the Congressmen’s motion to intervene. As to intervention of right, the district court found that the Congressmen’s asserted interests—protecting their relationships with constituents and avoiding spending money to learn about new districts—were "not materially distinguishable from the generalized interest shared by all citizens." The court held that the Congressmen’s "legitimate, generalized interest in this litigation will be adequately represented by [Johnson’s] interest in protecting the current apportionment plan and other governmental actions from charges of unconstitutionality." As to permissive intervention, the court found that "the complex issues raised by the parties, the need for expeditious resolution of the case, and the massive number of citizens who share the [Congressmen’s] interest" weighed against intervention because "granting the [Congressmen’s] motion to intervene could create a significant likelihood of undue delay and prejudice to the original parties." This interlocutory appeal followed.

II.

As a threshold matter, we have jurisdiction to entertain the Congressmen’s appeal. Ordinarily, "an order completely denying intervention is immediately reviewable by way of an interlocutory appeal." Sales v. Marshall , 873 F.2d 115, 120 (6th Cir. 1989). Of course, this is no ordinary case; because Plaintiffs’ action "challeng[es] the constitutionality of the apportionment of congressional districts," this appeal comes to us from a three-judge

902 F.3d 577

district court panel. 28 U.S.C. § 2284(a). In such cases, the parties "may appeal to the Supreme Court from an order granting or denying ... an interlocutory or permanent injunction." 28 U.S.C. § 1253. The Supreme Court interprets § 1253 to extend to orders that have "the ‘practical effect’ of granting or denying an injunction." Abbott v. Perez , ––– U.S. ––––, 138 S.Ct. 2305, 2319, 201 L.Ed.2d 714 (2018).

The order from which the Congressmen appeal does not have such an effect. The district court barred the Congressmen from defending Michigan’s current apportionment plans; it did not rule upon the Plaintiffs’ constitutional challenge to the merits of those plans. That challenge is still ongoing below, and Plaintiffs’ request for injunctive relief remains pending. Therefore, § 1253 does not deprive us of jurisdiction. Cf. Hays v. Louisiana , 18 F.3d 1319, 1321 (5th Cir. 1994) (appeal of three-judge district court’s denial of intervention "very likely was properly before" the Fifth Circuit before the court ruled on the merits).

III.

Here, as below, the Congressmen claim they are entitled to both intervention of right and permissive intervention. Because the Congressmen are entitled to permissive intervention, we address only those arguments.

Federal Rule of Civil Procedure 24(b)(1) provides that, "On timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact." In deciding whether to allow a party to intervene, "the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights." Fed. R. Civ. P. 24(b)(3). "So long as the motion for intervention is timely and there is at least one common question of law or fact, the balancing of undue delay, prejudice to the original parties, and any other relevant factors is reviewed for an abuse of discretion." Mich. State AFL-CIO v. Miller , 103 F.3d 1240, 1248 (6th Cir. 1997).

The parties agree the Congressmen’s motion to intervene was timely. Further, the Congressmen’s motion made clear that they intended to raise common questions of law and fact. In their proposed motion to dismiss, the Congressmen argued (among other things) that Plaintiffs lacked standing to challenge Michigan’s districting plans. This was the same argument that Johnson had previously raised in her own motion to dismiss. So the only remaining question is whether the district court abused its discretion in finding that the Congressmen’s intervention "could create a significant likelihood of undue delay and prejudice to the original parties."

It did. At the outset, "[t]hough the district court operates within a ‘zone of discretion’ when deciding whether to allow intervention under Rule 24(b), the district...