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.

------------------------------------------------------------------

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.

------------------------------------------------------------------

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.

------------------------------------------------------------------

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.

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