Case 2:12-cv-00691-WKW-MHT-WHP Document 372 Filed 10/12/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

ALABAMA LEGISLATIVE )
BLACK CAUCUS, et al., )
)
Plaintiffs, )
) CASE NO. 2:12-CV-691
v. ) (Three-Judge Court)
)
THE STATE OF ALABAMA, et al., )
)
Defendants. )
________________________________ )
)
ALABAMA DEMOCRATIC )
CONFERENCE, et al., )
)
Plaintiffs, )
) CASE NO. 2:12-CV-1081
v. ) (Three-Judge Court)
)
THE STATE OF ALABAMA, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Before this Court are the objections of the Alabama Legislative Black Caucus

plaintiffs to the remedial redistricting plans enacted by the State of Alabama and a

motion to intervene to object to the remedial plans filed by Sandra Arnold and

Louella Kelly. (Docs. 345, 350, 363). First, we deny the motion to intervene as

untimely, Fed. R. Civ. P. 24. Second, because the Black Caucus plaintiffs lack standing

to challenge House Districts 14 and 16 and Senate District 5, we dismiss their

 Case 2:12-cv-00691-WKW-MHT-WHP Document 372 Filed 10/12/17 Page 2 of 16

objections that are based on racial gerrymandering. Third, we dismiss the Black

Caucus plaintiffs partisan gerrymandering objection to the same districts because the

Black Caucus plaintiffs lack standing to bring a partisan gerrymandering challenge to

the relevant districts. In the alternative, we hold that the Black Caucus plaintiffs have

not articulated an adequate standard for adjudicating the partisan gerrymandering

objection.

I. BACKGROUND

In a memorandum opinion and order entered January 20, 2017, this Court

declared 12 of Alabamas legislative districts unconstitutional racial gerrymanders and

enjoined the use of those districts in future elections. (Doc. 316 at 45). In a separate

order entered the same day, this Court directed the parties to confer and, if possible,

agree to a joint procedure for the remedial phase of this litigation, (Doc. 318 at 3),

which they did. (Docs. 326, 327). The joint procedure gave Alabama until May 23 to

enact a remedial redistricting plan and gave the Alabama Democratic Conference

plaintiffs and Alabama Legislative Black Caucus plaintiffs until June 13 to file

objections to the plan. (Doc. 326 at 2; Doc. 327 at 2, 4).

Alabama met its deadline and enacted Senate Bill 403 and House Bill 571 to

cure the constitutional violations identified by this Court. (Doc. 318 at 2; Doc. 335-1

at 273; Doc. 337-1 at 584). Although we enjoined only the use of twelve of the

majority-black house and senate districts, (Doc. 316 at 45), the remedial plans redrew

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all of the majority-black districts. (Doc. 335 at 4). The drafters of the remedial plans

did not consider race when they initially drew the remedial districts. (Doc. 335 at 45).

The drafters considered the racial composition of a district only if, after changes had

been made to the district, the black voting age population fell below 50 percent. (Doc.

335 at 5).

The plaintiffs posed no objection to the majority-black districts in the remedial

plans. The Democratic Conference plaintiffs agreed with Alabama that Senate Bill 403

and House Bill 571 cured the impermissible use of race in the former majority-black

districts. (Doc. 349). The Democratic Conference plaintiffs explained that [t]he new

plans for both the House and Senate split significantly fewer counties and precincts,

and reduce black population percentages in the vast majority of the black-majority

House and Senate districts, without compromising the ability of [Alabama Democratic

Conference] members to elect representatives of their choice. (Id. at 1). The Black

Caucus plaintiffs also posed no objection to the majority-black districts as drawn in

Senate Bill 403 and House Bill 571. (Doc. 345 at 2).

The Black Caucus plaintiffs instead moved to object to three majority-white

districts never before challenged in this litigationHouse Districts 14 and 16, and

Senate District 5. (Id.). House Districts 14 and 16 are part of the Jefferson County

House Delegation, and Senate District 5 is part of the Jefferson County Senate

Delegation. (Id. at 19, 23). The Black Caucus plaintiffs argue that the drafters included

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these districts in Jefferson County to maintain more majority-white than majority-

black districts in the Jefferson County House and Senate delegations. (Id. at 19, 23).

The Black Caucus plaintiffs complain that all three districts protrude into Jefferson

County but none of the representatives of the districts reside in Jefferson County,

establishing that the districts are racial gerrymanders. (Id. at 2, 13, 19, 23). The Black

Caucus plaintiffs contend that their proposed alternative remedial plans, which

removed Senate District 5 and House District 14 from Jefferson County, cured the

racial gerrymanders of the Jefferson County delegations. (Id. at 2).

The Black Caucus plaintiffs also argue that the Jefferson County districts are

partisan gerrymanders that violate the First and Fourteenth Amendments. (Doc. 363

at 3). In support of this objection, the Black Caucus plaintiffs point to the possibility

that the Supreme Court will address partisan gerrymandering in the October 2017

term. (Id. at 2).

Sandra Arnold, a resident and registered voter of House District 14, and

Louella Kelly, a resident and registered voter in House District 16, moved to

intervene in the case, Fed. R. Civ. P. 24, to join the Black Caucus plaintiffs in their

challenge of these districts. (Doc. 350 at 1, 3). Arnold and Kelly assert that they have

an interest in this action now that Alabama has enacted remedial plans that altered the

design of House Districts 14 and 16. (Id. at 2). Arnold and Kelly acknowledge,

however, that if their motion to intervene is denied, . . . the plaintiffs may be held to

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lack standing to challenge House Districts 14 and 16 because no plaintiff lives in

those districts. (Id. at 3). In their defense of the motion to intervene, the Black Caucus

plaintiffs also admit that neither intervenor resides in Senate District 5, [s]o neither

movant nor any [Black Caucus] plaintiff has standing to pursue a racial

gerrymandering claim with respect to [Senate District] 5. (Doc. 357 at 2).

II. DISCUSSION

We divide this discussion in three parts. We first explain that the motion to

intervene to challenge House Districts 14 and 16 is untimely. We next explain that the

Black Caucus plaintiffs lack standing to challenge Senate District 5 and House

Districts 14 and 16 as racial gerrymanders. Finally, we explain that the Black Caucus

plaintiffs lack standing to raise their partisan gerrymandering challenge, and we hold,

in the alternative, that the Black Caucus plaintiffs have failed to articulate a standard

for adjudicating their partisan gerrymandering objection.

A. The Motion to Intervene Is Untimely.

To succeed on their motion to intervene, Arnold and Kelly must establish as a

threshold matter that their motion is timely. See Fed. R. Civ. P. 24; Howse v. S/V

Canada Goose I, 641 F.2d 317, 320 (5th Cir. 1981) (Timely application is a requirement

for both intervention of right and permissive intervention.). We consider four factors

to determine if a motion to intervene is timely:

(1) the length of time during which the would-be intervenor knew or
reasonably should have known of his interest in the case before he
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petitioned for leave to intervene; (2) the extent of prejudice to the

existing parties as a result of the would-be intervenors failure to apply as
soon as he knew or reasonably should have known of his interest; (3) the
extent of prejudice to the would-be intervenor if his petition is denied;
and (4) the existence of unusual circumstances militating either for or
against a determination that the application is timely.

United States v. Jefferson Cty., 720 F.2d 1511, 1516 (11th Cir. 1983). Although Arnold

and Kelly contend that these factors favor intervention, (Doc. 350 at 25; Doc. 357 at

45), we disagree.

First, Arnold and Kelly should have reasonably known of their interest in this

litigation in 2014, and they should have moved to intervene then. House Districts 14

and 16 changed little under the remedial redistricting plan. (Doc. 353 at 5; Doc. 355-1

at 56). And the issues that Arnold and Kelly seek to challenge existed under the 2012

legislative redistricting plan, which was first used in the 2014 election. (Doc. 353 at 5).

The borders of House District 14 did not change under the remedial plan. As it did

under the 2012 lines, House District 14 still includes parts of Winston, Walker, and

Jefferson counties. (Doc. 355-1 at 5). And the representative of House District 14

who was elected in 2014 resided outside of Jefferson County in Winston County.

(Doc. 353 at 5). Although the borders of House District 16 changed slightly under the

remedial plan, the district continued to include portions of Jefferson, Tuscaloosa,

Fayette, and Lamar counties. (Doc. 355-1 at 6). And the representative of House

District 16 elected in 2014 resided outside of Jefferson County in Fayette County.

(Doc. 353 at 5). Arnold and Kelly argue that their motion is timely because the 2017
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remedial plan did not exist in 2014, (Doc. 350 at 2; Doc. 357 at 5), but this point

misses its mark. The issues identified by Arnold and Kelly existed under the 2012

redistricting plan and could have been challenged as early as 2014. The Black Caucus

plaintiffs also argue that Arnold and Kellys motion is timely because their claims are

based on constitutional standards that were not clearly explicated before the

Supreme decided Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015),

Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017), and Cooper v. Harris,

137 S.Ct. 1455 (2017). (Doc. 357 at 5). But the Supreme Court has long recognized

claims of racial gerrymandering. And the Black Caucus plaintiffs have litigated this

case under the more clearly explicated constitutional standard[] the Supreme

Court articulated in Alabama Legislative Black Caucus since remand. The Black Caucus

plaintiffs give no reason why Arnold and Kelly could not have done the same.

Second, if we granted the motion to intervene, Alabama would suffer

substantial prejudice. Intervention would cause further delay of already protracted

litigation that is in its final stage. This litigation began in 2012, proceeded through

extensive discovery, a trial, an appeal to the Supreme Court of the United States, and

two years of proceedings on remand. Arnold and Kelly now seek to challenge

majority-white districts never before challenged in this litigation on grounds that have

existed since 2014. In addition to depriving Alabama of its interest in a prompt

disposition of the[] controversy, Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302 (11th

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Cir. 2008), granting the motion to intervene would delay the use of legislative districts

that all parties agree cure the constitutional violations found by this Court. (Doc. 345

at 2; Doc. 349 at 2; Doc. 354 at 12).

Third, Arnold and Kelly will not suffer prejudice by the denial of their motion

to intervene as untimely. A movant will suffer prejudice sufficient to support

intervention only when she has an identity of interest with a party and that party does

not sufficiently represent her interests. Jefferson Cty., 720 F.2d at 1517. Arnold and

Kelly do not assert that they have identity of interests with the Democratic Caucus

plaintiffs or the Black Caucus plaintiffs. Indeed, that Arnold and Kelly move to

intervene to challenge districts that they acknowledge the Black Caucus plaintiffs lack

standing to challenge suggests that Arnold and Kellys claims are beyond the scope of

this litigation. That is, the remedial plan addressed the districts at issue in this

litigation, which did not include House Districts 14 or 16. At most, Arnold and Kelly

argue that the Black Caucus plaintiffs will be prejudiced by denial of the motion to

intervene because, absent intervention, the Black Caucus plaintiffs lack standing to

challenge districts in which they do not live. (Doc. 350 at 3). But Arnold and Kelly

fail to point to any common question of law or fact that will be determined to

[their] disadvantage by denial of their motion. Jefferson Cty., 720 F.2d at 1517. As a

result, they will not suffer prejudice.

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Fourth, neither Arnold nor Kelly identify the existence of unusual

circumstances militating . . . for . . . a determination that the application is timely, id.

at 1516. To the contrary, the parties agree that the remedial plans cured the

constitutional injury suffered by the residents of the twelve enjoined districts. Any

further delay would be an unnecessary protraction of the case.

Considered together, these four factors establish that the motion to intervene is

untimely. And because Arnold and Kellys application is untimely, we deny their

motion to intervene. Reeves v. Wilkes, 754 F.2d 965, 972 (11th Cir. 1985) (holding that

a motion to intervene should be denied if untimely).

B. The Black Caucus Plaintiffs Lack Standing for Their Racial Gerrymandering Claim.

We must also deny the motion to object to Senate District 5 and House

Districts 14 and 16 filed by the Black Caucus, (Doc. 345), because the Black Caucus

plaintiffs lack standing to challenge these districts. A plaintiff has standing to

challenge a racially gerrymandered district if he resides in that district. United States v.

Hays, 515 U.S. 737, 74445 (1995); see also Alabama Legislative Black Caucus, 135 S. Ct. at

126870 (explaining that an organization may have standing to challenge a racially

gerrymandered district where members of the organization reside in the district). But

as the Black Caucus plaintiffs acknowledge, none of Black Caucus plaintiffs reside in

House Districts 14 or 16, or Senate District 5. (Doc. 350 at 3; Doc. 357 at 2, 10); see

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also (Doc. 182 (listing residences of the plaintiffs)). As a result, the Black Caucus

plaintiffs lack standing to object to those districts.

C. The Black Caucus Plaintiffs Partisan Gerrymandering Objection Fails.

The Black Caucus plaintiffs do not have standing to challenge Senate District 5

and House Districts 14 and 15 as partisan gerrymanders. In the alternative, the

partisan gerrymandering challenge fails because the Black Caucus plaintiffs have not

articulated a standard for evaluating this objection.

1. The Black Caucus Plaintiffs Lack Standing.

In Hays, the Supreme Court held that a plaintiff in a racial gerrymandering case

has standing only when he or she lives in the challenged district or can otherwise

demonstrate[] that [he or she], personally, ha[s] been subjected to a racial

classification. 515 U.S. at 739. The Court identified two injuries inflicted by racial

classification in the voting context. First, the Court concluded that the very act of

racial classification threaten[s] to stigmatize individuals by reasons of their

membership in a racial group. Id. at 744 (quoting Shaw v. Reno, 509 U.S. 630, 643

(1993)). Second, the Court also noted representational harms. Id. (internal quotation

marks omitted). When a district obviously is created solely to effectuate the

perceived common interests of one racial group, elected officials are more likely to

believe that their primary obligation is to represent only the members of that group,

rather than their constituency as a whole. Id. (quoting Shaw , 509 U.S. at 648). The

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Court reasoned that these injuries permit residents of the affected districts to

[d]emonstrat[e] the individualized harm our standing doctrine requires. Id. On the

other hand, where a plaintiff does not live in such a district, he or she does not suffer

those special harms, and any inference that the plaintiff has personally been subjected

to a racial classification would not be justified absent specific evidence tending to

support that inference. Id. at 745. Unless other evidence in the record establishes

that nonresidents have been subjected to racially discriminatory treatment, these

citizens cannot establish standing. Id.

We conclude that this analysis controls the question of standing in the context

of political gerrymandering. Id. In Hays, the Supreme Court reasoned that alleged

victims of racial gerrymandering could establish individual harm either by living in an

affected district or by proving that they had been personally classified on the basis of

race. Assuming that partisan classifications are also constitutionally suspect, an alleged

victim of partisan gerrymandering must make the same showing of residency or

individual harm. The Black Caucus plaintiffs do not allege that the new district map

has classified the Black Caucus plaintiffs in an unconstitutional manner. (See Doc.

363). Like racial gerrymandering, partisan gerrymandering has the effect of muting the

voices of certain voters within a given district. Although these district-specific power

allocations have consequences for statewide politics, the Hays Court required that

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plaintiffs establish an individual harm that directly stems from an unconstitutional

classification.

We acknowledge that the Western District of Wisconsin reached a different

conclusion in Whitford v. Gill, 218 F. Supp. 3d 837, 927 (W.D. Wis. 2016), when it held

that Democratic voters had standing to pursue a statewide partisan gerrymandering

challenge. The court distinguished Hays, reasoning that Hays addressed the harm

caused not [when] the racial groups voting strength has been diluted, but [when]

race has been used as a basis for separating voters into districts. Id. at 929 (internal

quotation marks omitted). According to the district court, this individual racial stigma

is different from the statewide injury of being unable to translate . . . votes into

seats. Id. The court also cited Baker v. Carr, 369 U.S. 186, 20708 (1962), a pre-Hays

decision that held that voters in disfavor[ed] counties had standing to challenge a

statewide apportionment statute. Whitford, 218 F. Supp. 3d at 928.

We respectfully disagree. The Whitford court distinguished the inherent harm an

individual suffers when he is categorized on the basis of race from the universal injury

all Wisconsin Democrats suffered when the redistricting plan hindered their efforts to

translate their votes into seats. Id. at 929. According to the court, the first kind of

harm affects only the residents of a race-based district, while the latter injury has

statewide repercussions. This reasoning would be persuasive if the only harm Hays

addressed was the stigma of racial classification. But the Hays court also found that

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racial gerrymandering creates the special representational harm[] of a districts

elected officials [being] more likely to believe that their primary obligation is to

represent only the members of that [racial] group. Hays, 515 U.S. at 74445 (quoting

Shaw, 509 U.S. at 648). Hays specifically tied racial classifications to the political

injuries that emerge when members of a group lack influence within their district. And

when a plaintiff does not live in such a district, he or she does not suffer those

special harms absent specific evidence that the plaintiff personally has been the

subject of an unconstitutional classification. Id. at 745. Under this analysis, the Black

Caucus plaintiffs lack standing to challenge districts in which they do not live because

they cannot establish an individual constitutional injury.

2. Alternatively, the Black Caucus Plaintiffs Have Not Articulated a Standard For

Adjudicating Their Partisan Gerrymandering Objection.

The Black Caucus plaintiffs partisan gerrymandering objection is familiar, and

it alternatively fails for a familiar reason. The Black Caucus plaintiffs original

complaint alleged unconstitutional partisan gerrymandering. (See Doc. 1 at 22; see also

Doc. 60 at 23). On August 2, 2013, we granted summary judgment in favor of the

State on this claim, basing our analysis on Justice Kennedys controlling concurrence

in Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring) (Doc. 174 at

1619). Unlike the Vieth plurality, Justice Kennedy was not willing to hold that all

partisan gerrymandering claims were nonjusticiable. Id. He instead proposed a high

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standard for such claims, concluding that any determination that a [partisan]

gerrymander violates the law . . . must rest . . . on a conclusion that the classifications,

though generally permissible, were applied in an invidious manner or in a way

unrelated to any legitimate legislative objective. Id. at 307.

In our 2013 grant of summary judgment, we applied this test and explained that

the plaintiffs bear the burden of providing [the court with] a standard to adjudicate

a claim of unconstitutional partisan gerrymandering. (Doc. 174 at 19). The Black

Caucus plaintiffs failed to do so, for they had proposed a standard of adjudication

that made no distinction between racial and political gerrymandering. (Id. at 1819).

And because [c]laims of racial gerrymandering implicate a different inquiry from

claims of partisan gerrymandering, this standard was insufficient. (Id. at 17 (quoting

Vieth, 541 U.S. at 307 (Kennedy, J., concurring))). Indeed, the Black Caucus plaintiffs

admitted that the standard of adjudication for their claim of partisan gerrymandering

is unknowable. (Id. at 18). After the Supreme Court later vacated our rulings that

related to racial gerrymandering claims, Alabama Legislative Black Caucus, 135 S. Ct. at

1263, [w]e readopted our order[] on . . . partisan gerrymandering. (Doc. 316 at 23

(citing Doc. 242 at 2)).

The Black Caucus plaintiffs again fail to identify a standard for evaluating their

partisan gerrymandering challenge to the new district maps. The amended objection

simply makes the following allegations: (1) partisan reasons explain the relevant

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districts; (2) the Supreme Court might reconsider partisan gerrymandering in the

October 2017 term; and (3) [t]he partisan purposes of the Jefferson County

gerrymanders in the instant action would violate many of the constitutional standards

that have been proposed to the Supreme Court. (Doc. 363 at 23). These assertions

offer us no guidance for adjudicating the claim and do not support a conclusion that

the alleged partisan gerrymanders were applied in an invidious manner or in a way

unrelated to any legitimate legislative objective. Vieth, 541 U.S. at 307 (Kennedy, J.,

concurring). Even if the Black Caucus plaintiffs had standing, their partisan

gerrymandering objection would fail on the merits.

III. CONCLUSION

On consideration of the motions, replies, and response (Docs. 335, 345, 349,

350, 353, 354, 357, 363) as well as supporting and opposing authority, it is

ORDERED that the motion to intervene by Kelly and Arnold is DENIED as

untimely filed. It is further ORDERED that the motion filed by the Black Caucus

plaintiffs is DISMISSED for lack of standing with respect to the racial and partisan

gerrymandering claims. In the alternative, the Black Caucus plaintiffs partisan

gerrymandering claim is DENIED because the plaintiffs failed to identify a standard

for evaluating this claim.

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DONE this 12th day of October, 2017.

/s/ William H. Pryor, Jr.

UNITED STATES CIRCUIT JUDGE
PRESIDING

/s/ W. Keith Watkins

CHIEF UNITED STATES DISTRICT
JUDGE

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov
Effective on December 1, 2013, the fee to file an appeal is $505.00

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited
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(a) Appeals from final orders pursuant to 28 U.S.C. 1291: Final orders and
judgments of district courts, or final orders of bankruptcy courts which have been
appealed to and fully resolved by a district court under 28 U.S.C. 158, generally
are appealable. A final decision is one that ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment. Pitney Bowes, Inc.
v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States,
324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judges
report and recommendation is not final and appealable until judgment thereon is
entered by a district court judge. 28 U.S.C. 636(b); Perez-Priego v. Alachua
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Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which
resolves all issues except matters, such as attorneys fees and costs, that are
collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson
& Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988);
LaChance v. Duffys Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. 1292(a): Under this section, appeals are
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i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or
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McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
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(d) Appeals pursuant to 28 U.S.C. 1292(b) and Fed.R.App.P. 5: The

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(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited
exceptions are discussed in cases including, but not limited to: Cohen v.
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Case 2:12-cv-00691-WKW-MHT-WHP Document 372-1 Filed 10/12/17 Page 2 of 3

L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Assn v. Blythe Eastman Paine
Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel
Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

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(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements
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Rev.: 3/2011

Case 2:12-cv-00691-WKW-MHT-WHP Document 372-1 Filed 10/12/17 Page 3 of 3

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of
appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after
the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or
to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Rev.: 3/2011