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

Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ga.May 26, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE OF THE NAACP, as an organization, et al. Plaintiffs, v. GWINNETT COUNTY, GEORGIA, et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 1:16-cv-02852-AT DEFENDANTS GWINNETT COUNTY, GEORGIA’S AND GWINNETT COUNTY BOARD OF REGISTRATIONS AND ELECTIONS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT COME NOW Defendants Gwinnett County, Georgia (“County”) and the Gwinnett County Board of Registrations and Elections (“BORE”), and move this Court to dismiss Plaintiffs’ Second Amended Complaint against them. As demonstrated in the attached supporting brief, Plaintiffs’ Second Amended Complaint against these Defendants should be dismissed because the added allegations do not save Plaintiffs’ case under Section 2 of the Voting Rights Act, 52 U.S.C. §10301 (“Section 2”). They still lack standing, both as individuals and associations, to bring the claim that their votes as a multiple minority coalition Case 1:16-cv-02852-AT Document 93 Filed 05/26/17 Page 1 of 6 2 have been diluted. Therefore, the case should be dismissed under Fed.R.Civ.P. 12(b)(1). The case should also be dismissed under Fed.R.Civ.P. 12(b)(6). Despite the Court’s directive, Plaintiffs do not identify which of the four Commission districts are allegedly diluted but instead maintain that all four Commission districts are “dilutive.” [Doc. 83, ¶¶ 16-26]. Additionally, Plaintiffs’ Second Amended Complaint seeks an impermissible remedy, both in the proposed remedial plan and due to the change in the form of the County’s government, which is an impermissible Section 2 remedy. In support of their motion, Defendants attach their brief containing argument and citation of authorities. WHEREFORE, the County and BORE Defendants respectfully move this Court to enter an Order dismissing Plaintiffs’ Second Amended Complaint against them in its entirety, with all costs cast against Plaintiffs. Respectfully submitted this 26th day of May, 2017. /s/ Richard A. Carothers (by A. Lewis with permission) RICHARD A. CAROTHERS Georgia Bar No. 111075 richard.carothers@carmitch.com CAROTHERS & MITCHELL, LLC 1809 Buford Highway Buford, GA 30518 (770) 932-3552 Case 1:16-cv-02852-AT Document 93 Filed 05/26/17 Page 2 of 6 3 /s/Anne W. Lewis Anne W. Lewis Georgia Bar No. 737490 awl@sbllaw.net STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, GA 30309 (678)347-2200 Attorneys for Defendants Gwinnett County, Georgia and the Gwinnett County Board of Registrations and Elections Case 1:16-cv-02852-AT Document 93 Filed 05/26/17 Page 3 of 6 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE OF THE NAACP, as an organization, et al. Plaintiffs, v. GWINNETT COUNTY, GEORGIA, et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 1:16-cv-02852-AT CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this date electronically filed the foregoing DEFENDANTS GWINNETT COUNTY, GEORGIA’S AND GWINNETT COUNTY BOARD OF REGISTRATIONS AND ELECTIONS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Brian J. Sutherland Edward D. Buckley Buckley Beal, LLP The Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Clifford Zatz April N. Ross Crowell & Moring 1001 Pennsylvania Avenue NW Washington, DC 20004-2595 Case 1:16-cv-02852-AT Document 93 Filed 05/26/17 Page 4 of 6 5 Ezra David Rosenberg Julie Houk John Powers Lawyers’ Committee for Civil Rights Under Law 1401 New York Ave., NW, Suite 400 Washington, DC 20005 A. Lee Parks, Jr. Andrew Yancey Coffman Parks Chesin & Walbert, P.C. 75 Fourteenth Street, NE 26th Floor Atlanta, GA 30309 E. Victoria Sweeny W. Creighton Lancaster Thompson, Sweeny, Kinsinger & Pereira P.O. Drawer 1250 Lawrenceville, GA 30046 Richard A. Carothers Carothers & Mitchell, LLC 1809 Buford Highway Buford, Georgia 30518 This 26th day of May, 2017. s/Anne W. Lewis Anne W. Lewis Georgia Bar No. 737490 STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, GA 30309 awl@sbllaw.net Case 1:16-cv-02852-AT Document 93 Filed 05/26/17 Page 5 of 6 6 Case 1:16-cv-02852-AT Document 93 Filed 05/26/17 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE OF THE NAACP, as an organization, et al. Plaintiffs, v. GWINNETT COUNTY, GEORGIA, et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 1:16-cv-02852-AT BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT BY DEFENDANTS GWINNETT COUNTY, GEORGIA AND THE GWINNETT COUNTY BOARD OF REGISTRATIONS AND ELECTIONS In accordance with Local Rule 7.1A, Defendants Gwinnett County, Georgia (“County”) and the Gwinnett County Board of Registrations and Elections (“BORE”) submit this brief in support of their Motion to Dismiss Plaintiffs’ Second Amended Complaint. Collectively, these Defendants are referred to as “County Defendants.” I. SUMMARY OF ARGUMENT County Defendants move to dismiss Plaintiffs’ Second Amended Complaint because the added allegations do not save Plaintiffs’ case under Section 2 of the Voting Rights Act, 52 U.S.C. §10301 (“Section 2”). They still lack standing, both Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 1 of 22 2 as individuals and associations, to bring the claim that their votes as a multiple minority coalition have been diluted. The associational Plaintiffs do not meet the test for organizational standing, as they do not claim to represent the three minority groups they argue comprise the purported coalition. Furthermore, although Plaintiffs claim that all four of the Commission districts are “dilutive” with respect to their asserted coalitional voting rights, not one of the four districts contains individual Plaintiffs from each minority group.1 Therefore, the case should be dismissed under Fed.R.Civ.P. 12(b)(1). The case should also be dismissed under Fed.R.Civ.P. 12(b)(6) on two grounds. First, in response to the Court’s directive, the Plaintiffs do not identify which of the four Commission districts are allegedly diluted but instead maintain that all four Commission districts are “dilutive.” [Doc. 83, ¶¶ 16-26]. Second, County Defendants again move to dismiss Plaintiffs’ claim because the Second Amended Complaint seeks an impermissible remedy, both in the proposed remedial plan and due to the change in the form of the County’s government, which is an impermissible Section 2 remedy.2 1 Plaintiff Arzu is described as “Afro-Latina,” which is neither a racial nor language minority but rather a description of a combined race/ethnicity. 2 County Defendants are mindful that in ruling on the original motions to dismiss, the Court rejected Defendants’ argument that Section 2 claims may not be brought by a coalition of multiple minorities as a matter of law. [Doc. 87 at 4]. Furthermore, at the hearing on the motions, the Court indicated that it did not agree with County Defendants’ argument that laches bars Plaintiffs’ claim. [4/17/2017 Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 2 of 22 3 II. BACKGROUND After all Defendants moved to dismiss Plaintiffs’ First Amended Complaint [Docs. 48, 49, 52], the Court issued an order directing Plaintiffs to amend their complaint “[t]o address certain defects in the pleading relating to Plaintiffs’ standing to assert their claim under Section 2 of the Voting Rights Act raised by Defendants . . . .” [Doc. 76 at 1-2]. The Court specifically required Plaintiffs to: (a) identify the current Board of Commission districts and Board of Education districts in which the current Plaintiffs or added Plaintiffs reside, (b) identify the districts in which individual representative members of the Georgia NAACP and GALEO reside and allege, if applicable, whether there has been vote dilution in these districts, and (c) identify individual Plaintiffs or representative organizational members residing in Board of Education District 5 and identify the nature of the harm suffered as a result of the alleged packing of minorities in District 5. [Id. at 2]. Additionally, to the extent Plaintiffs believed that the above amendments directed by the Court impacted other allegations of the First Amended Complaint, specifically “as to possible voting rights remedies,” the Court’s order permitted them to amend those allegations. [Id. at 2]. Plaintiffs filed their Second Amended Complaint on April 28, 2017. [Doc. 83]. Plaintiffs added allegations that (1) the named Plaintiffs live in specific Transcript, p. 6]. Therefore, while County Defendants respectfully disagree, they do not repeat those arguments on this renewed motion to dismiss but instead will address them in the context of summary judgment. Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 3 of 22 4 Commission and School Board districts; (2) there are approximately 120 members of the 10,000 member Georgia State Conference of the NAACP (“Georgia NAACP”) and 33 members of the Georgia Association of Elected Officials, Inc. (“GALEO”) living in Gwinnett County; (3) of the nine named Plaintiffs, two are members of the Georgia NAACP and two others are members of GALEO; (4) in all four Commission districts and all five Board of Education Districts, there are black voters who are Georgia NAACP members as well as Latino voters who are GALEO members; and (5) all the Commission districts and Board of Education districts are diluted, except Board of Education District 5, which Plaintiffs claim is “packed” with Black, Hispanic, and Asian-American voters. [Doc. 83, ¶¶ 16-26]. Plaintiffs also added allegations regarding the remedies – and “alternative” remedies – they seek. For the Commission district plan, Plaintiffs either want a five-district plan with two remedial districts or a “four-district, one at-large” plan with one remedial district. [Doc. 83, ¶¶ 16-26, 125-126, Prayer for Relief, ¶¶ (e) and (f)]. III. STATEMENT OF FACTS The Plaintiffs are two organizations – the Georgia NAACP and the GALEO – and nine individuals who allege they are Gwinnett County voters. [Doc. 83, ¶¶16-26]. In the Second Amended Complaint, the NAACP once again does not claim to represent Latino or Asian-American voters; instead, Plaintiffs describe Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 4 of 22 5 only one minority group among its membership which is allegedly harmed by the Commission plan: “Black voters who reside in all four of the dilutive Board of Commissioner districts, and dilutive Board of Education Districts 1, 2, 3, and 4 and packed BOE District 5.” [Id. at ¶16]. Likewise, GALEO also fails again to allege that it represents any African-American or Asian-American voters. Instead, GALEO asserts that it is an advocacy group with the specific purpose of promoting the election and appointment of Latino officials to public office and assisting Latino voters in the electoral process and, like the Georgia NAACP, only specifies one minority group among its membership which is allegedly harmed by the Commission plan: “Latino voters who reside in all four of the dilutive Board of Commissioner districts, and dilutive Board of Education Districts 1, 2, 3, and 4 and packed BOE District 5.” [Id. at ¶17]. The allegations in the Second Amended Complaint can be summarized as follows: Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 5 of 22 6 Plaintiff Name Identified Race or Ethnicity Georgia NAACP or GALEO Member? Commission District School Board District Muneeb Ahmed Asian- American No 1 5 Victoria Arzu Afro-Latina GALEO 4 2 Claudette Forbes Black No 3 4 Judy Jones Black No 4 2 Donna McLeod Black No 4 2 Catalina Ortiz Latina GALEO 2 5 Penny Poole Black NAACP 2 5 Sheikh Rahman Asian- American NAACP 4 2 Luis Rivera Latino No 3 4 [Doc. 83, ¶¶ 18-26]. In addition to identifying the districts in which the individual Plaintiffs reside, the Court directed Plaintiffs to “identify the districts in which individual representative members of the Georgia NAACP and GALEO reside and allege, if applicable, whether there has been vote dilution in these districts,” [Doc. 76 at 1- 2]. In response, Plaintiffs simply claim that (1) the two associations – neither of which purports to represent Asian-Americans – have members who are either Black or Latino voters in all four Commission districts and all five School Board districts, and (2) there is vote dilution in all four Commission districts and in four of the five School Board Districts. [Doc. 83, ¶¶ 16-26]. [Id.] Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 6 of 22 7 A review of the information provided on the individual Plaintiffs shows that there is no district in the Commission plan which has an individual Plaintiff from each minority group in Plaintiffs’ asserted coalition: Commission District Black Plaintiff in district? Hispanic Plaintiff in district? Asian-American Plaintiff in district? 1 No No Yes 2 Yes Yes No 3 Yes Yes No 4 Yes No3 Yes Perhaps attempting to resolve that problem, Plaintiffs suggest a wide variety of inconsistent potential remedial plans for the Commission. Plaintiffs first ask for either a five-district plan with two proposed remedial districts or a “four-district, one at-large” plan with one proposed remedial district. [Doc. 83, ¶¶ 16-26, 125- 126, Prayer for Relief, ¶¶ (e) and (f)]. Plaintiffs’ suggested composition of the proposed remedial districts is likewise inconsistent. For the five-district plan, Plaintiffs’ description of “Remedial District 1” changes throughout the Second Amended Complaint. First, Plaintiffs allege that “Remedial District 1” can be comprised of a majority “Black, Hispanic, and/or Asian-American citizen voting age population.” [Doc. 83, ¶¶ 16-17, 20, 24, 26] (emphasis added). Later, Plaintiffs contend that two districts (one of which is 3 Plaintiff Arzu is described as “Afro-Latina,” but the Complaint does not specify which of the two groups she claims to represent. Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 7 of 22 8 presumably “Remedial District 1”) can be drawn to create a district which has a Black-Latino-Asian majority CVAP, a Black-Latino majority CVAP, or a Black- Asian majority CVAP. [Doc. 83, ¶61]. Still later, in the sole count of their Second Amended Complaint, Plaintiffs define that district as being comprised of a majority population of Black and Latino only. [Doc. 83, ¶ 125]. Finally, in their prayer for relief, Plaintiffs list a variety of district configurations and request various alternative districts: “a majority Black-Asian-Latino, Black-Latino, or Black-Asian Remedial District 1 or a majority Black-Latino Remedial District 1 . . . .” [Doc. 83, Prayer for Relief, ¶ (e)]. For “Remedial District 2” in the five-district plan, Plaintiffs first allege that it can be comprised of a majority “Black, Hispanic, and/or Asian-American citizen voting age population.” [Doc. 83, ¶¶ 16-17, 18-19, 21-22, 25] (emphasis added). Then, in the sole count, Plaintiffs define “Remedial District 2” as being comprised of a majority Black, Latino, and Asian-American population, or alternatively, a Black and Latino majority population or alternatively, a Latino and Asian- American majority population. [Doc. 83, ¶ 125]. Plaintiffs’ prayer for relief again requests a variety of district configurations: “a majority Black-Latino-Asian, Black-Latino, or Black-Asian Remedial District 2.” [Doc. 83, Prayer for Relief, ¶ (e)]. Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 8 of 22 9 As an alternative to a five-district plan with two alleged remedial districts, Plaintiffs ask for a remedy in the form of a “four-district, one at-large” Commission plan with one purported remedial district. [Doc. 83, ¶¶ 16-19, 21-25, 126, Prayer for Relief, ¶ (e)]. Plaintiffs maintain that such a plan could include a district with a majority CVAP of Black, Latino, and Asian-Americans. [Doc. 83, ¶¶ 60 (referencing CVAP), ¶126 (referencing “Black, Latino and Asian-American population”)]. However, the prayer for relief does not specify the suggested composition of Plaintiffs’ proposed alternative remedial district but instead vaguely describes the geographic boundaries of such a district. [Prayer for Relief, ¶ (e)]. Plaintiffs still do not specify how the Chairman would be elected in a five- member or even a four-member plan.4 However, Plaintiffs recognize that the Commission districting plan is set by state law. [Id. at ¶¶78-79]. Under the state law,5 the Commission has five members: a Chairman is elected by all the voters in the County and four Commissioners each elected by a single-member district. [Id. at ¶¶ 51-52]. All are elected to a four-year term. [Id. at ¶51]. The Chairman and District 1 and 3 4 As discussed below, if Plaintiffs intend the one at-large position in their four- member alternative to be the Chairman, they should clarify that position. 5 County Defendants are attaching a copy of the County’s Organizational Act, which sets forth the form of government for Gwinnett County as commissioners elected from single member districts and a full-time chairman elected by all of the County’s voters. Ex. A, 1968 Ga. Laws, vol. 2 (Local and Special Acts and Resolutions) 2003, Part I, §§1-4, 10-11. Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 9 of 22 10 Commissioners are elected in Presidential election years, and the District 2 and 4 Commissioners are elected in the midterm election years. [Id. at ¶¶ 52-53]. Therefore, less than a year ago, the Chairman and District 1 and 3 Commissioners ran under the current plan and were elected to four-year terms which run through 2020. [Id.]. IV. ARGUMENT AND CITATION OF AUTHORITIES County Defendants move to dismiss the Amended Complaint under Rule 12(b)(1) because Plaintiffs lack standing to assert their claim, thus depriving this Court of subject matter jurisdiction. Furthermore, County Defendants also bring this motion under Rule 12(b)(6) because, despite the amended allegations, Plaintiffs still fail to state a Section 2 claim and again seek a change in the form of government, an impermissible legal remedy. A. PLAINTIFFS LACK STANDING TO BRING A SECTION 2 CLAIM AGAINST COUNTY DEFENDANTS, AND THE CLAIM SHOULD BE DISMISSED UNDER FRCP 12(B)(1) For this Court to have subject matter jurisdiction over a case, the Constitution requires that an actual case or controversy exist. U.S. CONST., ART. III, §2. “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The burden of establishing standing is on the party that seeks to invoke jurisdiction. See, e.g., Nat'l Alliance for Mentally Ill, St. Johns Inc. v. Bd. of County Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 10 of 22 11 Comm'r's, 376 F.3d 1292, 1294 (11th Cir.2004). Plaintiffs have failed to plead standing sufficiently, and their Second Amended Complaint also should be dismissed under Rule 12(b)(1). To have standing, an associational plaintiff must meet the three-part test set forth in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343. Here, individual members of the Georgia NAACP and GALEO do not have standing to sue in their own right to obtain the variety of remedies sought for their coalition, i.e., either one or two remedial districts, which are alternately comprised of several different combinations of the three minority groups. Based on Plaintiffs’ assertions in all three versions of the Complaint, including the Second Amended Complaint, neither group represents the interest of a coalition of Black, Asian- American, and Latino voters. Instead, the harm being asserted by the Georgia NAACP is to Black voters living in all four Commission districts, and the harm asserted by GALEO is to Latino voters living in those districts. [Doc. 83, ¶¶ 16- 17]. Neither affirmatively maintains that it represents the interests of voters who Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 11 of 22 12 are members of the other or of Asian-American voters; furthermore, the two groups’ specific allegations of harm being to Black and Latino voters, respectively, confirm that they do not represent Asian-Americans. [Id.]. That same problem makes it impossible for the associational Plaintiffs to meet the second part of the Hunt test – that the asserted interest of the association be germane to its purpose. Because Plaintiffs assert a combined minority coalition theory, only an association with a purpose of representing all three minority groups could claim standing to represent that coalition’s joint interests. As noted above, by their own admission, through the description of their respective purposes, the associational Plaintiffs’ electoral objectives are not the same and may well be at odds with each other, as they focus on their own members’ election to public office and electoral power. [Id.] The authorities previously cited by Plaintiffs do not stand for the proposition that Plaintiffs’ allegations are sufficient to establish associational standing. The association in Cleveland City Association for Government by the People v. Cleveland City Board of Commissioners, 142 F.3d 468, 473 n. 10 (D.C.Cir 1998) appears to involve an organization for all citizens of Cleveland, which is not the case here. In Common Cause/Georgia v. Billups, 406 F. Supp.2d 1326, 1356 (N.D.Ga. 2005), the court was referring to an amended complaint which, admittedly, made a vague allegation that the interests the associations sought to Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 12 of 22 13 protect were germane to the associations’ purposes. However, that is the opposite of the situation at hand, in which the associational Plaintiffs decidedly state whose interests they represent – and thus whose interests they do not. The individual Plaintiffs also lack standing to assert claims on behalf of the alleged coalition. To establish standing generally, a plaintiff must show a “concrete and particularized” injury to a legally protected interest; a causal connection between that injury and conduct “fairly traceable” to the defendant; and that the injury is likely to be remedied by a favorable decision to plaintiff. Lujan, 504 U.S. at 560. In the context of a Section 2 case, a plaintiff first “must show that he or she has personally been injured by a racial classification that dilutes their vote.” U.S. v. Hays, 515 U.S. 737, 744 (1995) (emphasis added). To do so, the Section 2 plaintiff must demonstrate that “he or she (1) is registered to vote and resides in the district where the discriminatory dilution occurred; and (2) is a member of the minority group whose voting strength was diluted.” Broward for Fair Districts v. Broward Cty., 2012 WL 1110053 (N.D. Fla., April 3, 2012) (emphasis added); Wright v. Dougherty Cty., 358 F.3d 1352, 1355-56 (11th Cir. 2004). Here, Plaintiffs do allege that they are registered to vote. [Doc. 83, 18-26]. However, their Second Amended Complaint does not sufficiently allege the remaining standing requirements. They do not identify “the district where the Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 13 of 22 14 discriminatory dilution occurred.” Instead, they identify every district as such a district. [Doc. 83, ¶¶ 18-26]. Furthermore, while they claim to be a minority group made up of Black, Latino, and Asian-American voters harmed by an alleged dilution of their votes in all four districts, there is, at best, only one of four Commission districts containing individual Plaintiffs from each minority group. [Id.]. Even assuming arguendo Plaintiffs have sufficiently alleged an injury under Section 2 for the purposes of a motion to dismiss, they must also allege that injury can be redressed by their placement in a proposed remedial district. In this version of the Complaint, Plaintiffs do allege that they could reside in a purported remedial district, but, as discussed above, there is no actual remedial proposal. Instead, there are three vaguely-described “remedial districts,” each composed of several different minority combinations. In short, Plaintiffs’ allegations in the Second Amended Complaint still merely attack the at-large election of the Chairman and the Commission district plan as a whole. [Id. at ¶¶32, 59]. Plaintiffs do not allege which district is diluted or provide a consistent theory for how that alleged dilution can be remedied for them through a remedial district. Therefore, the individual Plaintiffs have failed to show a “particularized stake in the litigation,” in the form of specific harm and Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 14 of 22 15 redressability, and their Second Amended Complaint fails for lack of standing. Lance v. Coffman, 549 U.S. 437, 442. Neither the individual Plaintiffs nor the associational Plaintiffs has standing to bring the claim they make in this Section 2 case, and the Court lacks required subject matter jurisdiction. Plaintiffs’ Second Amended Complaint should be dismissed under FRCP 12(b)(1). B. PLAINTIFFS FAIL TO STATE A SECTION 2 CLAIM AGAINST COUNTY DEFENDANTS, AND THEREFORE, THEIR CLAIM SHOULD BE DISMISSED UNDER FRCP 12(B)(6) When considering a motion to dismiss under 12(b)(6), [c]ourts apply a two-pronged approach . . . . First, a court must “eliminate any allegations in [a] complaint that are merely legal conclusions.” A court must then take any remaining well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” A complaint that does not “contain sufficient factual matter, accepted as true, to state a claim ... plausible on its face” is subject to dismissal. Further, dismissal is warranted under Rule 12(b)(6) if, assuming the truth of the complaint's factual allegations, a dispositive legal issue precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989). Wilkinson v. Moose Internat’l, Inc., et al., 2016 WL 3064098 (M.D. Fla. May 27, 2016) (citations omitted). Here, even when assuming the truth of Plaintiffs’ factual allegations, they fail to state a claim under Section 2. As an initial matter, Plaintiffs in this case “must propose a viable and proper remedy in order to establish a prima facie case Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 15 of 22 16 under Section Two.” Davis v. Chiles, 139 F.3d 1414, 1423 (11th Cir. 1998); Southern Christian Leadership Conf. v. Sessions, 56 F.3d 1281, 1294-97 (11th Cir. 1995) (en banc); Nipper v. Smith, 39 F.3d. 1494, 1530-31 (11th Cir. 1994). Plaintiffs do not do so. They claim to be a minority group made up of two racial minorities and one language minority. They claim that their collective minority group’s votes are diluted in all four Commission districts and propose three different remedial districts, i.e., “Remedial Districts 1 and 2” in the five-district plan or yet still another alternative plan in a four-member/one at-large district. However, some of the remedies proposed to cure the alleged dilution of this multiple minority would not include either one of the racial minority groups or the language minority group. In that case, the “remedy” proposed by the minority coalition would not be a viable or proper remedy for all members of the coalition. In a similar vein, as the School Board points out in its brief, [Doc. 89-1, pp.7-8], the various remedial districts Plaintiffs vaguely describe, would not be in keeping with the requirement that a court imposing a remedial plan must be a “minimum change” plan, making only those changes necessary for a remedy. Upham v. Seamon, 456 U.S. 37, 41-42 (1982). First, it appears that Plaintiffs’ proposals would touch every district in the Commission plan. Second, the Plaintiffs’ apparent desire to have the same five-district plan for the School Board and the Commission would cause unnecessary changes to the Commission plan in Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 16 of 22 17 order to deal with the need to exclude the City of Buford School District from such a plan. Finally, in proposing a five-member plan or a four-member, one at-large plan without specifying that the chairman would continue to be elected at-large, Plaintiffs propose another impermissible remedy. In their Second Amended Complaint, Plaintiffs again ask the Court specifically to “[d]eclare that the use of an at-large seat and the current districting plan to elect the Gwinnett County Board of Commissioners violates Section 2 of the Voting Rights Act.” [Doc. 83, Prayer for Relief, (a)]. Plaintiffs want a new plan either with five districts, converting the at-large Chairman position to a district (with no provision for filling the Chairman’s position) or with four districts (again, with no provision for filling the Chairman’s position). Plaintiffs concede that the current Commission plan is state law. [Doc. 83, ¶¶78-79]. Under well-established law emanating from Thornburg v. Gingles, 478 U.S. 30 (1986), a court considering a Section 2 claim cannot impose a remedial plan that changes the form of government. Implicit in this first Gingles requirement is a limitation on the ability of a federal court to abolish a particular form of government and to use its imagination to fashion a new system. Nothing in the Voting Rights Act suggests an intent on the part of Congress to permit the federal judiciary to force on the states a new model of government; moreover, from a pragmatic standpoint, Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 17 of 22 18 federal courts simply lack legal standards for choosing among alternatives. Nipper 39 F.3d. at 1531; see also Dillard v. Baldwin County Comm’rs, 376 F. 3d 1260, 1268 (11th Cir. 2004). In drawing this conclusion, the Eleventh Circuit relied heavily on Holder v. Hall, 512 U.S. 874 (1994), in which the Supreme Court held that an alternative plan cannot alter the size of a government body. Yet that is exactly what Plaintiffs propose to do in their proposed remedial plans for the Commission. One of their plans would eliminate the at-large Chairman and convert the position to another member, resulting in a Commission with five members but no chairman. [Doc. 83, ¶125]. The other plan would reduce the Commission to four members, but again without any provision for a chairman, (unless Plaintiffs intend the at-large the position to be the Chairman). [Doc. 83, ¶ 126]. If so, they should clearly state that position. Clearly, the proposed remedial plans offered by Plaintiffs would change the form of government of Gwinnett County. Therefore, for that reason as well, Plaintiffs’ Complaint, which seeks an impermissible remedy, should be dismissed for failure to state a claim. V. CONCLUSION Plaintiff’s Second Amended Complaint should be dismissed because Plaintiffs lack standing to assert a Section 2 claim. Even if the Court finds standing and thus jurisdiction, the Second Amended Complaint fails to state a Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 18 of 22 19 claim on which Plaintiffs can obtain relief. Plaintiffs fail to state a prima facie claim because the remedies they propose (1) do not all address the alleged harm to the combined minority group, (2) do not comport with the requirement of minimum change in a court-drawn plan, and (3) require a change in the form of government. Therefore, as a matter of law, none of the proposed remedies is viable or proper. I certify that the foregoing brief 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). This 26th day of May, 2017. /s/ Richard A. Carothers (by A. Lewis with permission) RICHARD A. CAROTHERS Georgia Bar No. 111075 richard.carothers@carmitch.com CAROTHERS & MITCHELL, LLC 1809 Buford Highway Buford, GA 30518 (770) 932-3552 /s/Anne W. Lewis Anne W. Lewis Georgia Bar No. 737490 awl@sbllaw.net STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, GA 30309 Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 19 of 22 20 (678)347-2200 Attorneys for Defendants Gwinnett County, Georgia and the Gwinnett County Board of Registrations and Elections Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 20 of 22 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION GEORGIA STATE CONFERENCE OF THE NAACP, as an organization; et al. Plaintiffs, v. GWINNETT COUNTY BOARD OF COMMISSIONERS; et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 1:16-cv-02852-AT CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this date electronically filed the foregoing BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT BY DEFENDANTS GWINNETT COUNTY, GEORGIA AND THE GWINNETT COUNTY BOARD OF REGISTRATIONS AND ELECTIONS with the Clerk of the Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Brian J. Sutherland Edward D. Buckley Clifford Zatz April N. Ross Ezra David Rosenberg Julie Houk John Powers Allan Leroy Parks, Jr. Andrew Yancey Coffman E. Victoria Sweeny W. Creighton Lancaster Richard A. Carothers This 26th day of May, 2017. Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 21 of 22 22 s/Anne W. Lewis Anne W. Lewis Georgia Bar No. 737490 STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2200 1170 Peachtree Street NE Atlanta, GA 30309 awl@sbllaw.net Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 22 of 22 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 1 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 2 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 3 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 4 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 5 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 6 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 7 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 8 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 9 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 10 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 11 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 12 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 13 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 14 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 15 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 16 of 17 Case 1:16-cv-02852-AT Document 93-2 Filed 05/26/17 Page 17 of 17