# Appendix — Bennett v. Kelley (Nos. 00-133, 00-132) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0409%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2000 ## Text Lew 00-Tr32 pe 133 JUL 24200 FICE OF THE CLERK OFFIC In The Supreme Court of the United States ¢ JAMES BENNETT, in his official capacity as Secretary of State of Alabama, et al., Appellants, v. PEGGY KELLEY, et al., Appellees, and DARRYL SINKFIELD, et al., Appellants, PEGGY KELLEY, et al., Appellees. + On Appeals From The United States District Court For The Middle District Of Alabama + APPENDIX TO JURISDICTIONAL STATEMENTS Volume II, Pages 180a to 374a + Epwarp STILL* Brit Pryor Lawyers’ Committee for Attorney General Civil Rights Under Law JOHN J. Park, Jr.* 1401 New York Avenue Assistant Attorney NW, Suite 400 General Washington, DC 20005-2124 Office of the Attorney (202) 662-8600 General 11 South Union Street Montgomery, AL 36130 (334) 242-7300 “Counsel of Record, *Counsel of Record, Sinkfield Appellants Bennett Appellants COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 ee . oS Se ey kal ¢ ~ ia > = i oh oe ‘- y ; = ban ihe ° a ,- oa r iv: Sars a 7 = ®¢. A. : 2 « : ‘ 7 he — i ae a a an aoe ~~ anette oe TABLE OF CONTENTS Volume I Kelley v. Bennett, 96 F. Supp. 2d 1301 (M.D. Ala. April 24, 2000) (3-judge court).................. Kelley v. Bennett, Final Judgment and Injunction, SUE My SOND cae cactivcdescéeveieunnesnaeneness Kelley v. Bennett, Writ of Injunction, April 24, 2000... Kelley v. Bennett, Order denying reviewed motions to dismiss by the State and Sinkfield defen- GRMER, TUE DR TOO ob ccicvcccccscsccevesscciis Kelley v. Bennett, Notice of Appeal by the State defendants, May 23, 2000..............20eeeeees Kelley v. Bennett, Notice of Appeal by the Sinkfield Gatendamin, Ray ZB, BI... cccccccscceccccsceoes Rice v. Smith, CA No. 97-A-715-E, Verified Com- ae see with exhibits A, B, & D (Exhibit C is odged with the clerk), May 2, 1997............ Rice v. Smith, Order instructing the Rices to inter- vene in state court and to add other plaintiffs, FN, BE FE ee acctdd se cheveretecssedécsstiovees Rice v. Smith, Order denying the Rices’ Motion to Reconsider and setting deadline for state court fk Oe PTT TITTTT Tri rer ieee Rice v. Smith, First Amendment to Verified Com- ENE, GR. BH, BSE cccccncccccesccccceceseseees Rice v. Smith, Second Amendment to Verified Commptniat, Gat. 8B, BOG. scccsccccccscccwsvececs Sinkfield v. Rice, CA No. 93-689-PR (15th Ala. Judi- ee Ge SL Se ona panconetedsxacnsssn see ii TABLE OF CONTENTS - Continued Page Volume II Rice v. Smith, 988 F. Supp. 1437 (M.D. Ala. 1997) .. 180a Sinkfield v. Rice, 732 So. 2d 993 (Ala. 1998) (per Ee ee oer cote as inecenueneuasess 197a Thompson v. Smith, 52 F. Supp. 2d 1364 (M.D. Ala SPONDS oe aches cectasssecednececesecccnccoccceces 201a Thompson v. Smith, Opinion on summary judgment against Peggy Kelley as to HD 88, Dec. 30, 1999 .. 219a Thompson v. Smith, Opinion on summary judgment against Andrew D. Thompson as to HD 82, Jan. Ee PS SEC one douedcesereceensecenseceseoeccees 226a Thompson v. Smith, Memorandum Opinion on summary judgment against Daniel P. Brown as i ow on sou unauecceneceetes 235a Pe EWE WOGUS GGUS. 2... nrccccccccccccccccces 244a State trial testimony of Speaker of the House SEY GEE ob ose dccccencececnccoecesesaeoseess 274a Dr. Robert J. Norell’s trial testimony .............. 286a Dr. Joe Reed deposition 1997, Sinkfield Ex 177....295a Trial testimony of Curtis Travis................... 33la Trial testiomny of Glen McCord................... 335a Trial testimony of Bryant Melton.................. 337a Trial testimony of Wendell Mitchell ............... 342a TABLE OF CONTENTS - Continued Rice v. Sinkfield, on appeal to the Supreme Court of Alabama, State defendants’ arguments on moot- Pere Rice v. Sinkfield, on Appeal to the Supreme Court of Alabama, Rice plaintiffs’ argument on moot- Excerpts of plaintiff Peggy Kelley deposition.... Excerpts of plaintiff Bibb Gunter deposition... .. Excerpts of plaintiff Karen Outlaw deposition... Excerpts of plaintiff Ricardo Montiel deposition . CG, Comsd, Gememd. B..cccccccccccscccvccsccseses U.S. Const amend. XIV, § 1............00 eee ees Items lodged with Clerk of the Court. Exhibit C (the Reed-Buskey Plan) to the Verified Complaint in Rice v. Smith, Case No. CA 97- A-715-E (M.D. Ala.) three-judge court), App. at 97a 1993-94 Alabama highway map showing 1993 Sen- ate districts 1993-94 Alabama highway map showing 1993 House districts Alabama Population Data Sheet, released Decem- ber 1999 Sanders v. Dooly County, __ FSupp.2d __, CA No. 98-00412-CV-2-DF-5 (M.D. Ga., May 11, 2000) Maxwell v. Foster, __ F.Supp.2d __, CA No. 98-1378 (W.D. La., Nov. 24, 1999) (3-judge court) Page .. 370a .. 374a 180a John RICE and Camilla L. Rice, etc., Plaintiffs, v. Hal SMITH, etc., et al., Defendants. Civil Action No. 97-A-715-E. United States District Court, M.D. Alabama, Eastern Division. Dec. 19, 1997. Kathleen A. Brown, Mark G. Montiel, Montgomery, AL, for John Rice and Camilla Rice. John J. Park, Jr., Stanley E. Graham, Office of Attor- ney General, Montgomery, AL, Charles E. Grainger, Jr., Assistant Attorney General, Alabama Secretary of State’s Office, Montgomery, Al, for Hal Smith and James Bennett. James U. Blacksher, Birmingham, AL, Terry G. Davis, Terry G. Davis, P.C., Montgomery, AL, Solomon S. Seay, Jr., Montgomery, AL, Edward Still, Lawyers’ Committee for Civil Rights Under Law, Director, Voting Rights Pro- ject, Washington, DC, for Darryl Sinkfield, Quinton Ross, Bernest Brooks, Rubin McKinnon, Andrew Hayden and State of Alabama. Before JOEL F. DUBINA, Circuit Judge, MYRON H. THOMPSON, Chief Judge, and W. HAROLD ALBRIT- TON, District Judge. MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. This three-judge court, which has been empaneled pursuant to 28 U.S.C.A. § 2284, is confronted with a 18la recently recurring issue: how a federal court confronted with a challenge to the apportionment of a State govern- ing body should proceed when State courts have addressed, or appear poised to address, the challenge. This is also an important issue because it directly impli- cates federal-state relations. In this lawsuit, plaintiffs John Rice and Camilla L. Rice (Rice plaintiffs) and plaintiffs Andrew Thompson, et al. (Thompson plaintiffs) challenge the apportionment plan of Alabama’s State Legislature.! They claim that the plan impermissibly impinges in several ways on the equal protection clause of the fourteenth amendment: it violates the one person-one vote principle, it dilutes the voting strength of non-black voters, and it is a product of racial gerrymandering. The defendants are the Secretary of State of Alabama and the Probate Judge of Lee County, Alabama (State defendants), and the named representa- tives of a plaintiff class of African-American voters in a parallel State court proceeding (Sinkfield defendants). Jurisdiction is proper under 28 U.S.C.A. §§ 1331, 1343. At oral argument on November 26, 1997, the Rice plaintiffs contended that we should stay this proceeding as to their claims because, although the State trial court has addressed the claims, the Alabama Supreme Court * Some of the defendants dispute whether the Thompson plaintiffs were properly added to this litigation. The Thompson plaintiffs were added to the Rice plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 15, rather than by intervening pursuant to Federal Rule of Civil Procedure 24. By referring to the Thompson plaintiffs as “plaintiffs,” we should not be understood to have resolved this dispute in this memorandum opinion today. 182a has yet to hear their appeal. The Thompson plaintiffs contended that we should proceed ahead as to their claims because the claims were not part of the State court proceeding. I. Twice now, this federal court has been confronted with a challenge to Alabama’s legislative plan for the State House and Senate. In 1992 and 1993, two groups of plaintiffs - a group of African-American plaintiffs and a group of Republicans - brought two lawsuits challenging legislative apportionment.? The federal court stayed and eventually dismissed the cases in favor of a State court consent decree.? Four years later, in 1997, the Rice plaintiffs brought the current federal lawsuit, essentially challenging the apportionment plan adopted in the 1993 State court con- sent decree. We stayed our hand again, finding that it appeared that the State court which had entered the 1993 2 These two federal lawsuits are Brooks v. Camp, civil action no. 92-T-364-N (M.D.Ala.), and Peters v. Folsom, civil action no. 93-T- 124-N (M.D.Ala.). 3 This court initially stayed the proceedings on the ground that the legislative process had not run its course. In the meantime, a state lawsuit was brought in which the court entered a consent decree adopting a reapportionment plan for the entire State legislature. Sinkfield v. Bennett, civil action no. 93-689-PR (Aug. 13, 1993). A question then arose as to whether the State court had authority to adopt the plan. We certified the question to the Alabama Supreme Court, which answered in the affirmative. Brooks v. Hobbie, 631 So.2d 883 (Ala.1993). We then dismissed the federal court proceedings. 183a consent decree was still available to consider the Rice plaintiffs’ challenge. The Rice plaintiffs then presented their claims to the State court, which, after setting an aggressive trial schedule, found the claims to be without merit. The Rice plaintiffs have now appealed the State court judgment to the Alabama Supreme Court. In the meantime, and before the State court con- ducted its trial, the Rice plaintiffs amended their federal court complaint to add the Thompson plaintiffs as par- ties.° As stated, the important issue for us is how to pro- ceed on the Rice plaintiffs’ and the Thompson plaintiffs’ claims in light of the recent events in State court. II. A. In Growe v. Emison, the United States Supreme Court held that federal judges are “required . . . to defer consid- eration of disputes involving redistricting where the State, through its legislative or judicial branch, has begun to address that highly political task itself.” 507 U.S. 25, 33, 113 S.Ct. 1075, 1080, 122 L.Ed.2d 388 (1993) (emphasis in original). Federal judges are to “prefer{] both state branches to federal courts as agents of apportionment.” Id. at 34, 113 S.Ct. at 1081 (emphasis in original). The Court based this holding on a doctrine - the abstention * State defendants’ submission of documents filed in parallel State court proceedings, filed in this court December 11, 1997. 5 Order, filed September 23, 1997. 184a doctrine —- whose origins arise out of principles of federal- ism and reach back over half a century. The Court explained that it has “required deferral, causing a federal court to ‘sta[y] its hands,’ when a constitutional issue in the federal action will be mooted or presented in a differ- ent posture following conclusion of the state-court case.” Id. at 32, 113 S.Ct. at 1080 (quoting Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941)). It has allowed abstention “when the federal action raises difficult questions of state law bear- ing on important matters of state policy, or when federal jurisdiction has been invoked to restrain ongoing state criminal proceedings.” Id. (citing Colorado River Water 6 Indeed, some commentators have rejected the singular use of an abstention doctrine: “[I]t is more precise to refer to ‘abstention doctrines,’ since there are several distinguishable lines of cases, involving different factual situations, different procedural consequences, different policy considerations, and different arguments for and against their validity.” 17A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4241, at 25. We use the term “abstention” broadly to refer not only to the decision to “abstain” from hearing a plaintiff's claims, requiring dismissal, but also to the decision to “defer” to parallel state proceedings while staying the federal court litigation. Although the United States Supreme Court differentiated in Growe, 507 U.S. at 32 n. 1, 113 S.Ct. at 1080 n. 1, between abstention and deferral, the lower courts and other authorities have continued to use the term “abstention” to describe both actions. See, e.g., Benavidez v. Eu, 34 F.3d 825, 832-33 (9th Cir.1994) (distinguishing between “deferral abstention” and “dismissal abstention”); 17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure (2d ed. Supp.1997) § 4241, at 1 (“to change the terminology now would be confusing rather than clarifying.”). 185a Conservation Dist. v. United States, 424 U.S. 800, 814-817, 96 S.Ct. 1236, 1244-1246, 47 L.Ed.2d 483 (1976)). However, abstention within the reapportionment context differs in an important respect from that in other contexts, for it marks a unique burden shift within the doctrine. In other contexts, a federal court’s decision to decline to exercise jurisdiction is disfavored and thus exceptional. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, —_. 116 S.Ct. 1712, 1721, 135 L.Ed.2d 1 (1996) (“We have often acknowledged that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.”); Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244 (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an impor- tant countervailing interest.”) (quoting Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959)). But in the reapportion- ment context, when parallel State proceedings exist, the decision to refrain from hearing the litigant’s claims should be the routine course. The rationale behind this distinction lies in the inher- ently greater interest a State has in legislative reappor- tionment. As the Court explained in Growe, “the Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts.” 507 U.S. at 34, 113 S.Ct. at 1081. 186a “Absent evidence,” the Court continued, “that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state reappor- tionment nor permit federal litigation to be used to impede it.” Id. See also Brooks v. Hobbie, 631 So.2d 883, 889-90 (Ala.1993) (“Redistricting is both a sensitive and political issue. There is no dispute that the legislature has the initial responsibility to act in redistricting mat- ters . . . However, in the event the legislature fails to act, the responsibility shifts to the state judiciary.”) (citations omitted). The Court also focused on the more universal practical factor in favor of abstention, “the nature of the relief requested,” Growe, 507 U.S. at 35, 113 S.Ct. at 1081, and observed that a State “can have only one set of legislative districts.” Id. Relying on these principles, this court has twice deferred or stayed federal proceedings in favor of State court proceedings in which there was a challenge to Alabama’s legislative apportionment. In 1993, when the federal court stayed and eventually dismissed the two original cases challenging State apportionment, it relied on Growe. And more recently, in the fall of 1997, when we stayed proceedings on the Rice plaintiffs’ claims, we again expressly relied on Growe. The Rice plaintiffs admit that we cannot consider their claims in the face of the State court decision on their claims. Relying on Growe, however, they ask that we stay, rather than dismiss, their claims. We cannot agree. Because the State court has adjudicated the merits of their 187a claims, both res judicata and the Rooker-Feldman doc- trine preclude this court’s review of that decision.” The Rice plaintiffs argue that because the Alabama Supreme Court could potentially fail to grant timely review of their appeal, this court should retain jurisdiction so as to pro- vide them with a forum in which to obtain substantive review of the State court decision. Not only does this argument contravene the above-stated Rooker-Feldman doctrine - under which only the United States Supreme Court can entertain a proceeding to reverse or modify a State court judgment on the merits* - but the United States Supreme Court expressly rejected such an argu- ment in Growe, when it wrote: “We fail to see the rele- vance of the speed of appellate review. [Precedent] requires only that the state agencies adopt a constitu- tional plan ‘within ample time . . . to be utilized in the [upcoming] election . . . It does not require appellate review of the plan prior to the election.’ ” 507 U.S. at 35, 113 S.Ct. at 1081 (citations omitted). The Rice plaintiffs further note that the Alabama Supreme Court could reverse the State court decision and find that the State court was without jurisdiction from the start. This argu- ment, however, is a compelling reason as to why the dismissal of the Rice plaintiffs’ claims should be without prejudice, which we will do. 7 District courts are courts of original jurisdiction; only the Supreme Court can entertain a proceeding to reverse or modify a State court judgment on the merits. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). 8 Id. 188a With regard to the Thompson plaintiffs’ claims, we believe we should again take our instructions from Growe and stay our hand. First, by ruling on the merits of the Rice plaintiffs’ constitutional claims in a timely fashion, the State court has indicated not only its willingness to entertain challenges to Alabama’s redistricting plan, but also its ability to resolve such claims in an exigent man- ner. The United States Supreme Court has made clear that, “Absent evidence that the[] state branches will timely fail to perform [the redistricting] duty,” a federal court should not interject itself into the State’s matter. Growe, 507 U.S. at 34, 113 S.Ct. at 1081. While it is true that the Thompson plaintiffs have not had their claims resolved by the State court, we are convinced that the State court is willing or able to hear such claims. Indeed, the State court offered the Thompson plaintiffs an oppor- tunity to intervene in the Rice plaintiffs’ proceedings, but the Thompson plaintiffs declined to do so. We know of no reason why the State court would not still entertain the Thompson plaintiffs’ claims.’ 9 In the order entered on August 14, 1997, we not only “stayed” our hand, we “directed” the Rice plaintiffs to intervene in the State court proceedings. The Rice plaintiffs have taken issue with whether the State court proceeding was in a posture that warranted our stay and whether we had the authority to issue a directive to a party as to what to do in another proceeding. Whether our earlier decision was premature or authorized is an issue we need no longer reach because the Rice plaintiffs did intervene and the State court has now ruled on their claims. Moreover, since our order of August 14, 1997, the calculus has changed to make Growe deferral clearly appropriate. As stated, the State court has not only reaffirmed jurisdiction over the State legislative plan, it has entertained 189a Second, the State defendants stated at oral argument, without refutation from the Thompson plaintiffs, that a decision by us in favor of the Thompson plaintiffs would probably impact the remainder of the plan, including the part addressed by the State court recently. Alabama “can have only one set of legislative districts.” Growe, 507 U.S. at 35, 113 S.Ct. at 1081. Third and finally, having participated in the creation of the reapportionment plan and having recently heard evidence as to the constitutionality of the plan, the State court is far better equipped to handle the Thompson plaintiffs’ claims, as well as those of any future litigant interested in the outcome of the proceedings. This factor reinforces the conclusion that we should defer to the State court. 10 An appropriate judgment will be entered. and resolved claims almost identical to those now asserted by the Thompson plaintiffs. 10 In Growe, the United States Supreme Court stated that federal courts are required “to defer consideration of disputes involving redistricting where the State, through its legislative or judicial branch, has begun to address that highly political task itself.” 507 U.S. at 33, 113 S.Ct. at 1080 (emphasis in original and added). At oral argument, the Sinkfield defendants suggested that, under a logical extension of Growe, a federal court is required to abstain in favor of State courts even if there is no pending or ongoing State court proceeding. Before being eligible for relief in federal court, according to the Sinkfield defendants, a federal plaintiff must be able to show that he or she first sought relief in State court and the State court failed to entertain his or her claim at all or in a timely manner. We do not reach this issue. 190a ORDER In accordance with the memorandum opinion entered on this date, it is the ORDER, JUDGMENT, and DECREE of the court: 1. The claims of plaintiffs John and Camilla L. Rice are dismissed without prejudice; 2. This case is stayed as to the claims of plain- tiffs Andrew Thompson, et al. It is further ORDERED that the following motions are denied as moot: the Rice plaintiffs’ motion for class certi- fication, filed May 2, 1997; the Rice plaintiffs’ motion for a preliminary injunction, filed May 2, 1997; the Rice plaintiff's motion for reconsideration of this court’s order of August 14, 1997, filed August 28, 1997; the Rice plain- tiffs’ motion to dismiss the Sinkfield defendants, filed October 24, 1997; the Rice plaintiffs’ motion to amend and supplement the complaint, filed October 24, 1997; the Rice plaintiffs’ motion to compel discovery requests and for sanctions, filed November 11, 1997; the Rice plaintiffs’ request to schedule an evidentiary hearing, filed Novem- ber 25, 1997; the Sinkfield defendants’ motions to dismiss and/or motions for judgment on the pleadings, filed July 10, 1997, October 9, 1997, October 27, 1997, November 25, 1997. It is further ORDERED that the Sinkfield defen- dants’ motion for leave to withdraw their second motion to dismiss, filed September 23, 1997, is granted. It is further ORDERED that the disposition of the following motions are stayed pursuant to the general stay issued today: the State defendants’ motion for an order to show cause why the Sinkfield defendants should not be dismissed, filed November 10, 1997; the State defendants’ 19la motion for summary judgment, filed November 25, 1997; the Permanent Legislative Committee’s motion to inter- vene as defendants, filed November 7, 1997. ALBRITTON, District Judge, concurring. I write in concurrence to clarify my view of the limited nature of our action in this case, and to avoid future citation of our opinion as precedent for proposi- tions which are not intended. The Sinkfield defendants have asked the court throughout the course of this litigation to hold that a party who wishes to challenge the constitutionality of a state’s legislative apportionment or congressional dis- tricting must first take the case to a state court as a prerequisite to a federal action. In their proposed scheme, only when the state court fails to act expeditiously may the claim then be brought to federal court. While footnote 10 of the majority opinion correctly states that we do not reach this issue, I believe that the footnote, without more explanation, might lend more credence to the Sinkfield’s proposition than is due. I would only defer to an existing state court proceeding. I would not abstain because the Plaintiff had not first filed suit in state court. In Growe the Supreme Court said: In the reapportionment context, the Court has required federal judges to defer consideration of disputes involving redistricting where the state, through its legislative or judicial branch, has begun to address that highly political task itself. 192a Growe, 507 U.S. at 33, 113 S.Ct. at 1080 (emphasis in original). Deferring to the state’s legislature is quite different from requiring a party to first seek relief in a state court when there is no ongoing case. There is only one legisla- ture, and it has the primary responsibility for apportion- ment and districting.! Only in the absence of legislative action does the judicial branch come in, and then the question arises as to which state court will act.? Growe requires deferral only when the state “has begun to address” the issue. Deferral to the legislative 1 Of course. giving the legislature primary responsibility for districting is not required by any federal law or Constitutional provision. A state may choose another method. Indeed many states have chosen such a method in an attempt to depoliticize (as much as possible) the duty of districting. See Jeffrey C. Kubin, The Case for Redistricting Commissions, 75 Tex. L.Rev. 837 (1997) (discussing 17 states which have adopted redistricting commissions, and the various forms that those commissions may take). Apparently the idea of a redistricting commission is being considered in Alabama's neighboring state of Florida. See George L. Waas, The Process and Politics of Legislative Reapportionment and Redistricting under the Florida Constitution, 18 Nova L.Rev. 1001, 1034-35 (1994). 2 At least one state apparently uses a specialized three- judge court, similar to this three-judge court, when a court must redistrict or reapportion. See Growe, 507 U.S. at 28, 113 S.Ct. at 1077 (referencing fact that “Minnesota Supreme Court appointed a Special Redistricting Panel (composed of one appellate judge and two district judges) to preside over the case.”). A specialized court may avoid duplicative litigation at the state level, and could also avoid the resentment that sometimes arises when a judge elected by a single circuit's voters takes action which affects the entire state. 193a branch can be justified even if no proposed legislation is pending at the time, because of the legislature’s continu- ing duty in this area, and because of the legislature's freedom to act on any issue at any time. This is not so with the judicial branch, which generally cannot act unless someone first files the appropriate suit in some court. This makes Growe’s requirement of deferral to a branch of state government which “has begun” to address the issue highly significant when applied to the judicial branch. There is simply no way that the state judicial branch can be said to “ha[ve] begun” to act unless there is a pending case in a state court which has jurisdiction over the issue. This court's action in this case, therefore, should not be taken to suggest in any way that a person who wishes to raise a constitutional challenge to congressional and legislative districts must first file a new lawsuit in some state court. We have deferred to a state court which “has begun to address” the issue of the constitutionality of state legislative districts under the 1990 census. That is the issue which was before the state court, and that court has held that it retained jurisdiction of the case to enforce its judgment. 3 Florida state courts apparently dealt with the problem of multiple suits throughout the state by having the state supreme court retain jurisdiction. See In re Apportionment Law Appearing as Senate Joint Resolution 1 E, 1982 Special Apportionment Session; Constitutionality Vel Non, 414 So.2d 1040, 1052 (1982) (“we retain exclusive state jurisdiction to consider any and all future proceeding [sic] relating to the validity of this apportionment plan”). 194a The Plaintiffs argue that deferral is not appropriate in this case because it is the state court's redistricting plan itself that they challenge as being unconstitutional. There was no appeal from the state court in 1993 because there was a consent decree. The Plaintiffs say that the parties in state court consented to an unconstitutional plan and that they, as non-parties to the consent decree, should be able to challenge the plan now in federal court. I agree with the Plaintiffs that Growe does not pro- hibit this court from considering their challenge, and we have not held that it does. We have found it to be pru- dent, and in furtherance of the concept of federalism, however, to defer under the particular circumstances of this case. Those circumstances are that the state court adopted the challenged plan before the Supreme Court enunciated new legal principles to be applied in reappor- tionment cases, specifically in what has been referred to as “race-based” districting. See Abrams v. Johnson, ___ U.S. ___, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); and Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). This court determined that because of that, it would be preferable for the state court to have an opportunity to review its plan in light of the new Supreme Court decisions, with appellate review available in the Alabama Supreme Court, and possibly the Supreme Court of the United States. 195a The Rice Plaintiffs intervened in the state court, at our direction. They now say that we were without authority to direct that intervention. Be that as it may, no motion for reconsideration was filed here before the intervention, and the state court has acted. Since we are dismissing the claims of the Rice plaintiffs, they are free to seek appellate review of our decision to defer. The Thompson Plaintiffs are free to intervene in the state court case to seek determination there of the consti- tutionality of the plan as it relates to their districts, with appellate review available if necessary. If the state court is unable or unwilling to entertain their claims, or if the Alabama Supreme Court should hold in the Rice appeal that the Circuit Court of Montgomery County did not have jurisdiction over the Rice claims, then I would be prepared to let the case proceed in this court, subject, of . course, to consideration of pending motions and defenses, including the defense of laches. I wish to emphasize that it is only because (1) a state court has held that it has retained jurisdiction over the state legislative reapportionment plan based on the 1990 census, and (2) very substantial changes were made by the Supreme Court of the United States in the law gov- erning legislative reapportionment after that plan was adopted, that I agree to defer to the state trial court, with the possibility of appellate review of its decision. In the absence of either of those facts, | would have favored hearing the constitutional attack on the consent decree entered by the state court. I do not believe that this 196a court's decision should be viewed as going beyond that, and, therefore, I concur. - =-* 197a John RICE and Camilla L. Rice “-* Darryl SINKFIELD, et al. 1970449. Supreme Court of Alabama. Dec. 18, 1998. Rehearing Dismissed April 1, 1999. Mark G. Montiel and Kathleen A. Brown of Mark G. Montiel, P.C., Montgomery, for appellants» James U. Blacksher, Birmingham; Terry G. Davis, Montgomery; Solomon S. Seay, Jr., Montgomery; and Edward Still, Lawyers’ Committee for Civil Rights, Wash- ington, D.C., for appellee Darryl Sinkfield et al. Bill Pryor, atty. gen., and John J. Park, Jr., and Charles E. Grainger, Jr., asst. attys. gen., for appellee Secretary of State James Bennett. PER CURIAM. The plaintiffs, John Rice and Camilla L. Rice, appeal from the Montgomery Circuit Court’s order upholding a 1993 consent judgment that adopted the “Reed-Buskey” redistricting plan. The plan, which was approved as part of the redistricting process due to follow the 1990 census, created eight new majority-black House districts and three new majority-black Senate districts. The Alabama House of Representatives approved the plan, but the Senate did not. The plan was precleared by the justice Department and it is now in effect. Four years after the adoption of the Reed-Buskey plan, the Rices challenged the 1993 consent judgment on 198a constitutional grounds. They specifically argued that the legislative districts in which they live were created through racial gerrymandering and that the votes of white voters in those districts had been diluted. The plaintiffs’ request for modification of the 1993 consent judgment - which is based on the 1990 federal census — is moot because it would not affect future legis- lative elections. See City of Birmingham v. Southern Bell Tel. & Tel. Co., 234 Ala. 526, 529, 176 So. 301, 303 (1937) (” ‘[I]t is not within the province of appellate courts to decide abstract, hypothetical, or moot questions, disconnected from the granting of actual relief or from the determina- tion of which no practical relief can follow.’ ”) (quoting 4 C.J.S., Appeal and Error, § 40, pp. 117-18). The next legisla- tive election is scheduled for the year 2002. See Ala.Code 1975, § 17-2-3 (providing that state legislators will be elected every four years beginning in 1978). By that time, the report of the 2000 federal census is scheduled to be released, and we must assume that the Legislature will timely fulfil! its constitutional duty to redraw legislative districts based on that census. See 13 U.S.C. § 141(c) (1988) (providing that the Bureau of the Census should forward its decennial census results to the states not later than April 1, 2001); Ala. Const.1901, §§ 198 — 200 (provid- ing that the state Legislature will redraw election districts in the next session after the taking of each decennial census); Opinion of the Justices No. 269, 384 So.2d 1051, 1052 (Ala.1980) (stating that this Court must assume that the Legislature acts in a manner consistent with the Con- stitution) (citing Board of Revenue & Road Comm'rs v. Puck- ett, 227 Ala. 374, 149 So. 850 (1933)). Thus, we must conclude that the elections held in 2002 and subsequent 199a years will be governed not by the current consent judg- ment, but by a new districting plan that is based on the 2000 federal census. Because we must assume that any potential modification of the current consent judgment based on the 1990 census would not affect the outcome of the 2002 legislative election or any successive legislative election, we must conclude that an effort by this Court to render the relief sought by the plaintiffs would not be effective.! ' The Supreme Court of the United States has recognized several exceptions to the federal doctrine of mootness that are applicable to cases involving: (1) class actions where some members of the class still have a live case or controversy; (2) wrongs capable of repetition, yet evading review; (3) continuing collateral consequences to a party; and (4) voluntary cessation of injurious activity by a party who is free to resume it. See Sosna v. lowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (holding that mootness of the class representative's particular claim did not render the entire class action moot as long as other members of the class continued to have a live controversy); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) (holding that plaintiffs’ challenge to state election law was not moot, even after the challenged election was completed, because the plaintiffs could challenge the law with respect to future elections, so that the basis of their claim might be “capable of repetition, yet evading review”); Sibron v. New York, 392 U.S. 40, 53-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding that a challenge to the seizure of evidence, brought by defendants who had already completed their jail sentences, was not moot, because the defendants could still suffer adverse “collateral consequences” arising from their criminal records); United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (holding that the Government’s antitrust challenge to the defendant corporations’ practice of using interlocking boards of directors was not rendered moot by the defendants’ voluntarily ceasing the practice, because the 200a Therefore, this appeal is dismissed as moot. APPEAL DISMISSED AS MOOT. HOOPER, C.J., and MADDOX, HOUSTON, KEN- NEDY, COOK, SEE, and LYONS, JJ., concur. ALMON, J., concurs in the result. defendants were free to resume that practice at any time). The rationales underlying these exceptions are not applicable to this case. 201a Andrew D. THOMPSON, et al., Plaintiffs, v. Hal SMITH, etc., et al., Defendants. No. Civ.A. 97-A-715-E. United States District Court, M.D. Alabama, Eastern Division. July 2, 1999. David R. Boyd, Balch & Bingham, Montgomery, AL, for movant represented by Boyd. Stanley E. Graham, Waller, Lansden, Dortch & Davis, Nashville, TN, for defendant represented by Graham. Jeffrey G. Hunter, Montiel & Brown, P.C., Montgom- ery, AL, for plaintiff represented by Hunter. Jordan Dorman Walker, Jr., Balch & Bingham, Mont- gomery, AL, for movant represented by Walker. Before JOEL F. DUBINA, Circuit Judge, W. HAROLD ALBRITTON, Chief District Judge, and MYRON H. THOMPSON, District Judge. MEMORANDUM OPINION MYRON H. THOMPSON, District Judge. The question before this three-judge federal court, empaneled pursuant to 28 U.S.C.A. § 2284, is whether claims brought by a group of voters Who are challenging a state legislative districting plan are barred by an earlier final judgment in a state lawsuit in which two other voters challenged the same plan. For the reasons that 202a follow, we hold, on motions for summary judgment, that this federal lawsuit is barred in part only. I. SUMMARY-JUDGMENT STANDARD The summary-judgment standard applicable here almost needs no repeating. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the nonmoving party to demonstrate why summary judgment would be inap- propriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993}-(discussing how the responsibilities on the movant and the nonmovant vary.depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or nonmovant bears the burden of proof at trial). In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the nonmoving party. See _Matsushita Elec: *Tridus. Co. x, Zenith Radio Corp., 475 U.S. 57%, 587, 106 S.Ct. 1348, 1356, 89.L.Ed.2d 538 (1986). II. BACKGROUND This federal litigation has a long and complex history involving two lawsuits in different fora. The first is a state lawsujt in the Circuit Court of Montgomery County, 203a Alabama, that resulted in a consent judgment approving a redistricting plan for the Alabama House of Representa- tives and Senate.' The second is this federal lawsuit in which certain Alabama voters now seek to challenge the state-court redistricting plan on grounds of vote dilution, violation of the one-person-one-vote principle, and race- based gerrymandering. There are four groups involved in these cases. First, there are the Rice plaintiffs, two white persons who initi- ated the federal lawsuit.? Second, there are the Thompson plaintiffs, a group of white persons whom the Rice plain- tiffs later added to their complaint. Third, there are the state defendants one of whom was also a defendant in the state lawsuit. And, lastly, there are the Sinkfield parties, a group of African-Americans who were successful plain- tiffs in the state lawsuit and were later named as defen- dants in this federal suit.° The sequence of events leading up to the current dispute is as follows. 1 See Sinkfield. v. Camp, CV-93-689-PR, slip op. (Ala.Cir.Ct. Aug. 13, 1993). 2 The Rice plaintiffs are: John Rice and Camilla L. Rice. 3 The Thompson plaintiffs are: Andrew D. Thompson, Peggy C. Kelly, Gonzalo F. Montiel, Ann G. Hunter, Daniel P. Brown, W. Ricardo Montiel, Karen D. Outlaw, Kelly Brasher, and Bibb Gunter. 4 The state defendants are: Hal Smith, probate judge of Lee County, James Bennett, Secretary of State of Alabama, and the State of Alabama. The defendant in the state lawsuit was James Bennett, in his official capacity as Secretary of State of Alabama. 5 The Sinkfield parties are: Darryl Sinkfield, Quinton Ross, Bernest Brooks, Rubin McKinnon, and Andrew Hayden. 204a August 13, 1993: The state court entered a consent judgment between the Sinkfield parties and the Secretary of State of Alabama approving a redistricting plan for the Alabama legislature. May 2, 1997: The Rice plaintiffs filed this federal lawsuit challenging the state-court plan on the following three grounds: vote-dilution, violation of the one-person- one-vote principle, and race-based gerrymandering. August 14, 1997: This court, relying on Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), directed the Rice plaintiffs to intervene in the state law- suit. They did so on August 28, 1997. August 29 and September 9, 1997: After intervening in the state lawsuit, the Rice plaintiffs moved to amend their federal complaint to add the Thompson plaintiffs as parties. The Thompson plaintiffs (with the exception of Andrew D. Thompson) reside in different legislative dis- tricts from the Rice plaintiffs. In the amendments, the Thompson plaintiffs essentially adopted the Rice plain- tiffs’ claims of vote-dilution, violation of the one-person- one-vote principle, and race-based gerrymandering. October 15, 1997: This court granted the Rice plain- tiffs’ motions to amend, and the Thompson plaintiffs were added as parties. October 17, 1997: The state court invited the Thompson plaintiffs to intervene in the state-court action, but they refused. November 20, 1997: After hearing the merits, the state court dismissed the Rice plaintiffs’ claims. The state 205a court found that their one-person-one-vote and vote-dilu- tion claims lacked merit and that there was no evidence that race was a predominant factor in the redistricting process sufficient to support their race-based gerryman- dering claim. December 19, 1997: The Rice plaintiffs turned again to this federal court, and, in light of the state-court judg- ment, we dismissed their complaint without prejudice on the basis of res judicata and the Rooker-Feldman doc- trine.© See Rice v. Smith, 988 F.Supp. 1437, 1440 (M.D.Ala.1997) (three-judge court). Relying on Growe v Emison, we also stayed the Thompson plaintiffs’ claims in order to provide them with another opportunity to file their claims in state court. See id. at 1441. December 18, 1998: The Rice plaintiffs appealed the state-court decision, and, on this date, the Alabama Supreme Court dismissed their appeal as “moot.” Rice v. Sinkfield, 732 So.2d 993 (Ala.1998) (per curiam). The court reasoned that, because the “next legislative election is scheduled for the year 2002,” and because “[b]y that time, the report of the 2000 federal census is scheduled to be released, . . . the elections held in 2002 and subsequent years will be governed not by the current consent judg- ment, but by a new districting plan that is based on the 2000 federal census.” Id. © See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 1314-15, 75 L.Ed.2d 206 (1983). 206a January 27, 1999: This federal court required that the parties show cause as to why this federal lawsuit should not be dismissed in light of the decision of the Alabama Supreme Court. February 5, 1999: The Thompson plaintiffs responded by asking that this court proceed with their claims. April 30, 1999: This federal court treated as motions for summary judgment certain motions to dismiss and for judgment on the pleadings, filed earlier by the state defendants and the Sinkfield parties, and the court set the motions for briefing. These summary-judgment motions are now before us. Ill. DISCUSSION The motions for summary judgment present two issues: first, whether the Thompson plaintiffs should be barred from further pursuit of their claims in this federal court because they failed to take advantage of the oppor- tunity we gave them to pursue those claims in state court; and, second, whether the Thompson plaintiffs’ claims are barred by the state-court judgment based on the principle of res judicata. A. Deferral In the order entered December 19, 1997, relying on Growe v. Emison, we deferred to the on-going state law- suit, stayed our hand until the state court system had fully addressed the claims being pursued by the Rice plaintiffs, and suggested that, in the meantime, the 207a Thompson plaintiffs should seek intervention in that law- suit to present their claims. See Rice, 988 F.Supp. at 1440. The Thompson plaintiffs have now returned to this court, contending that, because the Alabama Supreme Court has held that it is too late to afford redress for the upcoming legislative elections, the Alabama courts are now closed to them and they should now be allowed to proceed in this court. The state defendants and the Sinkfield parties respond that the Thompson plaintiffs should be barred from further pursuit in this case because they failed to intervene in the state lawsuit. We agree with the Thompson plaintiffs. Admittedly, we earlier deferred to the state court because the state-court proceeding was still on-going and “the State court [was] willing or able to hear such claims.” Id. at 1440. However, this circumstance no longer obtains. As the Thompson plaintiffs correctly point out, the Alabama Supreme Court has held that their claims are moot, and, as a result, the Alabama courts are now essen- tially closed to them. With these changed circumstances, there is no longer a state proceeding to which to defer.” We also cannot accept the contention of the state defendants and the Sinkfield parties that the Thompson ” A closer reading of Growe v. Emison could lead to the conclusion that a federal court is required to defer to the state court's remedial efforts only, not to the state-court proceeding altogether. In this instance, of course, we deferred to the entire state-court proceeding. We need not resolve whether deferral should have been limited to the state court’s remedial efforts only. 208a plaintiffs, by not intervening in the state lawsuit, essen- tially defaulted on their claims in this court. The United States Supreme Court in Growe made clear that federal courts and state courts have concurrent jurisdiction to entertain challenges to redistricting plans and that, as a result, both courts are open to such claims. See 507 US. at 32, 113 S.Ct. at 1080. Growe stands only for the proposi- tion that the federal court must ‘defer’ to any state-court redistricting effort; it does not say that the federal court must dismiss its own proceedings. See id. at 32 n. 1, 113 S.Ct. at 1080 n. 1. Indeed, in Growe, the Supreme Court acknowledged that, after the state court had completed its proceeding, the federal court later rightfully took up the remaining claim under § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973, see 507 US. at 38-39, 113 S.Ct. at 1083; Growe did not require that the plaintiffs there pursue their § 2 claim in state court as well. Similarly, here, now that the Alabama courts have completed their involvement in the legislative redistrict- ing, this court can take up the Thompson plaintiffs’ claims — subject, of course, to any res judicata and other defenses that may follow from the state judgment. See id. at 35-36, 113 S.Ct. at 1082 (federal court, under principles of federalism and comity embodied in Full Faith and Credit Act, 28 U.S.C.A. § 1738, required to give “legal effect” to state redistricting judgment). B. Res Judicata We therefore now turn to the question whether the judgment obtained by the Rice plaintiffs in state court 209a bars the Thompson plaintiffs’ claims in this court. A federal court must give preclusive effect to state-court decisions “whenever the court of the State from which the judgment emerged would do so.” Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); see also Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 525, 106 S.Ct. 768, 772, 88 L.Ed.2d 877 (1986). The court must therefore look to Alabama law to determine whether an Alabama state court would give preclusive effect to the state-court decision. “Under Alabama law, the essential elements of res judicata are: ‘(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits.’ If all of these elements are met, any claim that was or could have been adjudicated in the previous action is precluded. If even one element of the four is not met, however, res judicata is not applicable.” N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990) (citations omitted).* Although the Alabama Supreme Court dismissed the appeal from the state-court judgment as moot, the first requirement, a prior judgment on the merits, is still met ® Res judicata is usually raised as an affirmative defense in the answer to a complaint. See Fed.R.Civ.P. 8(c). However, “{aJithough Rule 8(c) includes res judicata and collateral estoppel on the list of affirmative defenses that must be pleaded specifically by answer, these defenses may be raised for the first time on a motion for summary judgment.” Kachler v. Taylor, 849 F.Supp. 1503, 1515 (M.D.Ala.1994) (Thompson, J.). Here, the opportunity of raising either defense was unavailable until the state court had rendered its decision. 210a because the appellate court did not vacate the state-court judgment and thus that judgment is still valid. See, e.g., Gross v. QMS, Inc., 669 So.2d 839, 840 (Ala.1995); Masonry Arts, Inc. v. Mobile County Comm'n, 628 So.2d 334, 335 (Ala.1993); Arrington v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala.1982). It is also undisputed that the second requirement, a court of competent jurisdiction, is met. Therefore, the two remaining questions are whether there is a substantial identity of parties and whether the same causes of action were presented. 1. Identity of Parties Alabama law defines ‘identity of the parties’ broadly ~ as broadly as due process allows. See Century 21 Prefer- red Properties, Inc. v. Alabama Real Estate Comm'n, 401 So.2d 764, 770 (Ala.1981). The key inquiry is whether the interests of the party against whom res judicata is asserted were adequately represented by a party to the prior lawsuit. See id. When the party against whom res judicata is asserted was not itself a party to the prior lawsuit, however, the court must undertake a further inquiry to determine whether the application of res judi- cata would offend the due process guarantees of the fourteenth amendment to the United States Constitution. See Richards v. Jefferson County, 517 U.S. 793; 797 n. 4, 116 S.Ct. 1761, 1765 n. 4, 135 L.Ed.2d 76 (1996). There is little doubt that in state court the Rice plain- tiffs adequately represented the interests now asserted by the Thompson plaintiffs here. The Thompson plaintiffs did not enter this lawsuit as intervenors seeking to assert a separate interest in the subject matter of this law suit, 21la see Fed.R.Civ.P. 24 (intervention), but instead were joined as parties by amendment of the Rice plaintiffs’ complaint, see Fed.R.Civ.P. 15 (amendment), Fed.R.Civ.P. 20 (permis- sive joinder of parties). Together with the Rice plaintiffs, they sought to be designated as representatives of all non-black Alabama voters. The Rice plaintiffs sought the same designation in state court, and all of the Thompson plaintiffs are members of this putative class. The Thompson plaintiffs thus cannot be characterized as strangers to the state-court action and are more properly characterized as alter-egos of the Rice plaintiffs with identical or closely-aligned interests. Accordingly, we conclude that the Thompson plaintiffs were adequately represented in state court by the Rice plaintiffs. See Aero- jet-General Corp. v. Askew, 511 F.2d 710, 719 (Sth Cir.) (subsequent suit by a non-party may be precluded “if one of the parties to the suit is so closely aligned with [the non-party’s] interests as to be his virtual representative”), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). The court’s inquiry cannot end here, however, because the United States Supreme Court in Richards made clear that there is a due-process component to res judicata as well. In that case, the Supreme Court hel? that, as a matter of federal due process, prior taxpayer litigation challenging an occupation t — in Jefferson County, Alabama, could not bind a different group of Alabama taxpayers challenging the same tax even though the courts below had found adequate representation under Alabama law. The Court observed that the party against whom res judicata had been asserted had received no notice of the prior suit and had been given no 212a opportunity to be heard. See Richards, 517 U.S. at 799, 116 S.Ct. at 1766 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The Court further observed that the plaintiffs in the prior litigation did not purport to sue on behalf of a class, and the Court found no reason to suppose that the earlier court took care to protect the interests of the unrepre- sented parties. In other words, Richards suggests that some of the concerns that should inform a court in its due-process analysis include whether the plaintiffs in the prior litigation purported to sue on behalf of a class that includes the plaintiff against whom res judicata is asserted, whether there was “full and fair consideration of the common issue,” id. at 801, 116 S.Ct. at 1767, whether the non-party had been informed that the origi- nal lawsuit is pending, id. at 799, 116 S.Ct. at 1766; and whether the non-party could “choose for himself whether to appear or default, acquiesce or contest.” Id. This case, therefore, presents a situation entirely dif- ferent from that in Richards. The state court invited the Thompson plaintiffs to participate in the prior suit, and this court twice suggested that they do the same.? The Thompson plaintiffs thus had notice of the state litigation and were given ample opportunity to be heard. The Rice plaintiffs, moreover, expressly sought to represent a class that clearly includes the Thompson plaintiffs, and there is * This court also ordered the Rice plaintiffs to file with the court all pleadings and other documents they filed in the state- court action, together with all orders issued by the state court. See order entered September 23, 1997. The Thompson plaintiffs were thus kept fully abreast of the state-court proceeding. 213a every reason to conclude that the state court took care to protect the interests of non-party class members. The Thompson plaintiffs were fully aware of these class claims and yet did nothing. Under these circumstances, the court cannot conclude that it would offend due pro- cess to bind the Thompson plaintiffs to the prior litiga- tion, and we turn next to the issue of whether the same causes of actions were present. 2. Same Causes of Action To determine whether two lawsuits present the same causes of action, Alabama courts apply a test “that in certain respects is similar to, but which is not the same as, the ‘same transaction’ test” in the Restatement (Second) of Judgments. Equity Resources Management, Inc. v. Vinson, 723 So.2d 634, 637 (Ala.1998). Because there is no mathe- matically precise definition for when there is an identity of causes of action, the test for making such determina- tion has many formulations, but the principal inquiries are essentially two: (1) whether the claims ‘arise out of’ the same evidence, wrongful acts or disputes, see id. at 637, 638, or present the same issues (in particular, factual ones), see, e.g., Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 848 (Ala.1992); and (2) whether the claims would be subject to proof by the same evi- dence, Vinson, 723 So.2d at 637. Also probative, but not determinative, is “the identity [of] or differences in the forms of the two actions.” Id. at 638. 214a a. Vote-Dilution and One-Person-One-Vote Claims Upon their addition as parties to the case, the Thompson plaintiffs simply adopted the Rice plaintiffs’ one-person-one-vote and vote-dilution claims by refer- ence to the Rice plaintiffs’ complaint. Because the Rice plaintiffs repeated these claims verbatim in their state- court complaint, the Thompson plaintiffs’ one-person- One-vote and vote-dilution claims before this court are identical in form to the Rice plaintiffs’ one-person-one- vote and vote-dilution claims presented in state court The one-person-one-vote claims in both state and federal court allege that the state’s current redistricting plan violates the equal-protection principles articulated in Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964), in that the plan as a whole fails to establish population equality within constitutionally acceptable percentage variations. The claims in both cases arise out of the formation of the state’s current redistrict- ing plan, present identical issues of fact, and are subject to proof by the same plan-wide evidence of population disparities and other factors considered by the state court; in other words, the plaintiffs in both state and federal court would arguably prove their claim by show- ing that a district anywhere in the State exceeded the permissible relative variations in population size. The claims are therefore identical in substance and present the same causes of action for purposes of res judicata. The vote-dilution claims in state and federal court allege that the defendants intentionally underpopulated 215a the majority-black districts and overpopulated the major- ity-white districts in the current redistricting plan for the purpose of diluting white voting strength in violation of the equal protection clause of the fourteenth amendment. Like the one-person-one-vote claims, the vote-dilution claims in both cases arise out of the formation of the state’s current redistricting plan. The vote-dilution claims, however, would require proof of racial motiva- tion. The vote-dilution claims would nevertheless be sub- ject to the same proof in federal court as they were in state court and are identical in substance for purposes of res judicata; in other words, the plaintiffs in both state and federal court would arguably prove their claim by showing that a district any where in the State had been intentionally created with an underpopulated black majority so as to dilute white voting strength. b. Race-Based Gerrymandering Claim Each of the Thompson plaintiffs alleges that the House and Senate district in which he or she lives was racially gerrymandered in violation of the equal protec- tion clause of the fourteenth amendment. Only Andrew Thompson, however, challenges a district named in the Rice plaintiffs’ state-court complaint, and, in response to a motion by the state defendants, the state court expressly limited the Rice plaintiffs’ gerrymandering claim to the districts in which the Rice plaintiffs reside: House Districts 79 and 83 and Senate Districts 27 and 28. The other Thompson plaintiffs live in districts outside of 216a those addressed by the state court, and their gerryman- dering claims could not have been asserted by the Rice plaintiffs for lack of standing.?° Andrew Thompson claims that the State has adopted a plan which, on the basis of race, gerrymanders Senate District 28 and House District 82. Thompson thus raises the same issue as to his Senate district - whether Senate District 28 was racially gerrymandered - raised by the Rice plaintiffs in state court. The other Thompson plain- tiffs, by contrast, raise issues specific to the districts in which they live and which were not raised in the state- court proceeding, as does Thompson in regard to House District 82. Furthermore, the evidence that would be required to establish a race-based gerrymandering claim is neces- sarily district-specific. A plaintiff must show either (1) that the district in which he or she lives “has no rational explanation except as an effort to separate voters on the basis of race,” or (2) that, in redrawing the district, “the legislature subordinated traditional race-neutral district- ing principles, including but not limited to compactness, '© Voters entitled to pursue a gerrymandering claim are limited to those who reside within the racially gerrymandered district or those who can show by “specific evidence” that they suffer the “special harms” associated with “personally be[ing] subjected to a racial classification” under the redistricting plan. United States v. Hays, 515 U.S. 737, 744- 45, 115 S.Ct. 2431, 2436, 132 L.Ed.2d 635 (1995); see also Bush v. Vera, 517 U.S. 952, 957-58, 116 S.Ct. 1941, 1951, 135 L.Ed.2d 248 (1996) (plurality opinion). The district-specific nature of a gerrymandering claim is in contrast to the plan-wide nature of a vote-dilution or one- person-one-vote claim. 217a contiguity, and respect for political subdivisions or com- munities defined by actual shared interests, to racial con- siderations.” Miller v. Johnson, 515 U.S. 900, 903, 916, 115 S.Ct. 2475, 2482, 2488, 132 L.Ed.2d 762 (1995); see also Bush v. Vera, 517 U.S. 952, 959, 116 S.Ct. 1941, 1952, 135 L.Ed.2d 248 (1996); Shaw v. Reno, 509 U.S. 630, 644, 113 S.Ct. 2816, 2825, 125 L.Ed.2d 511 (1993). Different evidence would therefore be required to establish the Thompson plain- tiffs’ gerrymandering claims, save that of Andrew Thompson’s Senate claim, than was required in state court to prove the Rice plaintiffs’ claims. Although the state court did examine how the plan as a whole was drafted, it focused primarily on the manner in which the drafters drew House Districts 79 and 83 and Senate Districts 27 and 28. Indeed, there is little that Andrew Thompson could add to the evidence presented by the Rice plaintiffs on Senate District 28. As to House District 82 and for the other Thompson plaintiffs, though, the evidence presented in state court would largely not address their claim. The court must therefore conclude that only Andrew Thompson’s race-based gerrymandering claim for Senate District 28 presents the same cause of action presented by the Rice plaintiffs in state court. In conclusion, we hold that the motions for summary judgment filed by the state defendants and the Sinkfield parties should be granted as to the vote-dilution and one- person-one-vote claims of all the Thompson plaintiffs and as to Andrew Thompson's race-based gerrymandering challenge to Senate District 28, and otherwise denied. An appropriate order will be entered. 218a ORDER In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court that the motions for summary judg- ment filed by the state defendants on March 17, 1999 (Doc. no.129), and the Sinkfield parties on March 17, 1999 (Doc. no. 131), are granted to the extent that the following claims are dismissed: (1) the vote-dilution and one-per- son-one-vote claims of all the Thompson plaintiffs; and (2) plaintiff Andrew D. Thompson's race-based gerry- mandering challenge to Senate District 28. This case will Proceed as to all remaining claims and unaddressed defenses. 219a IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION ANDREW D. THOMPSON, et al., Plaintiffs, CIVIL ACTION NO. 97-A-715-E v. HAL SMITH, etc., et all., Defendants. Nm ee eee ee eee eee” Before EMMETT R. COX, Circuit Judge, W. HAROLD ALBRITTON, Chief District Judge, and MYRON H. THOMPSON, District Judge. THOMPSON, District Judge. OPINION (Filed Dec. 30, 1999) This three-judge court will now take up the motions for summary judgment with respect to plaintiff Peggy C. Kelley’s challenges to Alabama House District 88 (HD 88), filed by the state defendants! and by the Sinkfield defendants.? Kelley is one of a group of eight plaintiffs, all white Alabama voters, who filed this lawsuit to chal- lenge their state legislative voting districts on the grounds that the districts were racially gerrymandered in violation of the equal protection clause of the fourteenth 1 Filed October 13, 1999 (Doc. no. 205). 2 Filed October 25, 1999 (Doc. no. 219). 220a amendment. The plaintiffs named two groups of defen- dants: the state defendants, Alabama Secretary of State James Bennett and Lee County Probate Judge Hal Smith, both sued in their official capacities; and the Sinkfield defendants, a group of black voters who achieved the current legislative districting plan as part of a consent decree in a previous lawsuit which they filed in state court. Both groups of defendants moved for summary judg- ment in their favor as to Kelley’s claims regarding HD 88. We heard oral argument on the summary judgment motions on December 17, 1999, and entered an order granting summary judgment on HD 88 on December 20, 1999. We now give the reasons for that order. I. Rule 56(c) of the Federal Rules of Civil Procedure Provides that summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Where, as in this case, the non-moving party bears the burden of proof on an issue at trial, “the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or present ‘affirmative evidence dem- onstrating that the nonmoving party will be unable to Prove its case at trial.” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en 3 Entered December 20, 1999 (Doc. no. 288). 221a baiic)). Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why sum- mary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 223, 106 S.Ct. 2548, 2553 (1986). In making its determinetivn, the court must view all evi- dence and any factual inferences in the light most favor- able to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). Il. This case has a long and complex history, which we set forth at length in our opinion of July 2, 1999, reported at 52 F. Supp.2d 1364 (M.D. Ala. 1999), and which we will therefore not recount here. Rather, we shall focus our attention on the particular claims raised by Kelley with regard to HD 88. Kelley is a resident of HD 88, whose population is 79.59% white and 19.71% black. HD 88 comprises all of Autauga County and a small part of Elmore County, including all of the town of Prattville and part of Mill- brook. The part of Millbrook not included in HD 88 lies within House District 75 (HD 75). Kelley’s claim that HD 88 was racially gerryman- dered focuses to a large extent on the division of the town of Millbrook between HD 88 and HD 75. She argues that Millbrook and Prattville together constitute a community of interest, and therefore, under traditional districting principles, should have been placed in the same district. 222a The division of Millbrook, Kelley adds, does not contrib- ute to the compactness or contiguity of HD 88. Since the Millbrook /Prattville community was thus “needlessly” divided, Kelley concludes that the only possible reason for drawing HD 88 in this way is race. Both the state defendants and the Sinkfield defen- dants have moved for summary judgment on Kelley's claims against HD 88, arguing that Kelley has not pro- vided evidence to support essential elements of her claims. Il. The United States Supreme Court first recognized a cause of action under the equal protection clause of the fourteenth amendment for claims of racial gerrymander- ing in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816 (1993). Courts analyze these types of claims in two steps. First, a court determines whether to apply the strict scrutiny afforded to classifications based on race, by examining whether the challenged districting plan, “though race- neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts based on race.” Id. at 649, 113 S.Ct. at 2828. The Supreme Court further explained the require- ments for satisfaction of this element in Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 2488 (1995), stating that strict scrutiny should be applied only where race is the “predominant factor” in the drawing of district lines. Plaintiffs may prove that race was predominant through evidence that “the legislature subordinated traditional 223a race-neutral districting principles, including but not lim- ited to compactness, contiguity, respect for political sub- © divisions or communities defined by actual shared interests, to racial considerations.” Id. Once the court has determined that strict scrutiny is appropriate, it proceeds to the second step of Shaw analysis: consideration of whether the district lines were narrowly tailored to fur- ther a compelling state interest. Shaw, 509 U.S. at 658, 113 S.Ct. at 2832. The defendants in this case focus their arguments on the first element of Kelley’s Shaw claim. They contend that she has provided no evidence indicating that race was a factor in drawing the boundaries of HD 88, and that the district lines are therefore not subject to any equal protection analysis, much less strict scrutiny. To support this contention, the defendants point to evidence of the racial composition of HD 88 and its neighboring districts. Since Kelley argues that the division of Mill- brook between HD 88 and HD 75 demonstrates that race was the underlying motive of the legislature, the defen- dants have offered evidence to show that this division had no impact on the racial composition of either district. Both HD 88 and HD 75 are predominantly white: HD 88 is 79.59% white, and HD 75 is 78.26% white.* Demo- graphic evidence also indicates that Millbrook was not divided along racial lines. The part of Millbrook that lies within HD 88 is 75.80% white, and the part that lies 4 See State Defendants’ Memo, filed Oct. 13, 1999, at 9 (Doc. no. 206). 224a within HD 75 is 83.23% white.5 Where the evidence clearly demonstrates that the drawing of district lines did not have the effect of classifying individuals by race, or by any other impermissible category for that matter, the equal protection clause is not implicated. Despite the overwhelming evidence that the division of Millbrook had no racial effect, Kelley attempts to dem- onstrate that race was a motivating factor through the testimony of Dr. Joe Reed, one of the central negotiators of the current districting plan. Dr. Reed has openly stated that his role in this process was to represent the interests of black voters, and that his primary goal was to increase black representation in the Alabama legislature. How- ever, Kelley has produced no specific evidence that Dr. Reed had race-based motivations for drawing the line between HD 88 and HD 75. General evidence about Dr. Reed’s goals in drawing the state-wide districting plan as a whole is not sufficient to show that HD88 in particular was drawn for racial reasons. Finally, Kelley implies that the division of the town of Millbrook is unlawful because defendants have not proven that it was necessary. Kelley states in her brief that Millbrook was “needlessly divided” and that “[t]here was no one person-one vote necessity to divide Mill- brook, Alabama.”® However, whether the drawing of dis- trict lines was necessary to achieve one goal or another ® See Response of Plaintiff Kelley, filed Nov. 4, 1999, at 7-8 (Doc. no. 235). © Id. at 6-8. 225a has no bearing on Kelley's equal protection claim. Legis- lators may consider a wide variety of factors in drawing district lines, and they are at liberty to prioritize among these in whatever fashion they choose, so long as they do not rely primarily on an impermissible factor such as race. In cases such as this one, where the evidence dem- onstrates clearly that race played no role in the drawing of district lines, the State is by no means obliged to demonstrate that the choices it made were necessary to preserve communities of interest or to achieve any other constitutionally permissible goal. IV. For the above reasons, we concluded in our order of December 20, 1999, that summary judgment should be entered in favor of the defendants on Kelley’s claims regarding HD 88. 226a IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION ANDREW D. THOMPSON, et al., Paintiffs, CIVIL ACTION NO. 97-A-715-E v. HAL SMITH, etc., et al., Defendants. eee ee ee ee ee ee ee Before EMMETT R. COX, Circuit Judge, W. HAROLD ALBRITTON, Chief District Judge, and MYRON H. THOMPSON, District Judge. THOMPSON, District Judge. OPINION (Filed Jan. 3, 2000) This three-judge court will now tak up the motions for summary judgment with respect to plaintiff Andrew D. Thompson's challenges to Alabama House District 82 (HD 82), filed by the state defendants! and by the Sink- field defendants.2 Thompson is one of a group of eight plaintiffs, all white Alabama voters, whe filed this law- suit to challenge their state legislative voting districts on the grounds that the districts were racially gerryman- dered in violation of the equal protection clause of the fourteenth amendment. The plaintiffs named two groups ' Filed October 6, 1999 (Doc. no. 198). 2 Filed October 25, 1999 (Doc. no. 214) 227a of defendants: the state defendants, Alabama Secretary of State James Bennett and Lee County Probate Judge Hal Smith, both sued in their official capacities; and the Sink- field defendants, a group of black voters who achieved the current legislative districting plan as part of a consent decree in a previous lawsuit, which they filed in state court. Both groups of defendants moved for summary judg- ment in their favor as to Thompson’s claims regarding HD 82. We heard oral argument on the summary judg- ment motions on December 17, 1999, and entered an order granting summary judgment on HD 82 on Decem- ber 20, 1999.3 We now give the reasons for that order. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law.” Where, as in this case, the non-moving party bears the burden of proof on an issue at trial, “the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or present ‘affirmative evidence cem- onstrating that the nonmoving party will be unable to prove its case at trial.’” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)). Once the party seeking summary judgment has 3 Entered December 20, 1999 (Doc. no. 289). 228a informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why sum- mary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). In making its determination, the court must view all evi- dence and any factual inferences in the light most favor- able to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). Il. This case has a long and complex history, which we set forth at length in our opinion of July 2, 1999, reported at 52 F. Supp.2d 1364 (M.D. Ala. 1999), and which we will therefore not recount here. Rather, we shall focus our attention on the particular claims raised by Thompson with regard to HD 82. Andrew Thompson resides in Shorter, Alabama, a town in Macon County and in HD 82, which comprises all of Macon and Bullock Counties, as well as a small part of Lee County. Accord’ng to 1990 census figures, HD 82 is 79.73% black and 19.81% white. The total population of HD 82 is 38,257, including 24,928 Macon County resi- dents, 11,042 Bullock County residents, and 2,287 persons residing in Lee County. Because the Macon and Bullock County portions of HD 82 simply follow county borders, Thompson’s claim of racial gerrymandering focuses on the inclusion of a portion of Lee County in HD 82. His claim rests in large part on what he contends is the bizarre shape of this piece of Lee County, which one of plaintiff’s experts calls 229a “a robot-arm extension,” and describes as “appear[ing] to jump over Auburn to reach the northwest portion of Opelika.”* Because, according to Thompson, this area unnecessarily defeats both the compactness of HD 82 and the preservation of communities of interest in Lee County, he maintains that racial considerations are the only possible reason for drawing what he considers such a bizarrely shaped district. Both the state defendants and the Sinkfield defen- dants have moved for summary judgment on Thompson's claims against HD 82, arguing that Thompson has not provided evidence to support an essential element of his claim, and producing additional evidence to suggest that Thompson could not succeed in proving that HD 82 was impermissibly racially gerrymandered. Il. The United States Supreme Court first recognized a cause of action under the equal protection clause of the fourteenth amendment for claims of racial gerrymander- ing in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993). Courts analyze these types of claims in two steps. First, a court determines whether to apply the strict scrutiny afforded to classifications based on race, by examining whether the challenged districting plan, “though race- neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts based on race.” Id. at 649, 113 S. Ct. at * Plaintiffs’ Response in Opposition to State Defendants’ Motion, filed Oct. 28, 1999, at 9 (Doc. no. 225). 230a 2828. The Supreme Court further explained the require- ments for saticfaction of this element in Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 2488 (1995), stating that strict scrutiny should be applied only where race is the “predominant factor” in the drawing of district lines. Plaintiffs may prove that race was predominant through evidence that “the legislature subordinated traditional race-neutral districting principles, including but not lim- ited to compactness, contiguity, respect for political sub- divisions or communities defined by actual shared interests, to racial considerations.” Id. Once the court has determined that strict scrutiny is appropriate, it proceeds to the second step of Shaw analysis: consideration of whether the district lines were narrowly tailored to fur- ther a compelling state interest. Shaw, 509 U.S. at 658, 113 S. Ct. at 2832. The defendants in this case focus their arguments on the first element of Thompson’s Shaw claim. They con- tend that Thompson’s evidence does not support the conclusion that race was a factor in drawing the bound- aries of HD 82, and they have produced additional evi- dence demonstrating that race could not have been a predominant factor in the drawing of HD 82. The defen- dants therefore argue that HD 82’s boundaries are not subject to any equal protection analysis, much less strict scrutiny. We agree. First, the shape of HD 82, which forms the cor- nerstone of Thompson’s claim, is not bizarre enough to support on its own a conclusion of racial gerrymander- ing. The Supreme Court did state in Shaw v. Reno that “[ijn some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be 23la understood as anything other than an effort to ‘seg- regat[e] . . . voters’ on the basis of race.” 509 U.S. at 646-47, 113 S. Ct. at 2826. However, HD 82 is not such an exceptional case, especially as compared with the district challenged in. Shaw v. Reno, which passed through ten counties and “winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas,” 509 U.S. at 635, 113 S. Ct. at 2821, or with the Texas districts challenged in Bush v. Vera, one of which was described as having “many narrow corridors, wings, or fingers.” 517 U.S. 952, 973, 116 S. Ct. 1941, 1959 (1996). Though. the somewhat irregular shape of HD 82 can be considered by the court as evidence of the alleged racial gerrymander- ing, on its own it is not sufficient to create a genuine issue of fact and to defeat the motions for summary judgment. In addition to the evidence of HD 82’s shape, Thompson relies on evidence provided by two expert witnesses. Neither expert’s testimony supports Thompson's claim that HD 82 was racially gerryman- dered, however. The first expert, Dr. Ron W. Weber, makes several conclusory statements indicating that “race was a predominant factor” in the drawing of a long list of legislative districts in Alabama, but he does not provide any specific evidence suggesting that racial consider- ations predominated in the creation of HD 82 in particu- lar.> ‘ 5 Plaintiffs’ Response in Opposition to State Defendants’ Motion, filed Oct. 28, 1999, at 7 (Doc. no. 225). 232a Thompson’s second expert, Dr. William Stewart, is equally unhelpful to his claim. The main thrust of Stew- art’s report appears to be that HD 82 must have been racially gerrymandered in violation of the constitution, because no evidence suggests that its particular shape was otherwise necessary. However, whether the drawing of district lines was necessary to achieve one goal or another has no bearing on Thompson’s equal protection claim. Redistrictors may consider a wide variety of fac- tors in drawing district lines, and they are at liberty to prioritize among these in whatever fashion they choose, so long as they do not rely primarily on an impermissible factor such as race. In order to defeat a claim of racial gerrymandering, the State is by no means obliged to demonstrate that the choices made were necessary to preserve communities of interest or to achieve compact- ness or any other constitutionally permissible goal. Finally, Thompson attempts to demonstrate that race was a motivating factor in the drawing of HD 82 through the testimony of Dr. Joe Reed one of the central negotia- tors of the current districting plan. Dr. Reed has openly stated that his role in this process was to represent the interests of black voters, and that his primary goal was to increase black representation in the Alabama legislature. However, Thompson has produced no specific evidence that Dr. Reed had race-based motivations in drawing the boundaries of HD 82. General evidence about Dr. Reed’s goals in drawing the state-wide districting plan as a © Id. at 8-9 (“Towns, cities, and other definable communities of interest generally have been split unnecessarily and without any compelling justification for doing so.”) 233a whole is not sufficient to show that HD82 in particular was drawn for racial reasons. In addition to demonstrating that Thompson's evi- dence is insufficient to make out a cognizable claim of unconstitutional racial gerrymandering, the defendants have presented evidence demonstrating that race was not the predominant factor in drawing HD 82. First, defen- dants have shown that the inclusion of part of Lee county in HD 82 was necessary to achieve as close as possible to the ideal population in the district as a whole. The 1990 census indicated that the ideal population for an Alabama house district was 38,482; because only 35,970 people reside in Macon and Bullock Counties combined, the adopted plan added 2,287 people from Lee County to raise the total population of HD 82 to 38, 257.7 The defendants have also produced demographic evidence indicating that the race of those Lee county residents who were added to HD 82 did not significantly impact the racial composition of the district as a whole. Mason and Bullock Counties standing alone, without the part of Lee County that was added, are 81.53% black. With the addition of 2,287 Lee County residents, HD 82 is now 79 73% black; in other words, the addition of part of Lee County to HD 82 changed the black majority in the district by only 1.8%. Even more defeating to Thompson's claim is the fact that the effect of adding part of Lee County to HD 82 was to dilute rather than to strengthen the black population of HD 82. Though Thompson has 7 Memorandum in Support of Motion for Summary Judgment in Favor of State Defendants, filed Oct. 6, 1999, at 10 (Doc. No. 199). 234a never asserted the specific basis for his Shaw claim, we assume, since he resides in a majority-black district. that he believes HD 82 was gerrymandered to be predomi- nantly black. If his primary argument supporting this claim is that an ill-formed finger was carved out of Lee county and appended to his otherwise compact district, then his claim falls flat when the evidence shows that the finger actually made his district less rather than more predominantly black. Indeed, demographic evidence also demonstrates that, even if every one of the Lee County residents that was added on to HD 82 were white, the black majority in the district as a whole would only have been reduced by 3%* Any way that the State made up for Macon and Bullock Counties’ population deficit, HD 82 would still have been predominantly black. Thompson's claim that the addition of part of Lee county to HD 82 is evidence of racial gerrymandering therefore has no merit. IV. For the above reasons, we concluded in our order of December 20, 1999, that summary judgment should be entered in favor of the defendants on Thompson’s claims regarding HD 82. * Sinkfield Defendants’ Consolidated Brief, filed Oct. 25, 1999, at 6 (Doc. no. 223). 235a IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION ANDREW D. THOMPSON, ) et al., ) sil ) Plaintiffs, ) CIVIL ACTION NO. v. ) 97-A-715-E HAL SMITH, etc., et al., Defendants. ) Before EMMETT R. COX, Circuit Judge, W. HAROLD ALBRITTON, Chief District Judge, and MYRON H. THOMPSON, District Judge. ALBRITTON, Chief District Judge. MEMORANDUM OPINION (Filed Jan. 6, 2000) I. INTRODUCTION ~ This three judge court will now take up the motions for summary judgment with respect to Plaintiff Daniel Brown's challenges to Alabama House District 73 (HD73), filed by the state defendants! and by the Sinkfield defen- dants.2 Brown is one of a group of eight plaintiffs, all white Alabama voters, who filed this lawsuit to challenge their state legislative voting districts on the ground that the districts were racially gerrymandered in violation of 1 Filed October 25, 1999 (Doc. # 211). 2 Filed October 25, 1999 (Doc. # 217). 236a the equal protection clause of the fourteenth amendment. The plaintiffs named two groups of defendants: the state defendants, Alabama Secretary of State James Bennett and Lee County Probate Judge Hal Smith, both sued in their official capacities; and the Sinkfield defendants, a group of black voters who achieved the current legisla- tive districting plan as part of a consent decree in a previous lawsuit, which they filed in state court. Both groups of defendants moved for summary judg- ment in their favor as to Brown's claims regarding HD 73. We heard oral argument on the summary judgment motions on December 17, 1999. For the reasons discussed below, the motions are due to be GRANTED. —ao oseecen7* ewer © « Il. SUMMARY JUDGMENT STANDARD ~ Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine issue as to any. material fact and . . . the moving party is entitled to a judgment as a matter of law.” Where, as in this case, the non-moving party bears the burden of proof on an issue at trial, “the . moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or present ‘affirmative evidence dem- onstrating that the nonmoving party will be unable to prove its case at trial.” -Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)). Once the party seeking summary judgment has informed the court of the basis for its motion, the burden 237a shifts to the non-moving party to demonstrate why sum- mary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). In making its determination, the court must view all evi- dence and any factual inferences in the light most favor- able to the, nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Cow., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). Ill. FACTS This case has a long and complex history, which we set forth at length in our opinion of July 2, 1999, reported at 52 F. Supp.2d 1364 (M.D. Ala. 1999), and which we will therefore not recount here. Rather, we shall focus our attention on the particular claims raised by Brown with regard to HD 73. Daniel Brown resides at 3409 North Water Mill Road, in the Carriage Hill subdivision in the City of Montgom- ery, which is part of HD 73. House District 73 lies entirely within the city limits of Montgomery. According to 1990 census figures, HD 73 is 10.52% black and 88.15% white. The total population of HD 73 is 40,396. Brown's claim that HD 73 was racially gerryman- dered focuses primarily on the belief that the district is “too white.” See Brown Depo. at 14:14-17. According to Brown, the voting districts of Alabama should be racially integrated like the schools were integrated to better reflect the communities. See id. at 69:23-70:10. Both the state defendants and the Sinkfield defendants have moved for summary judgment on Brown’s claims against 238a HD 73, arguing that Brown has not provided evidence to support an essential element of his claim. IV. DISCUSSION The United States Supreme Court first recognized a cause of action under the equal protection clause of the fourteenth amendment for claims of racial gerrymander- ing in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993). Courts analyze these types of claims in two steps. First, a court determines whether to apply the strict scrutiny afforded to classifications based on race, by examining whether the challenged districting plan, “though race- neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts based on race.” Id. at 649, 113 S. Ct. at 2828. The Supreme Court further explained the require- ments for satisfaction of this element in Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 2488 (1995), stating that strict scrutiny should be applied only where race is the “predominant factor” in the drawing of district lines. Plaintiffs may prove that race was predominant through evidence that “the legislature subordinated traditional race-neutral districting principles, including but not lim- ited to compactness, contiguity, respect for political sub- divisions or communities defined by actual shared interests, to racial considerations.” Id. Once the court has determined that strict scrutiny is appropriate, it proceeds to the second step of Shaw analysis: consideration of whether the district lines were narrowly tailored to fur- ther a compelling state interest. Shaw, 509 U.S. at 658, 113 S. Ct. at 2832. 239a The defendants in this case focus their arguments on the first element of Brown's Shaw claim. They contend that Brown’s evidence does not support the conclusion that race was a factor in drawing the boundaries of HD 73. The defendants therefore argue that HD 73’s bound- aries are not subject to any equal protection analysis, much less strict scrutiny. We agree. First, Brown relies on the evidence provided by two expert witnesses to support his claim that HD 73 was racially gerrymandered.* Neither expert's testimony sup- ports Brown's claim that HD 73 was racially gerryman- dered, however. The first expert, Dr. Ron W. Weber, makes several conclusory statements indicating that “race was a predominant factor” in the drawing of a long list of legislative districts in Alabama, but he does not provide any specific evidence suggesting that racial consider- ations predominated in the creation of HD 73 in particu- lar.4 Brown's second expert, Dr. William Stewart. provides little support for Brown’s claim against HD 73. Dr. Stew- art points only to the fact that areas with a minority population of more than 65% were “shut out” of the district to support his theory that “[bJlacks appear to have been deliberately excluded from House District 3 See Corrected Thompson Plaintiffs’ Consolidated Response in Opposition to Sinkfield Defendants’ Motions for Summary Judgment and State Defendants’ Motions for Partial Summary Judgment filed on November 22, 1999, at 39 (Doc. # 248). * See Exh. E, at 17-18. 240a 73." Dr. Stewart does not specify specific “black” areas that were excluded from HD 73, nor does he address the implications that adding such people to the district would have on the total population of the district. HD 73 has a population of 40,936, 4.97% above the ideal popula- tion for a house district in Alabama. Adding additional people to the district may likely violate the one person, one vote requirements of the Constitution and may also undermine the traditional districting factor of compact- ness. Dr. Stewart only makes a generalized conclusion about the population of HD 73, without designating spe- cific areas that were excluded or discussing specific areas that could be removed from HD 73 if areas with higher black populations were added, to comport with the tradi- tional districting factors of compactness and keeping communities of interest together. Therefore, this report provides little specific support to Brown’s claim that HD 73 was gerrymandered. In addition to the expert reports, Brown makes two arguments regarding the population composition of his district. First, Brown argues that HD 73 is “too white.” See Brown Depo. at 14:16. He doesn’t believe that his district reflects his neighborhood, where he shops or where he goes to church. See id. at 14:22-15:8 & 25:16-18. Brown asserts that certain blocks of black voters were left out of his district, making the district more white. See id. at 25:20-22. * Stewart Report at 6. Exh. D to Plaintiffs’ Response in Opposition to State Defendants’ Motion for Summary Judgment Against Plaintiff Andrew D. Thompson, Jr., filed on October 28, 1999 (Doc. #225). 24la The defendants offer evidence to illustrate that the dividing lines of HD 73 under the Reed-Buskey Plan had little impact on the racial composition of HD 73. HD 73 was going to be a majority white district no matter how the lines were drawn using traditional districting princi- ples. For example, under the Pokey Plan, HD 73 was 88.14% majority white.© The Reed-Buskey Plan changed it to 88.15% white. Consequently, merely because HD 73 is “too white” does not illustrate that race was a predomi- nant factor in the drawing of the district. The Shaw majority has recognized that the “racial composition of a particular voting district, without more,” is not enough to support a claim for a violation of the equal protection clause of the fourteenth amendment. Hays, 515 U.S. at 746. Brown’s second population argument is that HD 73, and all other house districts for that matter, should be integrated like the school system was integrated. See Brown Depo. 69:2370:10. Brown believes that neither whites nor blacks can negotiate for districts. See id. at 74:17-75:17. Further, when asked who should construct the districts, Brown stated, “Somebody much smarter than us. Like the courts did in terms of integration and that kind of stuff like that.” See id. The Shaw majority specifically rejects this “integra- tion” argument, however. In Hays, the appellees urged the court to consider their district, “a ‘segregated’ voting 6 See Exh. 52 filed on December 15, 1999 (Doc. #283). Plaintiff’s counsel described the Pokey Plan at the Hearing held on December 17, 1999, as “the 1983 district with the 1990 census information.” Hearing Transcript, December 17, 1999, at 123:13. 242a district, and thus, that their position [was] no different from that of a student in a segregated school district.” Hays, 515 U.S. at 746. The Court found, however, that “an allegation to that effect does not allege a cognizable injury under the Fourteenth Amendment.” Id. Conse- quently, this court also rejects Brown’s “integration” argument. Finally, Brown attempts to demonstrate that race was a motivating factor in the drawing of HD73 through the testimony of Dr. Joe Reed, a central negotiator of the current plan. Dr. Reed has openly stated that his role in the districting process was to represent the interests of black voters, and that his primary goal was to increase black representation in the Alabama legislature. How- ever, Brown has produced no specific evidence that Dr. Reed had race-based motivations in drawing the bound- aries of HD 73. General evidence about Dr. Reed’s goals in drawing the state-wide districting plan as a whole is not sufficient to show that HD 73 in particular was drawn for racial reasons. In addition to their other evidence, the defendants have presented evidence that race was not the predomi- nant factor in drawing HD 73. First, defendants have produced evidence to show that HD 73 comports with the traditional factor of compactness. HD 73 is among the most compact districts in terms of perimeter and disper- sion. HD 73 is the fifth most compact district in terms of perimeter out of the 105 districts and it ranks 37th out of the 105 districts in terms of dispersion. The defendants have also presented evidence that HD 73 reflects incum- bent preferences. Perry Hooper, Jr. was the incumbent representative of HD73. Representative Hooper testified 243a in his deposition that he didn’t have any problem with the way his district was drawn under the Reed-Buskey plan and that “the lines virtually were very similar to the way they were in 1983.” See Hooper Depo. 30:14-15. Hooper asked Dr. Reed to keep his district similar to the way it was. See id. at 73:3-4. V. CONCLUSION For the above reasons, it is hereby ORDERED that summary judgment should be GRANTED in favor of the defendants on Brown's claims regarding HD 73. A sepa- rate order will be entered in accordance with this Mem- orandum Opinion. 244a Expert Witness Report Thompson et al. v. Smith, CA 97-A-715-E David A. Bositis October 8, 1999 INTRODUCTION. I have been asked by James Blacksher of Birmingham, Alabama (representing the Sinkfield parties) to examine the organization and activ- ities of the Alabama Democratic Conference, the New South Coalition, and the Jefferson County Citizens Coali- tion and to assess whether these organizations are func- tionally equivalent to political parties. Mr. Blacksher has provided me with copies of depositions from Joe Reed and Jerome Gray of the Alabama Democratic Conference, Richard Arrington of the Jefferson County Citizens Coali- tion, Henry Sanders of the Alabama New South Coali- tion, and John Rice, one of the plaintiff intervenors in the Sinkfield action. Mr. Blacksher also requested that in examining these organizations from the perspective of political parties that I also address issues of democracy and representation that are tied to political parties. I am a political scientist and long-time scholar of political parties and I have conducted research and pub- lished extensively in that area. I am also a nationally recognized scholar of black politics, and am presently senior political analyst at the Joint Center for Political and Economic Studies, a nonpartisan research institution in Washington, DC that specializes in black studies. Finally, I am also regarded as a voting rights scholar, and I have been an expert witness in two federal voting rights cases, Hays v. Louisiana and Johnson v. Mortham. 245a POLITICAL PARTIES AND DEMOCRACY. Political party theorists are in agreement that politi- cal parties and party competition are essential to democ- racy. In E.E. Schattschneider’s words “Political parties created democracy . . . modern democracy is unthinkable except in terms of parties”’ While there are several areas of disagreement among political party theorists, this per- spective (regarding parties and democracy) represents a consensus view. PARTY SYSTEMS. Political parties function within party systems. Party systems are based in durable patterns of interactions and conflict between social groups, and include at least two political parties as units which compete against each other in electoral and governing institutions and result in predictable consequences and behavior among party leaders. In terms of the state legislature, Alabama appears to have had what might be termed a modified one-party system at the time of the 1990s reapportionment. In 1992, 78.1 percent (82 of 105) of the members of the Alabama House were Democrats, and 80 percent (28 of 35) of the members of the Alabama State Senate were Democrats.? In consequence, much of the significant political conflict transpired within the Democratic party. Often in one- ! E.E. Schattschneider (1942) Party Government. New York: Farrah and Rinehart. 2 SOURCE: The National Conference of State Legislators. 246a party states, intra-party competition is based on factions. This was not the case in Alabama. Factions are shifting groups of competing elites who are not linked to popular followings. The competition that took place in the Ala- bama legislature and within the Alabama Democratic party was between functional political parties. The social groups’ (represented by the Alabama Democratic Confer- ence, the New South Coalition, and the Jefferson County Citizens’ Coalition’) politically salient interactions - including conflict - with the other ‘Democratic’ parties (as well as with the Republicans) in the legislature are part of a durable and long-term pattern. This pattern includes competition in elections and government, and is associated with generally predictable consequences among party leaders. Rather than a one-party system in the Alabama legislature, there was a situation more closely approximating a multi-party system. POLITICAL PARTIES. A political party exhibits a structure or organization; links leaders to a popular following, which includes gen- erating an in-group perspectives and having symbols of party identification among leaders and followers; and it 3 From the depositions of the leaders of these three organizations, it is clear that while functioning as political parties, they each do so within a circumscribed geographical area. The Alabama Democratic Conference is a statewide organization (save one county), The Jefferson County Citizens’ Coalition functions primarily in Jefferson County, and the Alabama New South Coalition functions in approximately 20 counties. 247a contests elections, and seeks offices and power in govern- ment*. In the American context, political parties are cadre parties as opposed to mass parties.5 Cadre parties have a relatively small leadership group (or cadre) and also usu- ally a somewhat larger - but still small - number of activists, who are usually volunteers. Near election time, the number of people active in party affairs swells, only to recede once the election is over. Mass political parties, typified by European Socialist parties, have large, rela- tively permanent (or long-term) memberships. Members pay dues, are given membership cards, and engage in party activities on a year-round basis. The two largest American parties, the Democratic party and the Republican party, have official party orga- nizations at the national, state, and local level. The rela- tionships between the different organizational levels are generally stratarchical,® that is, power is not completely top-down, as in a bureaucracy, but rather it is based on a reciprocal deference structure in which leaders at all levels act independently but also defer to each other. There are matters that occasionally, but rarely, arise where higher level organizations demand acquiescence from lower level organizations. * Baer, Denise L. and David A. Bositis (1994), Politics and Linkage in a Democratic Society. Englewood Cliffs, NJ: Prentice- Hall. 5 Maurice Duverger (1954), Political Parties. New York: John Wiley & Sons, Inc. © Samuel J. Eldersveld (1964), Political Parties: A Behavioral Analysis. Chicago: Rand McNally. 248a Political parties generally have a party charter and party rules. Party leaders are elected by party members - usually delegates at party conventions. Parties have a party platform, which identifies the party’s formal princi- pals and issue positions and does so in a public fashion. Parties have organizational meetings, including conven- tions, and if the party is organized at different levels (state, local), it usually has conventions and other meet- ings relevant to the different levels of the party. Parties generally have a permanent headquarters with staff and volunteers. Finally, parties engage in issue advocacy and they spend money on public communications and media in connection with that advocacy. As noted above, American parties are cadre style parties, and do not have mass membership. The voters who support a party at election time, but who otherwise do not participate in any party affairs are generally referred to as the party-in-the-electorate.? The vast majority of Americans do not participate in party affairs. How- ever, most Americans do identify with a political party. For most people, party identification is a subjective state, which is associated with certain in-group perspectives, and is likewise associated with an individual’s voting choices. : The relationship between a party and its followers in the electorate is based upon a number of factors. First, the party is widely recognized as representing the interests - and identifiers - of those groups associated with the ” V.O. Key (1964), Politics, Parties, and Pressure Groups. New York: Thomas Crowell. 249a party (e.g., the GOP and the Christian Coalition and the Democratic party and organized labor). The formal prin- ciples of the party are generally ones its followers sub- scribe to. Elected officials and candidates publicly identify themselves by the party label, and to a signifi- cant degree personify the party to followers (a role also played by the party’s chairman or chairwoman). Political parties communicate with their followers, especially with regard to their endorsements and candidate slate. Finally, the media reports on the activities and positions of politi- cal parties, including coverage of their conventions and candidates. As noted above, parties contest elections, and seek offices and power in government. In order to contest (and win) elections, parties raise and spend money on elec- tion-related (and organizational) activities, including GOTV (get out the vote) efforts. When possible, political parties use the reapportionment process to gain electoral, and hence political, advantage; district lines can be drawn that distribute likely supporters - and opponents - in such a way as to enhance a party’s chances of electoral success, i.e., gerrymandering. Parties also train their cam- paign workers, including candidates, volunteers, and poll watchers. And, of course, parties slate and endorse candi- dates. Parties not only recruit and support candidates, but also candidates generally seek the endorsement of the party. 250a In order to influence (seek power) government, parties generally have party organizations in legislative bodies*® (e.g., the Democratic Caucus or the Republican Confer- ence). Parties usually have a party ‘program’ in the legis- lature (however specific or general) for which it lobbies support (e.g., the Contract with America). The legislative program is connected to the party’s principles and public program. As part of this process, parties occasionally have to enforce party discipline in order to facilitate the enactment of their party program. The nature of this party discipline varies, but often includes withholding resources, withdrawing endorsements, recruiting and supporting opponents at election time, denying favorable committee assignments, and in extreme cases, removing members from favored committees (e.g., Democrats in the U.S. House tossed U.S. Senator (then Representative) Phil Gramm (TX) off the House Budget Committee). In sum, the overall democratic process has freely associating citizens organized as a political party with the intention of contesting elections and seeking power. The principles and objectives of the party are what attracts support from the party-in-the-electorate, and once elected, the party seeks to implement its objectives in the best way possible, including contesting elections and formu- lating a legislative agenda. Thus, political party organiza- tions represent the representational linkage between followers, whose principal political activity is voting, and * In American political party literature, this is referred to as the party-in-office, a term coined by V.O. Key [see note 7]. 25la legislators (and other public officials) who pass legisla- tion and raise and spend money as part of the govern- mental roles. THE ALABAMA DEMOCRATIC CONFERENCE. Based upon the criteria outlined above, and reading the depositions of Joe Reed and Jerome Gray of the Alabama Democratic Conference (ADC), I concluded that the Alabama Democratic Conference is a functioning political party - in all but name only - at the state and local level in Alabama. | will review the activities and organization of the ADC based upon the depositions. The ADC is a cadre style organization with a signifi- cant membership, but by no means is it a mass member- ship party. There are both members and volunteers in the ADC. The organization of the ADC, like the two major parties, is stratarchical with respect to the component organizations in the ADC. According to the depositions, there is a state committee, county-level committees (which predominate), and local committees in the ADC. In making endorsements, members from relevant juris- dictions, ¢.g., counties, have the principal voice in deter- mining who the ADC endorses for county-wide office. A committee of the statewide organization makes similar decisions regarding statewide candidates and issues. The ADC has a formal charter and party rules and by-laws. Officers are elected by the membership. The ADC has a formal statement of principles, and publicly takes positions on a variety of political issues. The ADC holds regular organizational meetings at both the state FS ee 252a and county level, including conventions twice a year. The ADC has a permanent headquarters with paid staff as well as numerous volunteers. Finally, the ADC engages in on-going issue advocacy with regard to its primary agenda which is aimed at improving the lives of the black citizens of Alabama. While the membership of the ADC is comparatively small, as indicated above, the ADC - like other American political parties - is a cadre style party. While the ADC does not have a large membership (relative to the electo- rate or to the black electorate), a large proportion of black voters in Alabama identify with the ADC, just as some white citizens identify with the Republican party. These citizens - mostly black - view the ADC as representing their interests in Alabama politics. They (the black identi- fiers with the ADC) generally favor the party’s principles and issue positions. They are aware of the ADC and its program through the communication and outreach efforts of the ADC itself, but also through the mass media, which publicizes the ADC; the media coverage reflects a recog- nition of the ADC’s relationship with a substantial por- tion of the black electorate in Alabama. There are black members of the state legislature and other black officeholders in Alabama who publicly iden- tify themselves as ADC members and supporters, and this influences ADC identifiers’ vote choices. Probably two of the most prominent public symbols of the ADC are its chairman, Joe Reed, and its yellow sample ballot. Candidates for public office, white and black, appear before ADC screening committees, to seek the endorse- ment of the ADC for their election races. Those candi- dates ~ again black and white - who receive the ADC’s 253a endorsement generally receive the support of the ADC’s identifiers. The ADC as a party, operates within the larger Dem- ocratic party, and thus does not have a separate ballot line such as third parties like the Libertarian Party or the Reform Party. The ADC only endorses Democratic candi- dates. It has not become a formal third party because the ADC does not believe that the isolation of Alabama’s black citizens, who are in the minority, would achieve the goals of the ADC. By working with white Democrats (and others) and engaging in the give-and-take and compro- mise of everyday politics within the Democratic party, the ADC seeks equity for * labama’s black citizens. However, it remains an independent organization by raising its own money, selecting and supporting its own slate in the Democratic primaries, formulating its own agenda, and endorsing — or fauing to endorse - Democratic nominees in the general election. Independent parties frequently endorse the nominees of other (in the U.S., the Democrats and Republicans) parties. The Reform party (associated with H. Ross Perot) and the Liberal and Conservative parties in New York and New Jersey, often endorse Dem- ocratic and Republican candidates if they believe their endorsements would further their party’s interests. One of the ADC’s principal goals in contesting elec- tions is to get more black candidates nominated and elected to office, and to get sympathetic [with the ADC’s goals] white Democrats nominated and elected. In order to achieve this goal, the ADC raises money and engages in a variety of election related activities. Like other politi- cal parties, the ADC has attempted to use the reappor- tionment process to distribute (in legislative districts) 254a their likely supporters - and opponents - to their advan- tage (see Reed deposition). The ADC trains volunteers and members to engage in a variety of electoral activities, including running for office, communicating with voters, and poll watching. The ADC has a major GOTV effort every election cycle. Depending on the circumstances, the ADC both encourages and discourages black candidates to seek office. Part of the long-term election activities of the ADC is to research the vote of ADC supporters (iden- tifiers), and to communicate that knowledge to those considering running for office. There are a number of members of the legislative black caucus in the Alabama legislature who are ADC supporters, and these members frequently meet with the ADC. At the ADC’s last convention, there were several black legislators in attendance. Each legislative session, the ADC has a number of items comprising its agenda, and the ADC leadership lobbies the legislature - both black and white members - to obtain support for that agenda. This is a process that often involves compromis- ing and ‘horse trading’, but occasionally it requires the ADC to ‘enforce party discipline’. In the past, when legis- lators have received endorsement and other support from the ADC, and once elected, break their commitments to the ADC or immediately lose their interest in the ADC agenda, the ADC has withdrawn their endorsements, encouraged opposition candidates in the primaries, and otherwise sought to ‘punish’ the errant legislator. * In his deposition, Jerome Gray discussed the ADC’s knowledge (and research) of where its electoral supporters, and opponents, were located. 255a In conclusion, the ADC functions much as a political party functions. There is a cadre style party organization at the state, county, and local level. There is a formalized party structure with rules and regular procedures, and well articulated principles. The ADC serves as a link between its identifiers in the electorate and the state government, with its political leverage based upon the support of its identifiers in the election process. THE JEFFERSON COUNTY CITIZENS COALITION. Again, based upon the criteria outlined above, and reading the deposition of Richard Arrington of the Jeffer- son County Citizens Coalition (JCCC), I concluded that within the context of Jefferson County, the JCCC is a functioning political party. I will review the activities and organization of the JCCC based upon the deposition. The JCCC is a cadre style organization with a com- paratively small membership, and not a mass member- ship party. There are both members and volunteers in the JCCC. The organization of the JCCC, is unlike the two major parties and the ADC, since it is primarily based in Jefferson County, and hence does not require different levels of organization. According to ex-Mayor Arrington’s deposition, there are different committees in the JCCC which deal with various issues and activities. The JCCC has a formal charter! and party rules and by-laws. Officers are elected by the membership. The JCCC has a formal statement of principles, and publicly 1° See deposition of Richard Arrington. 256a takes positions on a variety of political issues. The jcece holds regular organizational meetings. The JCCC has a permanent headquarters with a small staff. At different times in the past, the JCCC has had paid staff, and at others none. Finally, the JCCC engages in on-going issue advocacy with regard to its primary agenda which is largely aimed at improving the lives of the black citizens of Jefferson County. While the membershi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0409%3A4. Public record. Not legal advice.