Tigrett v. Cooper

• Citation: 855 F.Supp.2d 733
• Decision Date: 02 March 2012
• Docket Number: No. 10–2724–STA–tmp.,10–2724–STA–tmp.
• Parties: Harrison Kerr TIGRETT, Maxine Smith, Russell Sugarmon, Regina M. Sugarmon, James Wesley Gibson II, Kathy Buckman Gibson, Mike Carpenter, and Martavious Jones, Plaintiffs, v. Robert E. COOPER, Jr., in his Official Capacity as Attorney General of the State of Tennessee, Tre Hargett, in his Official Capacity as Secretary of State of the State of Tennessee, Tennessee Department of State: Division of Elections, Shelby County Election Commission, William Giannini, Myra Stiles, J.H. Johnson, Robert D. Meyers, and Steve Stamson, in their official capacities as members of the Shelby County Election Commission, Defendants.
• Court: United States District Courts. 6th Circuit. Western District of Tennessee

855 F.Supp.2d 733

Harrison Kerr TIGRETT, Maxine Smith, Russell Sugarmon, Regina M. Sugarmon, James Wesley Gibson II, Kathy Buckman Gibson, Mike Carpenter, and Martavious Jones, Plaintiffs,

v.Robert E. COOPER, Jr., in his Official Capacity as Attorney General of the State of Tennessee, Tre Hargett, in his Official Capacity as Secretary of State of the State of Tennessee, Tennessee Department of State: Division of Elections, Shelby County Election Commission, William Giannini, Myra Stiles, J.H. Johnson, Robert D. Meyers, and Steve Stamson, in their official capacities as members of the Shelby County Election Commission, Defendants.

No. 10–2724–STA–tmp.

United States District Court,

W.D. Tennessee,

Western Division.

March 2, 2012.

Leo Maurice Bearman, Jr., Gabriel Paul Eaton McGaha, Katherine Murphy Bogard, Lori Hackleman Patterson, Baker Donelson Bearman Caldwell & Berkowitz, Memphis, TN, J. Houston Gordon, Law Offices of J. Houston Gordon, Covington, TN, for Plaintiffs.

Janet M. Kleinfelter, Office of Attorney General, Nashville, TN, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

S. THOMAS ANDERSON, District Judge.

Before the Court is Defendants' Motion to Dismiss (D.E. # 56), filed on June 24, 2011. Plaintiffs filed a Response on August 8, 2011 (D.E. # 63), and Defendants filed a Reply on August 24, 2011 (D.E. # 64). For the following reasons, Defendants' Motion is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

This action challenges the validity of Tennessee constitution art. XI, § 9 and Tenn.Code Ann. § 7–2–106, which govern procedures for the consolidation of city and county governments into one metropolitan government. Plaintiffs filed their Complaint for declaratory, preliminary, and injunctive relief on October 7, 2010. (D.E. # 1.) The Court granted a preliminary injunction enjoining Defendants from certifying the results of a referendum vote on a proposed charter for the Memphis Shelby County Metropolitan Government. (D.E. # 27.) Defendants then moved to dismiss on mootness grounds, as the vote in the non-Memphis population of Shelby County and the combined vote of Memphis and non-Memphis residents rejected the proposal in the November 2, 2010, referendum vote. (D.E. # 31.) The Court denied Defendant's Motion to Dismiss under the “capable of repetition yet evading review” exception to the mootness doctrine. (D.E. # 38.)

Next, the Town of Arlington (“Arlington”) filed a Motion to Intervene (D.E. # 42) on March 29, 2011. The City of Bartlett (“Bartlett”), the Town of Collierville (“Collierville”), the City of Germantown (“Germantown”), and the City of Millington (“Millington”) filed their own Motion to Intervene (D.E. # 53) on June 6, 2011.¹ The Court denied those Motions on October 21, 2011, 2011 WL 5025491. (D.E. # 68.) Arlington, Bartlett, Collierville, and Germantown filed a Motion to Reconsider this ruling on November 18, 2011 (D.E. # 71), and that Motion remains pending before the Court. Defendants filed the Motion to Dismiss currently before the Court on June 24, 2011. (D.E. # 56.)

The following facts are taken as established for the purposes of this Motion. On August 26, 2009, and September 15, 2009, the City of Memphis (“the city” or “Memphis”) and Shelby County, Tennessee (“Shelby County”), respectively, established the Memphis and Shelby County Metropolitan Government Charter Commission (“the Commission”). (Compl. ¶ 20.) The Commission was tasked with writing and proposing a charter for a metropolitan government to the voters of Memphis and Shelby County. ( Id.) The Commission adopted the Charter of the Memphis Shelby County Metropolitan Government (“the Charter”) on August 9, 2010. It filed the Charter with the Shelby County Election Commission (“SCEC”) on August 10, 2010, and requested that the Charter and the proposed new government's name be placed on a ballot and submitted to a referendum vote to be held on November 2, 2010. (Id. ¶ 21.)

Under the constitutional and statutory provisions at issue in this case, ² the Charter could not be adopted by the voters of Memphis and Shelby County unless a majority of qualified voters residing in Memphis (“city voters”) and a separate majority of qualified voters residing in Shelby County outside Memphis (“non-city voters”) separately approved it. ( Id. ¶ 24.) This calculation method is commonly referred to as a “dual-majority voting requirement.” ( Id.) The dual-majority voting requirement was added to Tennessee's constitution in 1953, and the enabling legislation was initially enacted in 1957. ( Id. ¶ 22.) In 1962 and 1973, referendum votes were held pursuant to these provisions in an attempt to form a metropolitan government in Shelby County. ( Id. ¶ 25.) In both of those elections, the referendum failed outside Memphis. ( Id.)

About 73% of the entire population of Shelby County resides in Memphis, and the remaining 27% of the population of Shelby County resides outside Memphis. ( Id. ¶ 26.) Thus, the votes of non-city residents are weighted in a ratio of 2.5 to 1 to the votes of City residents. ( Id. ¶ 27.) Moreover, African–Americans make up approximately 66% of the population of Memphis and 52% of the population of all of Shelby County. ( Id. ¶ 42.) African Americans make up approximately 44% of Shelby County's non-city population. ( Id. ¶ 43.) Plaintiffs state that “[v]oting procedures such as the dual-majority voting requirement result in prima facie discrimination in the election process and enhance the opportunity for intentional discrimination.” ( Id. ¶ 28.) Plaintiffs assert that the dual-majority voting requirement has caused them irreparable harm and injury by denying them an equal opportunity to participate in the electoral process. ( Id. ¶ 29.)

The Complaint contains two Counts for Relief. First, Plaintiffs allege a violation of the Equal Protection clause. Second, Plaintiffs point to a violation of the Voting Rights Act. As to Count One, Plaintiffs state that they are registered voters eligible to vote in all Shelby County elections, and they aver that they intended to vote in the referendum vote at issue.³ ( Id. ¶ 31.) Plaintiffs assert their fundamental right under the Fourteenth and Fifteenth Amendments of the U.S. Constitution to have their votes count equally with the votes of all other citizens of Shelby County in all Shelby County elections and referenda. ( Id. ¶ 32.) They assert that their votes should not be diluted in weight when compared to other citizens of Shelby County. ( Id. ¶ 33.) Plaintiffs assert that their eight collective votes would be diluted when compared to the votes of eight comparable Shelby County voters living outside Memphis.⁴ ( Id. ¶ 35.) These eight non-city residents would have a comparative voting strength of twenty votes, as compared to Plaintiffs' eight, under the dual-majority voting system. ( Id.) Plaintiffs argue that this dilution violates the constitutional guarantee of equal protection, and the disparity in weight based on city or non-city residence equates to a violation of their right to equal representation. ( Id. ¶ 36.) Plaintiffs conclude that “[t]here is no rational basis to treat the vote of a Shelby County voter who resides within ... Memphis as having less weight than the vote of a Shelby County voter who resides outside [Memphis].” ( Id. ¶ 38.)

Additionally, the Minority Plaintiffs are four members of the African–American population majority residing in Memphis. ( Id. ¶ 39.) They argue that “[t]he present [s]tate constitutional and statutory dual-majority [voting] requirement for the upcoming referendum unconstitutionally dilutes the weight of ... minority voters ... resulting in invidious discrimination in violation of the Fourteenth and Fifteenth Amendments of the [U.S.] Constitution.” ( Id.) They state that the votes of African–American voters in Memphis counted for less than one-half of the votes of white Shelby County voters residing outside Memphis. ( Id. ¶ 39.)

As to Count 2, Plaintiffs note that, in the late 1800s, the State of Tennessee enacted laws affecting the rights of African–American Tennesseans to register to vote and otherwise participate in the democratic process. ( Id. ¶ 44.) Moreover, African–Americans have historically constituted a substantial percentage of Memphis's population. ( Id. ¶ 45.) However, since its incorporation, Memphis's African–American residents have not had the opportunity to participate equally in the political processes of the city. ( Id.) Furthermore, in Shelby County, African–American citizens have historically been subjected to direct private and official discrimination in the exercise of their right to vote. ( Id.) For example, until the 1960s and 1970s, Shelby County's African–American citizens were officially segregated in nearly every area of public life, including access to parks, libraries, recreation centers, and other similar facilities. ( Id. ¶ 46.)

Additionally, voting in Memphis and Shelby County has historically been racially polarized. ( Id. ¶ 47.) In many elections, political campaigns have been characterized by subtle or even overt racial appeals. ( Id.) Plaintiffs also assert that “African–American citizens in Memphis and Shelby County have historically been politically and geographically cohesive.” ( Id. ¶ 48.) Not only do they suffer socioeconomic disparities—caused in part by the legacy of discrimination—in areas of education, employment, and health, which hinder their effective participation in the electoral process, but they are sufficiently numerous and geographically compact to form an effective voting majority. ( Id. ¶ 50–51.)

Plaintiffs state that the dual-majority voting prerequisite to establishing a metropolitan government assures that, however cohesive the African–American citizens of Memphis and Shelby County may be as a voting bloc, they can be defeated by a cohesive voting bloc of fewer white voters residing in Shelby County outside Memphis. ( Id. ¶...