Badham v. March Fong Eu

plaintiffs’ on First Claim for Re- judgment on 42

lief based U.S.C. 1983. BADHAM, Naylor, § Robert E. Robert Eric Seastrand, Silvestri, Aldo Michael W. part granting IT IS ORDERED and Cobb, Verlot, Frank O. Rich Donna S. preced- denying part, with the consistent ardson, Baker, Schrager, Peter Jane court, ing memorandum of the defendants Meyer, Lindsey, A. Charles Kirk Don Arizona, Department Arizona State Driscoll, D.D.S., Roger Erickson, ald T. Lewis, Corrections, Ricketts, and Gold- Cynthia Trobitz-Thomas, Wally Her summary judgment smith’s motion Landowski, Hite, ger, Lowell Mike Jack Relief, against plaintiffs’ First Claim Garza, McQuaid, Rosemary Dennis U.S.C. contained based § Thakar, Eigenberg, Steve David Complaint. First plaintiffs’ Amended Williams, LaCrone, Nash, Michael Bob granting IT IS FURTHER ORDERED Shumway, Pashayan, Chip Norman Arizona, defendants State of Arizona De- Crevelt, Lagomarsino, David Robert Corrections, Ricketts, Lewis, partment of Thomas, Gallegly, Bill Elton Carlos summary judg- and Goldsmith’s motion for Moorhead, Woolverton, George Jerry against plaintiffs’ Claim for ment Second Zerg, Baird, Kerns, David Robert Rob Relief, 201 et seg., based on the 29 U.S.C. § Scribner, George Adams, ert John Carl plaintiffs’ Com- contained First Amended son, Almquist, W. John Jackson M. plaint. McMurray, Joyce Robertson, David granting IT IS FURTHER ORDERED Dreier, House, Lewis, Jerry Charles Arizona, State of Arizona De- defendant Henley, McCandless, Bob Al Robert Ricketts, Corrections, Lewis, partment of Dornan, Dannemeyer, William Bob summary judg- Goldsmith’s and motion for Badham, Lowery, Lungren, Bill Dan against plaintiff’s ment Claim for Third Packard, Mitchell, Ron Bill Dun and Relief, based A.R.S. 31-254 and 23- §§ Hunter, Plaintiffs, can in plaintiffs’ contained First Amended Complaint. denying

IT IS FURTHER ORDERED EU, Secretary MARCH FONG of State summary plaintiffs’ judgment motion for California, Defendant, State Estenson, against Gray, defendants

Cutter Laboratories. California; Assembly of the State of Members the California Democratic granting IT IS FURTHER ORDERED Congressional Delegation, Defendants Gray, Estenson, defendants and Cutter Intervenors. summary Laboratories’ cross-motion for First, against Second, judgment No. C-83-1126-RHS. and Third Claims for Relief contained in Complaint. Plaintiff’s First Amended States United District N.D. California. dismissing IT IS FURTHER ORDERED plaintiffs’ complaint against de- action April 21, 1988. Gray, Estenson, fendants Cutter Lab- oratories. vacating

IT IS FINALLY ORDERED

stay discovery entered court at previous status conference held

parties. Parrinello, Marguerite Mary

James R. Rosen-Garcia, Leoni, Nielsen, and Louise J. Mueller, Hodgson, Parrinello & San Fran- cisco, Cal., Hess, Washing- A. and Michael ton, D.C., plaintiffs. Gen., Atty. K. De Kamp,

John Van Gen., Murphy, Atty. E. Deputy Robert San Francisco, Cal., for Secretary defendant Fong March Eu. Remcho, Purcell,

Joseph Kathleen J. Marson, Remcho, C. Johansen & Charles Purcell, Francisco, Cal., for San defendant- Assembly intervenor of the State Cal. Borow, H. Richard H. Jonathan Stein- Wessel, Manella, berg, A. Irell and Bruce & Cal., Angeles, Los for defendants-inter- Members the California Demo- venors Delegation. Congressional cratic OPINION MEMORANDUM AND ORDER POOLE, Judge, Circuit and ZIR- Before SCHNACKE, Judges. District POLI and POOLE, Judge, Circuit with whom ZIRPOLI, Judge, concurs: District chal- involves a constitutional case plaintiffs, Republican congression- lenge by registered representatives and certain al California, to Assem- Republican voters 2X, Chapter Extraordinary 1st bly Bill Legisla- of the 1983-84 California Session (“A.B. 2X”), which effected the redis- ture tricting in Califor- districts Pending Census. following nia the 1980 us is the defendants-intervenors’ before plaintiffs’ third amended motion to dismiss claim, pur- complaint1 for failure to state a however, changed, argument, granted and we plaintiffs' was not mo- At oral complaint at issue to refer to the shall continue tion to amend their third amended complaint. plaintiffs' plaintiffs. third amended add The substance of additional 12(b)(6). general suant to Fed.R.Civ.P. We hold the November 1982 election representatives Congress, alleged, have not and on this 28 Demo- crats and 17 were elected un- allege, facts record cannot sufficient der the A.B. 301 districts. In the same under the state a claim Court’s election, George Deukmejian, Republican, a Bandemer, holding in Davis v. Governor, was elected to succeed Brown as 2797, 109, (1986). 106 92 L.Ed.2d 85 defeating Angeles Mayor Los Thomas Accordingly, grant- the motion to dismiss is Brown, Bradley, a Democrat. whose term prejudice. ed with 2, due expire January 1983, was on extraordinary called an Leg- session of the BACKGROUND islature, 6, which convened on December 29, 2X, 1982. On December previ- a Under the 1970 Federal Decennial Cen- ously-passed Equalization Board of reap- sus, congres- California was entitled to 43 bill, portionment was from withdrawn Gov- sional seats the United States House of ernor Brown’s desk and amended to include Representatives.2 Following the 1980 Cen- districts, congressional new allegedly based sus, repre- California became entitled to 45 rejected A.B. 301 districts. As In order to effect the sentatives. neces- amended, passed by A.B. 2X was both sary redistricting, Legisla- the California houses on party-line a vote. Governor (“A.B. passed Assembly 301”) ture Bill 301 signed Brown shortly A.B. 2X into law time, September, 1981. At that Demo- leaving 2, January before office on 1983. majorities cratic controlled both houses Legislature, voting the California on PRIOR PROCEEDINGS party A.B. 301 followed lines. Governor 4, 1983, plaintiffs On March filed the Brown, Jr., Democrat, Edmund signed G. original action, alleging this that A.B. 16, September A.B. 301 into law 1981. laws, 2X violated several state as well as day, The same the chairman of the Cali provisions. federal constitutional Pursuant Republican Party fornia Republi and the 2284, to 28 U.S.C. three-judge dis- § can began petition National Committee trict court was convened to hear the chal- qualifying drive aimed at a referendum on lenge constitutionality appor- of the A.B. 301 for the June 1982 ballot.3 See tionment of the districts at Assembly Deukmejian, 638, v. 30 Cal.3d issue. 644, 297, Cal.Rptr. 180 639 P.2d 939 Perceiving that a resolution favorable to appeal denied, Repub dismissed and cert. of their state claims Burton, lican Nat’l Comm. v. 456 U.S. might partially completely or avoid the (1982). 102 need to address the federal constitutional The referendum was successful and result issues, we ordered plain abstention so that in preventing ed taking A.B. 301 from ef tiffs’ state-law claims could be considered force; nevertheless,

fect of its own by the California courts. Badham v. Supreme California Court ordered that the Eu, (N.D. March Fong F.Supp. 568 156 challenged districts be used for the June Cal.), sub nom. Badham v. United aff'd 1982 and 1982 November elections because (9th States Disk 721 F.2d 1170 Cir. they only practical were the 1983). alternative. After the circuit court decision of Assembly Deukmejian, v. 30 Cal.3d at filed, affirmance expiration was but before Cal.Rptr. 639 P.2d 939. petition time within redistricting plan following law, 2. The the 1970 Cen- 3. Under ap- California a referendum to prepared by Special appointed sus was Masters prove reject a statute must be held if a Supreme Legis- the California Court after the sign petition sufficient number of voters with- Reagan lature and then-Governor Ronald failed days in 90 of the statute’s enactment. Cal. agreement. Legislature to reach See v. Rei- Const., II, art. §§ necke, Cal.Rptr. 10 Cal.3d 516 P.2d election, In the November 1980 22 of Democrats; the 43 seats were won Republicans. 40(a), concern about the state Fed.R.App.P. some whether law rehearing pursuant really removed, agreed of man petition for had been plaintiffs filed a writ issues jurisdic- in the California abstention and reassert date to vacate asking state-law issues and tendering the tion. That court days. for a decision within Following on defendants’ mo grounds that petition on the denied the plaintiffs’ tion to dismiss second amended final, opinion had not become circuit court complaint, we concluded that our wisest delay resolu prevented had final course await the outcome of they dispute date factual tion of the (S.D. Davis, F.Supp. 1479 Bandemer v. essential, the relief and that claimed to be Ind.1984), rev’d, Davis inappropriate. v. requested Badham was 109, 106 S.Ct. 92 L.Ed.2d 85 (Cal. Eu, No. 24638 Fong S.F.

March (1986), pending which was then before the 27, 1983). Sup.Ct. Oct. Supreme United States Court. Ban 12,1983, request On December demer, three-judge court had district held to jurisdiction reassert ed this court to redistricting legislative the the Indiana com grant to file a second amended leave unconstitutional, to be districts the theo abandoning state- plaint, purportedly the partisan ry political gerrymander that a complaint was The amended law claims. Equal violated the Protection Clause of the filed, and tentatively permitted to Fourteenth Amendment. As the argument to determine scheduled oral second amended raised issues After terminate whether to abstention. virtually to identical those before Su par argument reviewing hearing Bandemer, preme Court we ordered all submissions, ties’ we concluded stayed Supreme proceedings pending the implicit in the issues were still state-law March Fong Court’s decision. Badham v. and that the basis for abstention case Eu, (N.D.Cal. Sept. No. C-83-1126 valid, and we previously set forth was still 1985), mem. nom. Badham sub v. aff'd again parties resolution to seek ordered Court, F.2d Dist. United States v. issues state court. Badham Cir.1986). (9th Eu, (N.D.Cal. No. Fong March C-83-1126 Supreme After the rendered its 19, 1984) (Schnacke, Judge, June District Bandemer, plaintiffs in Davis v. decision dissenting), mem. sub nom. Badham aff'd granted leave file a third amended were Dist. 749 F.2d 36 States United again moved to dis- complaint. Defendants (9th Cir.1984), Bad cert. denied sub nom. miss, heard on the mo- and we State, Secretary 470 U.S. ham v. December tion on meantime, following our second In the DISCUSSION abstention, the parties order had become Superior in a actively involved suit CAUSE ACTION I. FIRST OF Angeles, which Court of California Los major is that A.B. Plaintiffs’ contention seeking a had filed the defendants been intentional, invidious and effec- 2X' is “an 2X. As validity of A.B. declaration Equal gerrymander” that violates tive noted, we viewed previous our orders had Fourteenth Clause of Protection litigation possible, as a pending strength by diluting the Amendment exclusive, resolving vehicle for though not Before Republican voters in California. made claims. Some efforts were state claim, considering the of this how- merits might stipulations enable reach ever, briefly the defend- we must address court, to be tried the state those issues question is non- contention that this ants’ agreement. parties could not reach justiciable. certiorari, Supreme Court denied After the again to this court and parties returned Justiciability A. jointly requested that we vacate abstention Bandemer, the Court plain- In Davis v. proceed to trial on and allow them partisan gerrymandering claim complaint. With held that a tiffs’ second amended justiciable equal protection was under B. The Threshold Test Effects clause. 106 S.Ct. at 2803-07. Defendants In assessing whether have suf- argue distinguish that we should this case ficiently alleged equal protection claim challenge involved a because Bandemer under Davis v. we must first redistricting, legislative state whereas this grapple single opinion with the fact that no challenge case involves a in Bandemer commanded the assent of a redistricting. majority of justices the court. Of the six argument unpersuasive. We find this partisan who believed that contention, I, Defendants’ first that Article justiciable, claims plurality were of four represents Section of the Constitution4 held that “a showing threshold of discrimi- “textually constitutional demonstrable com- natory prima vote dilution is for a politi- mitment of the issue to a coordinate equal protection facie case of an violation.” department,” Carr, cal Baker v. 369 U.S. White, J., (opinion S.Ct. at 2816 691, 710, L.Ed.2d 663 joined by Brennan, Marshall and Black- rejected Court mun, JJ.). dissented, justices express- Two Sanders, in Wesberry v. 84 ing the legislature view that “a state vio- 526, (1964): S.Ct. L.Ed.2d 481 Equal lates the by adopt- Protection Clause nothing made it clear in Baker that [W]e ing a redistricting plan designed solely to I, language of Section [Article 4] preserve power politi- the of the dominant gives support to a construction that party.” Powell, cal (opinion Id. at 2825 of congressional ap- would immunize state J., joined Stevens, J.). by justices Three portionment laws which debase a citi- concurred in the ground result on the right zen’s power to vote from the partisan gerrymandering claims were sim- protect courts to the rights constitutional ply non-justiciable. (opinion Id. at 2816-17 legislative of individuals from destruc- O’Connor, J., joined by Burger and tion ... JJ.). Rehnquist, 6, 376 U.S. at 84 S.Ct. at 529. Despite tripartite views, this division of it attempt Defendants distinguish Wes- is clear that apply we must the “threshold” ground berry on the that Wesberry in- test by plurality. advocated the In Marks volved a numerical rule of law that could States, 188, v. United 430 U.S. 97 S.Ct. applied “expressing without a lack of 990, (1977), the Court was respect the due coordinate [a] branch[ ] determining faced with prior effect of a Carr, Government.” Baker v. 369 U.S. at case, Massachusetts, Memoirs v. 383 U.S. argument, 82 S.Ct. at 710. This how- 413, 86 S.Ct. L.Ed.2d ever, rejected in Bandemer: separate opinions which three supported fact, however, The mere may that we not judgment. The Court said: similarly perceive now a likely arithmetic fragmented When a Court decides a case presumption in the instant context does single and no explaining rationale compel a conclusion that the claims enjoys Justices, result the assent of five presented here non-justiciable. holding “the of the Court be viewed 106 S.Ct: at 2805. position by as that taken those Members judgments who concurred in the nothing justicia- We find in Bandemer’s grounds____” narrowest bility analysis Gregg v. Geor- turns on the distinction gia, 428 between 169 n. 15 redistricting and [96 legislative state redistricting. Accordingly, (1976) 2923 n. 49 L.Ed.2d 859] Stewart, we will address the (opinion Stevens, merits of defendants’ Powell and motion JJ.). to dismiss. I, Times, provides:

4. Article Congress may Section 4 "The at time Law make or alter holding Places and Manner of ators and Elections for Sen- Regulations, except such as to the Places of Representatives, prescribed shall be chusing Senators.” thereof; Legislature each State but the difficult, pro- at tions more and failure of Marks, 993. at plurali- representation Thus, analogy, may portional treat the alone does not analysis impermissible as “consti- ty’s Bandemer discrimination constitute holding pro- tut[ing] of the Court equal protection under the clause. standards,” to viding] governing rationale, at Based this Id. Marks, supra applied to case. plurality concluded that the effects thresh- at 994. 97 S.Ct. inquiry old a more broad-based began set- plurality in Bandemer projected or present than election results the claim: “in ting forth the elements of challenged Specifical- under the districts. plaintiffs were re- ... order succeed ly: prove discrimina- both intentional quired discrimination occurs [U]nconstitutional political group against an identifiable only system when the electoral is ar- discriminatory effect actual ranged in a will manner that consistently Although the at 2808. group.” degrade group a voter’s voters’ initial with this state- agreed dissenters political process influence on the as a Powell, J.), ment, (opinion of at 2825 see id. whole. disagreed with the dissenters’ plurality added). (emphasis, Id. “disproportionate elections re- position that previous Relying on successful chal- sup- are a sufficient effect sults alone cases, lenges in racial finding a constitutional violation.” port a plurality elaborated on the nature of Rather, plurality found it at 2815. showing” required: that was “threshold require allegations and “appropriate to individual multi-member district challenged legislative plan proof cases, equal protection have found that are suffi- we has had or have effects will only history dispro- require by violations where a of ciently to intervention serious in reapportionment portionate appeared conjunc- results in state the federal courts strong politi- lack at 2811. The rationale for indicia of of decisions.” Id. with requirement power represen- cal the of fair denial supra, at 2809. In those tation. See the mere fact on a conviction that rest[s] cases, asserting racial minorities the the particular apportionment that a scheme equal claims had protection successful particular for a makes it more difficult essentially political the been shut out group particular in a district to elect the of political gerry- process.. In the statewide not representatives of its choice does ren- context, prior lead mandering these cases constitutionally infirm. der that scheme equal turn, analogous that conviction, in a to the conclusion stems from only power protection may be found perception the to influence violations that (actual projected) of is limited to or political process the not win- where a group appears a in con- ning disproportionate An individual or results elections. losing mere junction who for a can- indicia. The of individuals votes with similar adequate- usually Assembly deemed to be of didate lack control the General of winning ly represented by the candidate single after election does rise a to influ- and to as much requisite level. as other voters in the ence that candidate added). (emphasis Id. at 2814 in presume district. We cannot such a mind, now in we With these standards situation, proof actual con- without allegations of the com- specific examine the

trary, the candidate elected will en- that ef- plaint if a “threshold to see sufficient ignore those tirely the interests of vot- alleged. fect” has been is true even in a safe district ers. This losing group loses election af- where the Complaint Sufficiency C. of Thus, group’s ter electoral election. matter, clear it is that As an initial unconstitutionally diminish- power is not alleges a complaint sufficiently discrimina- apportion- by simple ed fact of an Indeed, re- winning tory intent. ment scheme that makes elec- píete allegations tending throughout at De- specific with the 1980’s.” Id. 2812. intent, discriminatory argue such as the fendants must show show a “uncouth, deficiencies, of much more as pleaders’ allegations irreg- serious such configurations” of the those shown in the racial ular and dis- bizarre cases, legislative and in addition must “the tricts and eleventh-hour show that of the [Republicans] doing approved hope would have no maneuvering get bill be- governor any reapportionment left office. better fore a Democratic noted would occur after the 1990 plurality census.” Bandemer “[a]s long legisla- is done redistricting as dispute, We need not resolve this ture, very prove difficult it should not however, because case it is clear consequences likely political that the of the satisfy cannot second reapportionment intended.” 106 S.Ct. were prong of the “effects” test. In order to Thus, as will satisfy prong, plaintiffs the second must sufficiency focus our attention “strong political show of lack of indicia plaintiffs. the “effects” power representa the denial fair inquiry

The first “effects” concerns the tion.” 106 2814. The S.Ct. at Bandemer (actual “history dispropor- projected) plurality specifically require based this tionate results.” Id. at 2814. prior relating ment on its “cases to chal [election] Here, allegations lenges groups racial to individual multi “op- districts,” told that A.B. 2X numerous. We are member id. at 2810 n. case, [plaintiffs’] cancel out noted that mi erates minimize or those racial “[i]n voting strength,” essentially norities votes and and that ... had been shut out political “[plaintiffs’ persistently degrad- process.” votes are Id. at 2814. ed and diluted both individual districts prong It is on the “ef- this second spe- ... and on a basis.” statewide More plaintiffs’ complaint fects” threshold that allege cifically, plaintiffs that A.B. 2X Specifically, there are falters. no factual grossly disproportionate “locks election allegations regarding Republi- California throughout results” the decade “allo- process cans’ role in “the catfing] permanent a substantial and ma- whole.” There allega- Id. at 2810. are no jority party of Democratic seats to candi- Republicans tions that California have been superior in percentages dates far political process, “shut out” of the nor are strength voting statewide of Democratic allegations anyone in- there that has ever voters.” Republican registration, terfered with or- election, Republicans ganizing, fund-raising,

In the voting, campaign- re- or statewide, ing. Republicans speak ceived of the vote remain free to out 50.1% concern; only plaintiffs of the on do public received issues of 40% (18 are, 45). disparity allege seats of not or narrowed that there have ever been, in when any impediments partic- somewhat re- to their full “uninhibited, robust, ipation ceived of vote and in the retained the the 46.9% alleged wide-open” public po- same 18 seats. Plaintiffs have debate on which our that consequence system these direct results are the of litical relies. New York Times Co. they Sullivan, predic- A.B. 2X and that are a reliable tion of future elections. parties disagree Particularly conspicuous by over whether its these absence

allegations satisfy any allegation plaintiffs’ are sufficient that interests are prong first being “entirely ignore[d]” congres- of “effects” their Bandemer’s test. only deficiency representatives. Bandemer, Plaintiffs contend that the sional Instead, plaintiffs in plaintiffs Bandemer that there S.Ct. at 2810. claim that solely single relied on results of a elec- Democratic will be re-elected incumbents tion, plaintiffs whereas here have “without attend to the need to views reapportionment fragmented submerged Republican that “the 1981 would con- mi- sign the [Republicans] minority allega- to a norities in Such an status their districts.” Bandemer; (dissenting opinion), at 2833 see insufficient under tion is plurality not it did even consider specifically cautioned but case plurality that worthy disregard of comment. presumption of that such proof, countenanced without not be would protest only that Plaintiffs factual districts. so-called “safe” Id. even in deficiency plain- Bandemer was suggest plaintiffs do Nowhere only relied of a tiffs there results disregard prove means they can election, single specif- and the district court from the election by inference other than ically refused to find that that election was results, re- a method which Bandemer prediction reliable of future elections. purview. from our moves at 2812. Plaintiffs main- See Bandemer they tain that it is sufficient show that example of how the A further representa- proportionate cannot achieve up is contained fails to measure throughout tion the 1980’s. While it is following passage: possible plaintiffs have cured the Ban- grossly disproportionate 2X locks plaintiffs’ deficiency in this re- demer one has invidious results and other election gard, disagree with limitation, including, effects without only deficiency apparent that was the incumbencies, Republican destruction opinion plurality specifically case. The votes, Republican the min- wasting (actual projected) “a Republican opportu- voters’ imization of disproportionate conjunc- results ... choice, congressmen of their nity to elect (em- with indicia.” at 2814 political [other] systematic elimination of added). phasis accept plaintiffs’ We cannot po- competition, discrimination based ignore prong invitation to second other effects as litical association and Accordingly, “threshold effects” test. detailed below. plaintiffs dis- first cause of action must be Obviously, Complaint at 13. missed. allegation in attempted to couch this terms However, all prongs. two Bandemer’s D. Leave to Amend alleged “other effects” are invidious moving to consider Before repeating merely ways of central different claims, we next consid- other constitutional allegation dispropor- that A.B. 2X causes granted an- er whether should be language tionate election results. The opportunity complaint. other to amend their “discrimination based on associa- reasons, following we believe such For the might allege ef- tion” be considered an unavailing. would be needed, single the kind but this fect of conclusory sup- statement is it refusing major reason for another Our ported by inference-generating any other litiga- is of this amendment that alleged complaint. in the facts indicates, implicitly explicitly, and both have their only Republicans “effect" that is taken best other complaint amended dispropor- from a mere claim of shot. Plaintiffs second different opinion allegation is on the district court tionate election results was based shapes in Ban- irregular” of Court reversed that the “bizarre and which reversal, gave plain- apa- cause confusion and demer. After that districts voter com- thy congressmen to amend their and make it difficult for tiffs attempt light a claim in of plaint to with their constituents. to to state communicate However, allegation is Plaintiffs had the Bandemer this not limited to Bandemer. with, they ac- congressmen; have ap- opinion it to work Republican voters moving papers in congressmen knowledged all their plies equally to voters and requires something than plan. more Nothing affected com- Bandemer (although suggests Republican disproportionate results plaint election somehow require- they dispute the extent of this differentially are affected voters addition, ment), argument yet amended alleged apathy. this their third allegations plaintiffs notably raised devoid of material Although sary judiciary intervene, uses for the this score. to as we language similar to that used in Bandem- protect would constrained to do to er, such as “other invidious effects” and trampled rights disadvantaged political of a representa- lack fair and effective minority. “[a of] or racial tion,” conclusory language cannot dis- among Chief our is our un- observations guise only fact that the factual basis disputed knowledge Repub- that California plain- underlying these claimed effects licans still hold 40% disproportionate of under- tiffs’ assertion seats, a sizeable bloc that is far more than representation. easy It is all too to infer representation. mere simply token It any mate- from this studious avoidance plaintiffs allege would be ludicrous for non-election “ef- allegations rial based that their being “entirely ig- interests are plaintiffs fects” that realize that no such Congress they when have such nore[d]” effects exist. large contingent representatives who rely solely not have to on infer- We do share those interests. We also note that however, ence, repeatedly because we invit- Republican governor, California has a plaintiffs ed at oral to advise Republican. one of its two senators is a any they whether were aware of additional also Republican Given that a recent former strengthen facts which would their com- governor of years California has for seven plaint, plaintiffs repeatedly declined States, been President of the United seewe our to call such facts to the at- invitation political power the fulcrum of such as colloquy, This tention of the court. any attempt to belie to claim margin,5 amply is set forth in the demon- they ability are bereft of the to exer- acknowledgement strates potent power political process cise in “the inability good come forward as a paralysis whole” because of the of an allegations any sup- faith with additional gerrymander. unfair portable by evidence court. For this reason, opportuni- that further we conclude An additional fact further strikes us as ty unavailing. to amend would be extremely political power indicative of the Republicans in California: ad- plaintiffs’ litigation pos- We believe that Republicans mit that the were able to over- dispense ture is itself sufficient reason bill, original redistricting turn the attempts with further at amendment. through resort to California’s However, referendum judicial we also take notice process. display Repub- of California of other facts which demonstrate that Cali- political might licans’ being fornia are far from demonstrates their ef- fectively ability protect political process. “shut out” of the themselves from Instead, Republicans represent subjugation. complain California Plaintiffs that their potent political so force that it is unneces- passage effort was undone of A.B. 5. The Court: "Do you Mr. Parrinello: We tant, those facts were that the court felt were The Court: I don’t think we have would be a claim under Bandemer v. Davis. request one tion violation as the Court has said in Bandem- there are other lieve that we have abundance of Mr. Parrinello necessary showing er? Are now, way have and— ^[******] your or the other. you prepared got helpful opportunity first to defend. caution, [Counsel things claim, for a claim of your you believe the that could be It’s to rest on that? if the court believe that honor. But out of an you to understand what your complaint court, Plaintiffs]: have set forth the equal protec- ... any feels that you I concern We be- impor- would states while defendants made Reporter’s Transcript The Court: Do before we rule? The Court: There is Mr. Parrinello: that with The Court: You are complaint Mr. Parrinello: Your complaint cance at this time that [Counsel Mr. lars which Parrinello: difference, ^[******] at 59-60 and 67. my you as any alleged." counsel? given think we you add to it in substantial May We way? nothing think I have a minute to discuss an honor, prepared you prepared ought Proceedings, their you believe would make else of we'll stand on the reply argument.] to have before us can to stand on it? to stand on it. great signifi- improve December to confer particu-

673 478 Gingles, U.S. satisfactorily explain Thornburg v. 2X, they cannot but Re- a return to not available why there was sup- recently had so cannot claim to have publicans in California populace which same repre- for fair struggle political pariahs; they in their ported them as have been treated plain- suggest not formidable, We do sentation. domi- and sometimes a been of “exhaus- subject to kind tiffs were nant, point, agree we force. On this with that a re- we note requirement, but tion” “even the defendants that bounds in- they show pleadings source which the political exaggeration are exceeded normal not inexplicably dulged the outset has in at Republicans attempt of California when require We do not for. been accounted can suggest that their role even referendum resort to state plaintiffs to spoken of in the same breath as that of merely cognizant that we are procedure; County, Georgia Blacks of Burke complaint is mute as the third amended Mobile, Congres- Alabama.” Democratic open tool available why it was Delegation’s Sup- sional Memorandum their simultaneously pursuing them while Dismiss, port of Motion to at 26. peti- legal remedies. A federal state and no credi- are convinced that there is We than of the voters signed by more 5% way ble in which could amend taking 2X from prevented A.B. would have a their state claim under place. took after a referendum effect until they formal- Davis v. nor would have referendum vote A successful sought Therefore, plaintiffs’ so. ly to do Republi- a gerrymander, because killed the prej- action with first cause of is dismissed prac- In governor had taken office. a can udice. sense, ignore cannot realistic we tical and example of the California very real OF simply II. SECOND CAUSE ACTION political power because Republicans’ a to exercise it they have not elected when is that Plaintiffs’ second contention again.6 arose similar situation I, 2X 2 of the violates Article Section comparison facts of the quick Constitution, A with the provides: which cases on which Ban- racial Representatives shall be The House demonstrates the dis- demer was based every composed of chosen sec- Members alleging from tance of People Year of the several ond example, Rogers Lodge, v. claim. For ... States 3272, 73 102 S.Ct. L.Ed.2d U.S. I, conjunc- must be read Article Section (1982), Blacks constituted 38% 2 of the Fourteenth Section tion with County Georgia, had in Burke voters Amendment, provides: which single never seat. Mobile won apportioned Representatives shall Bolden, according to among States the several constituted L.Ed.2d Blacks numbers, counting the respective had one-third of the electorate” but “about in each State persons number whole In cases single never seat. under won Act, Rights em- Voting the Court has interpreted by As “minority group members phasized I, from prevents a State Article Section past the effects of discrimination bear unequal education, creating congressional districts of employment, areas such “The of the Constitu- ability population. health, partic- hinder their tion, part relating to effectively political process.” particularly that ipate using summary judgment complain judicial Rule 56. under that we are one Plaintiffs issue, However, 12(b)(6). ultimate do not notice of facts to determine the Fed.R.Civ.Pro. i.e., power Republicans' has whether judicial as a our observations view uncontested unfairly by They argue 2X. been diluted Rule; merely ruling we under either formal improper a that a determination is such support these as additional take notice of facts initially when to dismiss. We note that motion given ruling not be need for our presented pleadings on a matters outside the are to amend. additional dismiss, as treat the motion motion 694 F.Supp. 16— 674 I, 2, argument that those Plaintiffs’ reads too much into

adoption of Art. reveals § that, The Court itself has Wesberry. framed the Constitution meant who dicta, recognized, “population in albeit the mechanics of an elec no matter what has the sole criteria of constitu- districts, alone been tion, it whether statewide tionality congressional redistricting un- in was to the basis of population I, Howell, 2 410 der Art. ...” Mahan v. Representatives.” Wesberry § the House of 322, 979, 315, 984, 93 S.Ct. 35 L.Ed.2d 530, U.S. Sanders, 1, 9, 526, 84 v. 376 U.S. S.Ct. (1973). 320 The cases decided under Arti- (1964). Accordingly, the 11 481 L.Ed.2d I, from Wesberry cle Section redistricting plans has invalidated Court present, fully support such a conclusion. containing population minor variances even Indeed, the Court has even indicated a will- good-faith the result of a that were “not ingness accept politi- a certain amount of population equality.” to achieve effort maneuvering long cal so as the core consti- 725, 727, 462 103 Daggett, Karcher v. U.S. population equality tutional 2653, 2656, (1983). 77 L.Ed.2d S.Ct. 133 concern— —was protected: cases, empha has all of these the Court argument that deviations from nu- representation equal “equal sized that [The] equality justified merical in order to people the fundamental numbers [is] legislators engaging parti- from inhibit goal Representatives.” the House of gerrymandering is san no more than a 535; Wesberry, 376 U.S. at 84 S.Ct. at argument, already reject- of the variant Karcher, 730, 103 462 at see also ed, practical poli- that considerations of 2658; Preisler, Kirkpatrick v. 394 U.S. justify population disparities. tics can 526, 530, 89 22 L.Ed.2d 519 Kirkpatrick, 394 atU.S. 89 S.Ct. 1230. reasoning is inconsistent with the no- Plaintiffs concede that A.B. 2X does not partisan gerrymandering tion that is itself Thus, equal population violate the rule.7 if I, an Article Section 2 violation. I, more, requires nothing Article Section 2 reading Kirkpatrick Our is confirmed grant- then the motion to dismiss must be Karcher, in which the court stated: ed. Kirkpatrick prevent does little to what I, Plaintiffs’ that Article Sec- gerrymandering. Kirkpat- as known require tion 2 does more is based on rick’s, object, achieving population equali- Wesberry statement from that “the com- ty, is far less ambitious than what would I, mand of Art. ... means that as § address nearly practicable one man’s as vote a aon constitutional level. congressional election is to be worth 462 U.S. at 734 n. S.Ct. at 2660 n. 7-8, much as another's.” 376 U.S. at omitted).8 (citations Seizing concept S.Ct. at 529-30. “worth,” plaintiffs argue Republican Thus, the Court has made it clear that I, votes California are “worth” less than only proscribes Article Section districts 2X places population. Democratic votes because A.B. unequal regarding Claims majorities disproportion- Democratic in a political makeup of those districts must ately large judged by rigorous number of districts. the more standards enacted, originally pick plan 7. As A.B. 2X did contain dined to which embodied "an inten- population permissi- variances which exceeded gerrymander tional in favor of certain Demo- limits, Secretary ble of State Eu remedied Representatives." F.Supp. cratic at 1262. making that defect 21 administrative correc- However, Daggett only involved the remedial plan. foregone tions to the Plaintiffs have stage litigation, a violation of Article after implemented claim that these corrections were I, specifi- Section had been found. of state law. violation cally stated: need not consider “[w]e how [the proposed plan] been would fared had it Kimmelman, rely Daggett 8. Plaintiffs also validly Jersey.” enacted of New State (D.N.J.), mem., F.Supp. aff'd Thus, Daggett holding cannot be read as more, partisan gerrymander, without violates court, three-judge choosing where district I, Article Section 2. redistricting plan replace the one struck Daggett, specifically down in Karcher v. de- Amendment, group outlined in individual or as Bandemer: of the Fourteenth “[a]n Accordingly, plain- of who for a losing individuals votes candi- in Davis v. Bandemer. usually is adequately must be dis- date deemed to be second cause action tiffs represented winning by the and candidate missed. to have much as influence OF III. THIRD CAUSE ACTION that trict____ as candidate other voters the dis- is true This even safe districts is next contention Plaintiffs’ losing group loses election after where 2X Amendment violates the First Although 106 S.Ct. 2810.9 election.” at solely “penalizing Republican voters be generally have that Dem- affiliations, political party cause their ocratic incumbents “need attend [not] chilling pub and and associations beliefs fragmented submerged the views of public importance.” on issues of lic debate Republican districts,” in their minorities that the “First Amend It is well-settled they pointedly not allege do that Democrat- political as protects ment association well representatives “entirely ic in fact Valeo, political expression.” Buckley v. ignore[d]” those the interests of voters. 612, 632, 46 L.Ed.2d 424 U.S. 96 S.Ct. However, (1976). plaintiffs have failed Finally, that A.B. 2X penalizes explain A.B. 2X the exer how meaningful political “chills” is- debate rights. of their First Amendment cise wholly concept is The sues without merit. “negat[es] 2X that A.B. Plaintiffs assert “chilling of a effect” is associated with votes and the votes the effect overbreadth, doctrine of describes party,” this claim of members of their expression persons situation where whose Republican ignores the fact that votes were protected exercising from are deterred sufficiently Represent effective to elect 18 overly rights by their the existence atives. See, regulating speech. e.g., broad statute argue Plaintiffs that this case is similar 747, Ferber, 768, 772 New York v. 458 U.S. cases, such as to the ballot-access 3360, 27, 3348, & n. 102 S.Ct. & n. Celebrezze, 460 U.S. Anderson v. 73 L.Ed.2d 1113 While discouraged their lack of elec- Rhodes, 89 S.Ct. U.S. Williams success, they claim that A.B. toral cannot (1968), in 21 L.Ed.2d the Court which regulates speech subjects them 2X down restrictive election rules which struck engag- penalties or civil criminal effectively and third- independent excluded ing expression. in protected from Those party candidates the ballot. allege a violation have failed to Plaintiffs inapposite to the instant situa- cases rights. Accord- of their First Amendment prevented tion. Plaintiffs here are not must ingly, plaintiffs third cause of action voting fielding from from candidates or dismissed. The of their choice. First the candidate partic- guarantees right to Amendment OF ACTION IV. CAUSE FOURTH process; it does ipate final contention is guarantee political Plaintiffs’ success. IV, A.B. 2X Article Section of violates pro- Plaintiffs maintain that Williams Constitution, provides that “[t]he voters, regard- qualified “right tects the every guarantee shall United States political persuasion, to cast their less of Republican Form of State in this Union a 30, 89 effectively,” 393 U.S. at votes Government ...” added), (emphasis at 10 and that their votes easily dismissed on ineffective in those districts contention are rendered Carr, majority. authority is a We of Baker v. where there Democratic 223-24, 691, 713-14, 7 L.Ed.2d reject this contention. As the Court stated Although protec- overlapping equal noted the nature of involved an Williams Bandemer right right equally appli- to vote. 393 challenge, to association and the the observation is 89 S.Ct. at 10. cable to a First Amendment claim. SCHNACKE, and the cases cited therein. Judge, Bak- District er, consistently dissenting: noted that it “has challenge held that a to state action based respectfully I must dissent. A statement Guaranty presents justici- no Clause my reasons will be filed in due course. question.” able Id. at 82 S.Ct. at 714. respect reapportionment With chal- it,

lenge specifically before the Court stat- “any Guaranty]

ed that reliance on [the

clause would be futile.” Id. at

S.Ct. at 715. This result is not altered holding equal protec-

Bandemeds that an challenge partisan gerrymander to a justiciable; specifically Baker distin- Requested In The Matter Of The EX guished equal protection claim before TRADITION OF Carlos Guillermo non-justiciable the Court from the claims SUAREZ-MASON. Guaranty based on the Clause. No. CR-87-23-MISC.-DLJ. Accordingly, plaintiffs fourth cause of United States District action presenting must be dismissed as N.D. California. non-justiciable question.

April 1988. April As Amended CONCLUSION litigation tortured of this repeated one of attempts by

to frame a which could withstand

both a motion for abstention and a motion repeated

to dismiss. These attempts have naught

come to and have demonstrated unable state a federal

constitutional claim.

IT IS THEREFORE ORDERED that de-

fendants’ motion to dismiss third

amended is GRANTED with

prejudice.

ZIRPOLI, Judge, District concurring:

I accept must ruling Court’s political

“that cases

properly justiciable Equal under the

Protection Clause.” Davis v.

(1986). Nevertheless, the factors that mo-

tivated gerrymandering present case reprehensible

are no more than those found

in Bandemer1 and do not constitute a showing

threshold discriminatory vote

dilution prima for a facie case of

equal protection violation.

1. “Mr. Dailey: Sussman: What were many "Mr. We wanted to save as possible.” factors? incumbent er, Bandem- 106 S.Ct. at n. 5.

Case Details

Case Name: Badham v. March Fong Eu

Court Name: District Court, N.D. California

Date Published: Apr 21, 1988

Citation: 694 F. Supp. 664

Docket Number: C-83-1126-RHS

Court Abbreviation: N.D. Cal.