Petteway v. Galveston Cnty.

667 F.Supp.3d 432

Terry PETTEWAY, et al., Plaintiffs, v. GALVESTON COUNTY, et al., Defendants.

No. 3:22-cv-57

United States District Court, S.D. Texas, Galveston Division

Signed March 30, 2023

Bernadette Samson Reyes, Pro Hac Vice, Sonni Waknin, Pro Hac Vice, UCLA Voting Rights Project, Los Angeles, CA, Caleb Jackson, Mark P. Gaber, Pro Hac Vice, Simone Leeper, Pro Hac Vice, Valencia Richardson, Pro Hac Vice, Alexandra Copper, Pro Hac Vice, Campaign Legal Center, Washington, DC, Neil G. Baron, Law Office of Neil G. Baron, League City, TX, Orion de Nevers, Pro Hac Vice, Campaign Legal Center, Washngton, DC, Chad W. Dunn, Brazil & Dunn, Austin, TX, for Plaintiffs Honorable Terry Petteway, Honorable Derrick Rose, Honorable Michael Montez, Honorable Penny Pope, Honorable Sonny James.

Neil G. Baron, Law Office of Neil G. Baron, League City, TX, Chad W. Dunn, Brazil & Dunn, Austin, TX, for Plaintiff Roosevelt Henderson.

Jason Brett Torchinsky, Pro Hac Vice, Shawn T. Sheehy, Pro Hac Vice, Dallin Brockbank Holt, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, VA, Robert Barron Boemer, Galveston County Legal Department, Galveston County Courthouse, Galveston, TX, Jordan Raschke Elton, Joseph R. Russo, Jr., Greer, Herz & Adams, L.L.P., Galveston, TX, Angela Olalde, Greer Herz Adams LLP, League City, TX, Dalton L. Oldham, Austin, TX, James Edwin Trainor, III, Trainor Law Firm, PC, Austin, TX, Joseph M. Nixon, The Nixon Law Firm, PC, Houston, TX, for Defendants Texas Galveston County, Honorable Mark Henry.

Dallin Brockbank Holt, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, VA, Angela Olalde, Greer Herz Adams LLP, League City, TX, Jordan Raschke Elton, Joseph R. Russo, Jr., Greer, Herz & Adams, L.L.P., Galveston, TX, for Defendant Dwight D. Sullivan.

MEMORANDUM OPINION AND ORDER

Jeffrey Vincent Brown, United States District Judge:

Before the court is the defendants' motion to dismiss the Petteway plaintiffs' second amended complaint under Fed. R. of Civ. P. 12(b)(1) and 12(b)(6). Dkt. 46. The court grants in part and denies in part.

I. BACKGROUND¹

During the 2011 redistricting cycle, Galveston County adopted a redistricting plan that allegedly diminished the equal opportunity for Black and Latino voters to elect candidates for the commissioners court. Dkt. 42 ¶ 2. At that time, the county was subject to federal preclearance under the Voting Rights Act ("VRA"). Id. The Department of Justice ("DOJ") objected to, and obtained an injunction against, the commissioners-court plan under VRA Section 5. Id. ¶ 3. The DOJ and the county eventually negotiated a plan, the "benchmark plan," for the commissioners court that maintained a majority-minority, or opportunity, district for Black and Latino voters in the county. Id. The district court subsequently issued a permanent injunction, which ordered the county to adopt the commissioners-court plan negotiated with the DOJ. Id. ¶ 4; see also Petteway v. Galveston County, No. 3:11-cv-511, ECF 69 at 1 (S.D. Tex. Mar. 23, 2012).

Despite the substantial growth of the county's minority voting-age population evident in the 2020 census, the county adopted the "enacted plan," which allegedly eliminates the sole minority-opportunity district for the commissioners court—virtually the same plan that failed to pass preclearance review in 2012. Dkt. 42 ¶¶ 5-6.

On June 1, 2022, the court consolidated Civil Action No. 3:22-cv-93, United States v. Galveston County, and Civil Action No. 3:22-cv-117, Dickinson Bay Area Branch NAACP v. Galveston County, with Civil Action No. 3:22-cv-57, Honorable Terry Petteway v. Galveston County, as the lead case under Fed. R. of Civ. P. 42(a). Dkt. 45. All three suits challenge the 2021 Galveston County redistricting process.

In the lead case, the plaintiffs—Terry Petteway, the Honorable Derrick Rose, Michael Montez, Penny Pope, and Sonny James ("the Petteway plaintiffs" or "the plaintiffs")—bring this action under the Constitution, 42 U.S.C. § 1983, and 52 U.S.C. § 10301 against the defendants—Galveston County and the Honorable Mark Henry in his official capacity as Galveston County Judge. Dkt. 42. The Petteway plaintiffs allege that Galveston County has adopted a redistricting map that eliminates the sole minority-opportunity district for the commissioners court. Id. ¶ 6. They further contend that the 2021 commissioners-court plan reduces the ability of Black and Latino voters to elect their candidates of choice by intentionally dismantling a majority-minority precinct and cracking Black and Latino voters across four precincts. Id.

The plaintiffs bring five causes of action: (1) intentional racial discrimination in violation of the Fourteenth Amendment; (2) intentional racial discrimination in violation of the Fifteenth Amendment; (3) racial gerrymandering in violation of the Fourteenth Amendment; (4) discriminatory results in violation of VRA Section 2; and (5) intentional racial discrimination in violation of VRA Section 2. Id. ¶¶ 170-184. The defendants have moved to dismiss all of them. Dkt. 46 at 2-3.

II. LEGAL STANDARD

A. Rule 12(b)(1)

A court should grant a motion to dismiss for lack of subject-matter jurisdiction if the court "lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party asserting jurisdiction bears the burden of proof. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Federal courts have jurisdiction over a claim between parties only if the plaintiff presents an actual case or controversy. U.S. Const. art. III, § 2, cl. 1; Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 2001). "The many doctrines that have fleshed out that 'actual controversy' requirement—standing, mootness, ripeness, political question, and the like—are 'founded in concern about the proper—and properly limited—role of the courts in a democratic society.' " Roark & Hardee LP v. City of Austin, 522 F.3d 533, 541-42 (5th Cir. 2008) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).

Courts rely on three factors to test whether the party asserting jurisdiction has met its burden: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). When a party challenges standing in a motion to dismiss, the court must "accept as true all material allegations of the complaint and . . . construe the complaint in favor of the complaining party." Ass'n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010) (quotations omitted).

B. Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim, a plaintiff must plead facts sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The claim is facially plausible when the well-pleaded facts allow the court to reasonably infer that the defendant is liable for the alleged conduct. Id. "The court does not 'strain to find inferences favorable to the plaintiffs' or 'accept conclusory allegations, unwarranted deductions, or legal conclusions.' " Vanskiver v. City of Seabrook, No. H-17-3365, 2018 WL 560231, at *2 (S.D. Tex. Jan. 24, 2018) (quoting Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004)). Naked assertions and formulaic recitals of the elements of the cause of action will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Even if the facts are well-pleaded, the court must still determine plausibility. Id. at 679, 129 S.Ct. 1937.

III. ANALYSIS

The defendants argue that the Petteway plaintiffs' claims fail for a variety of reasons: (1) the court lacks jurisdiction because this is actually a non-justiciable partisan-gerrymandering claim; (2) the case is now moot with the appointment of Dr. Robin Armstrong to the commissioners court; (3) plaintiff Michael Montez lacks standing as to his Precinct 3 vote-dilution claim, and without Montez, the remaining plaintiffs cannot state a Section 2 challenge to Precinct 3; (4) the plaintiffs fail to identify which precinct constitutes a racial gerrymander or to allege that any precinct line subordinates traditional redistricting principles to race; and (5) the plaintiffs fail to allege sufficient facts showing that the defendants enacted the commissioners-court plan with illicit intent, therefore requiring the court to dismiss the intentional vote-dilution claim. Dkt. 46 at 2-3. The court addresses each argument in turn.

A. Justiciability

Article III of the Constitution limits the jurisdiction of federal courts to deciding actual cases and controversies. Rucho v. Common Cause, — U.S. —, 139 S. Ct. 2484, 2493, 204 L.Ed.2d 931 (2019). This, in part, means that courts are limited to deciding cases that are "historically viewed as capable of resolution through the judicial process." Id. at 2493-94. Cases that lack judicially manageable standards to resolve them are nonjusticiable political questions. Id. at 2494.

Only three types of redistricting claims are justiciable: (1) one-person-one-vote challenges; (2) racial-gerrymandering claims; and (3) vote-dilution claims under VRA Section 2. Id. at 2495-96. Judicially manageable standards to adjudicate partisan-gerrymandering claims are elusive. This is because partisanship is expected to happen in redistricting. Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). Without clear, judicially manageable standards, courts "risk assuming political, not legal, responsibility for a process that often produces ill will and distrust." Rucho, 139 S. Ct. at 2498.

The defendants argue this court lacks...