Thomas v. Reeves

961 F.3d 800 (Mem)

Joseph THOMAS; Vernon Ayers; Melvin Lawson, Plaintiffs-Appellees

v.Tate REEVES, Governor of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners; Michael Watson, Secretary of State of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants-Appellants

No. 19-60133

United States Court of Appeals, Fifth Circuit.

FILED June 18, 2020

Robert Bruce McDuff, Esq., Jackson, MS, Arusha Gordon, Jon Marshall Greenbaum, Esq., Director, Ezra D. Rosenberg, Esq., Lawyers' Committee for Civil Rights Under Law, Washington, DC, Beth Levine Orlansky, Mississippi Center for Justice, Jackson, MS, Caitlyn E. Silhan, Waters & Kraus, L.L.P., Dallas, TX, Ellis Turnage, Turnage Law Office, Cleveland, MS, for Plaintiffs-Appellees

Michael Brunson Wallace, Esq., Charles Edward Cowan, Wise Carter Child & Caraway, P.A., Jackson, MS, Brian Parker Berry, Tommie S. Cardin, Butler Snow, L.L.P., Ridgeland, MS, for Defendants-Appellants

Joseph Henry Ros, Esq., Currie, Johnson & Myers, P.A., Biloxi, MS, for Amicus Curiae Judicial Watch, Incorporated

Theresa J. Lee, Dale Edwin Ho, Director, American Civil Liberties Union Foundation, Voting Rights Project, New York, NY, for Amici Curiae American Civil Liberties Union, League of Women Voters of the United States, League of Women Voters of Mississippi, Common Cause

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX, for Amici Curiae State of Texas, State of Louisiana

Theresa J. Lee, Dale Edwin Ho, Director, American Civil Liberties Union Foundation, Voting Rights Project, New York, NY, Joshua Tom, American Civil Liberties Union of Mississippi, Jackson, MS, for Amicus Curiae American Civil Liberties Union of Mississippi

Before OWEN, Chief Judge, and DAVIS, JONES, SMITH, STEWART, DENNIS, ELROD, HAYNES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.^*

PER CURIAM:

The en banc court unanimously agrees that this court no longer has jurisdiction in this case because it has become moot. It is undisputed that the 2019 general election has occurred, and as the State itself emphasized, the current district lines will neither be used nor operate as a base for any future election.

Therefore, the judgment of the district court is vacated, the appeal is dismissed, and the case is remanded to the district court with instructions to dismiss plaintiffs’ complaint for lack of jurisdiction. See U.S. v. Munsingwear, Inc. , 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

GREGG COSTA, Circuit Judge, joined by OWEN, Chief Judge, and DAVIS, STEWART, DENNIS, and HIGGINSON, Circuit Judges, concurring:

The three-judge district court statute traces back more than a century. In its long history, no court has applied the statute unless confronted with a challenge to a law's constitutionality. Mississippi asks our court to be the first.

What is the argument for disrupting the venerable understanding that the extraordinary act of convening a three-judge trial court is limited to constitutional cases? The statute allegedly contains an extra "the." Despite having gone undiscovered for decades in the high-stakes world of voting rights litigation, the unnecessary "the" is supposedly such a glaring problem that it requires us to read a law that contracted the reach of three-judge district courts as one that for the first time extended the use of such courts to statutory cases. An arguably redundant "the" cannot bear that weight. Indeed, when considering Mississippi's argument one cannot help but recall the wisdom of Justice Scalia's vivid point that "[Congress] does not ... hide elephants in mouseholes." Whitman v. Am. Trucking Ass'ns , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).

So although I join the per curiam opinion holding that this appeal is now moot, I write to explain why a plain reading of the three-judge statute as well as its ancestry reject the unprecedented notion that statutory challenges to state legislative districts require a special district court.

I.

A.

As always, the starting place is the text. The general three-judge statute states:

A district court of three judges shall be convened ... when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.

28 U.S.C. § 2284(a). It doesn't take 30 pages to figure out what the statute says. A person on the street would read it as requiring a three-judge court only for constitutional challenges.

Courts have uniformly given the law that everyday meaning. See, e.g. , Rural W. Tenn. African-Am. Affairs Council v. Sundquist , 209 F.3d 835, 838 (6th Cir. 2000) (noting reassignment of case to single judge after dismissal of constitutional and Section 5 claims); Chestnut v. Merrill , 356 F. Supp. 3d 1351, 1357 (N.D. Ala. 2019) (rejecting argument that a single judge could not hear Section 2 challenge); Bone Shirt v. Hazeltine , 336 F. Supp. 2d 976, 980 (D.S.D. 2004) (same as Rural West ); Old Person v. Brown , 182 F. Supp. 2d 1002, 1003 (D. Mont. 2002) (single judge hearing Section 2 challenge). Their reading is consistent with a judge's duty to interpret the statutory language that Congress approved and the President signed by "giving the words used their ordinary meaning." Levin v. United States , 568 U.S. 503, 513, 133 S.Ct. 1224, 185 L.Ed.2d 343 (2013).

Against this backdrop, Mississippi offers the avant-garde view that the law also requires three-judge courts for statutory-only challenges to state legislative districts.¹ The novelty of the state's reading does not merely suggest that the question has "gone unasked," Willett Op. 811; it shows that the ordinary meaning of the statute is so clear that nobody ever bothered to ask the question.²

And so it is. In common usage, a modifier like "constitutionality of" usually applies to each term in a series of parallel terms. This principle is the series-qualifier canon of construction. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW : THE INTERPRETATION OF LEGAL TEXTS 147 (2012); cf. Porto Rico Ry., Light & Power Co. v. Mor , 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920) ("When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all."). The canon is more of "a matter of common English" than a hard-and-fast rule. See SCALIA & GARNER , supra , at 147. It describes how people typically speak and write. See Lockhart v. United States , ––– U.S. ––––, 136 S. Ct. 958, 970, 194 L.Ed.2d 48 (2016) (Kagan, J., dissenting). Consider a recent article in Mississippi's leading newspaper. The article uses a series modifier twice in three sentences when discussing how Mississippi colleges are preparing for football season in the wake of the COVID-19 pandemic. It first refers to "testing all symptomatic athletes and staffers" and then "educat[ing] returning students and employees on new protocols."³ Any reader would understand that the modifiers—symptomatic and returning—apply to both of the nouns that follow them.

The series-qualifier principle is just a fancy label for describing how a normal person would understand section 2284(a). That is, the modifier "constitutionality of" should apply to both of the parallel terms that follow it: (1) challenges to "the apportionment of congressional districts" and (2) challenges to "the apportionment of any statewide legislative body." The canon's intuitive nature explains why the Supreme Court, other courts, and leading treatises have taken that reading as a given. See, e.g. , Harris v. Ariz. Indep. Redistricting Comm'n , ––– U.S. ––––, 136 S. Ct. 1301, 1306, 194 L.Ed.2d 497 (2016) (parenthetically describing section 2284(a) as "providing for the convention of [a three-judge district] court whenever an action is filed challenging the constitutionality of apportionment of legislative districts")⁴ ; Armour v. Ohio , 925 F.2d 987, 989 (6th Cir. 1991) (en banc) (describing the test for section 2284(a) as whether "there exists a non-frivolous constitutional challenge to the apportionment of a statewide legislative body"); 22 JAMES W. MOORE, ET AL., MOORE'S FEDERAL PRACTICE § 404.03[2], at 404-30 to -31 (3d ed. 2019) (explaining that section 2284(a) "is limited to federal constitutional claims"); 17A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4235, at 202 (3d ed. 2007) (stating that section 2284(a) should apply to "all federal constitutional challenges that could result in a reapportionment").

B.

Mississippi says this straightforward reading of the three-judge statute is wrong because of a redundant definite article it took more than forty years for anyone to notice. Its argument rests on the statute's use of the word "the" before "apportionment of any state legislative body." That determiner, the state insists, indicates a break in the series modifier, so "constitutionality of" modifies only what immediately follows it: challenges to "the apportionment of congressional districts." Because "constitutionality of" does not also modify the "apportionment of any statewide legislative body," the argument goes, then any challenge to state legislative districts—including Plaintiffs’ statutory one—requires a three-judge court. Meanwhile, only constitutional challenges to congressional districts would trigger the statute; an ordinary district court would hear statutory attacks on the same target.⁵

That reading creates a more convoluted statutory scheme than the clear-cut distinction between constitutional and statutory claims that lawyers and judges have long understood section 2284(a) to draw. I'll return to...