Motion to Dismiss or Affirm — Julius J. Larry, III, Appellant v. Arkansas, et al.
Supreme Court briefNov 5, 2018
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No. 18-433
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In The
Supreme Court of the United States
-----------------------------------------------------------------DR. JULIUS J. LARRY III,
Appellant,
v.
STATE OF ARKANSAS, HONORABLE MARK MARTIN,
IN HIS OFFICIAL CAPACITY AS SECRETARY OF
STATE FOR THE STATE OF ARKANSAS, ET AL.,
Appellees.
-----------------------------------------------------------------On Appeal From The United States District Court
For The Eastern District Of Arkansas
Western (Little Rock) Division – Three-Judge Panel
-----------------------------------------------------------------APPELLEE SECRETARY OF STATE’S
MOTION TO DISMISS OR AFFIRM
-----------------------------------------------------------------A.J. KELLY
Counsel of Record
General Counsel &
Deputy Secretary of State
ARKANSAS SECRETARY OF STATE
P.O. Box 251570
Little Rock, AR 72225-1570
Phone: (501) 682-3401
kellylawfedecf@aol.com
MICHAEL FINCHER
Associate General Counsel
ARKANSAS SECRETARY
OF STATE
Arkansas State Capitol
500 Woodlane St., Suite 256
Little Rock, AR 72201
Phone: (501) 682-3401
Michael.fincher@
sos.arkansas.gov
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
The district court denied pro se Appellant’s motion
for leave to file an amended complaint. The district
court also dismissed Appellant’s Equal Protection
claim without prejudice, and his Voting Rights Act Section 2 claim without prejudice, both for lack of standing.
1.
Did the district court correctly conclude that
a pro se Appellant cannot amend his complaint where he sought to represent other
plaintiffs and made insufficient factual allegations concerning claims challenging the racial composition of a U.S. Congressional
District in Arkansas?
2.
Did Appellant lack standing to challenge the
racial composition of a congressional district
where he did not live?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
TABLE OF CONTENTS ......................................
ii
TABLE OF AUTHORITIES .................................
iii
MOTION TO DISMISS OR AFFIRM ..................
1
STATUTORY PROVISIONS INVOLVED ...........
1
STATEMENT OF THE CASE..............................
3
ARGUMENT ........................................................
5
CONCLUSION..................................................... 22
APPENDIX: Defendant Secretary of State’s
Responses to Requests for Admissions............ App. 1
iii
TABLE OF AUTHORITIES
Page
CASES
Alabama Legislative Black Caucus v. Alabama,
575 U.S. ___ (2015) ..................................................16
Allen v. City of Chicago, 865 F.3d 936 (7th Cir.
2017) ........................................................................22
Arizona Christian Sch. Tuition Org. v. Winn, 563
U.S. 125 (2011) ........................................................22
Arizonans for Official English v. Arizona, 520
U.S. 43 (1997) ..........................................................21
Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430 (8th
Cir. 1993) ...................................................................7
Ashwander v. TVA, 297 U.S. 288 (1936) .......................9
Baker v. Carr, 369 U.S. 186 (1962) .............................15
Bartlett v. Strickland, 556 U.S. 1
(2009) ............................................... 12, 13, 19, 20, 21
Bone Shirt v. Hazeltine, 461 F.3d 1011 (8th Cir.
2006) ........................................................................12
Brunt v. Service Employees Int’l Union, 284 F.3d
715 (7th Cir. 2002) ...................................................19
Coniston Corp. v. Vill. of Hoffman Estates, 844
F.2d 461 (7th Cir. 1988) .............................................8
Constitution Party of South Dakota v. Nelson,
639 F.3d 417 (8th Cir. 2011) .............................. 16, 17
Cottier v. City of Martin, 604 F.3d 553 (8th Cir.
2010) ........................................................................12
DaimlerChrysler v. Cuno, 547 U.S. 332 (2006) ..........21
iv
TABLE OF AUTHORITIES – Continued
Page
Davenport v. Lee, 348 Ark. 148, 72 S.W.2d 85
(2002) ................................................................... 8, 18
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993) .................... 7, 8
FirsTier Mortg. Co. v. Investors Mortg. Ins., 498
U.S. 269 (1991) ..........................................................6
Foman v. Davis, 371 U.S. 178 (1962) .................... 11, 14
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167
(2000) .......................................................................21
Gill v. Whitford, 138 S.Ct. 1916 (2018)................. 15, 16
Growe v. Emison, 507 U.S. 25 (1993) ..........................13
Harmon Autoglass Intellectual Prop., LLC v.
Leiferman, 428 B.R. 850 (B.A.P. 8th Cir. 2010) ....... 17
Henson v. Cradduck, 2017 Ark. 317 (2017) ................18
Johnson v. De Grandy, 512 U.S. 997 (1994) .......... 19, 20
Jones ex rel. Jones v. Correctional Medical Services, 401 F.3d 950 (8th Cir. 2005) ...... 7, 8, 10, 17, 18
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ........................................... 12, 20
Lewis v. Casey, 518 U.S. 343 (1996) ...................... 15, 21
Lindstedt v. City of Granby, 238 F.3d 933 (8th
Cir. 2000) .................................................................17
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112
S.Ct. 2130, 119 L.E.2d 351 (1992) .................... 17, 21
v
TABLE OF AUTHORITIES – Continued
Page
Mala v. Crown Bay Marina, Inc., 704 F.3d 239
(3d Cir. 2013) ...........................................................17
Manrique v. U.S., 137 S.Ct. 1266 (2017) ......................6
Moses.com Sec., Inc. v. Comprehensive Software
Sys., Inc., 406 F.3d 1052 (8th Cir. 2005) ........... 11, 19
Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385 (9th
Cir. 1966) ...................................................................7
Shapiro v. McManus, 136 S.Ct. 450 (2015) ..................4
Sherman v. Winco Fireworks, 532 F.3d 709 (8th
Cir. 2008) .................................................................11
Spokeo v. Robins, 136 S.Ct. 1540 (2016) ....................22
Stewart v. Hall, 129 S.W.2d 238 (Ark. 1939) ..............17
Thornburg v. Gingles, 478 U.S. 30 (1986)........... passim
U.S. v. Hays, 515 U.S. 737 (1995) ...................... 9, 15, 16
U.S. v. Nat’l Treasury Empl. Union, 513 U.S. 454
(1995) .........................................................................9
United States ex rel. Raynor v. Nat’l Rural Utils.
Coop. Fin., Corp., 690 F.3d 951 (8th Cir. 2012).......14
Walton v. Mental Health Ass’n, 168 F.3d 661 (3d
Cir. 1999) .................................................................19
Zutz v. Nelson, 601 F.3d 842 (8th Cir. 2010) ..............11
vi
TABLE OF AUTHORITIES – Continued
Page
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ...................................................22
U.S. Const. amend. XIV, Equal Protection
Clause .................................................................... 5, 9
U.S. Const. art. III ........................................... 14, 16, 21
STATUTES
A.C.A. § 7-2-102 ........................................................ 1, 5
A.C.A. § 7-2-104(a)(4)....................................................2
Voting Rights Act of 1965, 51 U.S.C. § 10301(b),
§ 2 .................................................................... passim
RULES AND REGULATIONS
Fed. R. App. P. 4(a)(4) ....................................................6
Fed. R. Civ. P. 12(b)(1) ......................................... 1, 9, 17
Fed. R. Civ. P. 12(b)(4) ...................................................9
Fed. R. Civ. P. 12(b)(5) ...................................................9
Fed. R. Civ. P. 12(b)(6) ............................................. 9, 17
Fed. R. Civ. P. 15 ..........................................................11
Fed. R. Civ. P. 15(a)(2) .................................................11
Fed. R. Civ. P. 61 ..........................................................18
United States District Court Eastern District of
Arkansas Local Rule 5.5(e) ............................. 2, 3, 18
vii
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
Restatement (Third) of the Law Governing Lawyers § 4 cmt. D (2000) .............................................18
1
MOTION TO DISMISS OR AFFIRM
The Court should dismiss Appellant’s appeal for
lack of standing, and in the alternative, affirm the district court’s Orders and Judgment.
Plaintiff-Appellant Dr. Larry is a resident of the
Second Congressional District. He challenges, pro se,
the racial composition of the First Congressional District. Appellant lacks standing, and as a result, the
Court lacks subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1).
In the alternative, the Court should affirm the district court’s rulings.
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STATUTORY PROVISIONS INVOLVED
A.C.A. § 7-2-102. First Congressional District.
(a) The First Congressional District shall be composed of:
(1) The counties of Arkansas, Baxter, Chicot,
Clay, Cleburne, Craighead, Crittenden, Cross,
Desha, Fulton, Greene, Independence, Izard,
Jackson, Lawrence, Lee, Lincoln, Lonoke, Mississippi, Monroe, Phillips, Prairie, Poinsett,
Randolph, St. Francis, Sharp, Stone, and
Woodruff;
(2) The following voting districts of Jefferson County as they existed on January 1,
2011:
2
(A)
19 (Dunnington) voting district;
(B)
P15 (Dudley Lake) voting district;
(C)
25 (Old River) voting district;
(D)
57 (Villemont) voting district;
(E)
P91 (Roberts) voting district;
(F) P851 (Humphrey) voting district;
and
(G) P862 (Humphrey) voting district;
and
(3) The voting districts and voting precincts
of Searcy County as they existed on January
1, 2011, that are not listed under § 7-2104(a)(4).
(b) The qualified electors residing in the counties
and portion of Jefferson County and Searcy County
listed under subsection (a) of this section shall elect
one (1) member of the House of Representatives of the
United States.
UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF ARKANSAS LOCAL RULE 5.5(e)
– PLEADINGS AND FILINGS
*
*
*
(e) A party who moves to amend a pleading shall
attach a copy of the amendment to the motion. The motion must contain a concise statement setting out what
exactly is being amended in the new pleading – e.g.
added defendant X, adding a claim for X, corrected
3
spelling. Any amendment to a pleading, whether filed
as a matter of course or upon a motion to amend, must,
except by leave of Court, reproduce the entire pleading
as amended, and may not incorporate any prior pleading by reference. The party amending shall file the
original of the amended pleading within seven (7) days
of the entry of the order granting leave to amend unless otherwise ordered by the Court. The requirements
for amending pleadings set forth in this subsection of
Rule 5.5 shall not apply to parties proceeding pro se.
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STATEMENT OF THE CASE
Dr. Julius Larry filed his Complaint and request
for a three-judge panel on February 9, 2018. The Complaint challenged the racial composition of the First
Congressional District in the State of Arkansas. Dr.
Larry filed pro se in his individual capacity, and as the
publisher of a newspaper, and “on behalf of all other
similarly situated African Americans residing in the
Southeast quadrant of Arkansas.”
The District Court promptly entered an Order requesting supplemental briefing on the issue of whether
a three-judge panel was required.
On April 23, 2018, the District Court granted defendants’ motions to dismiss in part. The court ruled
that Dr. Larry lacked standing to bring his Equal Protection claims challenging the racial composition of
the First Congressional District after Arkansas’ 2011
4
re-apportionment, because Appellant Larry lived in
the Second Congressional District and not the First.
Thus, the District Court lacked jurisdiction to hear
those claims. In accordance with Shapiro v. McManus,
136 S.Ct. 450, 454 (2015), the court dismissed these
claims.
The District Court held in abeyance the remaining
parts of the motions to dismiss for consideration by a
three-judge panel, reserving for that panel the determination of Dr. Larry’s standing pursuant to Section 2
of the Voting Rights Act based on the same facts.
Dr. Larry moved for leave to file his First Amended
Original Complaint on June 1, 2018. The three-judge
panel’s August 3 Order denied his Motion to Amend
because he could not represent other plaintiffs and because the amendment would be futile as it would not
withstand a motion to dismiss. The panel subsequently
held that Dr. Larry did not have standing to bring a
claim under Section 2 of the Voting Rights Act of 1965
(51 U.S.C. § 10301(b)), where he did not live in the First
Congressional District, the racial composition of which
he challenged. The District Court dismissed his original complaint without prejudice and entered judgment
accordingly.
Dr. Larry filed a Motion for Reconsideration and
Appointment of a Special Master on August 13, 2018.
Appellant Dr. Larry then filed his Notice of Appeal to
the Supreme Court on August 20, 2018. This case was
filed on October 3 in the Supreme Court. On October
12, 2018, the three-judge panel denied Dr. Larry’s
5
Motion for Reconsideration, and entered an Order and
Amended Judgment accordingly.
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ARGUMENT
Plaintiff-Appellant is a former attorney, appealing
pro se the District Court’s Orders, and Judgment, dismissing this case without prejudice. This case concerns
the racial composition of the electorate in the First
Congressional District in the State of Arkansas. Appellant lives in the Second Congressional District in Arkansas. Appellant cannot represent others, as he is no
longer a licensed attorney. Appellant lacked standing.
Appellant’s attempts to amend his initial Complaint
were unavailing. The attempted amendments were futile under the circumstances. The District Court’s Orders and Judgment should be affirmed. The appeal
should be dismissed.
Appellant made claims pursuant to the Equal Protection Clause of the 14th Amendment, and Section 2
of the Voting Rights Act, 51 U.S.C. § 10301(b). He found
a draft map on the internet, purporting to show how a
“majority minority coalition” district could be created
in the First Congressional District. Appellant’s Brief at
12; Appx. 47a, 50a. He challenges the current map,
Ark. Code Ann. § 7-2-102, alleging violations of the
Equal Protection Clause of the 14th Amendment, and
Section 2 of the Voting Rights Act, as amended. The
U.S. District Court ultimately concluded that
6
Appellant lacked standing to pursue both claims given
the facts as alleged in the Complaint.
A single Judge dismissed Appellant’s Equal Protection claims for lack of standing. Appx. 25a, 92a
(same Order). The District Court for all subsequent
matters comprised a three-judge panel. The panel entered final judgment on August 3, 2018. Appx. 21a. Appellant filed a timely Motion to Reconsider on August
13, Appx. 34a, and additionally filed a Notice of Appeal
on August 20, 2018, Appx. 22a, while the postjudgment motion was pending. Appellant filed his Jurisdictional Statement with this Court on October 3,
2018. It is from these proceedings that this appeal
arises. The District Court panel later entered an Order
and Amended Judgment on October 12, 2018, pursuant
to Rule 60(b), denying further relief.
Appellant’s appeal of the August 3 Judgment is
timely filed. See FirsTier Mortg. Co. v. Investors Mortg.
Ins., 498 U.S. 269, 276 (1991). Appellant does not challenge the District Court’s October 12 Order denying
the Motion for Reconsideration pursuant to Rule 60(b)
and the October 12 Amended Judgment. Neither has
been included in his Appendix. Appellee Secretary objects to any consideration of the October 12 Order and
Amended Judgment as they are not part of the Jurisdictional Statement, nor are those issues on appeal.
Manrique v. U.S., 137 S.Ct. 1266, 1273 (2017); Fed. R.
App. P. 4(a)(4).
The October 12 Amended Judgment indicates that
the current appeal does not concern the final judgment
7
in this matter. The Court does not have jurisdiction
over cases in which “due to the passage of time or a
change in circumstances, the issues presented . . . will
no longer be ‘live.’ ” Arkansas AFL-CIO v. F.C.C., 11
F.3d 1430, 1435 (8th Cir. 1993) (en banc). This suggests
that the instant appeal is moot. Id.
A single district court judge concluded that Appellant could not represent others in this litigation based
upon prevailing Circuit precedent. Appx. 31a (citing
Jones ex rel. Jones v. Correctional Medical Servs., Inc.,
401 F.3d 950, 952 (8th Cir. 2005)). Further, the District
Court judge concluded that “this type of defect cannot
be amended or cured” by a request to amend the Complaint. Appx. 32a. The three-judge panel later reviewed
the earlier reliance on Jones. Appx. 3a, 18a. The panel
declined to revisit the single judge’s determination
that Appellant could not represent others – including
members of a putative class of litigants, as set forth in
Jones. Appx. 18a.
Because “[a]n order which dismisses a complaint
without expressly dismissing the action is [generally]
not . . . an appealable order,” a plaintiff generally may
not appeal the dismissal of his complaint without prejudice. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993) (alterations
in original) (internal quotation marks omitted) (quoting Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385, 387
(9th Cir. 1966)). However, a district court’s dismissal of
a plaintiff ’s complaint without prejudice will not bar
the plaintiff ’s appeal when “the grounds for dismissal
clearly indicate that ‘no amendment [to the complaint]
8
could cure the defects in the plaintiff ’s case.’ ” Id. at
1067 (quoting Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)).
Jones is a sufficient basis upon which to affirm the
panel in this matter. Appellant does not challenge the
District Court’s reliance on Jones, nor cite it in his
Brief for any purpose. Jones adopted the reasoning of
the Arkansas Supreme Court in Davenport v. Lee, 348
Ark. 148, 72 S.W.2d 85, 94 (2002):
In light of our duty to ensure that parties
are represented by people knowledgeable and
trained in the law, we cannot say that the unauthorized practice of law simply results in an
amendable defect. Where a party not licensed
to practice law in this state attempts to represent the interests of others by submitting
himself or herself to the jurisdiction of a court,
those actions such as the filing of pleadings,
are rendered a nullity.
. . . [B]ecause the original complaint, as a
nullity never existed, . . . an amended complaint cannot relate back to something that
never existed, nor can a nonexistent complaint be corrected.
Jones, 401 F.3d 950, 952 (citing cases). In other words,
the District Court’s citation to Jones indicates that no
amendment can cure the defects in Appellant’s case,
giving this Court jurisdiction to hear this appeal. Domino Sugar Corp., id.
Affirmance – or dismissal – based upon Jones
would also help the Court to avoid unnecessary
9
adjudication of constitutional issues in its decision in
this case. U.S. v. Nat’l Treasury Empl. Union, 513 U.S.
454 (1995) (citing Ashwander v. TVA, 297 U.S. 288, 34647 (1936) (Brandeis, J., concurring)).
The single judge’s April 23 Order initially denied
Appellant’s claims under the Equal Protection Clause
of the 14th Amendment for lack of standing. Appx. 25a
and 92a (same Order). This is a straightforward application of this Court’s precedent. U.S. v. Hays, 515 U.S.
737, 746 (1995); Fed. R. Civ. P. 12(b)(1). Appellant’s
Complaint challenged the racial composition of the
First Congressional District in Arkansas, while Appellant admittedly lives in the Second Congressional District in this State. Appellant does not now challenge
this application of Hays to his Complaint; he challenges only the “extension” of Hays to his claims under
Section 2 of the Voting Rights Act. Appellant’s Brief at
26-30. He concedes that Hays bars his Equal Protection claims. Brief at 23, 28-29; Appx. 53a.
The single judge did not resolve all of the allegations in the pending Motions to Dismiss on April 23,
however, only those claims concerning Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Contrary to the
assertions of Appellant, and consistent with an earlier
scheduling Order requesting separate briefing on
whether a three-judge panel was required, the single
district judge stated that she was “holding under advisement all other arguments raised by the parties regarding other bases under Federal Rules of Civil
Procedure 12(b)(4), (5), and (6) upon which to dismiss
Dr. Larry’s claims.” Appx. 27a. As the single judge said,
10
she would “convene a three-judge panel to adjudge Dr.
Larry’s remaining § 2 vote-dilution claim, including
determining the issue of whether Dr. Larry has standing to bring such a claim.” Appx. 33a.
A three-judge panel of the District Court dismissed the Complaint without prejudice, concluding
that Plaintiff could not represent others in a class-action suit. Appx. 1a, 3a (citing Jones). Appellant admitted that he attempted to represent himself,
individually, and as a “class representative” in a class
action. Appx. 52a. The panel further concluded that
Plaintiff could not amend his Complaint, seeking to
represent others, based upon clearly-established
Eighth Circuit precedent concerning pro se litigants.
Appx. 1a (citing Jones). Going the extra step, the panel
further concluded that Plaintiff ’s proposed Amended
Complaint, even if allowed, would be a futile exercise,
since Plaintiff cannot truthfully allege that he can create a minority-majority Congressional District in the
State of Arkansas. Appx. 8a-12a. Consequently, the
panel dismissed his claims under Section 2 of the Voting Rights Act for lack of standing. Appx. 12a-19a.
Appellant’s Section 2 allegations were wholly unsubstantiated. Plaintiff ’s “new evidence” was an alleged expert witness working on computer models.
Appx. 35a-36a. But no expert witness Affidavit or Report was ever presented to the District Court. Appx.
48a (“not yet due”).
Plaintiff ’s “evidence” of “admissions” by Defendants is disputed entirely. Appellee Secretary vigorously
11
disputes receiving the Request for Admissions anytime
before August 13, 2018, and said so in three Affidavits
attached to its Response to the Motion for Reconsideration. Appellee Secretary also denied the Requests for
Admissions, a copy of which is attached hereto. SOS
Appx. 1.
As stated in the District Court’s August 3 Order,
Plaintiff ’s ability to amend his Complaint as a matter
of course expired prior to his attempt to amend, per
Fed. R. Civ. P. 15. Appx. 6a. Seeking leave to amend was
mandatory. Sherman v. Winco Fireworks, 532 F.3d 709,
715 (8th Cir. 2008); Appx. 6a-7a. The panel could also
deny leave to amend if there were a compelling reason
to deny, such as undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies, undue prejudice
to non-moving parties, or futility of the amendment.
Id.; Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S.
178, 182 (1962). The panel could deny a Motion to
Amend based on futility and not being able to withstand a motion to dismiss. Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th
Cir. 2005); see also Zutz v. Nelson, 601 F.3d 842, 850
(8th Cir. 2010).
In this case, the panel also denied Appellant’s Motion to Amend based on futility of the proposed amendment. Even construing the Complaint – and the
proposed amendment – in the light most favorable to
him, Appellant failed to meet the “Gingles Preconditions” necessary to establish a Section 2 claim. Thornburg v. Gingles, 478 U.S. 30 (1986). The preconditions
necessary to pursue a claim for a Section 2 violation
include:
12
1.
The racial group is sufficiently large and
geographically compact to constitute a
majority in a single-member district;
2.
The racial district is politically cohesive;
and
3.
The majority votes sufficiently as a bloc
to enable it usually to defeat the minority’s preferred candidate.
Bone Shirt v. Hazeltine, 461 F.3d 1011, 1018 (8th Cir.
2006). Appellant did not meet, and cannot now meet
the first Gingles precondition to suit. Only if all three
preconditions are satisfied will the district court then
consider the totality of the circumstances. Bartlett v.
Strickland, 556 U.S. 1, 11-12 (2009).
Plaintiff-Appellant did not allege that he could
propose a majority-minority district – even in his proposed amendment. A proposed minority needs to make
up more than 50 percent of the voting-age population
in the relevant geographic area in order to state a
claim. Cottier v. City of Martin, 604 F.3d 553, 571 (8th
Cir. 2010). The first Gingles condition also concerns, inter alia, the compactness of the minority population.
League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 433 (2006).
Appellant failed to allege in his Complaint, and in
his proposed Amended Complaint, that the minority
population in Arkansas is sufficiently compact to win
a majority of votes in any redrawn district. Appellant
also failed to allege in his Complaint, and in his
proposed Amended Complaint, that the minority
13
population is sufficiently numerous to win a majority
of votes in any redrawn district.
Appellant admitted that he could not propose this.
“. . . . Plaintiff Larry never asserted that an all-Black
majority congressional district could be drawn.” Appx.
47a. Appellant’s purportedly “new” data shows the opposite, even in his own proposed First Congressional
District. Appx. 61a. Appellant was correct then and has
not overcome this admission.
As Appellee Secretary twice briefed, and as the
District Court quoted in its Order on August 3: “In setting out the first requirements for § 2 claims, the Gingles Court explained that ‘[u]nless the minority voters
possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or
practice.’ ” Bartlett v. Strickland, 556 U.S. 1, 15 (2009)
(plurality opinion) (alteration in original) (quoting
Thornburg v. Gingles, 478 U.S. 30, 50 n.17 (1986)). The
purpose of the first Gingles requirement is “ ‘to establish that the minority has the potential to elect a representative of its own choice in some single-member
district.’ ” Id. (quoting Growe v. Emison, 507 U.S. 25, 40
(1993)). In the absence of “such a showing, ‘there neither has been a wrong nor can be a remedy.’ ” Id. (quoting Growe, 507 U.S. at 41). Appellant’s Section 2 claims
failed on the record before the District Court.
Appellant’s Exhibit A, Appx. 61a, does not overcome the problems set forth by the panel on August 3.
Appx. 1a. The District Court noted Plaintiff-Appellant’s
14
lack of specificity as to whether the percentages shown
in Plaintiff ’s map related to the voting population, total population, or another metric. Appx. 10a. Neither
did Plaintiff at any time allege that African Americans
would make up a majority of the effective voting age
population in his proposed district. Appx. 10a. He still
does not make that allegation. (Appx. 84a, Larry Affidavit asks Court to adopt “the only majority-minority
coalition map.”)
Appellant’s proposed amendment did not cure – or
attempt to cure – other problems with his initial Complaint. The panel found that Appellant’s proposed
Amended Complaint failed to allege facts sufficient to
satisfy the compactness requirement. Appx. 11a-12a.
Appellant’s proposed districts divided multiple counties, and tended to support the idea that there isn’t a
compact minority in Arkansas. Appx. 12a.
Appellant failed to satisfy the first Gingles requirement. Consequently, his proposed Amended Complaint would be futile. Futility of a claim is a valid
reason to deny a Motion to Amend a complaint. United
States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin.,
Corp., 690 F.3d 951, 958 (8th Cir. 2012); Foman, id.
Meeting the Gingles preconditions is necessary to
establish an injury for Article III standing. Appellant
lacked standing because he did not allege initially, and
admitted that he could not claim in his amendment,
that his proposed minority district would have a majority black population.
15
Appellant resides in the Second Congressional
District, yet his Complaint and proposed amendments
regarded the composition of the First Congressional
District. In determining that the Plaintiff did not have
standing, the District Court used standing requirements similar to those applied in equal protection gerrymandering cases, which is that Plaintiffs must
reside in the district they challenge. As this Court said
last term:
To the extent the plaintiffs’ alleged harm
is the dilution of their votes, that injury is district specific. An individual voter . . . is placed
in a single district. He votes for a single representative. The boundaries of the district,
and the composition of its voters, determine
whether and to what extent a particular voter
is packed or cracked. This “disadvantage to
[the voter] as [an] individual[ ],” Baker [v.
Carr, 369 U.S. 186, 206 (1962)], therefore results from the boundaries of the particular
district in which he resides. And a plaintiff ’s
remedy must be “limited to the inadequacy
that produced [his] injury in fact.” Lewis v. Casey, 518 U.S. 343, 357 (1996). In this case the
remedy that is proper and sufficient lies in the
revision of the boundaries of the individual’s
own district.
Gill v. Whitford, 138 S.Ct. 1916 (2018) (slip op., at 18)
(When the alleged harm is vote dilution, the injury is
district specific. A plaintiff must live in such a district,
and prove it, to maintain standing.) (partisan gerrymandering); see also U.S. v. Hays, 515 U.S. 737, 744-45.
16
The Gill Court was more explicit:
A plaintiff who complains of gerrymandering, but does not live in a gerrymandered
district, ‘assert[s] only a generalized grievance against governmental conduct of which
he or she does not approve.’ [Hays,] at 745.
Plaintiffs who complain of racial gerrymandering in their State cannot sue to invalidate
the whole State’s legislative districting map;
such complaints must proceed ‘district by district.’ Alabama Legislative Black Caucus v. Alabama, 575 U.S. ___, ___ (2015) (slip op., at 6).
Gill, id. (slip op., at 19).
As the panel previously set forth, Plaintiff does not
meet the first precondition of Section 2 analysis; he has
not shown the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district. Plaintiff does not have an injury,
and lacks Article III standing; the District Court correctly determined that it lacked subject-matter jurisdiction.
Standing is a matter of jurisdiction. Constitution
Party of South Dakota v. Nelson, 639 F.3d 417, 420 (8th
Cir. 2011). Under Article III of the United States Constitution, federal courts may only adjudicate actual
cases or controversies. Id. (citing cases). It is the Article
III standing requirement that enforces this caseor-controversy requirement. Id. To satisfy the “irreducible constitutional minimum” of Article III standing,
each Plaintiff must establish that he or she has
suffered an “injury in fact” that is “concrete and
17
particularized” and “actual or imminent, not conjectural or hypothetical”; that there is “a causal connection between the injury and the conduct complained
of ”; and that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Id. (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.E.2d 351
(1992)). Appellant was unable to meet the standing requirement, as a result of his own residence in the
wrong District, even in his proposed Amended Complaint.
Pro se Plaintiffs are required to abide by the Federal Rules of Civil Procedure. Lindstedt v. City of
Granby, 238 F.3d 933, 937 (8th Cir. 2000); Harmon Autoglass Intellectual Prop., LLC v. Leiferman, 428 B.R.
850, 854 (B.A.P. 8th Cir. 2010). Pro se litigants are required to allege sufficient facts in their complaints to
support a claim. Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 246 (3d Cir. 2013). Dismissal for lack of standing was appropriate where Appellant could not state
sufficient facts in his complaint and proposed amendments in this case. Fed. R. Civ. P. 12(b)(1), (6).
Appellant’s proposed Amended Complaint sought
to add more plaintiffs, despite the fact that Larry is
representing himself pro se, and does not claim to be
an attorney licensed in the State of Arkansas (nor in
federal district court). Pro se Plaintiffs cannot represent others. See Stewart v. Hall, 129 S.W.2d 238 (Ark.
1939). Appellant’s attempt to represent others is unauthorized practice of law and results in a nullity. Jones
ex rel. Jones v. Correctional Medical Services, 401 F.3d
18
950, 952 (see also Henson v. Cradduck, 2017 Ark. 317
(2017)); Restatement (Third) of the Law Governing
Lawyers § 4 cmt. D (2000) (“in general, however, a person appearing pro se cannot represent any other person or entity . . . ”). As the Eighth Circuit has said, an
appointment of an attorney at this point cannot cure
the complaint of its original defect. Jones, 401 F.3d at
952; Davenport v. Lee, 348 Ark. 148, 155 (complaint was
a nullity due to absence of counsel and unauthorized
practice of law).
U.S. District Court Local Rule 5.5(e) did play a
role, contrary to Appellant’s assertions. As Appellant
admits: “the attorneys signed” the Motion to Amend,
Brief at 15. The District Court likewise acknowledged
that the “motion for leave to amend is signed by two
attorneys . . . neither of [whom] has entered an appearance on behalf of Dr. Larry in this litigation.” Appx.
18a. Those attorneys apparently represented other potential named plaintiffs, and so were bound by Rule
5.5(e) (mistyped into the Appendix as Rule 55) to attach to the Motion to Amend a copy of the proposed
Amended Complaint. It is undisputed that no formal
Amended Complaint was attached to the Motion to
Amend, notwithstanding that two licensed attorneys
did sign the Motion itself. Appellee Secretary pointed
out the problem, given the uncertainty of who represented whom, but also explicitly gave the caveat to the
District Court that Rule 5.5(e) did not apply if Mr.
Larry were going to proceed pro se. There was no harm
to Appellant. Fed. R. Civ. P. 61.
19
The District Court correctly denied the Motion to
Amend because the purported amended pleading
would be futile, and would not withstand a motion to
dismiss. Brunt v. Service Employees Int’l Union, 284
F.3d 715, 720 (7th Cir. 2002); Walton v. Mental Health
Ass’n, 168 F.3d 661, 665 (3d Cir. 1999); Moses.com Sec.,
Inc. v. Comprehensive Software Sys., Inc., 406 F.3d
1052, 1065 (8th Cir. 2005). Appellant conceded that “no
majority-Black district can be drawn in Arkansas.”
Appx. 47a. In other words, the putative Plaintiff(s) conceded that they cannot meet the first precondition for
a claim under Section 2 of the Voting Rights Act, 51
U.S.C. § 10301(b): “The minority group must be ‘sufficiently large and geographically compact to constitute
a majority in a single-member district. . . .’ ” Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). In a Section
2 case, “only when a party has established the Gingles
requirements does a court proceed to analyze whether
a violation has occurred based on the totality of the circumstances.” Bartlett v. Strickland, 556 U.S. 1, 11
(2009) (plurality opinion).
But “[n]othing in § 2 grants special protection to a
minority group’s right to form political coalitions.
‘[M]inority voters are not immune from the obligation
to pull, haul, and trade to find common political
ground.’ ” Id. at 15 (second alteration in original) (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)).
“Section 2 [also] does not impose on those who draw
election districts a duty to give minority voters the
most potential, or the best potential, to elect a candidate. . . . ” Id. (emphasis added). It “does not guarantee
20
minority voters an electoral advantage.” Id. at 20. This
Court has “rejected the proposition . . . that § 2 entitles
minority groups to the maximum possible voting
strength.” Id. at 15-16 (emphasis added); see also id. at
23 (“When we address the mandate of § 2, . . . we must
note it is not concerned with maximizing minority voting strength, De Grandy, 512 U.S. at 1022; and, as a
statutory matter, § 2 does not mandate creating or preserving crossover districts.”). According to the Court:
[R]eading § 2 to define dilution as any failure
to maximize tends to obscure the very object
of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not
entitled to suspect (much less infer) dilution
from mere failure to guarantee a political
feast.
Id. at 16 (alteration in original) (quoting De Grandy,
512 U.S. at 1016-17).
This Court has held that Section 2 does not require the creation of “influence districts” where a minority group can influence the outcome of an election
even if its preferred candidate cannot be elected. Bartlett, id. at 13 (citing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 445 (2006)). The Bartlett
plurality also held that “crossover districts” do not
satisfy the Gingles requirement that the minority population be large enough and yet sufficiently geographically compact to constitute a majority in a singlemember district because minorities in crossover
21
districts make up less than 50 percent of the votingage population. Id. at 12-20.
Article III of the U.S. Constitution restricts federal
courts to the resolution of cases and controversies. Arizonans for Official English v. Arizona, 520 U.S. 43, 64
(1997). That restriction requires that the party invoking federal jurisdiction, Larry, have standing – the
“personal interest that must exist at the commencement of the litigation.” Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167, 189 (2000) (internal quotation marks omitted).
Appellant never alleged sufficient facts to meet the Article III requirements for standing. Larry’s admissions
that the racial harm was purportedly in the First Congressional District, Appx. 35a; that there is no case law
support for creation of a “majority minority coalition
district,” Appx. 37a; and that no “all-Black majority
congressional district could be drawn in Arkansas,”
Appx. 47a, show that he did not personally suffer harm
in his district of residence, the Second Congressional
District.
The requirement that a claimant have “standing
is an essential and unchanging part of the caseor-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
“[S]tanding is not dispensed in gross.” Lewis v. Casey,
518 U.S. 343, 358 n.6 (1996). Contrary to the assertions
of Larry, “a plaintiff must demonstrate standing for
each claim he seeks to press” and “for each form of relief that is sought.” DaimlerChrysler v. Cuno, 547 U.S.
332, 352 (2006) (internal citations omitted).
22
Larry’s claims as a voter likewise were not concrete. “A ‘concrete’ injury must be ‘de facto’; that is, it
must actually exist. When we have used the adjective
‘concrete,’ we have meant to convey the usual meaning
of the term – ‘real,’ and not ‘abstract.’ ” Spokeo v. Robins, 136 S.Ct. 1540, 1548 (2016) (citations omitted).
Appellant’s new assertion that he has standing
under the First Amendment is unavailing. This allegation is not addressed anywhere by the District Court
because Appellant failed to raise the issue in the District Court. Arguments raised for the first time on appeal are waived. Allen v. City of Chicago, 865 F.3d 936,
943 (7th Cir. 2017).
In this “era of frequent litigation,” the Court has
made clear that “courts must be more careful to insist
on the formal rules of standing, not less so.” Arizona
Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 146
(2011). This Court should affirm the District Court or
dismiss the appeal as lacking any merit where Appellant lacks standing.
------------------------------------------------------------------
CONCLUSION
The Court should dismiss Appellant’s action. The
Court lacks subject-matter jurisdiction over the claims.
Appellant lacks standing to pursue his claims, and
lacks standing as a pro se litigant to represent others.
In the alternative, the Court should affirm the threejudge District Court’s Order and Judgment.
23
For the foregoing reasons, Appellee’s Motion to
Dismiss or Affirm should be granted.
Respectfully submitted,
HONORABLE MARK MARTIN
In his Official Capacity as
Secretary of State for the State of Arkansas
Defendant-Appellee
By:
A.J. KELLY
Counsel of Record
General Counsel &
Deputy Secretary of State
ARKANSAS SECRETARY OF STATE
P.O. Box 251570
Little Rock, AR 72225-1570
Phone: (501) 682-3401
kellylawfedecf@aol.com
November 5, 2018
App. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF ARKANSAS
WESTERN (LITTLE ROCK) DIVISION
Dr. JULIUS J. LARRY III
VS.
PLAINTIFF
NO. 4:18-CV-116-KGB
STATE OF ARKANSAS;
HONORABLE ASA HUTCHINSON,
In his Official Capacity as
Governor of the State of Arkansas;
HONORABLE LESLIE RUTLEDGE,
in her Official Capacity as
Attorney General of the
State of Arkansas; HONORABLE
MARK MARTIN, in his
official capacity as Arkansas
Secretary of State
DEFENDANTS
DEFENDANT ARKANSAS SECRETARY OF
STATE’S RESPONSES TO PLAINTIFF’S
REQUESTS FOR ADMISSIONS TO DEFENDANTS
Defendant Secretary was not served, and did not
receive Plaintiff ’s First Request for Admissions to Defendants until August 13, 2018.
1.
Request for Admission 1: The defendant,
Arkansas Legislature approved the present congressional district map in 2011.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection:
App. 2
Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving the objections,
DENIED; Arkansas General Assembly passed
Acts 1241 and 1242 of 2011.
2.
Request for Admission 2: No African
American has ever been elected to the
US Congress from the First Congressional District of Arkansas since Arkansas became a State.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving the objections,
DENIED; for lack of sufficient information
and belief. Secretary of State does not keep
Election statistics based upon race.
3.
Request for Admission 3: No African
American has ever been elected to the
App. 3
US Congress from the Second Congressional District of Arkansas since Arkansas became a State.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving the objections,
DENIED; for lack of sufficient information
and belief. Secretary of State does not keep
Election statistics based upon race.
4.
Request for Admission 4: No African
American has ever been elected to the
US Congress from the Third Congressional District of Arkansas since Arkansas became a State.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
App. 4
his Requests for Admissions, as issue has not
been joined. Without waiving the objections,
DENIED; for lack of sufficient information
and belief. Secretary of State does not keep
Election statistics based upon race.
5.
Request for Admission 5: No African
American has ever been elected to the
US Congress from the Fourth Congressional District of Arkansas since Arkansas became a State.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving the objections,
DENIED; for lack of sufficient information
and belief. Secretary of State does not keep
Election statistics based upon race.
6.
Request for Admission 6: Part of Jefferson County is in the First Congressional
District while the other part is in the
Fourth Congressional District.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as
App. 5
Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; states a legal conclusion; Acts 1241 and
1242 of 2011 say what they say and speak for
themselves.
7.
Request for Admission 7: The First Congressional District contains 30 counties
presently.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; states a legal conclusion; Acts 1241 and
1242 of 2011 say what they say and speak for
themselves; misstates the facts.
8.
Request for Admission 8: Presently, the
First Congressional District covers approximately one-third of the State of Arkansas.
App. 6
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; states a legal conclusion; Acts 1241 and
1242 of 2011 say what they say and speak for
themselves; assertion is vague, unclear, and
inadequately defined.
9.
Request for Admission 9: Presently, the
First Congressional District contains
nearly one-third of the counties of Arkansas.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; states a legal conclusion; Acts 1241 and
1242 of 2011 say what they say and speak for
App. 7
themselves; assertion is vague, unclear, and
inadequately defined.
10. Request for Admission 10: A majority of
African Americans in Arkansas live in
the Southeastern quadrant of the State
of Arkansas.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
keep records of racial population counts by
“quadrant.”
11. Request for Admission 11: A majority-minority district can be created to include
Union; Ashley; Chicot; Drew; Lincoln;
Jefferson; Pulaski; Desha; Arkansas;
Phillips; Monroe; Lee; St. Francis; Crittenden; and Cross counties.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
App. 8
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
12. Request for Admission 12: The State of
Arkansas has a long history of racial discrimination against minorities, including African Americans.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
13. Request for Admission 13: In 1859, the
Arkansas General Assembly at Little
Rock passed a new law making Blacks
slaves in Arkansas.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
App. 9
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State is not the
legal research assistant for Plaintiff who
failed to identify the Act or Statute in issue.
14. Request for Admission 14: in 1859, the
State of Arkansas ran its free Black citizens out of the state.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
15. Request for Admission 15: After the State
of Arkansas ran its free Black citizens
App. 10
out of the state in 1859, the state confiscated the land owned by the free Blacks
it ran out, including Caulder’s Bluff at
Fort Smith, Arkansas (owned by Peter
Caulder).
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
16. Request for Admission 16: Defendant Arkansas Legislature passed restrictive
voter identification laws.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
App. 11
been joined. Without waiving objections; DENIED.
17. Request for Admission 17: Statistics
show that African Americans in Arkansas tend to vote Democratic as their preferred candidate.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Seeks opinion without a factual
foundation. Assumes facts not in evidence.
18. Request for Admission 18: After the 2010
US census, Pulaski County is the only
county in the 2nd Congressional District
to vote Democratic.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
App. 12
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
Fails to specify what types of elections and offices sought.
19. Request for Admission 19: in statewide
elections, voting has historically been
along racial lines.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
Seeks opinion testimony without factual foundation.
20. Request for Admission 20: Minority vote
dilution is still occurring in the First
Congressional District.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection:
App. 13
Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
Seeks opinion testimony without factual foundation.
21. Request for Admission 21: Present system is impeding minority opportunities
to participate fully in the political process.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
Seeks opinion testimony without factual foundation.
App. 14
22. Request for Admission 22: The only reason no African American has ever been
elected to Congress from the First Congressional District is minority vote dilution.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
Seeks opinion testimony without factual foundation.
23. Request for Admission 23: A majority-minority congressional district will cure
the ongoing discriminatory effects.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
App. 15
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; seeks a legal conclusion on the ultimate issue. Assumes facts not in evidence.
Seeks opinion testimony without factual foundation.
24. Request for Admission 24: A significant
number of African Americans in Arkansas usually vote for the same candidate,
such as Joyce Elliott.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
keep Election records based upon race of voters. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
25. Request for Admission 25: Pulaski
County, in the Second Congressional District is submerged under the electoral
control of whites in the seven other
App. 16
counties contained in the 2nd Congressional District.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED. Defendant Secretary of State does not
keep records of racial population counts. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
26. Request for Admission 26: African Americans and whites in Arkansas differ in
the extent to which they support competing candidates.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
App. 17
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
keep Election records based upon race. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
27. Request for Admission 27: African Americans in Arkansas have been unable to
elect their preferred candidate to Congress in the face of white opposition
presently.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
keep Election records based upon race. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
28. Request for Admission 28: White bloc
voting continues to defeat minoritypreferred candidates.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
App. 18
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
keep Election records based upon race. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
29. Request for Admission 29: White crossover voting is insignificant because
whites generally do not support African
Americans for US Congress from Arkansas.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
App. 19
keep Election records based upon race. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
30. Request for Admission 30: Defendants
have no legitimate explanation why no
African American has ever been elected
to Congress from Arkansas since Arkansas became a state.
RESPONSE: Objection: Requests for Admissions not delivered to Defendant Secretary of
State by mail on May 3, 2018. Objection: Requests for Admissions first delivered as Exhibit to Motion to Reconsider in violation of
Local Rule 33.1 (“Requests for Admissions
will not be combined with other discovery material or documents.”) Objection: The Court
lacks subject matter jurisdiction. Plaintiff
lacks standing. Plaintiff lacks a legal basis for
his Requests for Admissions, as issue has not
been joined. Without waiving objections, DENIED; lack of sufficient information and belief. Defendant Secretary of State does not
keep Election records based upon race. Assumes facts not in evidence. Seeks opinion testimony without factual foundation.
Respectfully submitted this 24th day of August,
2018,
App. 20
HONORABLE MARK MARTIN
ARKANSAS SECRETARY OF STATE
In his Official Capacity, Defendant
By: /s/ AJ Kelly
A.J. Kelly
General Counsel and
Deputy Secretary of State
AB No. 92078
PO Box 251570
Little Rock, AR 72225-1570
(501) 682-3401
Fax: (501) 682-1213
kellylawfedecf@aol.com
By: /s/ Michael Fincher
Michael Fincher
Associate General Counsel
Arkansas Secretary of State
AB No. 2016037
500 Woodlane St., Ste 256
Little Rock, AR 72201
(501) 682-3401
Fax: (501) 682-1213
Attorneys for Defendant
Arkansas Secretary of State
CERTIFICATE OF SERVICE
I do hereby certify that on this 24th day of August,
2018, I have served the foregoing via first class mail
to the Attorney General and the Assistant Attorney
App. 21
General who has entered his appearance, and via certified and first class mail to the following:
Dr. Julius J. Larry III
2615 W.12th Street
Little Rock, AR 72202
/s/ AJ Kelly
A.J. Kelly
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.