Arrington v. Elections Board

EASTERBROOK, Circuit Judge,

dissenting.

This complaint must be dismissed. It does not present a case or controversy within the meaning of Article III, and it also encounters problems of statutory authority. I start with the latter, which can be fixed in a way that the Article III problem cannot be.

The complaint, filed under 42 U.S.C. § 1983 (and requiring a three-judge district court under 28 U.S.C. § 2284 (a)), names as defendants Wisconsin’s Elections Board, plus all of its members (plus its executive director) in their official capacities. Yet we know from Arizonans for Official English v. Arizona, 520 U.S. 43, 69 , 117 S.Ct. 1055 , 137 L.Ed.2d 170 (1997), and Will v. Michigan Department of State Police, 491 U.S. 58 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989), that states and their agencies are not “persons” subject to suit under § 1983. What is more, official-capacity suits are equivalent to suits against the entities themselves. See Kentucky v. Graham, 473 U.S. 159, 165-67 , 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985). Accordingly, none of the defendants is a “person” subject to suit under § 1983. The complaint could be repaired by an amendment dismissing the Elections Board and naming the natural persons in their individual capacities, using the approach of Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), avoiding entanglements under the eleventh amendment in the process. See also Hafer v. Melo, 502 U.S. 21, 25-31, 112 S.Ct. 358 , 116 L.Ed.2d 301 (1991). It may be that, with the Board dismissed, even an official-capacity action against the members could proceed on the fiction that prospective relief does not “really” bind the state, nimbly evading not only the eleventh amendment but also the limitations on the definition of a “person” under § 1983. See Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 . But the Article III problem is more severe.

Today Wisconsin has nine members in the House of Representatives. As a result of the 2000 Census, it is entitled to elect only eight in 2002. This suit was filed immediately after the apportionment of *869 representatives among the states was announced in February 2001. Plaintiffs do not allege that when the suit began the State of Wisconsin had failed to carry out its responsibility to revise its plan of apportionment. February 2001 was the beginning, and even now (in November 2001) the process is in medias res. The best face one can put on this complaint is that plaintiffs predict that Wisconsin will fail to enact eight equal-size districts. Yet a prediction that something will go wrung in the future does not give standing today. One might as well commence a suit as soon as some legislator introduces a bill that would be unconstitutional if enacted. Until the bill is enacted there is nothing to litigate about. See, e.g., Illinois v. Chicago, 137 F.3d 474 (7th Cir.1998) (collecting cases). So too here; until Wisconsin either enacts an invalid apportionment, or fails to create the districts necessary to hold an election in November 2002, anything we do would be advisory. An uncharitable person would be inclined to say that this suit was filed in February 2001 to be first in the queue for attorneys’ fees in the event litigation becomes necessary. But reserving a place in line is not a proper reason to invoke the judicial power. We should dismiss this complaint and make it clear that no replacement will be received until there is a real controversy (which by entering a stay my colleagues imply could not happen before February 2002).

The majority does not disagree with any of these points but nonetheless thinks that there is a live controversy. Because this is in part an issue of timing, they look to ripeness doctrine and observe that a case may be held until it becomes ripe for decision. See, e.g., Buckley v. Valeo, 424 U.S. 1, 113-18 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976); Reno v. Catholic Social Services, Inc., 509 U.S. 43, 73 , 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993). Yet ripeness, a prudential doctrine, differs from standing, a constitutional doctrine. Standing depends on injury in fact, and these plaintiffs have not been injured. Nor is injury impending, to be averted only by judicial action. Wisconsin does not propose to conduct the 2002 elections under the existing plan. Indeed, Wisconsin could not conduct the elections under the existing plan even if it tried, because the current plan provides for nine representatives while the new apportionment allows only eight. Action by the judicial branch is not necessary to stop Wisconsin from electing nine representatives. The legislative branch and the executive branch have nixed any such possibility already. Because electing nine representatives is inconceivable no matter what the court does, injury is missing and no decision of the court could (or is required to) redress the problem.

This suit, as it stands, is equivalent to asking the judicial branch to enjoin implementation of a state pollution control plan that the EPA has canceled and that can’t be enforced without the agency’s cooperation (as representatives can’t be seated in Congress without its approval). A suit might lie against the EPA by someone wanting to revivify the state plan, but no plaintiff would have standing to ask the judiciary to drive a second stake through the plan’s heart. One death is enough. This lawsuit is governed by that principle. Judicial action in February 2001 (or today) would be redundant and thus advisory in the most basic sense.

It is unhelpful to observe that the existing nine districts have had population shifts that render them malapportioned on the one-person-one-vote standard. My colleagues rely on law review commentary for the proposition that every Census makes all legislative districts automatically unconstitutional and thus creates an Article III controversy right out of the box in every state, before the legislature has had a chance to act. I have my doubts about *870 this proposition, but it is unnecessary to consider it in detail. Because these nine districts are already in the garbage bin of history — they were consigned to that position by the political branches of the national government — it is irrelevant what other flaws they may have. A declaration that they would be malapportioned if used again (which they can’t be) would be advisory, solving no real controversy and offering no one any relief. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-09 , 118 S.Ct. 1003 , 140 L.Ed.2d 210 (1998) (discussing the three ingredients of standing: injury in fact, causation, and redressability). Plaintiffs are not injured by a defunct plan, and that non-injury cannot be redressed by anything we may say about historical relics.

This suit therefore must be dismissed. A new suit, filed after the legislature enacts a plan with constitutional flaws (or fails to act in time to allow a valid election next year) could present a real controversy. But this suit was dead on arrival and cannot be called to life by later developments — either in the legislature or by intervention of persons who want to contest the way in which the state legislature is apportioned. Therefore I shall take no further part in the consideration or decision of No. 01-C-121, though if a new complaint is filed (concerning either state or federal elections) Chief Judge Flaum may elect to appoint the same three-member panel so that the litigation can proceed. But unless a fresh suit is filed, this has become a two-judge court, and whatever it does may end up being vacated by higher authority on Article III grounds. Would it not have been vastly superior for prudential, as well as jurisdictional, reasons to junk this bit of “instant litigation” and wait for a real controversy?