Hall v. Virginia

276 F.Supp.2d 528

Joan HALL, et al., Plaintiffs, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

No. CIV.A.2:03 CV 151.

United States District Court, E.D. Virginia, Norfolk Division.

August 7, 2003.

J. Gerald Hebert, Esq., J. Gerald Hebert, P.C., Alexandria, Donald Lee Morgan, Esq., Melissa Marie Johns, Esq., Chandra Walker Holloway, Esq., Tamara Schmidt, Esq., Cleary Gottleib Steen & Hamilton, Washington, DC, Anita Sue Hodgkiss, Esq., UNC School of Law, Van Hecke-Wettach Hall, Chapel Hill, NC, for Plaintiffs.

Edward Meade Macon, Esq., Assistant Attorney General, Office of the Attorney General, Francis Snead Ferguson, Esq., Paul Michael Thompson, Esq., James Christian Stuchell, Esq., Judith W. Jagdmann, Esq., Richmond, Michael A. Garvin, Esq., Cooper Garvin & Rosenthal, Louis Karl Fisher, Esq., Cody Ryan Smith, Jones Day, Washington, DC, for Defendants.

ORDER

MORGAN, District Judge.

This matter comes before the Court on three different motions to dismiss, filed by the Commonwealth of Virginia, et al. (document no. 11), by Virginia Attorney General Jerry W. Kilgore (document no. 29), and by Gary Thompson, et al. (document no. 32). The Plaintiffs bring a vote dilution claim under § 2 of the Voting Rights Act of 1965, as amended, see 42 U.S.C. § 1973, challenging the recently redrawn boundaries of the Virginia Fourth Congressional District. The motions require the Court to decide whether § 2 of the Act obliges the Commonwealth to adjust the boundaries for the Virginia Fourth Congressional District even though the protected group represented by the Plaintiffs would not constitute a majority in the reconfigured district. The motions are fully briefed.¹ At a hearing conducted on July 22, 2003, the Court took the motions under advisement. Having concluded that § 2 of the Voting Rights Act affords no vote dilution claim in these circumstances, the Court hereby GRANTS each of the three Defendants' motions to dismiss.

PROCEDURAL AND FACTUAL HISTORY²

The Plaintiffs filed this action on February 21, 2003. The action arises out of a redrawing of the boundaries for the Fourth Congressional District that was put in effect in July 2001, when the then Governor, a Republican, signed a new Congressional district plan into law. See Complaint ¶ 1. The plan is codified at Va.Code § 24.2-302.1 and will be referred to in this Order as the "2001 Redistricting Plan".

The Plaintiffs are nine black citizens who either reside in the newly drawn Fourth District or who formerly resided in the District but now find themselves outside the District as a result of the boundary change that went into effect in 2001. See Complaint ¶¶ 7-14. Defendant Commonwealth of Virginia is headed by the present Governor, a Democrat. Another Defendant, the Secretary of the State Board of Elections, was appointed to her post by the present Governor. See Complaint ¶¶ 15-16. Defendant Kilgore and the Thompson, et al., Defendants, entered the case via intervention. See Order entered on June 17, 2003 (document no. 28) (Kilgore) & Order entered on July 9, 2003 (document no. 38) (Thompson, et al.).

Because the Commonwealth is subject to § 5 of the Voting Rights Act of 1965, the newly enacted law was submitted to the United States Department of Justice for "preclearance." See Complaint ¶ 36. To obtain preclearance under § 5, a covered jurisdiction must establish that its proposed redistricting plan "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973(c). On October 16, 2001, finding that the Commonwealth had established that the 2001 Redistricting Plan had neither the purpose nor the effect of denying or abridging the right to vote because of race, the Department of Justice precleared the redistricting plan. See Complaint ¶ 37.

Blacks currently comprise 33.6% of the Fourth District's total population, whereas, in the District as previously drawn, blacks comprised 39.4% of the total population.³ See Complaint ¶ 17. When the District lines were redrawn pursuant to the 2001 Redistricting Plan a number of black residents were shifted out of the Fourth District and into the Third and the Fifth Districts. See Complaint ¶ 20. The Third District is a black majority District, where blacks comprise 54% of the total population. See Complaint ¶ 26. The Plaintiffs' chief concern is the displacement of blacks out of the Fourth District and into the Third District and Fifth Districts. Because the Third District is a black majority district the Plaintiffs allege that the 2001 Redistricting Plan unnecessarily "packs" blacks into the Third District, see Complaint ¶ 39, and dilutes the voting strength of blacks in the Fourth District, see id.; see also Complaint ¶ 20. Both in the Complaint and at the hearing, Plaintiffs confirmed that their goal is to restore the black total population in the Fourth District to approximately 40%. See Complaint ¶ 25; Transcript at page 21, lines 12-14 (document no. 43). The Plaintiffs do not seek to establish a black majority in District Four.⁴

Plaintiffs' Counsel at the hearing suggested that the black total population in the Fourth District can be built up to approximately 40% by redrawing the boundary line that separates the Third and the Fifth Districts from the Fourth District. This would shift blacks out of the Third and Fifth Districts, and into the Fourth District. Under this approach, the increase in black representation in the Fourth District comes at the expense of the Third and Fifth Districts. See Transcript at page 22, lines 13-17 (document no. 43). The Plaintiffs do not allege that the Third District would remain a black majority district should their plan be adopted. Given the mathematics involved, it appears that adoption of the Plaintiffs' plan would eliminate the black majority that presently exists in the Third District. However, the Court need not make a finding on this issue given the relief sought by the Plaintiffs. Even so, the Plaintiffs argue that elimination of their majority in the Third District is of no concern because a non-majority black population in the Third District would retain the ability to elect the candidate of their choice. See Complaint ¶ 26.

STANDARD OF REVIEW

The function of a motion to dismiss is to test the sufficiency of a complaint; importantly it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (internal citation and quotation marks omitted). In ruling on a Rule 12(b)(6) motion, a Court should keep in mind that as a matter of general course it is a "disfavored motion." Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462 (4th Cir. 1991). A motion to dismiss under Rule 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Martin Marietta Corp. v. International Telecommunications Satellite Org., 991 F.2d 94, 97 (4th Cir.1992). During the process of considering a motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the non-moving party and take that party's allegations as true. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court primarily relies on the allegations in the complaint during a 12(b)(6) ruling, but may also consider documents attached to the complaint and incorporated by reference. Simons v. Montgomery County Police Officers, 762 F.2d 30, 31-32 (4th Cir.1985). Simons documents may be copies of case law, undisputed contracts or public documents, such as those used to establish ownership or proper zoning. See id.; see also Norfolk Federation of Business Districts v. Department of Housing and Urban Development, 932 F.Supp. 730, 736-37 (E.D.Va.1996).

ANALYSIS

The Plaintiffs' contention is that, even though blacks did not constitute a majority in the Fourth District prior to the time when the 2001 Redistricting Plan was implemented, the 5.8% reduction in the total black population in that district brought about by the 2001 Redistricting Plan violates § 2 because it impermissibly dilutes the black vote. The Commonwealth argues that seven of the nine Plaintiffs lack standing. All three Defendants argue that the Plaintiffs fail to state a claim.

A. Standing

The Commonwealth argues that only those Plaintiffs who reside within the Fourth District (as redrawn by the 2001 Redistricting Plan) have standing. U.S. v. Hays, 515 U.S. 737, 744-45, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (a racial gerrymander case). The Commonwealth concedes standing as to the two Plaintiffs who reside within the Fourth District. See Transcript at page 4, lines 3-4 & page 41, line 25 to page 42, line 1 (document no. 43).

Though not precisely on point, the Court is persuaded by the principle established in Hays. The Plaintiffs who reside outside of the Fourth District do not suffer the same type of harm as those who reside within, and such non-resident Plaintiffs therefore assert "only a generalized grievance against governmental conduct of which he or she does not approve." Hays, 515 U.S. at 745, 115 S.Ct. 2431. Additionally, the harm asserted by the non-resident Plaintiffs is not necessarily redressed by the relief sought from the Court as those Plaintiffs have no guarantee that they will find themselves back inside the Fourth District should the Plaintiffs prevail on the merits. The Supreme Court has repeatedly found that plaintiffs who reside outside a district lack standing to challenge that district on voting rights grounds. See Sinkfield v. Kelley, 531 U.S. 28, 30, 121 S.Ct. 446, 148 L.Ed.2d 329 (2000); Bush v. Vera, ...