Rose v. Raffensperger

511 F.Supp.3d 1340

Richard ROSE, et al., Plaintiffs,

v.Brad RAFFENSPERGER, in his capacity as Secretary of State of the State of Georgia, Defendant.

Civil Action No. 1:20-cv-02921-SDG

United States District Court, N.D. Georgia, Atlanta Division.

Signed January 5, 2021

Bryan Ludington Sells, The Law Office of Bryan L. Sells, LLC, Atlanta, GA, Nicolas L. Martinez, Pro Hac Vice, Wesley A. Morrissette, Pro Hac Vice, Bartlit Beck, Chicago, IL, for Plaintiffs.

Bryan Francis Jacoutot, Bryan P. Tyson, Taylor English Duma LLP, Charlene S. McGowan, Office of the Georgia Attorney General, Atlanta, GA, for Defendant.

OPINION AND ORDER

Steven D. Grimberg, United States District Court Judge

The Georgia Public Service Commission is responsible for supervising and regulating common carriers, railroads, and public utilities. Plaintiffs are African-American voters registered to vote in the State of Georgia.¹ They bring this official-capacity suit against the Georgia Secretary of State, challenging the state-wide, at-large method of electing members of the Commission. Plaintiffs assert that system inhibits black voters’ ability to elect their preferred candidates and dilutes black voting strength in violation of Section 2 of the Voting Rights Act. The Secretary moved to dismiss [ECF 22]. After full briefing, and with the benefit of oral argument, the Court concludes that Plaintiffs’ detailed allegations are sufficient at this stage of the litigation to demonstrate standing and state a claim. The Secretary's motion is therefore DENIED .

I. Background

At the motion to dismiss stage, the Court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of Plaintiffs.²

Bryant v. Avado Brands, Inc. , 187 F.3d 1271, 1274 (11th Cir. 1999). Accordingly, the following factual description is drawn from the Complaint's well-pleaded allegations.

Plaintiffs are four residents of Fulton County who are registered Georgia voters.³ They are all African American.⁴ On July 14, 2020, they filed suit under Section 2 of the Voting Rights Act of 1965, as amended, 52 U.S.C. § 10301.⁵ This section states, in part: "No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ...." The only Defendant is Brad Raffensperger, who is sued solely in his official capacity as the Georgia Secretary of State.⁶ The Secretary is "the chief election official" for Georgia and "is responsible for administering elections for members" of the Commission.⁷

The existence of the Commission is enshrined in the Georgia Constitution: "There shall be a Public Service Commission for the regulation of utilities which shall consist of five members who shall be elected by the people." Ga. Const. art. IV, § 1, ¶ I (a).⁸ Relevant to this litigation, the Georgia Constitution also dictates that "[t]he filling of vacancies and manner and time of election of members of the [C]ommission shall be as provided by law." Id. ¶ I(c).⁹ The "manner and time" of such elections is dictated by statute. O.C.G.A. § 46-2-1, et seq.¹⁰ Commissioners have been selected through state-wide elections since 1906.¹¹ That same year, the successful gubernatorial candidate ran on a platform of "reforming the railroad commission and disenfranchising" black voters.¹²

Commissioners are elected "at large" by all Georgia voters in partisan elections; they serve six-year staggered terms.¹³ Among their other duties, the commissioners regulate the rates that electric, natural gas, and telephone companies may charge in Georgia.¹⁴ Even though the commissioners are elected at-large, they must be residents of one of five Commission districts prescribed by statute:¹⁵

[M]embers elected to the commission shall be required to be residents of one of five Public Service Commission Districts as hereafter provided, but each member of the commission shall be elected state wide by the qualified voters of this state who are entitled to vote for members of the General Assembly.

O.C.G.A. § 46-2-1(a). A commissioner must continue to live in the district from which that person was elected throughout the six-year term. Id. § 46-2-1(b).

Plaintiffs contend that there is an "informal slating process" for membership on the Commission "that operates by gubernatorial appointment."¹⁶ Save for the three-year period between 1999 and 2002, African Americans have allegedly been denied access to that slating process.¹⁷ To date, the only African American ever to have served as a commissioner—David L. Burgess—was appointed in 1999 by then-governor Roy Barnes.¹⁸ With the benefit of incumbency resulting from that appointment, Burgess was elected to the position in 2000.¹⁹ He served only one full term before being defeated in the 2006 election.²⁰ In part as a result of this history, Plaintiffs plead that the Commission "has not been responsive to the particularized needs of African American residents of Georgia."²¹

Plaintiffs claim that the staggered terms, a majority-vote requirement, and "unusually large voting districts" (that is to say, no voting districts save for the entire State of Georgia) exacerbate the opportunities for discrimination against African Americans in elections for commissioners.²² The Complaint is not entirely clear about whether this alleged discrimination is against voters like Plaintiffs, or black candidates who run for a position on the Commission, or both.²³ Given that this case is at the motion to dismiss stage, and interpreting the Complaint in the light most favorable to Plaintiffs, the Court treats the allegation as referring to discrimination against black voters (including Plaintiffs).

Plaintiffs also make the following relevant allegations:

• As of the 2010 Census, Georgia's voting-age population was 62.3% white, 29.7% black, and 8% members of other racial groups.²⁴ The percentage of black voting-age residents had increased to 32.3% as of a 2018 survey.²⁵

• If elections for commissioner were based on five single-member districts rather than at-large, African Americans would be "sufficiently numerous and geographically compact" to make up "a majority of the voting-age population in at least one single-member district."²⁶

• African American voters are "politically cohesive" when voting for members of the Commission: They supported "their preferred candidates with greater than 80 percent of their votes" in every election between 2012 and 2018.²⁷

• Conversely, white voters voted sufficiently as a block to generally enable them to defeat the candidate preferred by black voters in every election for members of the Commission between 2012 and 2018.²⁸

• In addition to Georgia's "long and extensive history of voting discrimination against African Americans," these numerical disparities in voting preferences reflect that "[v]oting in elections for members of the Public Service Commission is polarized along racial lines."²⁹

Although Plaintiffs do not expressly plead that they have been unable to elect their preferred candidates, they do contend that their votes have been and will continue to be improperly diluted because of the at-large method of electing Commission members.³⁰ They therefore seek a judgment declaring that this method of electing members of the Commission violates Section 2 of the Voting Rights Act of 1965, as amended (the VRA), and an order enjoining the Secretary from employing this method in future elections and directing him to administer such elections in a manner that complies with Section 2.³¹

On August 14, 2020, the Secretary moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1), arguing that Plaintiffs lack standing, and under Rule 12(b)(6), for failure to state a claim.³² Plaintiffs opposed the motion on August 27, 2020.³³ The Secretary filed his response on September 10, 2020.³⁴ The Court heard argument on December 8, 2020. The Secretary's motion is thus ripe for consideration.

II. Standard of Review

A. Rule 12(b)(1)

Rule 12(b)(1) permits a party to raise the defense of lack of subject matter jurisdiction by motion. This includes a challenge to standing. " ‘Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).’ " Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1232 (11th Cir. 2008) (quoting Cone Corp. v. Fla. Dep't of Transp. , 921 F.2d 1190, 1203 n.42 (11th Cir. 1991) ). Article III of the Constitution limits federal courts to consideration of cases and controversies. U.S. Const. art. III, § 2. The doctrine of standing "is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Supreme Court has held that standing contains three elements: (1) an actual or imminent injury-in-fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by the court. Id. at 560–61, 112 S.Ct. 2130. The Secretary asserts that Plaintiffs have failed to establish all three aspects.³⁵

B. Rule 12(b)(6)

The Secretary also argues that Plaintiffs have failed to state a claim.³⁶ Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While this standard does not require "detailed factual allegations," the Supreme Court has held that " ‘labels and conclusions’ " or " ‘a formulaic recitation of the elements of a cause of action will not do.’ " 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, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

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