Statement as to jurisdiction — Julius J. Larry, III, Appellant v. Arkansas, et al.
Supreme Court briefOct 3, 2018
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No. 18-
IN THE
'upnme Court of the aniteb otateo
DR. JULIUS J. LARRY III,
Appellant,
V.
STATE OF ARKANSAS, et al.,
Respondents.
On Appeal from the
United States District Court for the
Eastern District of Arkansas
Western Division Three Judge Panel
-
JURISDICTIONAL STATEMENT
JULIUS J. LARRY III
Appellant Pro Se
2615 West 12th Street
Little Rock, Arkansas 72202
(832) 384-6908
dr.juliusjlarry@yahoo.com
October 3, 2018
WILSON-EPES PRINTING Co., INC.
-
(202) 789-0096 - WASHINGTON, D. C. 20002
QUESTIONS PRESENTED
In the Court below, the three-judge panel denied
both of Appellant's motions to amend the complaint as
futile and ruled that he lacked standing to bring a
Section 2 violation of the Voting Rights Act and lacked
standing to bring an Equal Protection claim because
he did not reside in the congressional district being
challenged, although he alleged personal injury as an
aggrieved person.
The questions presented. are:
Whether the district court erred in denying
Appellant's first Motion for Leave to Amend
Original Complaint and Obtain Class Counsel
(Dkt #16) and Appellant's second Motion for
Leave to File First Amended Original Complaint Challenging the Constitutionality of the
Apportionment of Congressional Districts in
the State of Arkansas (Dkt #36)?
Whether the district court erred in holding
that Appellant lacked standing to bring a
§ 2 Voting Rights Act claim because he did not
reside in the congressional district being
challenged but in an adjacent and contiguous
district where he alleged personal 'injury as an
"aggrieved person" caused by the unlawful
conduct of Appellees in the First Congressional
District that harmed him in the Second.
Congressional District?
Whether the district court erred in ruling that
Appellant lacked standing to bring an Equal
Protection claim under U.S. v. Hays?
(i)
11
PARTIES TO THE PROCEEDING
The following were parties in the court below:
Plaintiffs:
Dr. Julius J. Larry Ill, Annie Mabel Abrams,
Reverend Reginald J. Hampton, Martha Dixon,
Dorothy Jefferson and Shirley Larry
Appellant is Dr. Julius J. Larry III
Appellees are the State of Arkansas; Asa
Hutchinson; Leslie Rutledge; Mark Martin; and the
Arkansas Legislature
Defendants:
State of Arkansas
Asa Hutchinson, Governor of State of Arkansas
Leslie Rutledge, Attorney General of Arkansas
Mark Martin, Secretary of State of Arkansas
Arkansas Legislature, (135 Members)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...............................i
PARTIES TO THE PROCEEDING....................ii
TABLE OF AUTHORITIES................................vi
1
JURISDICTIONAL STATEMENT ......................
OPINIONS BELOW............................................1
JURISDICTION..................................................1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ..............................
.1
INTRODUCTION ................................................ .2
STATEMENT OF THE CASE ............................2
I. THE PANEL ERRED IN DENYING
APPELLANT'S MOTIONS FOR LEAVE
TO AMEND ORIGINAL COMPLAINT...
3
A. Legal Standard Applicable to Motion
for Leave to Amend .............................3
7
Futility .................................... ........
Defendant's Did Not Meet Their
Burden Of Proof Of Futility...........8
Amendment As A Matter of
Course .............................................
10
Procedural Confusion.....................14
Plaintiff Larry Has Article III
Standing Due To "INJURY"EXPECTED
IN-FACT" and
EFFECTS" See Dept of Commerce v. US House of Representatives.................................................
-
(iii)
17
lv
TABLE OF CONTENTS—Continued
Page
Expected Effects of Continuing
Unlawful Conduct in Congressional District 1..............................21
Appellant Larry Had Standing
Under the First Amendment.........24
Coalition
Majority-Minority
Districts..........................................25
CRUCIAL NEW EVIDENCE
25
Court Below Construed U.S. v.
Hays Too Narrowly ........................26
CONCLUSION....................................................31
APPENDIX
APPENDIX A: ORDER, U.S. District Court
for the Eastern District of Arkansas (August
3,2018) .............................................................la
APPENDIX B: JUDGMENT, U.S. District
Court for the Eastern District of Arkansas
(August 3, 2018)...............................................21a
APPENDIX C: NOTICE OF APPEAL, U.S.
District Court for the Eastern District of
Arkansas (August 20, 2018) ............................22a
APPENDIX D: ORDER, U.S. District Court
for the Eastern District of Arkansas (April 23,
2018) .................................................................25a
APPENDIX E: MOTION FOR RECONSIDERATION AND APPOINTMENT OF A
SPECIAL MASTER, U.S. District Court for
the Eastern District of Arkansas (August 13,
2018) .................................................................34a
V
TABLE OF CONTENTS—Continued
Page
APPENDIX F: Proposed New 1st CD Map.....90a
APPENDIX G: ORDER, U.S. District Court
for the Eastern District of Arkansas (April 23,
2018).................................................................92a
APPENDIX H: U.S. Const. amend XW .......... 102a
APPENDIX I: Voting Rights Act of 1965,
Sec. 2..................................................................104a
Vi
TABLE OF AUTHORITIES
CASES
Page(s)
Baker v. Carr,
369 U.S. 186 (1962)...................................22, 30
Barnett v. City of Chicago,
No. 92-C-1693, 1996 WL 34432
(N.D. Iii. Jan. 29, 1996) ............................27
Broward Citizens for Fair Districts v.
Broward Cty.,
No. 12-60317-CIV, 2012 WL 1110053
(S.D. Fla. Apr. 3,2012) .............................
27
City of Belle Glade,
178 F.3d 1175 (11th Cir. 1999).................25
Comm. for a Fair and Balanced Map v.
Ill. Bd. of Elections,
No. 1:11-CV-5065, 2011 WL 5185567
(N.D. Iii. Nov. 1, 2011)..............................27-28
Dep't of Commerce v. U.S. House of
Representatives,
525 U.S. 316 (1999)...........17, 20, 21, 22, 23, 29
Enterline v. Pocono Med. Ctr.,
751 F. Supp. 2d 782 (M.D. Pa. 2008) .......24, 25
Foman v. Davis,
372 U.S.178 (1962)....................................7
Gill v. Whitford,
(2018)..................................30
585 U.S.
Hall v. Virginia,
276 F. Supp. 2d 528 (E.D. Va. 2003)
28
Vii
TABLE OF AUTHORITIES—Continued
Page(s)
Harding v. Cty. of Dallas, Texas,
No. 3:15-CV-0131-D, 2018 WL 1157166
(N.D. Tex. Mar. 5,2018) ...........................
27
In re Drasin,
No. ELH-13-1140, 2013 WL 3866777
(D. Md. 2013).............................................25
League of United Latin Am. Citizens v.
Perry,
548 U.S. 399 (2006)...................................14
Luna v. City of Kern,
291 F. Supp. 3d 1088 (E.D. Cal. 2018).....20, 27
McVicker v. King,
266 F.R.D. 92 (W.D. Pa. 2010)..................24
Northeastern Fla. Chapter, Associated Gen.
Contractors of America v. Jacksonville,
508 U.S. 656 (1993)...................................28
Old Person v. Brown,
182 F. Supp. 2d 1002 (D. Mont. 2002) .....28
Parker v. Ohio,
263 F. Supp. 2d 1100 (S.D. Ohio 2003),
affd, 540 U.S. 1013 (2003) .......................18, 30
Perez v. Abbot,
267 F. Supp. 3d 750 (W.D. Tex. 2017)......20, 27
Perry-Bey v. City of Norfolk, Va.,
678 F. Supp. 2d 348 (E.D. Va. 2009) ........28
Pope v. Cty. of Albany,
No. 1: 1 1-cv-0736, 2014 WL 316703
(N.D.N.Y. Jan. 28,2014) ...........................
27
Viii
TABLE OF AUTHORITIES-Continued
Page(s)
Reynolds v. Sims,
377 U.S. 533 (1964)...................................30
Rogers v. Lodge,
458 U.S. 613 (1982)...................................17
Shapiro v. McManus,
136 S. Ct. 450 (2015).................................10
Sioux Falls Cable Television v. South
Dakota, 838 F.2d 249(8th Cir. 1988).......17, 29
Thornburg v. Gingles,
478 U.S. 30 (1986)...............8, 10, 13, 14, 25, 26
U.S. v. Hays,
515 U.S. 737 (1995).....18, 23, 24, 26, 27, 28, 30
Woolsey v. Marion Labs., Inc.,
934 F.2d 1453 (10th Cir. 1991).................3
CONSTITUTION
U.S. Const. art. III ...................... 18,20,21,22,24
U.S. Const. amend. I ....................................24
U.S. Const. amend. XIV ..... 1, 2, 17, 18, 23, 29, 30
U.S. Const. amend. XV ........... 2, 17, 18, 23, 29, 30
STATUTES
28 U.S.C. § 1253 ...........................................1
28 U.S.C. § 2284 et seq . ................................
5
52 U.S.C. § 10301(a).... 1, 2, 10, 11, 12, 17, 18, 21,
23, 24, 27, 28, 30
ix
TABLE OF AUTHORITIES—Continued
Page(s)
52 U.S.C. § 10302(a)
. 17,29
52 U.S.C. § 10302(b).....................................17
RULES
Fed. R. Civ. P. 8(b)........................................6
Fed. R. Civ. P. 8(b)(6) ...................................7
Fed. R. Civ. P. 8(c) ........................................
7
Fed R. Civ. P. 11 ...........................................
9
Fed. R. Civ. P. 12..........................................4
Fed. R. Civ. P. 12(b)..............................3, 5, 10, 26
Fed. R. Civ. P. 12(b)(1) ..................................11
Fed. R. Civ. P. 12(b)(6) .................................7, 9
Fed. R. Civ. P. 12(e)......................................3
Fed. R. Civ. P. 12(f) ......................................3
Fed. R. Civ. P. 15..........................................11
Fed. R. Civ. P. 15(a)(1) .................................3
Fed. R. Civ. P. 15(a)(1)(A) ............................3
Fed. R. Civ. P. 15(a)(1)(B) .............................3
Fed. R. Civ. P. 15(a)(2) .................................3
Fed. R. Civ. P.26..........................................15, 16
Fed. R. Civ. P. 26(a)......................................5, 15
Local Rule 5.5 ...............................................9
Local Rule 5.5(e)...........................................8', 9
JURISDICTIONAL STATEMENT
Appellant, Dr. Julius J. Larry III respectfully
submits this jurisdictional statement regarding his
appeal of a judgment from a three-judge panel of
the U.S. District Court for the Eastern District of
Arkansas and orders denying motions to amend the
complaint and holding that Appellant lacked standing
to bring a § 2 violation of the Voting Rights Act
because he did not reside in the First Congressional
District which was being challenged but resided in the
Second Congressional District adjacent to the First
Congressional District although he was personally
injured by Appellees' unlawful conduct in the First
Congressional District.
OPINIONS BELOW
The opinion of the three-judge court of the Eastern
District of Arkansas Is not reported. The Motion for
Reconsideration and Appointment of a Special Master
had not been ruled on by the Court at the time of
submission of this Jurisdictional Statement. (See J.S.
App. E).
JURISDICTION
Appellant filed notice of appeal on August 20, 2018.
See J.S. App C. This Court has jurisdiction under 28
U.S.C. § 1253.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This appeal involves Section 2 of the Voting Rights
Act, reproduced at J.S. App. H and the 14th
Amendment to the US Constitution, reproduced at
J.S. App. I.
2
INTRODUCTION
On February 9, 2018, Appellant, Dr. Julius J. Larry
III filed an original complaint challenging Arkansas'
2011 congressional redistricting Plan (the "2011
Plan") (Dkt. No. 1). In his original complaint, Dr. Larry
alleged that the defendant, Arkansas Legislature's
2011 Plan racially gerrymandered the Arkansas First
Congressional District in violation of the Fourteenth
and Fifteenth Amendments to the United States
Constitution and diluted African American votes in
violation of § 2 of the Voting Rights Act of 1965. In his
proposed First Amended Complaint, he purported to
add new named-Plaintiffs and add Class Counsel. The
Court below denied the motion. In his Supplemental
Request for Three-Judge Panel, (Dkt #23), he challenged the unconstitutionality of the apportionment of
the Second Congressional District where he resides.
The Court below did not make a ruling on the effect of
the Supplemental complaint, although defendantsAppellees filed responses in opposition. (Dkt # 24).
The three-judge panel dismissed the case without
prejudice due to lack of standing and the proposed
amendment would be futile. (Dkt # 46) (See J.S.
App. A).
STATEMENT OF THE CASE
The three-judge panel erred in denying Appellant's
motions for leave to amend his original complaint
and in ruling that he lacked standing to bring a
§ 2 violation of the Voting Rights Act and Equal
Protection claims.
3
I. THE PANEL ERRED IN DENYING
APPELLANT'S MOTIONS FOR LEAVE TO
AMEND ORIGINAL COMPLAINT
A. Legal Standard Applicable to Motion
for Leave to Amend
Federal Rule of Civil Procedure 15(a)(1) allows one
amendment of a complaint as a matter of course
within 21 days after service of the complaint, (Fed. R.
Civ. P. 15(a)(1)(A)) or 21 days after receiving service of
an answer or motion to dismiss under Rule 12(b), (e),
or (f), whichever is earlier. (Fed. R. Civ. P 15(a)(1)(B)).
Subsequent amendments are allowed "only with the
opposing party's written consent or the court's leave".
(Fed. R. Civ. P 15(a)(2)). The court is instructed to
"freely give leave when justice so requires". "Refusing
leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to
cure deficiencies by amendments previously allowed,
or futility of amendment". Woolsey v. Marion Labs.,
Inc., 934 F.2d 1453, 1462 (10th Cir. 1991).
Appellees, as the parties asserting "futility of
amendment", had the burden of establishing futility.
Appellant Larry asserts that 'futility' is an affirmative
defense and was never plead in any answer to Plaintiffs Original Complaint or Supplemental Complaint,
by any defendant. Nor did any defendant-Appellee file
an answer or responsive pleading admitting or
denying any of the facts set out in Plaintiffs Original
Complaint or Supplemental Complaint. DefendantAppellees effectively waived all of their affirmative
defenses because a Rule 12(b) motion is not a
"responsive pleading" to a complaint. The Court was
requested to enter a judgment of default against all
4
defendants who failed to answer pursuant to the dulypromulgated Federal Rules of Civil Procedure, which
was set out in his motion for reconsideration. (Dkt
# 48) (See J.S. App. F).
Rule 12, FRCP, Rule 12, FRCP, Defenses and
Objections: When and How Presented; Motion
for Judgment on the Pleadings; Consolidating
Motions; Waiving Defenses; Pretrial Hearing
(a) Time To Serve A Responsive
Pleading.
(1) In General. Unless another time is
specified by this rule or a federal statute, the
time for serving a responsive pleading is as
follows:
(A) A defendant must serve an answer:
(i) Within 21 days after being served
with the summons and complaint; or....
(4) Effect of a Motion. Unless the court sets a
different time, serving a motion under this
rule alters these periods as follows:
If the court denies the motion or
postpones its disposition until trial, theresponsive pleading must be served within 14
days after notice of the court's action; or
If the court grants a motion for a more
definite statement, the responsive pleading
must be served within 14 days after the more
definite statement is served.
In the case at bar, the Complaint, Request for Three
Judge Panel and Temporary Restraining Order was
filed on 02/09/2018 and summons were issued. Dkt
# 1. On 02/26/2018, the State defendants filed motions
5
to dismiss for lack of jurisdiction. Dkt #7. On
02/28/2018, Executed Summons were returned. Dkt #s
9, 10, 11 and 12. On 03/02/2018, defendant Mark
Martin, Secretary of State, filed his Motion to Dismiss.
Dkt #13. On 03/05/2018, defendant Jeremy Guam,
House Speaker, filed a motion to dismiss for lack of
jurisdiction. Dkt # 18.
On 03/15/2018, Appellant's Supplemental Request
for Three Judge Panel to Challenge Unconstitutionality of Apportionment of Second Congressional District
of Arkansas Pursuant to 28 U.S.C. § 2284 et seq. was
filed. Dkt. #23. On 04/23/2018, the Court entered its
Order granting in part and denying in part Dr. Larry's
request for a three-judge panel; granting 1, 15, 18,
defendants' motions to dismiss to the extent
defendants seek to dismiss Dr. Larry's equal protection racial-gerrymandering claim for lack of standing;
Dkt #30.
Counting 14 days from the Court's Order granting
in part and denying in part, defendants' motions to
dismiss, defendants' responsive pleading was due on
or about May 8, 2018. The Court's Docket Sheet from
the District Clerk's Office does not show any responsive pleadings filed by any of the State defendants on
or about May 8, 2018. In fact, the first docket entry
Plaintiffs
after 05/04/2018 is 05/14/2018, Dkt #35
First Supplemental Disclosures Pursuant to FRCP
26(a).
-
Likewise, on 05/21/2018, Summons were issued for
service on the 135 individual members of defendant,
Arkansas Legislature, as their counsel did not accept
service for them and challenged service as defective in
his 12(b) motion. Service of Summons and Complaint
was made on the members of the Arkansas Legislature, the real party in interest. On 06/01/2018, Motion
6
for Leave to File First Amended Original Complaint
Challenging the Constitutionality of the Apportionment of Congressional Districts in the State of
Arkansas and First Amended Original Complaint was
filed. Dkt #36. On 06/14/2018, the State defendants
filed Response[s] in Opposition to Amend/Correct
Complaint. Dkt. #s 38, 39, and 40.
No other Docket entry shows where any of the State
defendants or defendant members of the Arkansas
Legislature ever filed a responsive pleading as
required by the Federal Rules of Civil Procedure.
Individual defendants (Arkansas Legislature) were
required to file a responsive pleading before the end of
June 2018. No such responsive pleading appears on
the Court's Docket.
Rule 8, FRCP, entitled, General Rules of Pleading8(b) states in pertinent part:
(b) Defenses; Admissions and Denials
(1) In General. In responding to a pleading, a
party must:
State in short and plain terms its
defenses to each claim asserted against it;
and
Admit or deny the allegations asserted
against it by an opposing party
8(b)(6)
Effect of Failing to Deny.
-
other than one relating to the
An allegation
is admitted if a responsive
amount of damages
pleading is required and the allegation is not denied.
-
-
If a responsive pleading is not required, an
allegation is considered denied or avoided.
7
Rule 8(c) covers Affirmative Defenses. Appellant
Larry asserts that the defense of "futility" is an
affirmative defense in the nature of avoidance and
should have been affirmatively plead in defendants'
responsive pleading or answer to the Original
Complaint and/or Supplemental Complaint. None of
the defendant-Appellees filed a responsive pleading
at all and the Panel should have stricken all of
their defenses as waived and all of Appellant Larry's
allegations contained in the Original and Supplemental Complaints should be deemed admitted,
pursuant to Rule 8(b)(6).
1. Futility
A proposed amendment is futile if the amended
claim would be subject to dismissal. In determining
whether a proposed amendment should be denied as
futile, the Court must analyze a proposed amendment
as if it were before the Court on a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
In doing so, the Court must accept as true all wellpleaded factual allegations and view them in the light
most favorable to the pleading party. The Court must
then look to the specific allegations in the complaint to
determine whether they plausibly support a legal
claim for relief. The issue in resolving a motion to
dismiss on the grounds that the complaint fails to
state a claim is "not whether the plaintiff will
ultimately prevail, but whether the claimant is
entitled to offer evidence to support the claims". As
this Court has stated, "if the underlying facts or
circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded an
opportunity to test the claim on the merits". Foman v.
Davis, 372 U.S. 178, 182 (1962).
8
2. Defendants Did Not Meet Their Burden Of
Proof Of Futility
Defendant-Appellees presented no evidence
to support their affirmative defense of "futility".
Defendants-Appellees, State of Arkansas, Asa
Hutchinson, Leslie Rutledge, Jeremey Gillam, and the
Arkansas Legislature argued that "(1) the proposed
amendment would be futile as his proposed map is a
racial gerrymander and (2) lacks the compactness
Defendant
required by Thornburg v. Gingles,
Mark Martin argued that "Plaintiff violated the Local
Rule 5.5(e) and (2) the proposed amendment is futile".
He presented no evidence whatsoever regarding how
he believed the amendment would be futile.
.
.
.".
The Court below stated: "In an effort to excuse his
failure to comply with the Local Rule, Dr. Larry argues
that the "form" of his motion is not controlling because
the proffered Amended Complaint was attached as a
part of the motion for leave to amend". (p. 4— Opinion).
In part II. Discussion, the Court stated: "The Court
also determines that the proposed amendment does
not comport with the Local Rules and is futile:" (p. 5
Opinion).
-
Defendant Martin and his attorneys are solely
responsible for misleading the Court below to this
erroneous conclusion. Appellant Larry was not aware
that Local Rule 5.5(e) applied to pro se litigants. So, in
20-20 hindsight, he read Local Rule 5.5(e). The very
last sentence of 5.5(e) states: "The requirements for
amending pleadings set forth in this subsection
of Rule 5.5 shall not apply to parties proceeding
pro Se". Appellant Larry admits that he was aware
that federal district courts had local rules. However,
in the Southern District of Texas, the local rules only
apply to licensed attorneys practicing before those
9
courts and not to pro se litigants. Counsel for
defendant Martin was well aware that Local Rule 5.5
did not apply to Plaintiff Larry. Indeed, all of the
defendants repeatedly argued to the Court that
Plaintiff Larry is "pro Se".
Appellant Larry admitted that he is pro se, but
Appellees falsely accused him of trying to represent
other people as their lawyer. The Court below ruled
that he is proceeding pro Se. Yet, defendant Martin
and his counsel, in violation of Rule 11, advanced a
frivolous claim (Dr. Larry violated Local Rule 5.5(e)
and persuaded the Panel to agree with them. Relying
on the representations made to the Court by defendant
Martin, through his attorney, that Plaintiff Larry had
indeed violated Local Rule 5.5(e), the Court ruled that
such violation had indeed occurred and that Appellant
Larry was making an excuse for his noncompliance
with Local Rule 5.5(e), when the truth is that local rule
5.5 did not even apply to pro se parties, such as
Appellant Larry.
Plaintiff Larry believes that Rule 11 should apply to
officers of the court, like defendant Martin's counsel,
who practice before the Court below. Candor and
honesty should be the sine qua non of federal practice.
Defendants' attorneys should be duly sanctioned as a
deterrent to other lawyers who may try to emulate
government lawyers in chicanery before the Court in
the future.
(c) Plaintiff Larry posits that when the Court
analyzes the claim of futility from the point of view
of a Rule 12(b)(6) motion, it is clear that defendants'
futility assertion must fail. When the facts are
viewed in the light most favorable to Plaintiff Larry, a
motion to dismiss would not be granted because the
complaints and affidavits attached to the original
10
complaint, supplemental complaint and amendment
minority vote dilution in
state a cause of action
violation of Section 2 of the Voting Rights Act. These
facts are unrefuted by any evidence adduced by
defendants and presented to the Court below.
-
(d) Furthermore, defendants failed to answer the
Requests for Admissions and the same are deemed
admitted. (See Exhibit B First Request for Admissions to Defendants). Defendants have admitted all
of the Gingles test, Senate Factors and a Section 2
violation of the Voting Rights Act and should be
estopped from asserting any other position. Defendants have attempted to make an end-run around and
circumvent the holding in Shapiro v. McManus, 136
S. Ct. 450 (2015), while tacitly claiming Plaintiffs
complaint is constitutionally insubstantial; essentially
fictitious; wholly insubstantial; obviously frivolous;
and obviously without merit. Defendants have not
proven "futility", an affirmative defense not plead in
any responsive pleading or answer to Plaintiffs
complaint.
-
3. Amendment As a Matter of Course
The Court's Docket is the best evidence of the dates
when summons were issued to the individual members
of defendant Arkansas Legislature, after defendants'
counsel complained about defective service in his 12(b)
motion. Appellant Larry served the 135 defendant
members of the Arkansas Legislature on 5/21/2018.
Dkt# (it is blank) and returned proof of service on June
1, 2018. Dkt. #37.
"A party may amend its pleadings once as matter of
course within 21 days after the service of the
complaint". Appellant, Larry asserts that he filed his
amended complaint on June 1, 2018, within 21 days
11
after he served the individual members of defendant
Arkansas Legislature, the real parties in interest, who
are responsible for the Section 2 violation of the Voting
Rights Act. Dkt # 36. Therefore, the other subparts of
Rule 15 are inapplicable to the instant facts. It should
be noted that defendants had 21 days after being
served with the summons and complaint to file an
answer, admitting or denying each and every paragraph set out in Plaintiff Larry's original complaint.
The record shows that none of the defendants filed an
answer or responsive pleading in this case in accordance with the Federal Rules of Civil Procedure. The
Court below decided defendants' Rule 12(b)(1) motions
challenging the Court's jurisdiction and the case was
not dismissed for lack of jurisdiction, as defendants
had urged. However, a Rule 12(b)(1) motion is not a
responsive pleading to the original complaint. Defendants never filed an answer to the original complaint.
Plaintiff could not find any caselaw where a 12(b)(1)
motion negated the necessity of filing a proper and
timely responsive pleading or answer in accordance
with the Federal Rules of Civil Procedure.
The Court also stated the following: "Accordingly,
Dr. Larry's ability to amend as of right expired before
his most recent attempt to amend". Plaintiff Larry
apprises the Court that he previously filed a motion
for leave to amend to add new parties and class
counsel and to correct any defects of which defendants
complained. However, the Court denied that motion to
amend. So, the present motion to amend is a misnomer
and should be Plaintiff Larry's Second Motion for
Leave to File First Amended Original Complaint
Challenging the Constitutionality of the Apportionment of Congressional Districts in the State of
Arkansas and First Amended Original Complaint.
Substantial justice has not been done.
12
Defendants argued that "the proposed map is a
racial gerrymander and is not geographically compact
because it stretches from the southwest-corner of
Arkansas to the north-east corner of Arkansas with
many fingerlings". Plaintiff Larry admits that race
was considered in his drawing of the proposed new CD
1. And, he asserts that in complying with Section 2
of the Voting Rights Act, states may consider race
because it is a compelling State interest to comply
with Section 2 of the Voting Rights Act. However,
"compactness". is not about how far a majorityminority district "stretches, geographically", as defendants assert. But, defendants should not be heard
to complain about the geographical extent of congressional districts in Arkansas. The 1st CD extends from
the Missouri border to the Louisiana border, containing 30 counties (almost half of the state's 75 counties)
and the two communities of interest in the present 1st
CD are diabolically opposed. The affluent NE in
Jonesboro versus the Poster Children of Poverty in the
Arkansas Delta (SE) do not have the same interests
and should not be in the same congressional district.
-
The Court below is correct that Appellant Larry
never asserted that an all-Black majority congressional district could be drawn. He asserted that a
majority-minority coalition district, as set out in the
proposed computer-generated drawing, is the only
majority-minority district that can be drawn where
minorities will make up more than 50% of the CV A.P.
Appellant Larry filed a Motion for the Appointment of
a Special Master to refine the -boundaries because
most courts have no expertise and it is not the job of
the Court to redraw congressional boundaries for
recalcitrant legislatures. After a Special Master is
appointed, Dr. Rogelio Saenz can give the Court the
evidence proving that a majority-minority coalition
13
district can be drawn wherein the minorities in that
district will have the opportunity to elect the candidate of their choice, such as Chintan Desai, the
Democrat running for Congress in the 1st CD. This
is the new evidence Appellant Larry is presenting
herein. It is a work-in-progress. Dr. Saenz is waiting
on defendant Martin, Secretary of State, to provide
data at the precinct level for analysis and such data is
not on defendant Martin's website, as he alleged in
answers to his Interrogatories.
Appellant Larry communicated with Dr. Saenz, who
submitted his preliminary work. His expert report is
not yet due. With an MVAP/CVAP of 60, surely
Plaintiffs could elect the candidate of their choice.
However, appointment of a Special Master is imperative to refine the boundaries so that definitive data
may be completed to prove "compactness". The first
Gingles condition refers to the compactness of the
minority population, not to the compactness of
the contested district, as defendants argued. It is
undisputed and unrefuted by any evidence adduced
before the Court below that the minority population in
the Arkansas Delta is compact. They live in close-knit
communities, in poverty together, across the southern
border of Arkansas and east along the Mississippi
River. However, if there is a genuine dispute about
this material fact, witnesses who live in the Arkansas
Delta should be given the opportunity to tell their
story in court about compactness, while the Special
Master perfects the boundaries according to the
traditional districting principles such as maintaining
communities of interest and traditional boundaries.
Minorities have always lived on the fringes of the state
of Arkansas in every respect including disenfranchisement today. Interestingly, when the Court looks
at some of the oddly-shaped districts, where many are
-
14
gerrymandered, the map of Louisiana is almost a
mirror-image of Arkansas. This is because slaves were
running from slavery in Louisiana by running northby-north-east to the Mississippi River, while slaves
running from slavery in Arkansas ran south-by-southeast to the Mississippi River, where they live today
in poverty. This Court has seen, reviewed and apparently approved, many oddly-shaped districts. It is not
the shape of the proposed district that is controlling
for the Gingles "compactness" test. It is the compactness of the minority population that is controlling.
-
With respect to compactness, the court did not use
any test scores of recognized measures of compactness,
but accepted defendant-Appellees' bare allegations
unsupported by any evidence. The "perimeter-to-area"
score, which compares the relative length of the
perimeter of a district to its area, and the "smallest
circle" score, which compares the ratio of space in
the district to the space in the smallest circle that
could encompass the district," are the "two standard
measures of compactness." League of United Latin
Am. Citizens v. Perry (LULAC), 548 U.S. 399, 455 n.2
(2006) (Stevens, J., concurring in part, dissenting in
part).
4. Procedural Confusion
Appellant Larry takes full responsibility for the
procedural confusion involving the attorneys representing "key witnesses-turned Named Plaintiffs".
Appellant Larry believed that a motion for leave to
amend and add new Plaintiffs and class counsel was
the proper procedural vehicle to ask the Court below
to allow him to add new Plaintiffs and inform the
Court that they were bringing their own lawyers.
However, the Court denied the motion for leave to
amend and add class counsel. So, everyone was in
15
limbo about the status of the putative namedPlaintiffs and their attorneys. Ostensibly, the motion
was denied in part because the Court observed that no
lawyers had signed on as of that date. By what
authority would they have to sign on if their clients are
not joined in as named Plaintiffs? So, Appellant Larry
tried to apprise the Court below another way through
filing a Supplemental Request for a Three Judge
Panel that he believed would be added to the Original
Complaint and the same Panel hear all of the redistricting matters rather than filing separate lawsuits
challenging each congressional district. This was best
for judicial economy. No ruling was made regarding
the supplemental request.
-
Finally, the attorneys signed a pleading indicating
their appearance although there was no Order granted
allowing their clients into the lawsuit as namedPlaintiffs. These new named-Plaintiffs were key
witnesses that were set out in the Rule 26(a) Disclosures. Defendants were fully aware of the names,
addresses, and proffered testimony of each of them.
Appellant Larry timely supplemented his Rule 26
Disclosures as new information became available.
(Dkt # 35, 44). Defendants were in no way prejudiced
by key witnesses becoming named-Plaintiffs and
bringing lawyers licensed in Arkansas. Appellant
Larry personally visited with Mr. Gene McKissic at his
law offices in Pine Bluff, AR. He affirmed that he
represents Mrs. Shirley Diane Larry and Mrs. Dorothy
Jefferson, whom are both African American females
who reside in Helena, Phillips County, AR in CD 1 and
are registered voters and vote Democratic. Appellant
Larry met personally with Mr. Jimmy Morris, who
affirmed that he represents Mrs. Annie Abrams and
Mrs. Martha Dixon, both African American females,
registered voters. Both were disclosed to defendants,
16
including the subject-matter of their testimony. Plaintiff Larry spoke with Mr. Q. Byrum Hurst by telephone
and he affirmed that he represents Rev. Reginald J.
Hampton and that he believed that he had already
entered an appearance and that he would check his
files. Rev. Hampton was disclosed in the Rule 26
Disclosures. So, defendants cannot be heard to complain of surprise or prejudice by these key witnesses
becoming named-Plaintiffs.
The gravamen of the situation is that there was no
Order given by the Court below or signal that the
key witnesses were granted permission by the Court
below to become named-Plaintiffs and bring their
own attorneys, who are licensed to practice law in
Arkansas. Contrary to defendants' numerous assertions, Plaintiff Larry never intended or "tried to
represent other people". He represented himself
individually and held himself out as a "Class
Representative" in a Class Action because he believes
that all congressional redistricting cases should proceed as class actions for judicial economy. An Order
allowing the putative named-Plaintiffs to become
parties to the litigation would also have cured
any standing problem because Mrs. Shirley Diane
Larry and Mrs. Dorothy Jefferson reside in the 1st
Congressional District, although Appellant Dr. Larry
resides in the adjacent 2nd Congressional District.
Both Mrs. Larry and Mrs. Jefferson are represented
by counsel. However, the court below, in an abuse of
discretion, refused to allow an amendment to cure any
defects in pleadings; add plaintiffs and add attorneys.
17
5. Plaintiff Larry Has Article III Standing
Due To "INJURY-IN-FACT" and "EXPECTED
EFFECTS" See Dept of Commerce v. US House
of Representatives
-
Section 2 of the Voting Rights Act prohibits any
"voting qualification or prerequisite to voting or
standard, practice, or procedure.. which results in a
to
denial or abridgment of the right of any citizen
vote on account of race or color." 52 U.S.C. § 10301(a).
(See J.S. App. I). Intentional vote dilution through the
drawing of district lines violates both § 2 of the Voting
Rights Act and the Fourteenth Amendment, see
Rogers v. Lodge, 458 U.S. 613, 617 (1982), and § 2 of
the Voting Rights Act also forbids facially neutral
districting that has the effect of diluting minority
votes. 15 U.S.C. § 10302(b).
.
.
.
.
The Voting Rights Act creates a private cause of
action permitting plaintiffs to file suit if they are an
"aggrieved person." 52 U.S.C. § 10302(a). A party
who fulfills the injury-in-fact prong of the constitutional standing requirements generally is a "person
aggrieved" and therefore fulfills the statutory standing requirement. Dept of Commerce v. U.S House
of Representatives, 525 U.S. 316, 328-29 (1999)
(Congress' use of "any person aggrieved" in the Census
Act "eliminated any prudential concerns in [that]
case"); Sioux Falls Cable Television v. South Dakota,
838 F.2d 249, 252 (8th Cir. 1988) (phrase "any person
aggrieved" is "ordinarily sufficient to confer standing
on any party satisfying the constitutional requirements"). If a plaintiff satisfies the constitutional
standing requirements for a vote dilution claim under
the Voting Rights Act, that plaintiff also satisfies
the constitutional standing requirements for a vote
dilution claim under the Fourteenth and Fifteenth
18
Amendments. Parker v. Ohio, 263 F. Supp. 2d 1100,
1107 (S.D. Ohio 2003) (Graham, J., concurring), affd,
540 U.S. 1013 (2003) (noting that same standing rules
applicable to Fourteenth Amendment election case
should apply to claims under § 2 of Voting Rights Act
"which was enacted to enforce the guarantees of the
Fourteenth and Fifteenth Amendments").
Appellant Larry is an "aggrieved person" within the
meaning of Section 2 of Voting Rights Act and has
been and is continuing to be personally injured by the
defendants-Appellees' conduct in the 1st CD that
adversely injures him in CD 2, (See Affidavit of Dr.
Larry) as set out below. As an "aggrieved person"
under Section 2 of the Voting Rights Act, he should be
allowed to prove injury-in-fact and may also establish
Article III standing on the basis of the "expected
effects" of continuing unlawful conduct by defendants
in CD 1 and CD 2. The Court below made no ruling on
Plaintiff Larry's Supplemental Complaint that added
the 2nd Congressional District to the Original Complaint. Appellant Larry resides in the 2nd CD and any
question of standing would be moot. Defendants have.
not challenged Plaintiff Larry's standing in the 2nd
CD. Their opposition was to standing in the 4th CD.
No motion to strike the Supplemental Complaint was
ever filed by any defendant. Although this Court has
not definitively decided the issue of plaintiffs living in
the challenged district in order to bring a Section 2
claim under the Voting Rights Act, by analogy the
Panel applied the results from Equal Protection
claims, to Section 2 Voting Rights Act claims, citing
Hays. However, Plaintiff Larry shows that the defendant Arkansas Legislature's unconstitutional conduct
in creating the gerrymandered 1st CD with 30
counties, forced the adjacent, 2nd CD to have only 8
counties. Plaintiff Larry lives in Pulaski County, the
19
only one of the 8 counties that votes Democratic. If he
votes for Democratic candidates of his choice, he is
guaranteed to lose 7 to 1 in every election. This
representational harm is continuing for as long as he
lives in Pulaski County and Pulaski County is in the
current 2nd Congressional District.
Every African American and minority residing in
Pulaski County has been politically-castrated, disenfranchised and injured-in-fact by defendants' gerrymandering of the 1st CD. All of their votes are a nullity
in CD 2. Appellant Larry's votes are a nullity in
Pulaski County in CD 2. (See Plaintiff Larry's
Affidavit). Fracking, the fracturing of Pulaski County
and Jefferson County into the 1st, 2nd and 4th CDs is
the main culprit in the injury to Appellant Larry,
directly caused by defendants' unlawful conduct in CD
1. Plaintiff Larry is more injured personally than all of
the minorities in the 1st CD because they have a
remedy at law, the new CD 1 presented to the Court
below. But, he has no legal remedy in 2nd CD living in
Pulaski County due to its racial and political
gerrymander and the only likely redress is to adopt
Plaintiffs' new CD 1 map. Every time Appellant Larry
votes for a Democrat in the 2nd CD, it is a foregone
conclusion that his vote has been wasted and nullified.
Since the 2nd CD is an absolute gerrymander with no
legal remedy, Appellant Larry's representational
harm is continuing unabated for as long as he resides
in CD 2. The "cause and effect phenomenon" in CD 1,
which has its adverse effects in CD 2, is simple to
understand. Jesus taught in parables to keep it
simple. Common sense is good, also: "If a river is
located physically on land in CD 1, where 'A' lives and
that river floods across the imaginary district
boundary and destroys B's home which is adjacent in
CD 2, it is easy to see that B has been injured-in-fact
20
by circumstances occurring in CD 1". Let's say that A
and B are neighbors and A's house is on the property
line of CD 1 and B's house is next door across the
imaginary district line in CD 2. A's house catches on
fire and the wind blows the fire west and B's house
burns to the ground. It is easy to see how B has been
injured-in-fact by the cross-border activity of the fire
at As house in CD 1. "A"s farm is located in CD 1 and
"B"s farm is located in CD 2, adjacent to each other
and only the imaginary congressional district line
separates their properties. "A" drills an oil well on his
farm close to the district property line and slant drills
and captures oil from under "B"s farm in CD 2. Has
"B" been injured-in-fact by activity originating across
the boundary line? This cause and 'effect is true in
assessing injury-in-fact in vote dilution cases because
the harm in a vote dilution case is the result of the
entire map, not the configuration of a particular
district. Luna, v. City of Kern, 291 F. Supp. 3d 1088,
1122 n. 14 (E.D. Cal. 2018). See also, Perez v. Abbott.
However,. Dept of Commerce v. US House of Representatives, 525 U.S. 328 (1999) is most instructive on
the principle of how actions in one county may cause
an injury-in-fact in another 'county for Article III
standing purposes. In fact, this case involved the
potential harm of intrastate vote dilution effecting
voters in nine counties and residents of 13 states. As
an aggrieved person, Appellant Larry has Article III
standing because the personal injury (injury-in-fact) is
directly traceable to the unlawful conduct of
defendants in CD 1. His injury can only be redressed
by removing Pulaski County from CD 2 and placing it
in the new CD 1 proposed by Plaintiffs.
21
6. Expected Effects of Continuing Unlawful
Conduct in Congressional District 1
The same is true with election results in CD 2. The
current Black CVAP in CD 2 is 118,760 and the white
CV AP in CD 2 is 411,612. The current Black CVAP
in CD 1 is 120,673 and white CVAP is 458.133.
Therefore, Appellant Larry's representational harm is
not conjectural or hypothetical, but real. This data,
taken from Dr. Saenz' partial analysis, (Ex. A) shows
that as long as Appellant Larry resides in CD 2, he will
be a loser when it comes to electing a candidate of his
choice. His injury-in-fact is capable of repetition yet
evading review if he has no standing to challenge his
condition of vote submergence. The only solution is to
move Pulaski County from the 2nd CD and place it
in the new CD 1 as Appellant Larry proposed. And,
Appellant Larry has standing by way of personal
injury, to make a challenge under Section 2 of the
Voting Rights Act as an "aggrieved person" because
the practical effect of the unconstitutional Section 2
violation in CD 1 has injured him in CD .2. It is a
virtual certainty that he will continue to be personally
injured by defendants-Appellees' unlawful conduct as
long as he resides in CD 2 as presently drawn. He has
Article III standing on the basis of the expected effects
of the continuing unlawful conduct by defendantsAppellees in CD 1 that will continue to injure him in
CD 2 in futuro.
Appellant Larry urges this Court to analogize Dept
of Commerce v. US House of Representatives, 525 U.S.
316 (1999), with the case at bar. For purposes of
Article III standing, the harm and injury-in-fact can
cross state lines. The case involved the predicted harm
of "intrastate vote dilution". The first law suit was
filed in the Eastern District of Virginia by four
22
counties and residents of 13 states. The second suit
was filed by the U.S. House of Representatives in the
District Court for the District of Columbia. Each of the
courts held that the plaintiffs satisfied the requirements for Article III standing. In that case, "the
appellees submitted an affidavit that demonstrated
that it is a virtual certainty that Indiana, where
appellee Hosfmeister resides, will lose a House seat
under the proposed census 2000 plan. That loss
undoubtedly satisfies the injury-in-fact requirement
for standing, since Indiana residents' votes will be
diluted by the loss of a Representative." See, also
Baker v. Carr, 369 U.S. 186, 208 (1962)("one person
one vote"). This Court in Dept of Commerce stated
that: "Appellees have demonstrated that voters in
9 counties, including several of the appellees, are
substantially likely to suffer intrastate vote dilution as
a result of the Bureau's plan".
If a harm originating in Washington, DC could cause
intrastate harm in Indiana and other states and harm
voters in nine (9) counties such that the residents have
Article III standing because of injury-in-fact, certainly
Appellant Larry has Article III standing when the
harm to him originates next door in CD 1 and its
harmful effect is causing personal injury to Appellant
Larry in CD 2. (See Appellant Larry's Affidavit
Ex. D). Appellant Larry has attached the
Harm
Affidavit of Mrs. Annie Abrams (Ex. E) for the concrete
conclusion that no African American running for
Congress from the 2nd Congressional District has ever
won (State Senator Joyce Elliott's matter is the
example of white bloc voting in CD 2) and will never
win under the present districting plan.
-
-
In fact, in the most recent Democratic primary in
the 2nd CD, Appellant Larry's candidate of choice,
23
Jonathan Dunkley, Black Democrat, lost, as predicted.
Appellant Larry wasted his vote and was personally
injured by defendant-Appellees' unlawful conduct in
CD 1 that forced Pulaski County into CD 2. It is not
speculation, but Appellant Larry's prediction, that no
minority will ever be elected to the US Congress from
CD 2 as long as the present burden is in place caused
by defendants. It is with virtual certainty that
Appellant Larry's persoiial injury due to racial animus
will continue in CD 2 as long as he lives there, and he
expects that his candidates, of choice will lose every
Congressional election in CD 2 from now on, thereby
insuring that Democracy is effectively nullified for him
in CD 2 and all other similarly situated minorities in
CD2 and CD 1.
Although Hays' requirement that a plaintiff must
reside in the district being challenged for Equal
Protection purposes, the same cannot be true for
Section 2 violations of the Voting Rights Act. Dept of
Commerce makes it clear that an "aggrieved person"
may have standing to challenge an action arising in
another jurisdiction if he may be injured-in-fact by
such action that is caused by the defendants' unlawful
conduct and the relief he seeks will remedy the
problem. The purpose of compliance with Section 2 of
the Voting Rights Act has special significance different
from the Equal Protection claims of the 14th and 15th
Amendments in voting rights cases.
If residency in the district was required of the
plaintiffs in Dept of Commerce, every plaintiff would
have to have been a resident of Washington, DC. For
purposes of Section 2 of the Voting Rights Act, the
better reasoned position is that the plaintiff show
"injury-in-fact" directly connected to defendants'
alleged unlawful conduct or prove the harm caused
24
on the basis of "expected effects" is traceable to
defendants' unlawful conduct. It should not matter
where the harm originated but where its harmful
effects are manifested that cause injury-in-fact.
Therefore, the Hays residency requirement in Equal
Protection claims should not apply to Section 2 Voting
Rights Act claims brought by "aggrieved persons" who
show injury-in-fact for Article III standing or have
standing on the' basis of "expected effects" of the
unlawful conduct of defendants-Appellees.
7. Appellant Larry Had Standing Under the
First Amendment
As Publisher of the Little Rock Sun Community
Newspaper, Appellant Larry had standing under the
First Amendment to speak on behalf of others harmed
in the 2nd CD who might not be able to ask the court
for relief against defendant-Appellees' unconstitutional vote dilution in CD 1 and CD 2. The Little Rock
Sun Community Newspaper, owned by Little Rock
Sun Times, LLC has state-wide distribution and over
500,000 readers. First Amendment standing doctrine
is more permissive with respect to third parties.
Courts have held that entities such as newspapers,
internet service providers, and website hosts have
standing under jus tertii to assert the First Amendment rights of their readers and posters. See, e.g.,
McVicker v. King, 266 F.R.D. 92, 95-96 (W.D. Pa.
2010); Enterline v. Pocono Med. Or., 751 F. Supp. 2d
782, 786 (M.D. Pa. 2008). A newspaper has standing
to assert the rights of anonymous commentators
because those individuals "face practical obstacles to
asserting their own First Amendment rights," and the
newspaper has a real interest in zealously arguing the
issue because of its "desire to maintain the trust of its
readers and online commentators." Enterline, 751 F.
25
Supp. 2d at 785-86. Moreover, a newspaper can itself
display injury-in-fact because revelation of posters'
identities could "compromise the vitality of the newspaper's online forums." Id. This Court has recognized
that a blog administrator can, like a newspaper, assert
standing on behalf of anonymous online posters. See
In re Drasin, No. ELH-13-1140, 2013 WL 3866777, at
*2 n.3 (D. Md. 2013) (citing Enterline, 751 F. Supp. 2d
at 786).
The Little Rock Sun Community Newspaper has
suffered injury-in-fact by the unlawful conduct of vote
dilution in CD 1 and CD 2 caused by the chilling effect
the unlawful conduct has had on silencing the voices
and votes of the Sun's minority reader-victims who
reside in CD 2. Their votes are a nullity, so why vote
for a congressperson when their preferred candidate,
a Democrat can never win with 7 to 1 odds against
him.
S. Majority-Minority Coalition Districts
CRUCIAL NEW EVIDENCE
The Panel erred is ruling that, "because Dr. Larry's
proposed amended complaint fails to satisfy the first
Gingles precondition at the pleading stage, this Court
concludes that the proposed amendment would be
futile". (Dkt. No. 36). The purpose of the first Gingles
precondition is to prove that a solution is possible, not
necessarily to present the ultimate solution to the
problem. Gingles, 478 U.S. at 50 n. 17; cf. City of Belle
Glade, 178 F.3d 1175, 1199 (11th Cir. 1999) ("We have
repeatedly construed the first Gingles factor as
requiring a plaintiff to demonstrate the existence of a
proper remedy.").
Plaintiffs' expert, Dr. Rogelio Saenz has expended
great time and effort working on data that he has
had to collect from other sources because defendant
26
Martin, Secretary of State failed to provide the
requested information in discovery. A summation of
defendant Martin's answers is that everything is on
his website. Short of a motion to compel, defendant
Martin has refused to provide the precinct level data
for analysis. However, subject to those limitations,
Dr. Saenz sent in his work-in-progress that he was
working on before he learned of the dismissal. He
stated that he was awaiting the appointment of the
Special Master to define the actual boundaries so that
he could complete the correct CVAP for the computerthe
generated majority-minority coalition district
only one that can be drawn. Attached is what he has
completed so far. (See Exhibit A Total Population
and Citizen Voting Age Population (CVAP)
for Selected Race/Ethnic Groups by Existing
Congressional Districts and Proposed 1st
Congressional District).
-
-
When the Court considers this new evidence along
with the entire record considering the Senate Factors
and totality of the circumstances, the Gingles test has
been met and the lawsuit should not have been
dismissed under a 12(b) standard when the factual
allegations and affidavits are considered in the light
most favorable to Appellant Larry.
9. Court Below Construed U.S. v. Hays Too
Narrowly
The Court below dismissed Appellant Larry's equal
protection racial gerrymandering claim because,
under Hays, a plaintiff residing outside of a district
which is the subject of a racial gerrymandering claim
does not have a sufficient "injury-in-fact" to challenge
that legislation, absent specific evidence that the
plaintiff was personally subjected to racial classification. U.S. v. Hays, 515 U.S. 737, 746 (1995). Whether
27
the Hays rule applies to vote dilution claims under § 2
had not been decided by this Court and was an open
question: "No circuit has developed a framework for a
Section 2 standing inquiry." Harding v. Cty. of Dallas,
Texas, No. 3:15-CV-0131-D, 2018 WL 1157166, at *5
(N.D. Tex. Mar. 5, 2018) (quoting Pope v. Cty. of
Albany, No. 1:11-cv-0736, 2014 WL 316703, at *511. 13
(N.D.N.Y. Jan. 28, 2014)). Some district courts have
not applied the Hays rule to resolve the issue of
standing in the context of a § 2 vote dilution claim.
Luna v. Cty. of Kern, 291 F. Supp. 3d 1088, 1122 n. 14
(E.D. Cal. 2018) (finding that an out-of-district plaintiff had standing to bring a § 2 vote dilution claim
because the harm in a vote dilution case is the result
of the entire map, not the configuration of a particular
district); Perez v. Abbot, 267 F. Supp. 3d 750, 774
(W.D. Tex. 2017) ("[P]laintiffs who reside in a reasonably compact area that could support an additional
minority opportunity district have standing to pursue
§ 2 claims, even if they currently reside in an
opportunity district."); Barnett v. City of Chicago, No.
92-C-1693, 1996 WL 34432, at *4 (N.D. Iii. Jan. 29,
1996) (concluding the requirements of § 2 standing
were satisfied where "[pilaintiffs allege that many
of their class members live in white majority wards
which could be redrawn into majority African
American wards.").
Other district courts have adopted or approved of an
approach to standing that requires a plaintiff to live in
the district where vote dilution occurs to bring a § 2
vote dilution claim. Broward Citizens for Fair Districts
v. Broward Cty., No. 12-60317-CIV, 2012 WL 1110053,
at *3 (S.D. Fla. Apr. 3, 2012) (determining individual
plaintiff lacked standing to bring a § 2 vote dilution
claim where he did not reside in the district that was
allegedly packed); Comm. for a Fair and Balanced
28
Map v. Ill. Bd. of Elections, No. 1:11-CV-5065, 2011
WL 5185567, at *1 n. 1 (N.D. Iii. Nov. 1, 2011) ("[A
§ 21 vote dilution plaintiff must show 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."); Hall v. Virginia, 276 F. Supp. 2d 528,
531 (E.D. Va. 2003) (finding that plaintiff did not have
standing under § 2 to challenge vote dilution in a
congressional district where the plaintiff did not live);
Old Person v. Brown, 182 F. Supp. 2d 1002, 1006 (D.
Mont. 2002) (holding that plaintiffs had "standing to
Districts in
assert their vote dilution claims in the
which they reside."); see Perry-Bey v. City of Norfolk,
Va., 678 F. Supp. 2d 348, 364 (E.D. Va. 2009) (finding
that plaintiff must live in a minority-ward to have
standing to assert that addition of a mayor elected atlarge to the city council diluted the power of minorityward representatives). These courts applied standing
requirements that mirror those applied in equal
protection racial gerrymandering cases: a plaintiff
generally must live within the boundaries of the
challenged district to bring a racial gerrymandering
claim. See Hays, 515 U.S. at 744-46.
.
.
.
In Hays, the Supreme Court reasoned that: Where a
plaintiff resides in a racially gerrymandered district,
however, the plaintiff has been denied equal treatment because of the legislature's reliance on racial
criteria, and therefore has standing to challenge
the legislature's action, cf. Northeastern Fla. Chapter,
Associated Gen. Contractors of America v. Jacksonville,
508 U.S. 656 (1993). Voters in such districts may
suffer the special representational harms racial classifications can cause in the voting context. On the
other hand, where a plaintiff does not live in such a
district, he or she does not suffer those special harms,
29
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. Unless such evidence is present,
that plaintiff would be asserting only a generalized
grievance against governmental conduct of which he
or she does not approve.
In the case at bar, Appellant has demonstrated
injury-in-fact suffered by him through intra-district
harm that originated in CD 1 and adversely affected
him in CD 2 adjoining CD 1 where defendantsAppellees' unlawful conduct caused special harm in
CD 2. But for the Panel's refusal to allow Appellant
Larry to amend his complaint, this appeal would not
have been necessary because there would not have
been a standing issue.
The Voting Rights Act creates a private cause of
action permitting plaintiffs to file suit if they are an
"aggrieved person." 15 U.S.C. § 10302(a). A party
who fulfills the injury-in-fact prong of the constitutional standing requirements generally is a "person
aggrieved" and therefore fulfills the statutory standing requirement. Dept of Commerce v. U.S. House
of Representatives, 525 U.S. 316, 328-29 (1999)
(Congress' use of "any person aggrieved" in the Census
Act "eliminated any prudential concerns in [that]
case"); Sioux Falls Cable Television v. South Dakota,
838 F.2d 249, 252 (8th Cir. 1988) (phrase "any person
aggrieved" is "ordinarily sufficient to confer standing
on any party satisfying the constitutional requirements"). If a plaintiff satisfies the constitutional
standing requirements for a vote dilution claim under
the Voting Rights Act, that plaintiff also satisfies
the constitutional standing requirements for a vote
dilution claim under the Fourteenth and Fifteenth
30
Amendments. Parker v. Ohio, 263 F. Supp. 2d 1100,
1107 (S.D. Ohio 2003) (Graham, J., concurring), affd,
540 U.S. 1013 (2003) (noting thatsame standing rules
applicable to Fourteenth Amendment election case
should apply to claims under § 2 of Voting Rights Act
"which was enacted to enforce the guarantees of the
Fourteenth and Fifteenth Amendments").
The court below construed the holding in Hays too
narrowly and should have allowed Appellant Larry to
prove injury-in-fact as an aggrieved person within the
meaning of Section 2 of the Voting Rights Act. It is true
that he lives in a gerrymandered district (CD 2) which
is "cracked" such that his preferred candidate will
never win. The holdings in Baker and Reynolds were
expressly premised on the understanding that the
injuries giving rise to those claims were "individual
and personal in nature," Reynolds v. Sims, 377 U.S.
533, 561 (1964), because the claims were brought by
voters who alleged "facts showing disadvantage to
themselves as individuals," Baker, 369 U. S., at 206.
(2018) this Court
In Gill v. Whitford, 585 U.S.
remanded the case to the District Court so that "the
plaintiffs may have an opportunity to prove concrete
and particularized injuries using evidence that would
tend to demonstrate a burden on their individual
votes". Appellant Larry should be given the same
opportunity since he was denied the right to amend his
original complaint.
31
CONCLUSION
For all the foregoing reasons, Appellant Larry
respectfully requests the Court to vacate the judgment
of the three-judge panel and remand the case with
instructions, and for such other relief, at law and in
equity, such that Justice prevails.
Respectfully submitted,
JuLIus J. LARRY III
Appellant Pro Se
2615 West 12th Street
Little Rock, Arkansas 72202
(832) 384-6908
dr.juliusjlarry@yahoo.com
October 3, 2018
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