NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NAACP CONNECTICUT STATE CONFERENCE, JUSTIN FARMER, GERMANO KIMBRO, CONLEY MONK, JR., GARRY MONK, DIONE ZACKERY v. DENISE MERRILL, Secretary of State, EDWARD LAMONT, JR., Governor
Docket No. 19-576-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 24, 2019
August Term 2019
(Argued: September 10, 2019)
Plaintiffs-Appellees,
- against -
Defendants-Appellants.*
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
Before: WESLEY, CHIN, and BIANCO, Circuit Judges.
*
The Clerk of the Court is respectfully directed to amend the official caption to conform to the above.
Interlocutory appeal from an order of the district court (Eginton, J.) denying defendants’ motion to dismiss for lack of subject matter jurisdiction. Plaintiffs allege that Connecticut‘s redistricting plan, which counts incarcerated individuals in the district in which their prison is located rather than the district in which they permanently reside, violates the “one person, one vote” principle of the Fourteenth Amendment. On appeal, defendants argue that the district court lacks jurisdiction because Eleventh Amendment immunity applies and the claim presents a nonjusticiable political question.
AFFIRMED IN PART AND REMANDED.
ALAA CHAKER, Law Student Intern (Michael J. Wishnie, Supervising Attorney, on the brief), Peter Gruber Rule of Law Clinic, Yale Law School, for Plaintiffs-Appellees.
ALEXANDER T. TAUBES (David N. Rosen, on the brief), David Rosen & Associates, P.C., New Haven, Connecticut; Benjamin D. Alter, Bradford M. Berry, National Association for the Advancement of Colored People, Inc., New York, New York, and Baltimore, Maryland, for Plaintiffs-Appellees.
MICHAEL K. SKOLD, Assistant Attorney General (Maura Murphy Osborne, Assistant Attorney General, on the brief), for William Tong, Attorney General of Connecticut, Hartford, Connecticut, for Defendants-Appellants.
Defendants-appellants Denise Merrill and Edward Lamont, Jr., in their official capacities as the Secretary of State and Governor of Connecticut, respectively (together, “Defendants“),1 appeal the February 15, 2019 order of the district court (Eginton, J.) denying their motion to dismiss for lack of jurisdiction and for failure to state a claim. Plaintiffs-appellees the National Association for the Advancement of Colored People (the “NAACP“), its Connecticut Conference, and five individuals filed a complaint (the “Complaint“) on June 28, 2018, challenging Connecticut‘s 2011 redistricting plan (the “Redistricting Plan“).
The Complaint alleges that the Redistricting Plan violates the
prisoners typically have no contact with their prison district‘s elected officials, cannot patronize public or private establishments in their prison district, and cannot drive on their prison district‘s roads or send their children to their prison district‘s schools. Hence, according to the Complaint, the Redistricting Plan artificially inflates the representation of some parts of the state at the expense of others: the representational power of the predominantly White residents living in the prisoners’ mostly rural prison districts is artificially inflated, while the representational power of the predominantly Black and Latino residents living in prisoners’ more urban home districts is artificially deflated.
On September 6, 2018, Defendants moved to dismiss the Complaint pursuant to
the
DISCUSSION
I. Appellate Jurisdiction
Although the parties appear to agree that we have appellate jurisdiction, we are obliged to raise the issue of our jurisdiction nostra sponte “when it is questionable.” Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001). We conclude that we have jurisdiction over this appeal. Under the collateral order doctrine, we have jurisdiction to hear immediate appeals of nonfinal orders denying
This straightforward conclusion is complicated somewhat by the fact that this case involves a challenge to the constitutionality of the apportionment of a statewide legislative body, which must be heard by a three-judge district court.
where the statutory requirements are met, Shapiro v. McManus, 136 S. Ct. 450, 454 (2015). Before convening a three-judge court, “all the district judge must determine is whether the request for three judges is made in a case covered by
It follows that a single district judge is empowered to determine whether the
jurisdiction of the federal court, as opposed to the underlying liability of the State or state entity.” Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 150 (Stevens, J., dissenting); see also id. at 144 (majority opinion) (noting that the
II. Eleventh Amendment Immunity
A. Standard of Review
We review a district court‘s legal conclusion that state officials are not immune from suit under the
B. Applicable Law
The
doctrine “operates to end ongoing violations of federal law and vindicate the overriding federal interest in assuring the supremacy of [the] law.” Id. at 618 (internal quotation marks omitted). A plaintiff may invoke this exception “provided that his complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective.” Id. (internal quotation marks omitted). The first requirement is satisfied if the claim of an ongoing violation of federal law is “neither insubstantial nor frivolous.” Id. A claim is “insubstantial” for purposes of rejecting federal jurisdiction if it is “implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit.” S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 133 (2d Cir. 2010) (alterations omitted). It follows that a claim is not “‘insubstantial’ merely because it might ultimately be unsuccessful on its merits.” Id. The second requirement is satisfied if the relief sought is prospective -- that is, it is not “retrospective or designed to compensate for a past violation of federal law.” In re Deposit Ins., 482 F.3d at 619.
C. Application
Application of the Ex parte Young inquiry demonstrates that the
State in their official capacities, and they allege a violation of the Constitution, namely that the Redistricting Plan violates the
Defendants do not dispute that the relief sought is prospective; rather, they contend that the allegations are insubstantial. They make three principal arguments, which we discuss in turn.
1. Evenwel v. Abbott
The Supreme Court has long held that “the
Amendment so as to require justification by the State.‘” Brown v. Thompson, 462 U.S. 835, 842 (1983) (quoting Reynolds, 377 U.S. at 745).
Based on these considerations, the Court has established that “as a general matter, . . . an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations.” Id. (emphasis added); accord Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016). Thus, a plan with a population deviation greater than 10% “creates a prima facie case of discrimination and therefore must be justified by the State,” Brown, 462 U.S. at 482-83, while a population deviation below 10% is “insufficient to make out a prima facie case of invidious discrimination under the
In Evenwel v. Abbott, the Supreme Court rejected the argument that the Constitution requires that state voting districts be drawn to have equal voter-eligible populations. 136 S. Ct. at 1132. The Court instead held that, based on “constitutional history, [the Supreme] Court‘s decisions, and longstanding practice, . . . a State may draw its legislative districts based on total population,” including from raw Census data, without running afoul of the “one person, one vote” principle. Id. at 1123.
Defendants argue that Evenwel and its predecessors foreclose Plaintiffs’ claim. According to Defendants, the Redistricting Plan is based on total population from the 2010 decennial Census and the population
A “prima facie case . . . is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). Consequently, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case,” id. at 511, because “the precise requirements of a
prima facie case can vary depending on . . . context,” and “it may be difficult to define the precise formulation of the required prima facie case in a particular case” before “discovery has unearthed relevant facts and evidence,” id. at 512. The Supreme Court has never held that a prima facie showing of discrimination is required at the pleading stage of a case alleging discriminatory districting at the state level to invoke the jurisdiction of the federal courts. See Wright v. North Carolina, 787 F.3d 256, 267-69 (4th Cir. 2015) (reversing dismissal of state apportionment claim where maximum population deviation was below 10% because plaintiffs alleged that districting plan had effect of discriminating against urban voters in favor of rural voters). In other words, the 10% threshold is not a safe harbor. On “review[ing] the legal merits of a claim for purposes of Ex parte Young, [we] review[] only whether a violation of federal law is alleged.” In re Deposit Ins. Agency, 482 F.3d at 623. Here, plaintiffs have alleged an ongoing constitutional violation.
2. Abbott v. Perez
Defendants contend that federal courts are prohibited from interfering with a state legislature‘s choice about how to count prisoners in the population base. In Burns v. Richardson, the Supreme Court held that state redistricting is a judgment “exclusively for the legislature to make.” 384 U.S. at
89. In Abbott v. Perez, the Court clarified that redistricting is “primarily the duty and responsibility of the state” and that “federal-court review of districting legislation represents a serious intrusion on the most vital of local functions.” 138 S. Ct. 2305, 2324 (2018) (internal quotation marks and alterations omitted).
These cases do not foreclose Plaintiffs’ claim. As Burns held, redistricting decisions are “subject to constitutional challenge . . . upon a demonstration that the . . . apportionment . . . would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Burns, 384 U.S. at 89 (internal quotation marks omitted). Plaintiffs here have alleged that the Redistricting Plan will operate to minimize representational strength in prisoners’ urban home districts, which they allege are predominantly Black and Latino, in favor of the predominantly White rural prison districts. Thus, Plaintiffs’ claim is not foreclosed on this basis.
3. Davidson v. City of Cranston
Defendants argue that Davidson v. City of Cranston, which involved facts that Defendants contend are substantially similar to those presented here, demonstrates that Plaintiffs’ claim is insubstantial. 837 F.3d 135 (1st Cir. 2016). A decision of the First Circuit, while potentially a persuasive authority as to the merits of the case, is not “a prior decision of the Supreme Court” that
“foreclose[s]” Plaintiffs’ claim at this
In sum, Plaintiffs’ claim seeking prospective relief from a purportedly ongoing constitutional violation falls within the Ex parte Young doctrine. The claim is neither frivolous nor insubstantial. The district court thus has subject matter jurisdiction over the claim. “Perhaps [Plaintiffs] will ultimately fail on the merits of their suit, but
III. Justiciability
Defendants argue that because the Redistricting Plan does not allege a prima facie violation of the “one person, one vote” principle, Plaintiffs’ claim presents a nonjusticiable political question about the meaning of fair and equitable representation. We disagree.
Plaintiffs allege that the Redistricting Plan operates to minimize the voting strength of the predominantly Black and Latino constituents living in prisoners’ home districts and to increase the voting strength of the predominantly White constituents living in prisoners’ prison districts. Such a claim is justiciable. See Rucho v. Common Cause, 139 S. Ct. 2484, 2496 (2019) (reaffirming that “claim[s] of population inequality among districts” are justiciable because they can “be decided under basic equal protection principles” (citing Baker v. Carr, 369 U.S. 186, 226 (1962))). The Court‘s holding in Rucho that partisan gerrymandering claims are not justiciable, id. at 2500, therefore does not preclude Plaintiffs’ claim.
IV. Failure to State a Claim
Although we are without jurisdiction to correct the error, we are obliged to note that the district court lacked jurisdiction to decide Defendants’ motion to dismiss for failure to state a claim and that it should have referred that
aspect of the case to a three-judge district court. See Idlewild Bon Voyage Corp. v. Epstein, 370 U.S. 713, 715 (1962) (per curiam) (noting that although courts of appeals are “precluded from reviewing on the merits of a case which should have originally been determined by a court of three judges,” they are not “powerless ever to give any guidance when a single judge has erroneously invaded the province of a three-judge court“).
The Supreme Court has made explicit that a single judge is required to refer a case to a three-judge court, regardless of whether an application by the parties is made, as soon as it is determined that the claim falls within
Moreover, the Supreme Court has held that a ruling on a motion to dismiss for failure to state a claim goes beyond a mere assessment of whether a complaint pleads a jurisdiction-conferring claim. In Shapiro, plaintiffs challenged
the constitutionality of the apportionment of congressional districts. 136 S. Ct. at 453. The “District Judge dismissed petitioners’ complaint not because he thought he lacked jurisdiction, but because he concluded that the allegations failed to state a claim for relief on the merits.” Id. at 455. But as the Court noted, “[w]e have long distinguished between failing to raise a substantial federal question for jurisdictional purposes and failing to state a claim for relief on the merits.” Id.; see also S. New England Tel. Co., 624 F.3d at 132 (“[W]hether a plaintiff has pled a jurisdiction-conferring claim is a wholly separate issue from whether the complaint adequately states a legally cognizable claim for relief on the merits.“). The Court reversed the judgment and remanded the case after concluding that the complaint raised a substantial federal question. Shapiro, 136 S. Ct. at 456. On remand, the case was promptly referred to a three-judge district court. Benisek v. Lamone, No. 13-cv-3233 (D. Md. Feb. 4, 2016), Dkt. No. 39.
While the district court here did not discuss the
the district court went beyond deciding that the Complaint raised a jurisdiction-conferring claim.
CONCLUSION
Accordingly, we AFFIRM IN PART the order of the district court, to the extent it held that the