Personhuballah v. Alcorn

155 F.Supp.3d 552

Gloria Personhuballah, et al., Plaintiffs,

v.James B. Alcorn, et al., Defendants.

Civil Action No. 3:13cv678

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

Signed January 7, 2016

John Kuropatkin Roche, Aria Christine Branch, John Michael Devaney, Marc Erik Elias, Perkins Coie LLP, Washington, DC, James Michael Snyder, Mark Buchanan Rhoads, Robert W. Partin, McCandlish Holton PC, Richmond, VA, Kevin John Hamilton, Perkins Coie LLP, Seattle, WA, for Plaintiffs.

Stuart Alan Raphael, Trevor Stephen Cox, Mike Melis, Office of the Attorney General, Richmond, VA, for Defendants.

Before Diaz, Circuit Judge, O'grady, District Judge, and Payne, Senior District Judge.

MEMORANDUM OPINION

DIAZ, Circuit Judge:

This court twice has found Virginia's Third Congressional District to be an unconstitutional racial gerrymander, in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See Page v. Va. State Bd. of Elections (Page II) , No. 3:13cv678, 2015 WL 3604029 (E.D.Va. June 5, 2015) ; Page v. Va. State Bd. of Elections (Page I), 58 F.Supp.3d 533 (E.D.Va.2014), vacated sub nom. Cantor v. Personhuballah , ––– U.S. ––––, 135 S.Ct. 1699, 191 L.Ed.2d 671 (2015). We subsequently ordered the Virginia General Assembly to devise a redistricting plan to remedy the constitutional violation by September 1, 2015. The General Assembly convened but failed to act. As a result, and after considering input from the parties, we appointed Dr. Bernard Grofman¹ as special master to assist and advise the court in drawing an appropriate remedial plan. We also directed all parties and interested nonparties to submit proposed plans.

On November 13, 2015, the Supreme Court noted that it would hear argument in Intervenor-Defendants'² appeal of the liability judgment, asking the parties to additionally address whether the Intervenors have standing to bring the appeal. See Wittman v. Personhuballah , ––– U.S. ––––, 136 S.Ct. 499, 193 L.Ed.2d 364 (2015). After reviewing all plans submitted by parties and nonparties, Dr. Grofman filed his report on November 16, 2015. Also on that day, the Intervenor-Defendants moved to suspend further proceedings and to modify our injunction pending Supreme Court review. We ordered the parties to continue with their responsive briefing to the special master's report, and on December 14, 2015, we held a hearing on both the merits of the special master's recommendations and whether to stay our implementation of a remedy pending the Supreme Court's review of the liability judgment.

We hold that the balance of equities favors our immediate imposition of a remedial redistricting plan. To that end, we find that one of the two plans proposed by Dr. Grofman, Congressional Plan Modification 16 (“Plan 16”), best remedies the constitutional violation that we described in Page II . Accordingly, we direct the Defendants to implement the redistricting plan attached to the court's order as Appendix A for the 2016 U.S. House of Representatives election cycle.

I.

A.

Plaintiffs Gloria Personhuballah and James Farkas³ reside in Virginia's Third Congressional District. In Page I ,⁴ they sued the Defendants⁵ in their official capacities, alleging that the Third District was racially gerrymandered in violation of the Fourteenth Amendment's Equal Protection Clause. We held that because racial considerations predominated in the drawing of the district boundaries, strict scrutiny applied. We found that the plan was not narrowly tailored to advance a compelling government interest, as required to survive strict scrutiny, because the General Assembly did not have any evidence indicating that a black voting-age population (“BVAP”) of 55% was required in the Third District for the plan to comply with Section 5 of the Voting Rights Act. The Intervenors appealed to the Supreme Court, and on March 30, 2015, the Court vacated the judgment and remanded the case for reconsideration in light of Alabama Legislative Black Caucus v. Alabama , ––– U.S. ––––, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015). Cantor v. Personhuballah , ––– U.S. ––––, 135 S.Ct. 1699, 191 L.Ed.2d 671 (2015) (mem.).

We reconsidered the case in accord with the Court's mandate, again found the Third District unconstitutional, and ordered the Virginia General Assembly to implement a new districting plan by September 1, 2015. When the General Assembly failed to act, we took up the task of drawing a remedial plan. See White v. Weiser , 412 U.S. 783, 794–95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973) (“[J]udicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.” (quoting Reynolds v. Sims , 377 U.S. 533, 586, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) )).

To that end, we directed the parties and any nonparties desiring to do so to submit proposed remedial plans. The Plaintiffs submitted one plan and the Interveners submitted two. In addition, nonparties OneVirginia2021; the Richmond First Club; Senator J. Chapman Petersen; Bull Elephant Media, LLC; the Virginia State Conference of NAACP Branches; Jacob Rapoport; and the Governor of Virginia each submitted a plan. Dr. Grofman did not consider, nor do we, the plans submitted by OneVirginia2021 and Bull Elephant Media, as the former did not include a map and the latter did not include the shape file we had required for detailed analysis. Dr. Grofman thus had eight maps to consider.

B.

The 2016 congressional election cycle has just begun in Virginia. Candidates were set to start seeking petitions of qualified voters on January 2, 2016, and the Defendants have explained that, while the Virginia Board of Elections will do its best to implement any judicial order, the risk of error increases the later the Board is given a new plan to implement. Although Defendants could not provide a precise date at which implementation would be impossible, they say it would be critical to have a plan in place by late March.⁶

II.

We first address the Intervenors' motion to suspend our proceedings pending Supreme Court review.

All parties agree that, because our extant injunction prevents Virginia from conducting another election under the redistricting plan enacted in 2012 (the “Enacted Plan”) but does not provide an alternative plan, we must either modify that injunction to allow the 2016 election to proceed under the Enacted Plan, or enter a new plan.

The Intervenors argue that the Supreme Court's decision to set oral argument in Page II has stripped us of jurisdiction to enter a remedial plan, or alternatively, that the balance of equities favors “suspend[ing] any remedial efforts pending the Supreme Court's decision.” Intervenor-Defs.' Mem. Supp. Mot. to Suspend 2, ECF No. 271. They cite Donovan v. Richland County Ass'n for Retarded Citizens , 454 U.S. 389, 102 S.Ct. 713, 70 L.Ed.2d 570 (1982) (per curiam), United States v. Locke , 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985), and United States v. Wells Fargo Bank , 485 U.S. 351, 108 S.Ct. 1179, 99 L.Ed.2d 368 (1988), for the proposition that our jurisdiction is stripped by the filing of a notice of direct appeal. But these cases support only the claim that we could not now alter our liability decision; they do not speak to our jurisdiction to enter a remedy.

In Donovan , the plaintiff sued for a declaratory judgment that the application of the Fair Labor Standards Act to the mental health facility it operated would be unconstitutional. The district court so held, and the Ninth Circuit issued a decision affirming the district court. 454 U.S. at 389, 102 S.Ct. 713. Then, after the appellants filed their notice of appeal, the Ninth Circuit sua sponte issued a new decision reversing the district court. Id. at 390 n.2, 102 S.Ct. 713. Here, in contrast, our entering a remedy would not in any way affect the liability decision now before the Supreme Court.

Similarly, in Locke and Wells Fargo , the Court noted that it could resolve statutory questions even though it was “the portion of the judgment declaring an Act of Congress unconstitutional that provides [the Court] with appellate jurisdiction” because “such an appeal brings the entire case before [the Court].” Wells Fargo , 485 U.S. at 354, 108 S.Ct. 1179 ; accord Locke , 471 U.S. at 92, 105 S.Ct. 1785. The Intervenors urge us to read this statement to mean that their appeal of the liability judgment also brings the remedial aspect of the case before the Supreme Court.

The clear meaning of the phrase “the entire case” in context, however, is that statutory claims are not stripped from the constitutional claims in a single liability case—that is, the entire liability case is before the Supreme Court on appeal. The Court's use of the phrase thus says nothing about the effect the appeal of a liability decision has on the jurisdiction of the district court charged with crafting a remedy. See Griggs v. Provident Consumer Disc. Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal .” (emphasis added)). Because the remedial phase of this case is not an “aspect[ ] of the case involved in the appeal,” we retain jurisdiction over it.

Accordingly, we turn to the question of whether we should stay implementation of a remedy pending the Supreme Court's consideration of the Interveners' appeal. We consider four factors when determining whether to issue a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding;...