# Montiel v. Davis

> District Court, S.D. Alabama · July 8, 2002 · 215 F. Supp. 2d 1279

URL: https://www.frixlaw.com/law-library/cases/9780875

## Case

- **Full name:** Gonzalo Fitch MONTIEL, Et Al., Plaintiffs, v. Don DAVIS, Et Al., Defendants
- **Court:** District Court, S.D. Alabama
- **Decided:** July 8, 2002
- **Citations:** 215 F. Supp. 2d 1279; 2002 U.S. Dist. LEXIS 14004; 2002 WL 1786315
- **Precedential status:** Published
- **Opinion:** Concurrence by Black
- **Judges:** Black
- **Cited by:** 8 later opinions in the Frix Law Library

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## Opinion text

SUSAN H. BLACK, Circuit Judge,
concurring.
I concur in the majority decision granting summary judgment in favor of the defendants. I write separately only to emphasize a few points.
This action initially was brought by plaintiff Gonzalo Fitch Montiel 1 based on the failure of the legislature of the State of Alabama to redistrict its own House of Representatives and Senate seats despite publication of the 2000 federal census. Due to population shifts within the state, the legislative districts had become malap-portioned. Consequently, Montiel asserted any further elections under the then-current districting plans would violate the “one man, one vote” guarantee of the Fourteenth Amendment’s Equal Protection Clause.
Four days after Montiel filed his complaint, the Alabama Legislature was called into special session by Governor Don Sie-gelman. In the special session, the Legislature enacted Act 2001-727, a new dis-tricting plan for the Alabama State Senate, and Act 2001-729, a new districting plan for the Alabama State House of Representatives. Both Acts were signed into law by Governor Siegelman on July 3, 2001, and submitted to the United States Department of Justice for preclearance as required by § 5 of the Voting Rights Act of 1965. Act 2001-727 was precleared on October 15, 2001; Act 2001-729 was pre-cleared on November 5, 2001.
Having indirectly attained his goal of obtaining new districting plans based on the 2000 census data, Montiel promptly amended his complaint to challenge those new plans. The crux of Montiel’s subsequent challenge, currently before this Court, is his belief the new districting plans were drawn along racial lines so as to maximize the strength of votes within black majority districts. In other words, Montiel contends the Alabama Legislature used race as a basis for separating voters into districts. When a legislature draws districts based on race, such an act constitutes racial gerrymandering. 2
*1290 Perhaps based on concerns regarding standing, Montiel did not directly assert a racial gerrymandering claim. See generally United States v. Hays, 515 U.S. 737, 744 , 115 S.Ct. 2431, 2436 , 132 L.Ed.2d 635 (1995) (holding citizens who did not live in majority-minority district that was the primary focus of racial gerrymandering claim lacked standing to bring suit); Sinkfield v. Kelley, 531 U.S. 28, 29-30 , 121 S.Ct. 446, 446-47 , 148 L.Ed.2d 329 (2000) (holding white voters who challenged their own majority-white state legislative districts under redistricting plan whose purpose was creation of majority-minority districts, some of which bordered voters’ districts, lacked standing to claim redistricting plan was racial gerrymandering). 3 Rather, Montiel attempts to bootstrap a racial gerrymandering claim through his amended “one man, one vote” challenge.
“[T]he Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.” Reynolds v. Sims, 377 U.S. 533, 566 , 84 S.Ct. 1362, 1384 , 12 L.Ed.2d 506 (1964). Relatively minor population deviations among state legislative districts, however, are not considered to “substantially dilute the weight of individual votes in the larger districts so as to deprive individuals in these districts of fair and effective representation.” White v. Regester, 412 U.S. 755, 763 , 93 S.Ct. 2332, 2338 , 37 L.Ed.2d 314 (1973). Deviations of under 10% are viewed as de minimis and are presumed to be constitutional. See id. If an apportionment plan has a de minimis maximum deviation in total population, the plan will not violate the “one person, one vote” principle, absent evidence the plan was the product of “arbitrariness or discrimination.” Daly v. Hunt, 93 F.3d 1212, 1220 (4th Cir.1996) (quoting Roman v. Sincock, 377 U.S. 695, 710 , 84 S.Ct. 1449, 1458 , 12 L.Ed.2d 620 (1964)).
Raising a novel “one man, one vote” argument, Montiel asserts the de minim-is deviations contained in Alabama’s new redistricting plans are the product of discrimination because they resulted from efforts to underpopulate black majority districts so as to maximize the relative voting strength of black voters. In effect, Montiel argues the “one man, one vote” guarantee of the Equal Protection Clause has been violated because the legislative districts were racially gerrymandered. 4
Even assuming Montiel’s theory raises a legitimate “one man, one vote” claim, he nevertheless cannot establish his prima *1291 fade case. A plaintiff challenging a facially neutral law based on racial gerrymandering must show the law is unexplainable on any grounds other than race. Hunt v. Cromartie, 526 U.S. 541, 542 , 119 S.Ct. 1545, 1547 , 143 L.Ed.2d 731 (1999). Race must not merely have been a factor, but must have been the predominant factor motivating the legislature’s districting decisions. Id. As discussed in detail by the majority, Montiel has failed to present sufficient evidence to support his claim.
. Additional plaintiffs were added by the Third Amended Complaint, filed in December 2001.
. In his first amended complaint, Montiel alleged the new districting plans violated § 2 of the Voting Rights Act, rather than arguing *1290 they were racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment. His assertion blurs the distinction between the two types of claims. Section 2 of the Voting Rights Act prohibits a state from enacting a particular voting scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities. See generally Thornburg v. Gingles, 478 U.S. 30 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986) (discussing the elements of a § 2 claim). Section 2 claims often are referred to as vote dilution claims. By contrast, the essence of a racial gerrymandering claim is that the state has segregated citizens into voting districts on the basis of race. See generally Shaw v. Reno, 509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) (discussing racial gerrymandering by segregating races for purposes of voting). In his amended complaint, Montiel did not allege the voles of black citizens were diluted as a result of the new districting plans; rather, Montiel asserted the votes of those citizens were increased though racially selective assignment into voting districts.
. Interestingly, Montiel was a named plaintiff in the Sinkfield . case, an action challenging the State of Alabama's prior legislative districts as racially gerrymandered. He was represented in that case by the same attorney representing him in the instant action.
. By couching his claim as a "one man, one vote” challenge, Montiel effectively evaded potential problems regarding his standing to bring a racial gerrymandering claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9780875. Public record. Not legal advice.