Page v. Raimondo

1

JOHN H. PAGE, Plaintiff, v. GINA M. RAIMONDO, Defendant.

No. 1:22-cv-01416 (ACR)

United States District Court, District of Columbia

July 23, 2024

MEMORANDUM OPINION AND ORDER

ANA C REYES, UNITED STATES DISTRICT JUDGE.

Plaintiff John H. Page, a D.C. resident proceeding pro se hopes to vote in congressional elections but acknowledges that the District of Columbia has no right to any representation in the U.S. House of Representatives. To get around this difficulty, he seeks an order compelling Defendant Gina M. Raimondo, the U.S. Secretary of Commerce to list the population of “Columbia” in the census data she reports to the President for use in apportioning congressional seats. What is Columbia? According to Plaintiff, Columbia is a fifty-first state coextensive with the District that Congress admitted to the Union in 1801. Alternatively, if the Court declines to find that a state has existed for over 200 years without anyone noticing, Plaintiff asks the Court to authorize him and other D.C. residents to vote in House elections in Maryland.

Plaintiff's plea for representation raises weighty questions of fairness and democratic legitimacy. But those policy questions are beyond the Court's jurisdiction. And, given Plaintiff's wholly insubstantial legal arguments, so too is this case, which the Court dismisses without prejudice.^[1]

I. BACKGROUND

A. Legal and Historical Background

The Constitution's District Clause-Article I, section 8, clause 17-authorizes Congress “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.” U.S. Const. art. I, § 8, cl. 17. This District-the modern District of Columbia-now comprises territory ceded by Maryland shortly after the Founding. See Adams v. Clinton, 90 F.Supp.2d 35, 51-53, 57-58 (D.D.C.) (three-judge panel) (per curiam), aff'd mem. sub nom. Alexander v. Mineta, 531 U.S. 940 (2000), and aff'd mem. 531 U.S. 941 (2000). It formerly also included areas ceded by Virginia, but Congress retroceded those areas to the state in 1846. Id. at 53. The District, whose residents now number about 690,000, District of Columbia: 2020 Census, U.S. Census Bureau (Aug. 25, 2021), https://www.census.gov/library/ stories/state-by-state/district-of-columbia-population-change-between-census-decade.html [https://perma.cc/5FYL-DSS4], has never had representation in Congress.^[2] See, e.g., Adams, 90 F.Supp.2d at 53.

Litigants have repeatedly challenged this disenfranchisement in court. A few such cases foreshadow some of Plaintiff's arguments and so are particularly relevant here. In 1964, an unsuccessful candidate for U.S. Senate in Maryland-apparently seeking to mix up the voter pool-sought a declaratory judgment that D.C. residents have a constitutional right to vote in U.S. Senate elections in Maryland. Albaugh v. Tawes, 233 F.Supp. 576, 576 (D. Md.) (three-judge panel) (per curiam), aff'd, 379 U.S. 27 (1964) (per curiam). A three-judge district court dismissed the suit for failure to state a claim, Albaugh, 233 F.Supp. at 578, and the Supreme Court summarily affirmed,^[3] Albaugh, 379 U.S. at 27. In 2000, in Adams, a collection of D.C. residents and the District itself “challenge[d] as unconstitutional the denial of their right to elect representatives to the Congress of the United States.” 90 F.Supp.2d at 37. Concluding that Article I restricts representation in the House to “true states and not the District,” the three-judge district court dismissed their claims, id. at 48, and again the Supreme Court summarily affirmed, Adams, 531 U.S. at 941; Alexander, 531 U.S. at 940. Finally, another collection of D.C. voters asserted that the District's lack of congressional suffrage violates an assortment of constitutional provisions in Castanon v. United States, 444 F.Supp.3d 118 (D.D.C. 2020) (three-judge panel), aff'd mem., 142 S.Ct. 56 (2021). See id. at 122. The lower court dismissed that case, too, id. at 149, and once more the Supreme Court summarily affirmed, 142 S.Ct. at 56.

B. Plaintiff's Litigation Campaign

Plaintiff-a D.C. resident and taxpayer, Dkt. 22 (Am. Compl.) ¶ 38-is no stranger to litigation about D.C. voting rights. His first foray into the field was a pro se amicus brief before the district court in Castanon. See Memorandum of Law of Amicus Curiae John H. Page in Support of Plaintiffs in Part and in Support of Defendants in Part, Castanon, 444 F.Supp.3d 118 (No. 18-cv-2545). Perhaps surprisingly, his brief sided with the defendants, albeit on technical grounds: consistent with his arguments here, Plaintiff asserted that the Castanon plaintiffs should have sought congressional representation through the purported State of Columbia (which, recall, Plaintiff contends is geographically coextensive with the District), rather than the District itself. Id. at 4.

Plaintiff struck out on his own in Page v. Biden (Page I), No. 20-cv-104, 2021 WL 311002 (D.D.C. Jan. 29, 2021), aff'd, No. 21-5038, 2021 WL 4767945 (D.C. Cir. Oct. 1, 2021) (per curiam). Again previewing the theory on which he relies here, Plaintiff “[a]lleg[ed] that there is already a state-the State of Columbia-that overlaps geographically with the District,” and sought “an injunction requiring [President Joseph R. Biden Jr.] to include Columbia's residents in the congressional apportionment calculation following the decennial census.” Id. at *1. Concluding that it lacked jurisdiction to enter the requested injunction against the President, the court dismissed the case without prejudice, id., and the D.C. Circuit affirmed, 2021 WL 4767945, at *1.

Undaunted, Plaintiff filed this case against both President Biden and Secretary Raimondo-who is responsible for submitting to the President the census data used in apportioning House seats among the states, see 13 U.S.C. § 141(b)-in May 2022, invoking the same state-within-the-District theory he presented in Page I. Dkt. 1. In an August 2023 Minute Order, the Court dismissed the claims against President Biden for the reasons stated in Page I and invited Plaintiff to file an amended pleading clarifying the relief he seeks from Secretary Raimondo. Min. Order of Aug. 10, 2023. Plaintiff then filed the operative Amended Complaint against only Secretary Raimondo. Am. Compl. He seeks a declaratory judgment recognizing the existence of the State of Columbia and requiring Defendant to submit amended census apportionment data that includes Columbia as a state. Am. Compl. ¶ 48. Alternatively, he requests an order permitting him and other D.C. residents to vote in House elections in Maryland. Id. ¶¶ 49-50. Defendant has moved to dismiss the Amended Complaint. Dkt. 23 (Mot.).

II. LEGAL STANDARD

A district court ordinarily must refer a case, like this one, that “challenges the constitutionality of the apportionment of congressional districts” to a three-judge court. 28 U.S.C. § 2284(a). But a court must dismiss a complaint for lack of jurisdiction-and need not convene a three-judge court under § 2284-where the plaintiff's claims are “wholly insubstantial and frivolous.”^[4] Shapiro v. McManus, 577 U.S. 39, 45-46 (2015) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)); Fed.R.Civ.P. 12(h)(3).

“‘[C]onstitutional insubstantiality' for this purpose has been equated with such concepts as ‘essentially fictitious,' ‘wholly insubstantial,' ‘obviously frivolous,' and ‘obviously without merit.'” Shapiro, 577 U.S. at 45-46 (cleaned up). These “adverbs [a]re no mere throwaways,” and “[c]onstitutional claims [should] not lightly be found insubstantial.” Id. (cleaned up). Instead, the “determination of substantiality . . . often demands of the district judge an exceedingly close analysis of [a plaintiff's] constitutional claims vis-a-vis prior case law.” Feinberg v. FDIC, 522 F.2d 1335, 1339 (D.C. Cir. 1975). Although a claim is not necessarily insubstantial simply because it contravenes existing Supreme Court precedent, to avoid dismissal of such a claim for want of jurisdiction, the plaintiff must advance a nonfrivolous argument for reversing that precedent. See Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 2016).

The Court is mindful of its obligation to treat pro se litigants, such as Plaintiff, with “solicitude,” Kim v. United States, 840 F.Supp.2d 180, 191 (D.D.C. 2012), aff'd, 707 F.3d 335 (D.C. Cir. 2013), including by liberally construing their filings, Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). But “even a pro se plaintiff must comply with the Federal Rules of Civil Procedure,” Hedrick v. FBI, 216 F.Supp.3d 84, 93 (D.D.C. 2016), and the Court cannot hear any case, even one brought by a pro se litigant, that falls outside its subject matter jurisdiction, see, e.g., Fontaine v. Bank of Am., N.A., 43 F.Supp.3d 1, 3 (D.D.C. 2014).

III. ANALYSIS

Plaintiff emphasizes that, to qualify for congressional suffrage, he must be a resident of a state. E.g., Dkt. 24 (Opp.) ¶¶ 2, 10, 30; Am. Compl. ¶¶ 28, 35, 49. He also concedes that the District is not a state. E.g., Dkt. 31 (Surreply) ¶ 5; Opp. ¶ 24(b); Am. Compl. ¶¶ 16, 32, 46. To square this circle, Plaintiff argues that he is a resident of Columbia,^[5] a fifty-first state coterminous with the District. He argues in the alternative that the Court should hold that he and other D.C. residents may vote for Congress in Maryland. After “close analysis,” Feinberg, 522 F.2d at 1339, the Court concludes that these arguments are “wholly insubstantial” and dismisses them for lack of jurisdiction,^[6] Shapiro, 577 U.S. at 45 (cleaned up).

A. There Is No State of Columbia, and Plaintiff's Arguments to the Contrary Are Frivolous

“New States [must] be admitted by the Congress ....” U.S....