SIDNEY A. FITZWATER, District Judge.
In this action by Anglo voters challenging the 2011 map for electing commissioners of the Dallas County Commissioners Court, the court must address an objection to plaintiffs' standing and decide whether plaintiffs are entitled to proceed to trial on their claims under § 2 of the Voting Rights Act of 1965 ("VRA"), 52 U.S.C. § 10301 et seq., and the Equal Protection Clause of the Fourteenth Amendment. For the reasons that follow, the court concludes that there is a genuine issue of fact regarding whether plaintiffs have standing, that plaintiffs' racial gerrymandering and alternative equal protection claims must be dismissed, but that their other claims remain for trial.
Defendant County of Dallas, Texas is governed by a Commissioners Court comprised of four county commissioners, elected from single member districts, and a county judge, who is elected county-wide.
In early 2011, legal counsel for the Commissioners Court retained Matt Angle ("Angle"), an expert on North Texas geography and demographics, to assist in drawing and presenting redrawn redistricting maps for consideration. The parties appear to agree that, in crafting redrawn districts, Angle began his work with CCD 4, which was significantly overpopulated in the Benchmark Map. Defendants maintain that, in redrawing CCD 4, Angle aimed to retain its geographical core in Grand Prairie, North Oak Cliff, and South Irving, and to retain its preexisting status as a district in which Hispanic voters could elect their candidate of choice. The parties disagree, however, as to the order in which Angle drew the remaining districts and his motivation in crafting the new boundaries.
According to plaintiffs, after Angle drew CCD 4, he drew a version of CCD 3 that retained a large enough African-American population to ensure that it could elect that community's preferred candidate to the Commissioners Court. They contend that he next drew versions of what started as CCD 2 but was later re-labeled CCD 1, and that Angle intentionally drew that CCD to be a "majority-minority" district, i.e., the district's non-Anglo population would constitute a majority. Plaintiffs maintain that "[w]hat was left in each of Mr. Angle's proposed maps after drawing those three (3) CCDs on the basis of race was the CCD that became CCD 2. In its final form, that CCD would have a [voting age population] that was 64% Anglo." Ps. 12/1/17 Br. 8.
Defendants offer a different version of how Angle re-drew the maps. They posit that, after drawing CCD 4, Angle turned to CCD 1, "aiming to increase its total population to comply with the one-person, one-vote rule, to preserve its geographic core of Park Cities, far North Dallas, Carrollton, and Richardson, and to create the `conservative' or `Tea Party' precinct Commissioner Dickey had advocated" during public comments about the redistricting process, Ds. 12/1/17 Br. 7; that Angle next turned to CCD 3, aiming to decrease its total population while maintaining its geographical core in south Dallas and the suburban areas of DeSoto, Lancaster, and Balch Springs, "to address concerns that it packed racial and language minority voters—a concern under the [VRA], and to retain its preexisting status as a precinct in which black voters could elect their candidate of choice," id.; and, finally, that Angle worked on CCD 2, aiming to retain much of its core territory while uniting neighborhoods in east Dallas and other nearby communities with more urban than suburban identity.
After considering the merits of each of four potential maps that Angle had prepared, the Commissioners Court selected one map—the predecessor to the map that was eventually enacted—for public consideration. The Commissioners Court then provided notice and held a series of three public hearings related to the proposed redistricting. Just before the Commissioners Court vote, at the request of Commissioner Price, Angle amended the proposed plan to switch the numbering of CCDs 1 and 2.
In June 2011, by a vote of three to one,
In January 2015 plaintiffs Anne Harding ("Harding"), Ray Huebner ("Huebner"), Gregory R. Jacobs ("Jacobs"), Morgan McComb ("McComb"), and Johannes Peter Schroer ("Schroer")
Defendants move for summary judgment, and plaintiffs move for partial summary judgment on their racial gerrymandering claim.
When a summary judgment movant will not have the burden of proof on a claim at trial, the movant can obtain summary judgment by pointing the court to the absence of evidence on any essential element of the nonmovant's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant does so, the nonmovant must go beyond its pleadings and designate specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable trier of fact could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant's failure to produce proof as to any essential element renders all other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.
To be entitled to summary judgment on a claim or defense for which the movant will have the burden of proof at trial, the movant "must establish `beyond peradventure all of the essential elements of the claim or defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). This means that the movant must demonstrate that there are no genuine and material fact disputes and that the movant is entitled to summary judgment as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003). "The court has noted that the `beyond peradventure' standard is `heavy.'" Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
Defendants move for summary judgment on the ground that plaintiffs lack standing to bring this action because they have suffered no injury and the harm about which they complain is unlikely to be redressed by the requested relief.
"Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). It is well settled that "the issue of standing is one of subject matter jurisdiction." Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006). The doctrine of standing addresses the question of who may properly bring suit in federal court, and "is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). To establish standing, a plaintiff must meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). The only issue in this case is constitutional standing, which requires that a litigant establish three elements: (1) injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendant's actions; and (3) that the injury will likely be redressed by a favorable decision. E.g., Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). To obtain injunctive relief, a plaintiff must be "likely to suffer future injury." City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief[.]" O'Shea v. Littleton, 414 U.S. 488, 495 (1974). The threat of future injury to the plaintiff "must be both real and immediate, not conjectural or hypothetical." Lyons, 461 U.S. at 102 (quotation marks omitted).
Plaintiffs are Anglo residents of each of the four Dallas County CCDs, as redistricted under the 2011 Map. Defendants contend that plaintiffs lack standing to bring this action because they have admitted to facts showing that they have suffered no injury.
Defendants rely on plaintiff Harding's deposition testimony that she has never interacted with the Commissioners Court or any commissioners, including her commissioner (Commissioner Garcia), and that her objection is not race-based, but rests instead on her belief that the 2011 Map was drawn to favor Democrats.
Defendants maintain that plaintiff Jacobs was unable to identify any issue or vote of Commissioner Daniel with which he disagreed; that he testified that he would support Commissioner Daniel if she were a Republican and that he had never been denied any request from the Commissioners Court; that he could not cite an example of anything the Commissioners Court had done that came out differently than he would have hoped; that he could not describe any direct harm that he had personally suffered as a result of the 2011 Map; and that he does not reside in either of the two Anglo-majority districts that plaintiffs propose.
Defendants contend that plaintiff Holly Knight Morse ("Morse") was unaware of any facts that would lead her to believe the 2011 Map harms her voting rights as a Caucasian; that she could not describe any reason to believe she was being insufficiently represented, could not describe any occasion in which the Commissioners Court was unresponsive to her, and has no complaints about any split cities, neighborhoods, or political districts; and that her only complaint about her commissioner is that he is insufficiently conservative.
Defendants posit that plaintiff Schroer has never contacted or expressed any concerns to the Commissioners Court about any issue.
Defendants also contend that, because the remedy that plaintiffs propose is not likely to redress their alleged injury—defendants maintain that plaintiffs' proposed plan would likely result in the election of Democrats to all of the districted seats —plaintiffs cannot meet the "redressability" element of standing.
Plaintiffs respond that a member of a racial minority who resides in a district where that minority has either been "packed" or "cracked" has standing under § 2 of the VRA to challenge the district. They maintain that, because it is undisputed that a plaintiff lives in each CCD and that each plaintiff self-identifies as Anglo, plaintiffs have standing to pursue their § 2 claim, which challenges the "packing" and "cracking" of Dallas County Anglos among the districts. Plaintiffs also contend that, as residents of districts drawn on the basis of race, they also have standing to challenge the districts through their first equal protection claim.
In reply, defendants acknowledge that residing in a challenged district and being a member of a purportedly diluted class of votes "might trigger a presumption of standing." Ds. 1/5/18 Reply 2. But they contend that they have produced evidence that plaintiffs have suffered no particularized harm; that plaintiffs have not introduced any "specific facts" showing the presence of a particularized harm; that plaintiffs have not responded to their "redressability" argument; and that defendants are therefore entitled to summary judgment on the issue of standing.
The court first considers whether plaintiffs have standing to bring a vote dilution claim under § 2 of the VRA.
"[A]n intentional vote dilution claim alleges that the [governing body] has enacted a particular voting scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities." Perez v. Abbott, 253 F.Supp.3d 864, 939 (W.D. Tex. 2017) (three-judge court) ("Perez I") (citing Miller v. Johnson, 515 U.S. 900, 911 (1995)).
"No circuit has developed a framework specifically for a Section 2 standing inquiry." Pope v. Cnty. of Albany, 2014 WL 316703, at *5 n.13 (N.D.N.Y. Jan. 28, 2014). Several district courts, however, have addressed the question of standing where, as here, plaintiffs challenge "the `packing' and `cracking'" of the racial minority in order to dilute its voting strength. Ps. 12/22/17 Br. 7. In Barnett v. City of Chicago, 1996 WL 34432 (N.D. Ill. Jan. 29, 1996), a class of African-American and Latino residents of the city of Chicago challenged under § 2 of the VRA the City's "deliberate[] manipulat[ion]" of ward boundaries "to dilute their voting strength and limit the number of wards in which they have an opportunity to elect candidates of their choice." Id. at *1. The court concluded that plaintiffs had standing to bring their "fracturing" claim:
Id. at *4; see also Shaw, 517 U.S. at 914 ("[A] plaintiff may allege a § 2 violation in a single-member district if the manipulation of districting lines fragments politically cohesive minority voters among several districts . . . and thereby dilutes the voting strength of members of the minority population."); Broward Citizens for Fair Districts v. Broward Cnty., 2012 WL 1110053, at *3 (S.D. Fla. Apr. 3, 2012) ("[T]o demonstrate an injury in fact, a vote dilution plaintiff must show that he or she (1) is registered to vote and resides in the district where the discriminatory dilution occurred; and (2) is a member of the minority group whose voting strength was diluted."); Comm. for a Fair & Balanced Map v. Ill. Bd. of Elections, 2011 WL 5185567, at *1 n.1 (N.D. Ill. Nov. 1, 2011) (same).
The Barnett court held that the plaintiffs also had standing to bring their "packing" claim:
Barnett, 1996 WL 34432, at *5 (citations omitted).
More recently, in Perez v. Abbott, 267 F.Supp.3d 750 (W.D. Tex. 2017) ("Perez II") (three-judge court), the district court held that "plaintiffs who reside in a reasonably compact area that could support an additional minority opportunity district have standing to pursue § 2 claims, even if they currently reside in an opportunity district." Id. at 775. It reasoned that the "personalized injury is `that the apportionment of 4 [majority-minority districts] to the sufficiently numerous and geographically compact minority population, as opposed to the 5 [majority-minority districts] that Plaintiffs contend are required by the VRA, dilutes Plaintiffs' individual voting power—including those in existing [majority-minority districts].'" Id. at 774 (quoting Pope, 2014 WL 316703, at *5).
The court concludes that there is a genuine issue of fact regarding whether plaintiffs have suffered a legally cognizable injury-in-fact for purposes of their vote dilution claim under § 2 of the VRA. Plaintiffs allege that the 2011 Map illegally dilutes the votes of Harding, Jacobs, and Schroer by isolating them and others like them in CCDs in which they have a less-than-equal opportunity to elect the candidate preferred by their racial minority. They contend that the Commissioners Court could have drawn two reasonably compact CCDs with an Anglo citizen voting age population ("CVAP") of more than 50%.
There is a also genuine fact issue whether Morse has suffered a cognizable injury-infact. Plaintiffs allege that Morse's vote has been illegally wasted as a result of the 2011 Map's super-concentrating it in CCD 2, "a [district] where [her] racial minority is so drastically over-represented as to substantially waste . . . Morse's vote." 2d Am. Compl. ¶ 28. As with Harding, Jacobs, and Schroer, plaintiffs contend that the Commissioners Court could have drawn two reasonably compact CCDs with an Anglo CVAP of more than 50%. Plaintiffs have adduced evidence that Morse lives in CCD 2 and self-identifies as part of the "Caucasian" minority of Dallas County, and that CCD 2 "remains overwhelmingly Anglo." Ps. 12/22/17 Br. 5. They also provide expert evidence that two, not just one, Anglo opportunity CCDs can be drawn for Dallas County. The court concludes that there is a genuine fact issue whether Morse has suffered a cognizable "packing" injury-in-fact for purposes of plaintiffs' § 2 claim. See Perez II, 267 F.Supp.3d at 775; Pope, 2014 WL 316703, at *5; Barnett, 1996 WL 34432, at *5.
Having concluded that there are genuine fact issues as to whether plaintiffs have suffered cognizable injuries-in-fact for purposes of their VRA claim, the court now turns to the remaining elements of constitutional standing. Defendants do not dispute the "causation" element, but they contend that plaintiffs "lack standing because the remedy they propose with their own plan does not cure the harm they do complain of." Ds. 12/1/17 Br. 23. According to defendants, "plaintiffs' proposed plan would likely elect Democrats to all of the districted seats." Id.
Section 2 of the VRA provides:
52 U.S.C. § 10301(a) (emphasis added). In other words, the VRA is not concerned with discrimination based on party status; it focuses instead on race or color and the rights of minority citizens to elect their preferred candidates. 52 U.S.C. § 10304(b); see also Perez v. Abbott, 250 F.Supp.3d 123, 213 n.86 (W.D. Tex. 2017) (three-judge court) ("[T]he VRA is concerned with racial motives and not others."). Accordingly, evidence that plaintiffs' proposed plan would likely elect Democrats to all of the districted seats is not dispositive of the redressability inquiry.
Moreover, the "injury" about which plaintiffs complain focuses on the opportunity to elect candidates preferred by the racial minority. See, e.g., Perez II, 267 F.Supp.3d at 774 (holding that denial of "substantial proportionality of political opportunity" under the existing voting system is the "putative injury" suffered by a minority bringing a § 2 claim). A remedy that provides plaintiffs with an equal opportunity to participate in the electoral process and to elect representatives of their choice would sufficiently redress their claimed injury.
The court has concluded above that there are genuine fact issues as to whether plaintiffs have suffered cognizable injuries-in-fact for purposes of their VRA claim. The redressability requirement is satisfied if it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Bennett, 520 U.S. at 167. Plaintiffs have presented sufficient evidence to create a genuine fact issue regarding whether the creation of two Anglo opportunity CCDs in Dallas County would redress the dilution and wasting of Anglo votes. Accordingly, the court concludes that the question whether plaintiffs have satisfied the "redressability" requirement of standing must be resolved at trial.
The court now considers whether there is a genuine issue of fact concerning plaintiffs' standing to bring an equal protection claim.
"If a plaintiff meets the standing requirement under the [VRA], he has also satisfied the requirements for a voting claim brought pursuant to the fourteenth amendment." Broward Citizens for Fair Districts, 2012 WL 1110053, at *3 (citing Perry-Bey v. City of Norfolk, 678 F.Supp.2d 348, 362 (E.D. Va. 2009)). Moreover, the Supreme Court has held that "[w]here a plaintiff resides in a racially gerrymandered district, . . . the plaintiff has been denied equal treatment because of the legislature's reliance on racial criteria, and therefore has standing to challenge the legislature's action." United States v. Hays, 515 U.S. 737, 744-45 (1995); see also Miller, 515 U.S. at 910-911. For the reasons explained above, the court concludes there is a genuine issue of fact concerning plaintiffs' standing to bring an intentional vote dilution claim under the Equal Protection Clause of the Fourteenth Amendment.
The court need not address whether plaintiffs have standing to bring a Shaw
Having decided that this case should not be dismissed at the summary judgment stage for lack of standing, the court now turns to the merits, beginning with defendants' contention that they are entitled to summary judgment on plaintiffs' racial gerrymandering claim because this claim has not been pleaded.
Defendants maintain that plaintiffs do not allege a racial gerrymandering claim because they do not mention "racial gerrymandering" or "Shaw v. Reno" in the second amended complaint, and, instead, present their Fourteenth Amendment claim "exclusively as an intentional vote dilution claim." Ds. 12/1/17 Br. 40.
Plaintiffs respond that the second amended complaint contains the same allegations that the three-judge court in Perez I, 253 F.Supp.3d at 933, deemed sufficient to plead a racial gerrymandering claim, i.e., that "race was the predominant factor in the Commissioners Court's crafting of the [2011 Map] as a whole and in the design of each of the [2011Map]'s component four (4) CCDs," the incorporation of that allegation, by reference, into the plaintiffs' equal protection claim, and the conclusion that "the facts alleged constitute a denial of the Plaintiffs' rights guaranteed by the Equal Protection Clause of Section 1 of the 14th Amendment to the United States Constitution." Ps. 12/22/17 Br. 17-18 (citations omitted).
In reply, defendants maintain that the second count of plaintiffs' second amended complaint exclusively—and explicitly—alleges only an intentional vote dilution claim (a claim that plaintiffs have now abandoned); that a plaintiff cannot rely on the incorporation of prior factual allegations in a complaint to give notice that they are alleging an additional legal claim (under the auspice of a single count) beyond the elements of the claim actually described in the count; that Perez I is factually distinguishable; and that "[b]y including so much detail and verbiage specific to an intentional vote dilution claim, plaintiffs here made explicitly clear that Count I was a claim for relief for intentional vote dilution, and gave defendants absolutely no reason to believe they also alleged a Shaw-type racial gerrymandering claim," Ds. 1/5/18 Reply 19-20.
In Miller the Supreme Court explained the distinction between a vote dilution claim and a Shaw-type equal protection claim:
Miller, 515 U.S. at 911 (citations omitted). Thus in order to prove a racial sorting claim, a plaintiff's
Id. at 916.
The court agrees with defendants that plaintiffs have not pleaded a Shaw-type claim. Regardless of the facts pleaded elsewhere in the second amended complaint that are adopted via ¶ 30 ("The Plaintiffs restate and incorporate by reference all allegations made in paragraphs 1-23, above."), plaintiffs' equal protection claim is pleaded as a vote dilution claim, and nothing more. In addition to ¶ 30, which incorporates facts from prior paragraphs of the second amended complaint, this is the entirety of how the equal protection claim is alleged:
2d Am. Compl. ¶ 31.
The court therefore holds that plaintiffs' racial gerrymandering claim must be dismissed because they have not pleaded such a claim.
Defendants move for summary judgment on plaintiffs' § 2 claim and on plaintiffs' equal protection claim based on vote dilution.
The court has determined from its review of the parties' briefing that the motions on these claims present questions that are better decided in the context of trial, which the court itself will conduct as trier of fact. The court therefore exercises its discretion to deny the motions for summary judgment, even assuming arguendo that the parties are entitled to summary judgment on some or all claims. See, e.g., Benavidez v. Irving Indep. Sch. Dist., No. 3:13-CV-0087-D, at *1 (N.D. Tex. June 3, 2014) (Fitzwater, C.J.) (order) (citing Anderson, 477 U.S. at 255 (noting that trial court has discretion to deny summary judgment where "there is reason to believe that the better course would be to proceed to a full trial"); 10A Charles A. Wright, et al., Federal Practice and Procedure § 2728, at 526-27 (3d ed. 1998) (recognizing "the court's discretion to deny summary judgment when it otherwise appears that the movant has satisfied the Rule 56 burden," but stating that this discretion "should be exercised sparingly")).
Defendants move for summary judgment on plaintiffs' alternative equal protection claim on the ground that the Fifth Circuit has made clear that § 2 of the VRA applies to protect any minority group, including Anglo voters where they constitute a minority. Plaintiffs oppose defendants' motion on the ground that two of defendants' retained experts have testified that the VRA does not protect Dallas Anglos. They contend:
Ps. 12/22/17 Br. 23. In their reply, defendants clarify that they do not argue that Anglo voters are precluded from alleging § 2 claims; they merely allege that the plaintiffs in this case have failed to satisfy the elements of a § 2 claim.
It is clearly established in this circuit, as defendants argue in their motion, that the VRA applies to protect any minority group, including Anglo voters when they constitute a minority. See, e.g., United States v. Brown, 561 F.3d 420 (5th Cir. 2009) (affirming district court's finding of § 2 violation against Anglo voters in majority African-American Mississippi county). Accordingly, the court grants defendants' motion for summary judgment on plaintiffs' alternative equal protection claim, in which they allege that "[t]o the extent that the Court determines that Dallas's Anglo minority isn't a protected class under Section 2 of the [VRA], the [VRA] denies Dallas's Anglo minority the equal protection of the law guaranteed by the 14th Amendment to the United States Constitution," 2d Am. Compl. ¶ 33.
Accordingly, for the reasons explained, the court grants defendants' motion for summary judgment on plaintiffs' racial gerrymandering and alternative equal protection claims, but otherwise denies defendants' motion for summary judgment. The court denies plaintiffs' motion for partial summary judgment.
