Georgia State Conference of The Naacp et al v. Gwinnett County, Georgia et al

REPLY BRIEF re MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ga.June 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE OF THE NAACP, et al. Plaintiffs, v. GWINNETT COUNTY, GA, et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 1:16-cv-02852-AT REPLY BRIEF IN SUPPORT OF DEFENDANT GWINNETT COUNTY SCHOOL DISTRICT’S RENEWED MOTION TO DISMISS In response to the Gwinnett County School District’s (“School District”) initial Motion to Dismiss [Doc. 49], the Court entered an order directing Plaintiffs to amend their Complaint to specify each Plaintiff’s district of residence and whether vote dilution is claimed in that district, and to “identify the nature of the harm suffered as a result of the alleged packing of minorities in District 5.” [Doc. 75, p. 2]. Plaintiff’s Second Amended Complaint, however, makes only perfunctory gestures to satisfy this Court’s Order and basic pleading requirements. [Doc. 83]. It remains a litany of conclusory statements. In the context of the issues involved in this case and in light of this Court’s obligation to determine whether there is standing (and hence jurisdiction to proceed), Plaintiffs’ latest Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 1 of 16 -2- effort is still defective. The School District’s Renewed Motion to Dismiss should be granted. Plaintiffs’ claim to standing in the initial version of their Complaint was the contention that minority voters, no matter where they resided in the County, had standing to assert generalized vote dilution claims without even specifying which election district was drawn in a way that violated Section 2. Plaintiffs’ contended that minority voters residing anywhere in the County might reside in a possible remedial district and, for that reason, they had standing. In response to Defendants’ motions to dismiss, the Court ordered Plaintiffs to amend their Complaint. While the individual Plaintiffs have now identified the School Board election districts in which they reside, they steadfastly have refused to inform the School District and the Court which present election district illegally dilutes the votes of minority residents therein. Instead, Plaintiffs continue to adhere to the view that they should be able to launch a Section 2 assault on all five districts. They advance that contention by drafting their claims as vaguely as possible and by making those claims implausibly all-encompassing. In truth, they have added virtually nothing to the broad county-wide claims of vote dilution made in their initial Complaint. As noted in the School District’s initial brief in support of their Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 2 of 16 -3- Renewed Motion to Dismiss, it is literally impossible that Districts 1 through 4 are all dilutive of the rights of voters who are members of each of the three alleged minority groups, particularly in the alleged coalition which is at the core of Plaintiffs’ Section 2 claim. [Doc. 89-1]. In part, Plaintiffs seek to justify this shotgun type pleading by taking refuge in the general notion that a Plaintiff is allowed to plead inconsistent, alternative claims, and that Plaintiffs are entitled to proceed under notice pleading so long as the ultimate nature of their claim is discernable. However, pleading requirements have tightened up significantly in recent years. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561(2007), abrogating Conley v. Gibson, 355 U.S. 41 (1957). No longer can the Federal Rules of Civil Procedure be used to obfuscate a plaintiff’s obligation to articulate specific facts that establish standing. To the contrary, a plaintiff is under an absolute duty to allege specific facts in the complaint that credibly establish standing as a prerequisite to invoking the jurisdiction of an Article III court. Similarly, a district court has the duty to review those specific allegations to ascertain whether standing has been clearly established. Under modern pleading law, Plaintiffs can no longer rely on “wholly conclusory statements” that leave “open the possibility that a plaintiff might later establish some ‘set of undisclosed facts’ to support recovery.” Twombly, 550 U.S. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 3 of 16 -4- at 561. But, that is precisely what the Plaintiffs seek to do with regard to pleading facts that are essential to the Court’s standing determination.1 The deficiency of Plaintiffs’ argument is best revealed by simply stating what they have contended in opposition to the District’s Renewed Motion to Dismiss. That contention is not materially different than what they argued in support of their initial Complaint which provided no information at all as to where individual Plaintiffs resided, and failed to identify the district they contend to have been diluted as a result of the alleged packing of District 5 in violation of Section 2. Plaintiffs still stubbornly contend, in defense of their Second Amended Complaint, that every minority voter who resides anywhere in Gwinnett County2 has standing to raise all of the claims they assert! Every minority voter who resides in District 5 is supposedly “packed,” and every minority voter who resides outside District 5 is supposedly diluted. Under this theory, Plaintiffs would so degrade the requirements of standing as to render them meaningless in a Section 2 case. 1 While negligence in a car wreck case may be simply alleged and harm to a physically injured person may be obvious for standing purposes, more is required in a complex case like the present one. Twombly, supra. Otherwise, a court cannot discharge its obligation to determine, at the outset, whether the named plaintiffs actually have standing to proceed. 2 The only exception is the City of Buford, which has an independent school district, and a separate Board of Education. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 4 of 16 -5- In an effort to buttress their position, Plaintiffs misstate basic principles of standing law and ignore controlling Eleventh Circuit law on this issue. Plaintiffs state that the Eleventh Circuit has “not yet [considered standing] in the context of a single-member district method election.” [Doc. 104, p. 7]. In the purported absence of controlling Eleventh Circuit authority, Plaintiffs then argue by analogy to cases elsewhere and to the Supreme Court’s decision in Baker v. Carr, 369 U.S. 186 (1962), that a generalized allegation that “all districts are illegal” suffices for standing purposes. [Doc. 104, pp. 11-12]. The cited authority, however, has nothing to do with the issue presented here, and it ignores controlling law in the Eleventh Circuit. See Wright v. Dougherty County, 358 F.3d 1352 (11th Cir. 2004). Wright squarely held that a plaintiff who challenges a district election system3 must reside in a district where he/she is personally harmed by that district. Specifically, a plaintiff must reside in the district where their vote is diminished individually because of the way the district lines were drawn. It is not enough for a 3 Plaintiffs continue to rely largely on standing decisions involving at-large election challenges. In those cases, of course, all minority voters in the jurisdiction are directly and individually harmed, and they have standing as a result. The at- large cases have nothing to do with granting standing to Plaintiffs with respect to their claims against the School District, which consists entirely of single-member election districts. Wright v. Dougherty County, supra. The case Plaintiffs have brought against the School District is different in this critical regard from the case against Gwinnett County where the issues include an at-large chairman position and a prayer for relief involving the creation of an additional voting district. No such claims are made against the School District. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 5 of 16 -6- plaintiff to be politically aligned with other voters who are harmed. As the Court held in Wright: The most significant doctrine of case-or controversy is the requirement of standing. . . . To establish standing a plaintiff must meet the three-prong test proving that he had suffered “injury in fact”. In reviewing the proof provided the court must bear in mind that the “Art[icle] III notion that federal courts may exercise power only in the last resort, and as a necessity” and when the dispute is one “traditionally thought to be capable of resolution through the judicial process.” Georgia State Conference v. Cox, 183 F.3d 1259, 1262–3 (1999) (quoting Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). The three-prong test proving “injury in fact” requires a showing of: “[first] the injury [is] an invasion of a legally protected interest that is sufficiently concrete and particularized rather than abstract and indefinite. Second, there must be causal connection between the injury and the challenged action of the defendant which is not too attenuated. Third, it must be likely rather than speculative that the injury will be redressed by a favorable decision.” Wright, 358 F.3d at 1355 (citations omitted). In Wright the Court held the plaintiffs failed to meet the second prong of the “injury in fact” test because they had not personally suffered a legally cognizable harm or injury as a direct result of the malapportioned voting districts at issue. The district in which they resided was under-populated. As such, “[plaintiffs] had benefitted” from the challenged districting, precluding standing. Id. “[I]njury results only to those persons domiciled in the under- represented voting districts.” Fairley, 493 F.2d 598, 603 (5th Cir. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 6 of 16 -7- 1974)(citing Skolnick v. Board of Commissioners of Cook County, 435 F.2d 361 (7th Cir.1970) (finding that plaintiff’s lacked standing because they were not harmed by the malapportionment but in fact were benefitting from it)). Further, over-represented voting district members are barred from bringing suit on behalf of persons who reside in under-represented voting districts. Id. at 604. Wright, 358 F.3d at 1355. The plaintiffs in Wright also argued that they had standing because the district in which they resided was under-represented in comparison to certain other districts. Plaintiffs in Wright were thus disadvantaged when compared to voters who resided in the most under-populated districts, but that was not sufficient legal harm to invoke federal jurisdiction. Standing is a strict Article III requirement that is not so easily satisfied. Wright, 358 F.3d at 1356. Plaintiffs’ conclusory allegations should likewise be deemed insufficient. “A pleading that offers ‘labels and conclusions’ or a “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The requirement of a more specific pleading is especially compelling here since the very existence of the Court’s jurisdiction is at issue. Plaintiffs who reside in District 5 do not have standing to assert a Section 2 claim in this case. There are two different species of voting claims that involve racial discrimination, and they have very different elements. One is a racial gerrymander claim where voters have been purposely segregated on the basis of Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 7 of 16 -8- their race. Miller v. Johnson, 515 U.S. 900, 911-12, 929 (1995); Shaw v. Reno, 509 U.S. 630 (1993). In those cases, only persons residing in the district that was intentionally segregated have standing. United States v. Hays, 515 U.S. 737 (1995). There is no element of “harm” to plaintiffs in a racial gerrymander claim, other than the fact of segregation itself. Those plaintiffs’ votes have not been diluted or diminished. Miller, 515 U.S. at 911. If a constitutional Shaw-Miller gerrymander claim were made in this case – and one is not asserted – only District 5 voters could assert that claim. Hays, supra. Instead, Plaintiffs assert a Section 2 claim which, unlike gerrymander claims, depends entirely on proof of actual injury occurring as a result of vote dilution. A plaintiff’s right to bring a Section 2 challenge to a districting scheme depends, by virtue of Article III, on that plaintiff being harmed by virtue of the district they reside in. That is the clear command of Wright. For that reason, School Board District 5 voters cannot challenge the impact of the configuration of their district on some other district because the essence of Plaintiffs’ claim is that some minority voters should be removed from District 5 and combined with minority voters in some other district to create a second majority-minority district. As such, District 5 minority voters’ power to “elect candidates of their choice” will necessarily be lessened if Plaintiffs’ Section Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 8 of 16 -9- 2 theory is factually correct. Since the relief Plaintiffs seek here would reduce the individual electoral power of a District 5 minority voter, such voters cannot claim “harm” so as to vest this Court with jurisdiction. They are in exactly the same position as the Plaintiffs in Wright who could not assert standing because, individually, they would be adversely affected by the proposed remedy.4 The importance of disclosing a remedial plan. Since the filing of the initial Complaint in this action in August 2016, Plaintiffs’ claims have varied from the indistinct and non-specific to the general and all-encompassing. That deficiency is compounded by their failure to make a showing – beyond conclusory allegations – that one additional Section 2 compliant district (in addition to District 5) can be drawn with a CVAP majority of a tripartite coalition of minority voters. 4 The only “harm” Plaintiffs allege that is cognizable under Section 2 is that vote dilution adversely affects minority voters in some district other than District 5. Under that theory, the only harmed voters who could have standing reside in the diluted district. The Court at argument cited the parties to the case of Voinovich v. Quilter, 507 U.S. 146 (1993), for the proposition that a “packed” district is a way to dilute and a harm that is cognizable under Section 2. Voinovich did not include any discussion of standing. Instead, the Court simply acknowledges the obvious. One way to dilute a district is to “pack” an adjacent district with minority voters. The claim in Voinovich was that packing denied minority voters “the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over [white] votes . . . .” Id. at 158. The Court did not decide the substantive issue since the Plaintiffs could not prove the first prerequisite to a Section 2 claim – racially polarized voting. Regardless, the Supreme Court has since rejected that claim in Bartlett v. Strickland, 556 U.S. 1 (2009). Bartlett flatly rejected Plaintiffs’ theory that voters in any of the remaining four districts have standing to seek “influence district” status. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 9 of 16 -10- In their Second Amended Complaint, Plaintiffs allege that two majority- minority School Board districts could be drawn with a 59% CVAP if all three minority groups are included; with a 52% CVAP if Blacks and Hispanics are included; or with a bare 50% CVAP using Black and Asian voters. [Doc. 83, ¶ 69]. Plaintiffs’ conclusory allegation that two such districts can be drawn makes a mockery of the third prong of the injury-in-fact requirement of standing in Wright. To establish standing, a plaintiff has the burden to make it clear that a real and legally permissible remedy is actually “likely rather than speculative.” 358 F.3d at 1355. Plaintiffs ignore that burden. Instead, they ask the Court to “trust them” and assume that their conclusory allegations should suffice, but once again, those conclusory allegations are insufficient as a matter of law under modern pleading requirements. See Ashcroft v. Iqbal, supra. It is impossible for the Court to discharge its responsibility of determining whether the third prong of the injury-in-fact requirement for standing is satisfied in light of the vague allegations contained in the Second Amended Complaint. While there may be cases where, under the facts plead, the availability of a Section 2 compliant district as a potential remedy is readily apparent, that is not the case here, particularly given the Plaintiffs’ very general allegations. More should be required of the Plaintiffs to establish that there actually is a “likely” remedy that Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 10 of 16 -11- could address their Section 2 claim, if they were successful, rather than merely a “speculative” remedy. The pleading deficiency here is not unlike the fatal defect in Twombly, supra. There, general allegations of a “conspiracy” were deemed insufficient to withstand a motion to dismiss. As in Twombly, the issues here are complex, and Plaintiffs should be required to set forth clear facts that show that two Section 2 compliant, non-gerrymandered districts can be drawn. Absent that showing, the Court cannot determine whether there is a likelihood of establishing a remedy for the alleged injury, without which the Court cannot determine whether Plaintiffs have standing. Wright v. Dougherty County, supra. Plaintiffs’ allegations in the Complaint suggest they have drawn two majority-minority districts. If so, what reason is there to withhold them? Plaintiffs should be directed to submit them now so the Court can discharge its duty to determine if there is a “likely” remedy for its standing inquiry. Defendants will also then finally know what it is they have to defend against.5 The organizational Plaintiffs and the inherent conflict in Plaintiffs’ claims. If this case ultimately proceeds to the fact-finding stage, Defendants do 5 Even if the Court were inclined to rule against the School Districts’ Renewed Motion to Dismiss the Court at the very minimum should exercise its discretion to order the Plaintiffs to immediately present their districting plan(s) alluded to in their Complaint. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 11 of 16 -12- not expect Plaintiffs to be able to prove the element of minority group “cohesion” that is a prerequisite to their Section 2 claim. But, at this threshold point, the issue is how Plaintiffs’ heavy reliance on organizational Plaintiffs creates an inherent conflict that Plaintiffs cannot resolve. Plaintiffs contend that an organizational plaintiff should be allowed to establish standing for the alleged coalition even though they do not represent members from all three minority groups that they have included in the alleged coalition. Neither do the two organizations at issue – the NAACP and GALEO – have as part of their chartered purpose the advancement of minority voting rights generally, other than for the particular minority group with which they are specifically identified. [Doc. 83, ¶¶ 16-17]. There is unavoidable tension and conflict between the interests of the African American and Hispanic groups and individual Asian voters. As Plaintiffs acknowledge in their Second Amended Complaint, devising two majority-minority districts is a challenge. [Doc. 83, ¶ 69]. Indeed, they admit that districts based on a combination of African Americans and Asians can barely reach the minimum legal threshold of 50% CVAP. 6 Id. See Bartlett v. Strickland, 556 U.S. 1 (2009). 6 Whether the districts Plaintiffs allude to in their Second Amended Complaint can be drawn without gerrymandered lines remains entirely unknown since Plaintiffs Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 12 of 16 -13- All districting alternatives, and every line that is drawn, will require choices between including and excluding different minority members in a majority- minority district. Under Plaintiffs’ theory, African-American voters will make up the substantial majority of the minority population in both majority-minority districts. Particular Hispanic and Asian voters may or may not be included in the majority- minority districts. The conflict among the interests of the various Plaintiffs is clear. Under the Plaintiffs’ theory, some minority voters will win and others will get the “short stick” and be put into a majority white district that will dilute their votes. This inherent conflict buttresses the School District’s contention that the two organizational Plaintiffs should not be allowed to satisfy standing requirements in this case. They do not represent the coalition interests that Plaintiffs seek to advance. To the contrary, each of the organizational groups are chartered to advance their own redistricting agenda. Both organizations are charter bound to favor their own group – favoring the interests of African Americans in the case of the NAACP and favoring Latinos in the case of GALEO. Neither the NAACP nor GALEO should be allowed to satisfy Plaintiffs’ standing burden in this case. have not disclosed either the district to be increased to majority-minority status or the remedial districts. Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 13 of 16 -14- Individual Plaintiffs do not have standing to assert a dilution claim regarding School Board election Districts 1, 3 or 4. No individual Plaintiff is alleged to reside in Board of Education Districts 1 or 3. No Hispanic Plaintiff is alleged to reside in District 4. As shown above, the several Plaintiffs who reside in District 5 do not have standing to make any dilution claim involving any Board of Education election district. The only district in which an individual Plaintiff from each of the three minority groups is alleged to reside is District 2. Given the inadequacy of the organizational Plaintiffs in this purported coalition case, at most Plaintiffs could have standing – in a properly plead case – to challenge District 2 as dilutive. /s/ A. Lee Parks A. Lee Parks, Jr. Georgia Bar No. 563750 Andrew Y. Coffman Georgia Bar No. 173115 lparks@pcwlawfirm.com acoffman@pcwlawfirm.com PARKS, CHESIN & WALBERT, P.C. 75 14th, 26th Floor Atlanta, GA 30309 Ph: (404) 873-8000 Fax: (404) 873-8050 E. Victoria Sweeny Georgia Bar No. 694663 W. Creighton Lancaster Georgia Bar No. 142351 Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 14 of 16 -15- vsweeny@thompson-sweeny.com wcl@thompson-sweeny.com THOMPSON, SWEENY, KINSINGER & PEREIRA, P.C. P.O. Drawer 1250 Lawrenceville, GA 30046 Ph: (770) 963-1997 Fax: (770) 822-2913 Counsel for Defendant Gwinnett County School District Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 15 of 16 CERTIFICATE OF SERVICE AND COMPLIANCE WITH LOCAL RULE 5.1(C) I hereby certify that on June 30, 2017 I electronically filed the foregoing REPLY BRIEF IN SUPPORT OF DEFENDANT GWINNETT COUNTY SCHOOL DISTRICT’S RENEWED MOTION TO DISMISS with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record. I further certify that the foregoing has been prepared in a Times New Roman 14 point font, one of the font and point selections approved by the Court in Local Rule 5.1(C). /s/ A. Lee Parks A. Lee Parks Case 1:16-cv-02852-AT Document 108 Filed 06/30/17 Page 16 of 16