CLAY, Circuit Judge.
The League of Women Voters ("the League") and the Individual Plaintiffs (together "Plaintiffs") bring suit under 42 U.S.C. §§ 1983 and 1988, alleging that Michigan's current apportionment plan (the "Apportionment Plan"), which the state legislature implemented as Michigan Public Acts 128 and 129 of 2011, violates (1) Plaintiffs' Fourteenth Amendment equal protection rights and (2) Plaintiffs' First Amendment free speech and association rights. (See Compl., ECF No. 1.)
There are three dispositive motions currently pending before the court: (1) the Motion to Dismiss and Motion for Summary Judgment filed by Defendant Ruth Johnson, the Secretary of State of Michigan in her official capacity ("Johnson") (ECF No. 119); (2) the Motion for Summary Judgment filed by the Republican Congressional Intervenors ("Congressional Intervenors") (ECF No. 121); and (3) Plaintiffs' Motion for Partial Summary Judgment on Laches (ECF No. 117).
The parties spend hundreds of pages briefing their motions and attach an even greater number of pages of exhibits. But the motions present only three issues for decision: (1) whether Plaintiffs have standing; (2) whether Plaintiffs' political gerrymandering claims are justiciable; and (3) whether laches bars Plaintiffs' claims.
For the reasons that follow, we
The Apportionment Plan was signed into law by the governor of Michigan on August 11, 2011, after being passed by both chambers of the Michigan legislature. The Michigan State Senate map was primarily drawn by Terry Marquardt, a senior Republican Senate staffer. (Marquardt Dep., ECF No. 129-46 at 23:1-25:2; 31:2-15.) The task of redistricting the Michigan State House map fell to Daniel McMaster, a senior Republican advisor in the House, who later retained Brian Began to assist him. (McMaster Dep., ECF No. 129-47 at 36:4-5, 49:14, 50:4-51:24.) Republican lawmakers outsourced the drawing of the Congressional Districts to the Michigan Redistricting Resource Institute, which in turn hired Jeff Timmer of Sterling Corporation, a Republican consulting firm. (Labrant Dep., ECF No. 129-44 at 140:23-141:05.)
Marquardt, McMaster, Began, and Timmer participated in weekly meetings at the Dickinson Wright law firm where they reported on the maps upon which they were working and strategized about the mapmaking process. (See Timmer Dep., ECF No. 129-49 at 56:17-18; Marquardt Dep., ECF No. 129-46 at 82:18-22; McMaster Dep., ECF No. 129-47 at 52:9-54:15; Labrant Dep., ECF No. 129-44 at 235:5-237:19.) Attorneys for Republican legislators also attended the meetings to provide legal counsel to the mapmakers. (Labrant Dep., ECF No. 129-44 at 235:5-2:37:19; McMaster Dep., ECF No. 129-47 at 53:14-54:8; Timmer Dep., ECF No. 129-49 at 256:24-257:2.) Bob Labrant, the founder of the Michigan Redistricting Resource Institute, also participated. (Labrant Dep., ECF No. 129-44 at 236:25-237:11.) These meetings were "confidential." (Timmer Dep., ECF No. 129-49 at 256:18-23.) No Democratic representative or interest group ever attended the meetings. (Timmer Dep., ECF No. 129-49 at 56:19-22.)
The maps were also highly secretive. During meetings where McMaster showed individual Republican legislators copies of their districts' maps, he collected the maps after the meetings "for security." (McMaster Dep., ECF No. 129-47 at 136:25-137:16.) Even the Republican Senate Majority Leader was "just shown" the maps at one of the mapmakers' weekly meetings—he was "not allowed to keep a copy." (Marquardt Dep., ECF No. 129-46 at 83:1-9, 127:23-128:2.) And at a Senate Redistricting Committee meeting that took place on June 22, 2011—the day before the Senate passed the Apportionment Plan—the copies of the Apportionment Plan made available to members of the public "consisted entirely of census data" and "did not contain any maps." (Smith Decl., ECF No. 129-54 at PageID # 4974.)
The mapmakers relied on political data to draw the maps. For the Congressional Districts,
The "underlying factor" for the mapmakers was that "if the plans don't pass the legislature ... you've done your work for nothing." (Marquardt Dep., ECF No. 129-46 at 56:23-57:4.) The "major consideration as far as getting the [legislature's] vote" was the fact that "sitting ... senators or representatives ... want to be re-elected." (Marquardt Dep., ECF No. 129-46 at 69:9-14.) With these considerations in mind, Marquardt prepared reports for every Republican caucus member that showed his or her current district and his or her proposed district. (Marquardt Dep., ECF No. 129-46 at 101:1-104:15.) The reports contained two sets of political data for each current and proposed district: (1) the percentage of voters who voted for the Republican candidate in the previous three governors' races and (2) the percentage of voters who voted in the last three elections for the statewide education boards, a "guideline" for the partisan makeup of the districts. (Marquardt Dep., ECF No. 129-46 at 102:3-103:22.) Marquardt provided these political data points to Republican senators "[b]ecause the senators obviously would be interested in knowing whether their district got better or worse," better being more Republican or less Democrat. (Marquardt Dep., ECF No. 129-46 at 104:1-15.)
Emails that the mapmakers exchanged illustrate the profound extent to which partisan political considerations played into their redistricting efforts. For example, a staffer wrote Timmer about "a glorious way that makes it easier to cram ALL of the Dem garbage in Wayne, Washtenaw, Oakland, and Macomb counties into only four districts." (ECF No. 129-18 at PageID # 3557.) Timmer responded, "[i]nteresting numbers overall. Detroit being 150k less than projected shakes things up." (ECF No. 129-18 at PageID # 3557.) In a different email, a staffer approved of one of Timmer's proposed maps, saying it was "perfect" because "it's giving the finger to [S]andy [L]evin," a long-time Democratic United States Congressman. (ECF No. 129-30 at PageID # 3606.) In another email, Timmer remarked that a proposed district "is a bit less GOP, but not so much less so that it is in jeopardy of going south on us." (ECF No. 129-31 at PageID # 3611.) In the same email, Timmer explained that, under the new districts, "the new 3rd would become slightly less Republican" to allow another seat "to become slightly more so." (ECF No. 129-31 at PageID # 3611.)
The mapmakers' efforts proved extremely successful. In each of the three statewide elections held under the Apportionment Plan between 2012 and 2016, the Republicans won 64% of Michigan's Congressional Districts (i.e., 9 of Michigan's 14 seats) despite never winning more than 50.5% of the statewide vote.
In the 2018 midterm elections, Democrats won 50% of the Congressional Districts despite winning approximately 55.8% of the vote.
Plaintiffs filed a Complaint for Declaratory and Injunctive Relief against Johnson on December 22, 2017. (ECF. No. 1.) Johnson filed a Motion to Dismiss for Lack of Standing on January 23, 2018 (ECF No. 11), which this Court granted in part and denied in part on May 16, 2018. (See Op. & Order, ECF No. 54.) The Court held that Plaintiffs lacked standing to challenge the Apportionment Plan "on a statewide basis" and dismissed Plaintiffs' statewide claims. (Id. at PageID # 957.) However, the Court concluded that Plaintiffs had adequately pleaded standing on a district-by-district basis because they had alleged they each had been placed in a district drawn to intentionally reduce the power of their votes. (Id. at PageID # 950.) Thus, the Court denied Johnson's Motion to Dismiss for Lack of Standing with regard to Plaintiffs' district-by-district claims. (Id.)
This Court's Opinion and Order anticipated the Supreme Court's decision in Gill v. Whitford, ___ U.S. ___, 138 S.Ct. 1916, 201 L.Ed.2d 313 (2018). In Gill, the Supreme Court held that plaintiffs cannot establish standing on political gerrymandering claims alleging vote dilution in violation of the Fourteenth Amendment's Equal Protection Clause by showing a generalized statewide injury because "the injury is district specific." Id. at 1930. Instead, plaintiffs must show "a burden on their individual votes." Id. at 1934.
The Congressional Intervenors joined the case as permissive intervenors on August 30, 2018. (See ECF No. 103.)
While Plaintiffs originally challenged the entire Apportionment Plan (see Compl., ECF No. 1), Plaintiffs have "narrowed their list of challenged districts." (Pl. Resp. Br., ECF No. 129 at 15, fn. 11.) Plaintiffs currently challenge Congressional Districts 1, 4, 5, and 7-12; Senate Districts 8, 10-12, 14, 18, 22, 27, 32, and 36; and House Districts 24, 32, 51, 52, 55, 60, 62 63, 75, 76, 83, 91, 92, 94, and 95. (Id.) Individual Plaintiffs or League members live in each of the challenged districts.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine factual dispute exists where evidence would allow "a reasonable jury [to] return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When evaluating a motion for summary judgment, the court must "view[ ] [the evidence] in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must also "draw all reasonable inferences" in favor of the non-moving party. Babcock & Wilcox Co. v. Cormetech, Inc., 848 F.3d 754, 758 (6th Cir. 2017) (citing Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir. 2013)).
The moving party bears the burden of showing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). But "`[t]he party opposing the motion may not rely solely on his pleadings and must present more than a mere scintilla of evidence; if the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which the nonmovant has the burden, the moving party is entitled to summary judgment as a matter of law.'" Hayes v. City of Mt. Washington, 43 F. App'x 838,
This Court concludes that Individual Plaintiffs and the League have standing to bring their Fourteenth Amendment and First Amendment claims. The Court's conclusion that Plaintiffs have standing is based on the standard of review at the summary judgment stage. The Court is not deciding the ultimate issue of whether Plaintiffs have definitively established standing for each challenged district. The Court will determine the ultimate issue of whether Plaintiffs have established standing for each challenged district at trial.
"Article III of the Constitution limits the judicial power of the United States to the resolution of `Cases' and `Controversies,' and `Article III standing... enforces the Constitution's case-or-controversy requirement.'" Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). "In essence, the standing doctrine prompts courts to inquire `whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.'" McKay v. Federspiel, 823 F.3d 862, 866-67 (6th Cir. 2016) (quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).
To establish standing, a plaintiff must satisfy three elements. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Federspiel, 823 F.3d at 866-67. First, a plaintiff must establish that she suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent" rather than "conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal citations omitted). Second, a plaintiff must demonstrate "a causal connection between the injury and the conduct complained of— the injury has to be `fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Id. (alteration in original) (internal citation omitted). Third, a plaintiff must show that a favorable decision will "likely," not just "speculative[ly]," redress her injury. Id. at 561, 112 S.Ct. 2130 (internal citation omitted). Courts often refer to these elements as the "`injury-in-fact,' `causation,' and `redressability' requirements." Phillips v. DeWine, 841 F.3d 405, 414 (6th Cir. 2016) (citing Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008)). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)).
The first element of standing—injury in fact—does not impose a particularly heavy burden on plaintiffs. "The Supreme Court has rejected the argument that an injury must be `significant'; a small injury, `an identifiable trifle,' is sufficient to confer standing." Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)); accord Sierra Club v. U.S. Army Corps of Eng'rs., 645 F.3d 978, 988 (8th Cir. 2011) ("Injury in fact necessary for standing
Because standing is "an indispensable part of the plaintiff's case" rather than a "mere pleading requirement[ ]," the plaintiff must support each element of standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal citation omitted). Accordingly, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Id. (internal citations omitted). At the summary judgment stage, the plaintiff must "`set forth' by affidavit or other evidence `specific facts' ... which for purposes of the summary judgment motion will be taken to be true." Id. (quoting Fed. R. Civ. P. 56(e)).
"[A] plaintiff must demonstrate standing for each claim." Cuno, 547 U.S. at 352, 126 S.Ct. 1854; Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644, 652 (6th Cir. 2007) (quoting Cuno, 547 U.S. at 352, 126 S.Ct. 1854); see also Gill, 138 S.Ct. at 1934 ("[S]tanding is not dispensed in gross.")
The Court will first analyze whether Plaintiffs have standing to bring their Fourteenth Amendment claims. Thereafter, the Court will examine whether Plaintiffs have standing to bring their First Amendment claims.
First, the Court will determine whether the Individual Plaintiffs have standing. Second, the Court will evaluate whether the League has standing. The Court concludes that both the Individual Plaintiffs and the League have standing to bring their Fourteenth Amendment claims.
The parties correctly focus on the Supreme Court's recent decision in Gill to support their arguments concerning whether the Individual Plaintiffs satisfied the injury in fact requirement. Accordingly, the Court will first analyze the Supreme Court's decision in Gill. The Court will then apply Gill to the facts of this case. As explained below, the Court concludes
In Gill, the Supreme Court described its primary task as answering the "threshold" question, which had still not been resolved, "what is necessary to show standing in a case" where the plaintiffs allege a political gerrymandering claim based on vote dilution? Gill, 138 S.Ct. at 1929. In answering this question, the Supreme Court focused on the "foremost" requirement of standing—injury in fact. Id. The Supreme Court noted that it had "long recognized that a person's right to vote is `individual and personal in nature.'" Id. (quoting Reynolds v. Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)). Accordingly, individuals must show "disadvantage to themselves as individuals" to establish standing. Id. (quoting Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).
The Supreme Court explained that when plaintiffs allege that their voting power has been unconstitutionally diluted because they have been placed in "packed" or "cracked" districts, "that injury is district specific." Id. at 1930. This is because "[t]he boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked." Id. Therefore, any injury a voter suffers from vote dilution "results from the boundaries of the particular district in which he resides." Id. And any remedy must also be specific to the voter's individual harm, i.e., "revision of the boundaries of the individual's own district." Id.
The plaintiffs in Gill argued that "their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest in their collective representation in the legislature, and in influencing the legislature's overall composition and policymaking." Id. at 1931 (internal quotations and citations omitted). The Supreme Court rejected the plaintiffs' argument. As the Supreme Court explained, the plaintiffs' statewide injury theory was "the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past." Id. (internal quotation marks and citation omitted).
The Supreme Court unanimously held that the plaintiffs failed to establish standing because they asserted statewide injuries rather than district-specific harms. The Supreme Court explained that "[f]our of the plaintiffs" had sufficiently "pleaded a particularized burden" to their individual right to vote by alleging that the challenged districting scheme "`dilut[ed] the influence' of their votes as a result of packing or cracking in their legislative districts." Id. (alteration in original) (citations omitted). But, as the Supreme Court explained, "[t]he facts necessary to establish standing ... must not only be alleged at the pleading stage, but also proved at trial." Id. After the pleading stage, "the plaintiffs failed to meaningfully pursue their allegations of individual harm." Id. at 1932. In fact, "not a single plaintiff sought to prove that he or she lives in a cracked or packed district." Id. Instead, the plaintiffs "rested their case at trial—and their arguments before [the Supreme] Court— on their theory of statewide injury to Wisconsin Democrats" which did not demonstrate harm to an individual voter in that voter's district. Id.
After concluding that plaintiffs could not establish standing based on their statewide theory of injury, the Supreme Court specifically explained why the evidence presented by plaintiffs failed to establish standing. The plaintiffs in Gill had presented three types of evidence in an attempt
The Supreme Court concluded that the "plaintiffs' case as presented on this record... is a case about group political interests, not individual legal rights." Id. Because the plaintiffs failed to present any evidence of individual injury or district-specific harm, they failed to establish standing. Id. But the Supreme Court recognized that the plaintiffs, except Whitford, could achieve standing if they proved "concrete and particularized injuries" by presenting evidence "that would tend to demonstrate a burden on their individual votes." Id. at 1934. Accordingly, the Supreme Court remanded the case to the district court to give the plaintiffs an opportunity to present the requisite evidence of individual, district-specific harm. Id.
For purposes of the pending motions, the Individual Plaintiffs have satisfied the injury in fact requirement from Gill. Individual Plaintiffs have submitted evidence of district-specific injuries to their individual votes through an expert report prepared by Dr. Jowei Chen, Ph.D. (ECF No. 129-51) and a declaration and charts submitted by Dr. Christopher Warshaw that elaborate on Dr. Chen's findings. (ECF No. 129-57.)
Dr. Chen analyzed whether the Apportionment Plan produced "an extreme partisan outcome that diverges from possible alternative maps." (Chen Rep., ECF No. 129-51 at PageID # 4709.) In his analysis, Dr. Chen used a simulation process that, according to him, "ignores all partisan and racial considerations when drawing districts" and instead "optimize[s] districts with respect to various traditional districting goals, such as equalizing population, maximizing geographic compactness, and preserving county, municipal, and ward boundaries."
Dr. Chen concluded that nine of the Apportionment Plan's Congressional Districts are partisan outliers. (Id. at PageID # 4762-63.) Congressional Districts 5, 9, and 12 are partisan outliers because they "pack[ ] together Democrats to an unusual degree." (Id. at PageID # 4762.) Each of these Congressional Districts packs Democrats together more tightly than any of the 1,000 computer-generated simulation districts drawn using traditional non-partisan criteria. (Id.; see Appendix D2, id. at PageID # 4781.) Congressional Districts 4, 7, 8, and 10 are partisan outliers because they crack Democratic voters. (Id. at PageID # 4762.) In the vast majority of the simulations, each of these Congressional Districts would be "more partisan competitive or perhaps even a slightly Democratic-leaning district."
Dr. Chen's analysis and opinion provide evidence of district-specific vote dilution. But Dr. Chen does not name any Individual Plaintiff or League member in his expert report. (See generally, Chen Rep., ECF No. 129-51.) Accordingly, Plaintiffs cannot establish injury in fact from Dr. Chen's report by itself—his report does not show "disadvantage to [Individual Plaintiffs or League members] as individuals" because it does not provide any evidence that any Individual Plaintiff or League member actually lives in a district where his or her vote has been diluted. Gill, 138 S.Ct. at 1929 (internal citation and quotation marks omitted). If Plaintiffs relied solely on Dr. Chen's report, they would fail to satisfy Gill's requirement that they demonstrate "the effect that a gerrymander has on the votes of particular citizens"
But Plaintiffs do not rely solely on Dr. Chen's report. They also present evidence that tends to establish the crucial link between the gerrymandered districts identified by Dr. Chen and the district-specific harm to each Plaintiff. This evidence comes in the form of a declaration and several charts from Dr. Warshaw, one of Plaintiffs' experts. (See ECF No. 129-57 (Warshaw Declaration), ECF No. 129-38 (Warshaw Charts).) Dr. Warshaw (1) obtained each Individual Plaintiff and League member's address, (2) determined in which district each Individual Plaintiff and League member lives under the current Apportionment Plan, and (3) using Dr. Chen's data, compared the partisanship of the districts in which each Individual Plaintiff and League member currently lives with the partisanship of all simulated districts that contain the same address. (Warshaw Decl., ECF No. 129-57, at PageID # 4997.) Dr. Warshaw then created charts which he asserts visually depict how partisan a particular Plaintiff's current district is compared to all the simulated districts that contain that Plaintiff's same address.
If after trial this Court accepts the Chen-Warshaw testimony and conclusions, Dr. Chen's report and Dr. Warshaw's charts could show an injury in fact to each Individual Plaintiff. Dr. Chen's report asserts that several Congressional Districts, Senate Districts, and House Districts are gerrymandered "partisan outliers" that crack or pack Democratic voters and dilute their votes. Dr. Warshaw connects each Individual Plaintiff to an individual, district-specific harm by (1) determining in which district each Individual Plaintiff currently resides and (2) comparing the level of partisanship in each Individual Plaintiff's actual district to the level of partisanship in each simulated district that would contain each Individual Plaintiff.
Individual Plaintiffs have presented evidence that they actually live in allegedly packed or cracked districts. Accordingly, they have asserted, with sufficient proof under rule 56, district-specific harms, injuries to themselves "as individuals," Gill, 138 S.Ct. at 1929, and "the effect that [the] gerrymander has on the votes of particular citizens." Gill, 138 S.Ct. at 1933. Accordingly, Plaintiffs have presented sufficient evidence for a fact-finder to conclude that Individual Plaintiffs have suffered an injury in fact. See Gill, 138 S.Ct. at 1929-30.
Johnson argues that the Individual Plaintiffs failed to demonstrate injury in fact because they rely on a large number of alternative simulated districts rather than on a single alternative district plan for each district they challenge. (See Johnson Br., ECF No. 119 at PageID # 2415-22.) But Gill does not require a plaintiff to rely on a single alternative map. In Gill, the Supreme Court explained that the harm in political gerrymandering cases "arises from the particular composition of the voter's own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district." Gill, 138 S.Ct. at 1931 (emphasis added). Here, each Individual Plaintiff has shown that because of packing or cracking, her vote currently— in 2018—carries less weight than it would carry in thousands of hypothetical districts. Evidence of vote dilution based on thousands of alternative districts, rather
Johnson next contends that Individual Plaintiffs failed to show injury in fact because Dr. Chen "performed only statewide analyses" that may demonstrate "statewide" partisan "intent" but do not show that a given district is gerrymandered or could be remedied by an alternative map. (Johnson Reply Br., ECF No. 132 at PageID # 5405) (emphasis in original). Dr. Chen did create simulated districts for each challenged district, which in his analysis does show that district-specific injuries could be remedied by alternative configurations drawn using non-partisan criteria.
Johnson also contends that Individual Plaintiffs cannot demonstrate injury in fact because, according to Johnson, Dr. Chen testified that he did not have a clear sense of what it means for a district to be "cracked" or "packed." (Johnson Reply Br. at PageID # 5045.) However, in the passage cited by Johnson, Dr. Chen explains that existing academic literature does not provide a clear definition for when the partisan makeup of a given district rises to the level of "packing" or "cracking." (Chen Dep., ECF No. 119-4 at PageID # 2472.) Importantly, Dr. Chen then explains that, for the purposes of his analysis, he considered a district to be "packed" or "cracked" if 95% of the alternative simulated districts had a less partisan vote share than the current district. (Id. at PageID # 2475.) A reasonable fact-finder could conclude that Dr. Chen knew what he meant when he concluded that the districts he identified as "partisan outliers" had been "packed" or "cracked."
Johnson additionally argues that Plaintiffs lack standing because they only speculate about hypothetical future harms and because none of their experts stated that Plaintiffs' harms would reoccur in the 2020 election cycle. (Johnson Br., ECF No. 119 at 48; Johnson Reply Br., ECF No. 132 at 1.) However, just as an example, Kenneth Mayer, Ph.D., one of Plaintiffs' experts, opined that the gerrymander has persisted "over a ten year period and 6 electoral cycles." (Mayer Rep., ECF No. 129-52 at PageID # 4881.) At this stage, the Court must view the evidence in the light most favorable to Plaintiffs and draw all reasonable inferences in Plaintiffs' favor. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Babcock & Wilcox Co., 848 F.3d at 758. The Court draws the reasonable inference that Plaintiffs have presented sufficient evidence that the partisan gerrymander—which has persisted through multiple election cycles over an extended period of time—could harm Plaintiffs again in the 2020 elections. See generally, Babcock & Wilcox Co., 848 F.3d at 758.
Finally, Defendants repeatedly asserted at oral argument that Plaintiffs cannot demonstrate injury in fact because Democratic candidates won the same number of Congressional seats as Republican candidates in the 2018 midterm election. However, focusing entirely on only one election is inappropriate given that Plaintiffs have presented evidence that the Apportionment Plan is a durable partisan gerrymander that has existed for, and persisted over, several election cycles. Furthermore, the fact that Democrats and Republicans won an equal number of Congressional seats does not foreclose a finding that the Apportionment Plan is an unconstitutional partisan gerrymander. For instance, it is possible that Democrats would have won an even greater number of seats in the 2018 midterm election but for the unconstitutional gerrymander they allege. Taking Defendants' argument to its logical conclusion illustrates the flaw in Defendants' argument. Under Defendants' theory, a voter whose party received 99%
Individual Plaintiffs have presented evidence that the Apportionment Plan caused their individual injuries by diluting their votes. (See, e.g., Chen Rep., ECF No. 129-51, Warshaw Charts, ECF No. 129-38 at PageID # 3880-86.) Individual Plaintiffs have also presented evidence that their individual injuries are likely to be redressed by a favorable decision; they seek an injunction that bars Michigan from using the Apportionment Plan in future elections and ask this Court to implement an alternative districting plan that does not dilute their votes.
The Individual Plaintiffs have presented sufficient evidence at this stage of the proceedings to establish injury, causation, and redressability. See Lujan, 504 U.S. 555, 112 S.Ct. 2130. Accordingly, Individual Plaintiffs have satisfied the Court that they have standing to challenge their respective districts on Fourteenth Amendment grounds. Id.
"An association has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)); Cleveland Branch, N.A.A.C.P. v. City of Parma, OH, 263 F.3d 513, 524 (6th Cir. 2001). In partisan gerrymandering cases, an organization such as the League has standing to challenge a district in which one of its members lives whose vote "was diluted on the basis of invidious partisanship." Common Cause v. Rucho, 318 F.Supp.3d 777, 827 (M.D.N.C. 2018) (three judge panel) (finding that the League of Women Voters of North Carolina had standing to bring a Fourteenth Amendment challenge to any gerrymandered district in which its members lived.)
The League has established derivative associational standing at this stage. First, the League's members have shown standing to sue in their own right. In Gill, 138 S.Ct. 1916, the Supreme Court explained that when plaintiffs allege that their voting power has been unconstitutionally diluted because they have been placed in "packed" or "cracked" districts, "that injury is district specific." Id. at 1930. The League members have satisfied Gill's requirement that they show individualized, district-specific harms. Id. At least one League member lives in each challenged district.
Second, the interests at stake are germane to the League's purpose of promoting civic engagement, increasing voter participation, and defending democracy. The League has presented an affidavit from Susan Smith, who has been an active League member for 48 years. (Smith Decl., ECF No. 129-54 at PageID # 4973.) Smith served as the League's First Vice President from 2007 to 2011, as its President from 2011 to 2015, as its First Vice President again from 2015 to 2017 "with special responsibilities for redistricting," and, since May 2017, as the Redistricting Director on the Board of Directors. (Id.) Smith's responsibilities "include making frequent educational presentations about redistricting topics and issues." (Id. at PageID # 4975.) "Since June 2011, [Smith has] presented educational redistricting information to the public at many town hall meetings across the state [of Michigan]." (Id.) Smith has also "personally trained more than eighty (80) League members across the state in how to use the League's PowerPoint presentation and handouts to educate voters about redistricting in Michigan and how the 2011 maps affected the various communities in the State of Michigan." (Id. at PageID # 4976.)
According to Smith, the Apportionment Plan has "made [the League's] mission of education and engagement much harder in a variety of ways." (Id.) The Apportionment Plan has made it more difficult for the League to convince Republican candidates to participate in "candidate forums" because "so many Republican candidates are no longer running in competitive races" and do not feel a need to engage with the electorate. (Id.) Moreover, the Apportionment Plan has caused elected representatives to "become less responsive" to the League's legislative proposals because many representatives possess "safe seats." (Id.) Further, the Apportionment Plan has caused many Michigan voters to experience "voter apathy and cynicism," which "directly challenges [the League's] mission of empowering voters and defending democracy." (Id. at PageID # 4977.) Smith "often encounter[s] voters and fellow [League] members who have concluded that their votes do not count." (Id. at PageID # 4978.) Through Smith's first-hand account, the League has presented evidence of the deleterious impacts that the Apportionment Plan has had on the League's mission and purpose.
Third, the League's claims and the relief it requests do not require the participation of any individual League member. When an "association seeks a declaration, injunction, or some other form of prospective relief ... the remedy, if granted, will inure to the benefit of those members of the association actually injured." Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Here, the League seeks declaratory and injunctive relief. Accordingly, the League members need not participate in the litigation. Id.
In sum, the League has satisfied all three requirements for derivative associational standing. The League has shown (1)
Johnson contends that the League erroneously relies on inadmissible hearsay in its attempt to show standing based on its membership. (Johnson Reply Br., ECF No. 132 at 10-11.) It is true that the League submitted a list of members who voted for Democratic candidates in 2014 and 2016 elections and that this list constitutes hearsay. (See ECF No. 129-38.) But it is well-established that "[t]he submissions by a party opposing a motion for summary judgment need not themselves be in a form that is admissible at trial." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Instead, a non-moving party must only "lay[ ] out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists, and that a trial is necessary." Alexander, 576 F.3d at 558. The League has met its burden. Furthermore, the League presented sworn affidavits from Margaret Leary, Julie Caroff, Mark Brewer, and Judy Karandjeff, the four people who contacted the individuals named in the list, who affirm that the list accurately reflects the information they collected through phone calls with League members. (See ECF No. 129-58, 129-59, 129-60, and 129-61.) Therefore, these affidavits satisfy Rule 56(e)'s requirement that "an affidavit offered in opposition to summary judgment `shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'" Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(e)).
Congressional Intervenors argue that Plaintiffs lack standing to challenge Congressional Districts 1, 4, 7, and 11 because in some of Dr. Chen's simulated plans, Plaintiffs who currently live in these districts would be placed in districts that would be even more Republican. (Cong. Intervenors Reply Br., ECF No. 133 at 4.) It is true that some of these Congressional Districts would become more Republican under some of Dr. Chen's simulations. (See Warshaw Chart, ECF No. 129-38 at PageID # 3881.) But each of these Congressional Districts would become less Republican under some of—or, in some cases, most of—Dr. Chen's simulations. (See id.) A plaintiff has standing to challenge a district if she shows that she has suffered harm because her vote is diluted compared to "another, hypothetical district." Gill, 138 S.Ct. at 1931 (emphasis added). Because Plaintiffs have presented evidence that their votes would be less diluted in at least some of the alternative districts for Congressional Districts 1, 4, 7, and 11, Defendants are not entitled to summary judgment on Plaintiffs' claims regarding these districts. See id.
Congressional Intervenors next argue that Plaintiffs living in Congressional Districts 5, 9, and 12 cannot demonstrate injury in fact because "as long time
In sum, Individual Plaintiffs have standing to challenge each of the districts in which they live. And the League has standing to challenge each district in which one of its members lives. Collectively, Plaintiffs have standing to challenge every
Partisan gerrymandering implicates the First Amendment in two ways. First, partisan gerrymandering creates a dilutionary injury; "[t]he practice of purposefully diluting the weight of certain citizens' votes to make it more difficult for them to achieve electoral success because of the political views they have expressed through their voting histories and party affiliations thus infringes this [First Amendment] representational right." Shapiro v. McManus, 203 F.Supp.3d 579, 595 (D. Md. 2016) (three judge panel) (emphasis in original) (citing Vieth v. Jubelirer, 541 U.S. 267, 314-15, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy, J., concurring in the judgment)). Second, partisan gerrymandering creates non-dilutionary First Amendment injuries. As one three judge panel recently stated:
Ohio A. Philip Randolph Inst. v. Smith, No. 1:18CV357, 335 F.Supp.3d 988, 997, 2018 WL 3872330, at *4 (S.D. Ohio Aug. 15, 2018) (three judge panel); see Gill, 138 S.Ct. at 1938 ("[T]he associational harm of a partisan gerrymander is distinct from vote dilution.") (Kagan, J., concurring); Rucho, 318 F.Supp.3d at 829 ("Partisan gerrymandering also implicates `distinct,' non-dilutionary First Amendment injuries.") (quoting Gill, 138 S.Ct. at 1939) (Kagan, J., concurring). "[T]he associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district's lines." Gill, 138 S.Ct. at 1938 (Kagan, J., concurring). Instead, under a non-dilutionary First Amendment challenge, "the valued association and the injury to it are statewide [and] so too is the relevant standing requirement." Id. at 1939. Accordingly, plaintiffs do not need to demonstrate a district-specific injury to
Individual Plaintiffs contend that they have standing to bring their First Amendment claim, arguing that the "same evidence" of "individualized, redressable harm suffered to their voting rights" that supports their Fourteenth Amendment claim also satisfies the injury in fact requirement of their First Amendment claim. (Pl. Resp. Br., ECF No. 129 at 62.) Johnson argues that Individual Plaintiffs lack First Amendment standing for the same reasons they lack Fourteenth Amendment standing. (See Johnson Br., ECF No. 119 at 54.) The Congressional Intervenors assert in a footnote that Plaintiffs lack First Amendment standing because they have not presented evidence that their First Amendment rights were harmed by the alleged gerrymander. (See Cong. Intervenors Br., ECF No. 121 at 20, fn. 3.)
Individual Plaintiffs have established First Amendment standing. The "dilutionary aspect of the First Amendment injury associated with partisan gerrymandering echoes the district-specific injury giving rise to a partisan vote dilution claim under the Equal Protection Clause." Rucho, 318 F.Supp.3d at 829 (citing Shapiro, 203 F.Supp.3d at 595). As discussed above, Individual Plaintiffs have presented sufficient evidence of individualized, district-specific dilutionary harm to satisfy standing under the Fourteenth Amendment. This evidence also suffices to give Individual Plaintiffs standing under the First Amendment. Rucho, 318 F.Supp.3d at 829.
"[A]n association may have standing to assert an injury to itself regardless of whether its members also have standing." Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 544 (6th Cir. 2004) (internal citation omitted). An organization suffers an injury in fact when its mission is "perceptibly impaired" by the challenged action, which it may show through a "demonstrable injury to the organization's activities" and a "consequent drain on the organization's resources." Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); see also Fair Elections Ohio v. Husted, 770 F.3d 456, 462 (6th Cir. 2014) ("An organization may have standing to sue if its interests are directly impaired.")
In Rucho, a three judge panel found that the League of Women Voters of North Carolina ("North Carolina League") had standing to assert a statewide First Amendment challenge to the state's districting plan. Rucho, 318 F.Supp.3d at 830-31. The court reasoned that the gerrymander "burden[ed] [the North Carolina League's] mission" because it caused a lack of voter interest that hampered the North Carolina League's "get out the vote" efforts, prevented the North Carolina League from "fulfilling its mission of inform[ing] ... [and] engag[ing] voters," and caused the North Carolina League to experience "difficulty providing opportunities for its members and other voters to interact" with candidates because they had little incentive to actively engage with the electorate in districts whose results were effectively preordained. Id. (internal quotation marks and citations omitted) (alterations in original).
The League has independent associational standing based on non-dilutionary injuries to its own First Amendment rights. See Gill, 138 S.Ct. at 1939; Rucho, 318 F.Supp.3d at 829. Like the North Carolina League in Rucho, the League has presented evidence that the Apportionment
The Court finds that both Individual Plaintiffs and the League have standing to bring their Fourteenth Amendment challenges to the Apportionment Plan because they have presented evidence of individual injuries and district-specific harms. The Court also finds that Individual Plaintiffs and the League have standing to bring their First Amendment claims.
As explained below, The Court finds that Plaintiffs' Fourteenth Amendment and First Amendment partisan gerrymandering claims are justiciable because judicially manageable standards exist to adjudicate these claims.
Partisan gerrymandering is "incompatible with democratic principles." Ariz. State Leg. v. Ariz. Indep. Redistricting Comm'n, ___ U.S. ___, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704 (2015) (quoting Vieth, 541 U.S. at 292, 124 S.Ct. 1769). "On its most fundamental level, partisan gerrymandering violates `the core principle of republican government ... that the voters should choose their representatives, not the other way around.'" Rucho, 318 F.Supp.3d at 838 (quoting Ariz. State Leg., 135 S.Ct. at 2677).
In Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986), the Supreme Court found "political gerrymandering to be justiciable" under the Equal Protection Clause of the Fourteenth Amendment. But while the Supreme Court held that political gerrymandering claims present justiciable controversies, it "could not, however, settle on a standard for what constitutes an unconstitutional partisan gerrymander." Gill, 138 S.Ct. at 1927 (discussing Bandemer, 478 U.S. 109, 106 S.Ct. 2797).
The Supreme Court has never overturned Bandermer's holding that political gerrymandering claims are justiciable. It is true that, in Vieth, a four-justice plurality concluded that political gerrymandering claims were not justiciable because of the lack of a "judicially manageable standard." Vieth, 541 U.S. at 291, 124 S.Ct. 1769. But Justice Kennedy, while concurring in the judgment, declined to hold that partisan gerrymandering claims are per se non-justiciable. Id. at 310, 124 S.Ct. 1769 (Kennedy, J., concurring in the judgment) (stating that "[o]ur willingness to enter the political thicket of the apportionment
In Rucho, a three judge panel held that the plaintiffs' partisan gerrymandering claims were justiciable. Rucho, 318 F.Supp.3d at 860. The defendants in Rucho, just as Defendants here, contended that the plaintiffs' claims were not justiciable because the plaintiffs did not present a "judicially manageable standard" and failed to resolve the fundamental question, "how much politics is too much in redistricting?" Id. at 844. The Rucho court rejected the defendants' argument because it "rests on the premise that some degree of invidious partisan gerrymandering ... is constitutionally permissible." Id. The court found no support for the defendants' claim "that it is sometimes permissible for a state redistricting body to draw district lines for the sole purpose of diminishing the electoral power of voters who supported or are likely to support a disfavored party or candidate." Id. at 851.
The court concluded that "`[a] determination that a gerrymander violates the law must rest ... on a conclusion that [political] classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.'" Id. at 852 (quoting Vieth, 541 U.S. at 307, 124 S.Ct. 1769 (Kennedy, J., concurring in the judgment)). The Court explained that this conclusion "does not rest on our determination that States lack authority to engage in partisan gerrymandering—the intentional drawing of district lines to undermine the electoral prospects of candidates of a disfavored party and entrench a favored party in power—in drawing congressional districts." Id. (emphasis in original). Instead, the court held that "a congressional district amounts to an unconstitutional partisan gerrymander only if the legislative body's predominant purpose in drawing the district was to subordinate the interests of supporters of a disfavored party and entrench a representative from a favored party in power." Id. (emphasis in original). In other words, "a state legislative body may engage in some degree of partisan gerrymandering, so long as it was not predominantly motivated by invidious considerations."
Plaintiffs propose that the Court adopt the Rucho test.
The Court will adopt the three-part discriminatory intent, discriminatory effects, and lack of justification test for Fourteenth Amendment partisan gerrymandering claims. See Rucho, 318 F.Supp.3d at 861-68. Under this framework, Plaintiffs' vote dilution claims "must proceed on a district-by-district basis." Id. at 868 (citing Gill, 138 S.Ct. at 1930). The Court will evaluate the intent prong using the "predominant purpose" test, under which "a congressional district amounts to an unconstitutional partisan gerrymander only if the legislative body's predominant purpose in drawing the district was to subordinate the interests of supporters of a disfavored party and entrench a representative from a favored party in power." Id. at 852 (emphasis in original). The Court adopts the "predominant purpose" test because, in Gill, the Supreme Court directly analogized partisan gerrymandering claims and racial gerrymandering claims, see Gill, 138 S.Ct. at 1930, and
Plaintiffs have presented sufficient evidence for a fact-finder to conclude that the mapmakers violated their Fourteenth Amendment rights with respect to each challenged district. Plaintiffs have presented evidence that the mapmakers were predominantly motivated by a desire to dilute Democratic votes and entrench Republican control.
The Court rejects Johnson's argument that partisan gerrymandering claims are non-justiciable for lack of a judicially manageable standard. The Court notes that the panel in Rucho held that Fourteenth Amendment partisan gerrymandering claims are justiciable under the same standard that the Court adopts here. Second, Johnson fails to convincingly explain why the tests articulated by the Court above are not judicially manageable.
At this stage in the case, the Court is similarly unpersuaded by Johnson's argument that Plaintiffs cannot show a judicially manageable standard because they rely on social science data to support their claims. "Plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward to support their claims, nor does this Court do so." Rucho, 318 F.Supp.3d at 853. Plaintiffs provide social science analyses as evidence to support their constitutional claims. "In the context of the Equal Protection Clause, in particular, the Supreme Court has relied on statistical and social science evidence as proof that a government action was motivated by discriminatory intent or had a discriminatory effect—the same purposes for which Plaintiffs seek to use such evidence here." Rucho, 318 F.Supp.3d at 853. See, e.g., Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483, 74 S.Ct. 686, 98 S.Ct. 873 (1954). Accordingly, Johnson's argument fails.
"Notwithstanding the evident applicability of the First Amendment to partisan gerrymandering ... neither the Supreme Court nor lower courts have settled on a framework for determining whether a partisan gerrymander violates the First Amendment." Rucho, 318 F.Supp.3d at
In recent years, two lower federal courts have held that a judicially manageable standard exists for adjudicating First Amendment partisan gerrymandering claims. See Shapiro, 203 F.Supp.3d at 597; Rucho, 318 F.Supp.3d at 929.
Shapiro, 203 F.Supp.3d at 596-97 (emphasis in original). The district court in Rucho articulated a similar three-part standard that requires plaintiffs to prove:
Rucho, 318 F.Supp.3d at 929.
Plaintiffs ask the Court to evaluate their First Amendment claims under the three-part test from Rucho. (Pl. Resp. Br., ECF No. 129 at 50-51.) Defendants do not respond directly to Plaintiffs' proposed standard. Instead, they argue that partisan gerrymandering claims are not justiciable for the reasons the Court already rejected in the above discussion of Plaintiffs' Fourteenth Amendment claims. (See Johnson Br., ECF No. 119 at 17-22; Johnson Reply Br., ECF No. 132 at 6-9.)
With Shapiro and Rucho as guidance, the Court finds that a judicially manageable standard exists for adjudicating
Plaintiffs have presented sufficient evidence for a fact-finder to conclude that the Apportionment Plan violates their First Amendment rights. Plaintiffs have satisfied the first element of their claim because they have presented evidence that the mapmakers deliberately drew the districts with the "specific intent" to "burden" disfavored Democratic voters. See Shapiro, 203 F.Supp.3d at 597; Rucho, 318 F.Supp.3d at 929. Plaintiffs have satisfied the second element because they have presented evidence that the Apportionment Plan has injured their First Amendment rights, either by diluting their votes through packing or cracking (Individual Plaintiffs) or by damaging their ability to carry out their organizational mission (the League). See Rucho, 318 F.Supp.3d at 929. And Plaintiffs have presented evidence that the Apportionment Plan caused their First Amendment injuries. See Shapiro, 203 F.Supp.3d at 598. Therefore, Plaintiffs have satisfied each element of their First Amendment partisan gerrymandering claims. See Shapiro, 203 F.Supp.3d at 596-97; Rucho, 318 F.Supp.3d at 929.
The Court finds that Fourteenth Amendment and First Amendment partisan gerrymandering claims are justiciable because judicially manageable standards exist for adjudicating such claims. In the Fourteenth Amendment context, the Court will apply the three-part discriminatory intent, discriminatory effect, and lack of justification framework from Rucho, including the "predominant purpose" test for intent that federal courts regularly use to evaluate racial gerrymandering claims. See Rucho, 318 F.Supp.3d at 852. In the First Amendment context, the Court will apply the three-part intent, injury, and causation test that other federal courts have applied to First Amendment partisan gerrymandering claims. See Shapiro, 203 F.Supp.3d at 596-97; Rucho, 318 F.Supp.3d at 929.
Plaintiffs and Congressional Intervenors filed cross motions for summary judgment on Defendants' affirmative defense of laches. Plaintiffs assert that laches does not apply, as a matter of law, to claims involving ongoing violations of constitutional rights, including partisan gerrymandering claims. (Pl. Br., ECF No. 117 at 9-14.) Plaintiffs rely heavily on Smith, where a three judge panel recently held that laches does not apply as a matter of law to partisan gerrymandering claims. Smith, 2018 WL 3872330. In response, Congressional Intervenors argue that federal courts have repeatedly recognized laches in redistricting cases. (Cong. Intervenors Resp. Br., ECF No. 127 at 11-16.) Congressional Intervenors also argue that Smith was wrongly decided because it relied on intellectual property cases and contradicted
The three judge panel in Smith recently held that laches does not apply as a matter of law to partisan gerrymandering claims. See Smith, 2018 WL 3872330, at *8. The court explained that,
Id. The court held that laches did not bar the plaintiffs' claims as a matter of law because the plaintiffs sought only declaratory and injunctive relief, not a remedy for harms that occurred before they filed suit. Id.
As Congressional Intervenors note, Smith relied heavily on intellectual property cases, not election law cases. See id. Furthermore, Smith is in tension with three cases cited by Johnson: Sanders v. Dooly County, GA, 245 F.3d 1289 (11th Cir. 2001) (per curiam), Fouts v. Harris, 88 F.Supp.2d 1351, 1354 (S.D. Fla. 1999) (three judge panel), and White v. Daniel, 909 F.2d 99 (4th Cir. 1990).
After carefully considering the parties' arguments, the Court will not decide the laches issue at this juncture. The parties may raise the laches issue again at trial, if they so choose. If the parties raise the laches issue at trial, the Court will address the issue at that time.
The Court concludes that both the Individual Plaintiffs and the League have standing to bring their Fourteenth Amendment and First Amendment claims. The Court further finds that Plaintiffs' claims are justiciable. The Court will defer a decision on the laches issue until trial.
In accordance with the attached Opinion, it is
Quist, District Judge, concurring in part and dissenting in part.
I agree with the majority opinion that Plaintiffs have satisfied standing at this stage of litigation on a district-by-district basis and that, in the same vein, the League of Women Voters of Michigan has derivative standing to challenge the districts in which its members reside. But I disagree with the majority opinion's rationale in the discussion section I.B.2. Specifically, in my view, no Plaintiff—not the League or any individually named Plaintiff—has properly supported standing for a statewide claim.
As the majority opinion explains, the individual Plaintiffs have brought forth sufficient evidence to show vote dilution at a district-level basis to support a claim under the Equal Protection Clause under Gill v. Whitford, ___ U.S. ___, 138 S.Ct. 1916, 1930, 201 L.Ed.2d 313 (2018). Individual Plaintiffs rightly argue that the same evidence that supports their standing for an equal protection claim also supports a vote dilution claim under the First Amendment. Thus, individual Plaintiffs have alleged and supported only district-by-district standing. Accordingly, the League has derivative standing to challenge the reapportionment plan for any district in which its members reside and have put forth the requisite evidence.
However, a problem arises when the League claims standing independent from its members. To begin, the League conflates two distinct types of "associational" standing: (1) First Amendment associational standing, as outlined in Justice Kagan's concurrence in Gill, 138 S.Ct. at 1938; and (2) independent standing for an
The League cannot take advantage of First Amendment associational standing because it is not a political party or related entity. In her concurring opinion in Gill, Justice Kagan recognized an "associational harm of a partisan gerrymander [that] is distinct from vote dilution." 138 S.Ct. at 1938 (Kagan, J., concurring). Under such a theory, "the valued association and the injury to it are statewide [and] so too is the relevant standing requirement." Id. at 1939.
Even assuming that a majority of the Supreme Court would support Justice Kagan's concept of statewide First Amendment standing,
"Associational" standing in the terms of a burden on the First Amendment Freedom of Association in a partisan gerrymandering case is expressly limited to "parties, other political organizations, and their members." Id. at 1938 (Kagan, J., concurring). See also id. (noting that "what is true for party members may be doubly true for party officials and triply true for the party itself (or for related organizations)") (emphasis added); Vieth v. Jubelirer, 541 U.S. 267, 314, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy, J., concurring) (stating that allegations of partisan gerrymandering "involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views") (emphasis added); Benisek v. Lamone, No. 1:13-CV-03233-JKB, 348 F.Supp.3d 493, 522, 2018 WL 5816831, at *21 (D. Md. Nov. 7, 2018) (finding that "the associational injury is the burden imposed on the targeted party members' ability to affiliate with their political party to carry out its activities and achieve its aims") (emphasis added).
The League could also show statewide "associational" standing—more often referred to as organizational standing (i.e. independent standing for an association or organization)—if its mission has been "perceptibly impaired" by a "concrete and demonstrable injury to the organization's activities" and a "consequent drain on the organization's resources." Havens, 455 U.S. at 379, 102 S.Ct. 1114. However, the League relies on the wrong sort of evidence to support this type of standing.
The League relies on the declaration of Susan Smith (ECF No. 129-54) and the League's 30(b)(6) deposition (ECF No. 129-54) to support its independent organizational standing. The alleged harms to the League's mission—less participation in voter forums, unwillingness of Republican representatives to discuss proposals, and increased voter cynicism—are not sufficient to constitute an injury under Havens. The Havens Court required a showing of a "concrete and demonstrable injury to the organization's activities—with the consequent drain on the organization's resources—[that] constitutes far more than simply a setback to the organization's abstract social interests." 455 U.S. at 379, 102 S.Ct. 1114. But the League has not even alleged—much less supported—facts tending to show that it was required to expend time, money, or any other type of the organization's resources to fulfill its mission. The inability to entice candidates to participate in the League's activities and apathy among voters is what the Havens Court described as "simply a setback to the organization's abstract social interests." Id. Compare Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff'd, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (finding organizational standing when the Democratic Party was compelled "to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law"); Green Party of Tennessee v. Hargett, No. 2:13-CV-224, 2014 WL 11638572, at *10-11 (E.D. Tenn. Feb. 20, 2014) (concluding that the Green Party lacked organizational standing because "nowhere in plaintiff's complaint [was] it alleged that the challenged Tennessee statute w[ould] cause it to expend more of its time, money or resources, something it [needed to] do to plead an injury in fact").
As the dissent in Common Cause v. Rucho, 318 F.Supp.3d 777 (M.D.N.C. 2018) explained, to allow organizations to have First Amendment standing to assert partisan gerrymandering independent of its members based on "other organizational purposes" is tantamount to allowing the
In my view, because the individual Plaintiffs have alleged only vote dilution (district-level) claims and because the League cannot satisfy either type of independent standing, no Plaintiff can maintain a statewide claim.
Rucho, 318 F.Supp.3d at 852.
