Dissent (Scalia)
Contents
SCALIA, J., dissenting
?575 U.?S. ____ (2015)
Nos. 13-895 and 13-1138
ALABAMA LEGISLATIVE BLACK CAUCUS, ET?AL., APPELLANTS 13-895?????v. ALABAMA ET?AL. ALABAMA DEMOCRATIC CONFERENCE, ET?AL., APPELLANTS 13-1138?????v. ALABAMA ET?AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
[March 25, 2015]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, the Court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections. If the Court’s destination seems fantastical, just wait until you see the journey.
Two groups of plaintiffs, the Alabama Democratic Conference and the Alabama Legislative Black Caucus, brought separate challenges to the way in which Alabama drew its state legislative districts following the 2010 census. These cases were consolidated before a three-judge District Court. Even after a full trial, the District Court lamented that “[t]he filings and arguments made by the plaintiffs on these claims were mystifying at best.” 989 F.?Supp. 2d 1227, 1287 (MD Ala. 2013). Nevertheless, the District Court understood both groups of plaintiffs to argue, as relevant here, only that “the Acts as a whole constitute racial gerrymanders.” Id., at 1287. It also understood the Democratic Conference to argue that “Senate Districts 7, 11, 22, and 26 constitute racial gerrymanders,” id., at 1288, but held that the Democratic Conference lacked standing to bring “any district-specific claims of racial gerrymandering,” id., at 1292 (emphasis added). It then found for Alabama on the merits.
The Court rightly concludes that our racial gerrymandering jurisprudence does not allow for statewide claims. Ante, at 5-12. However, rather than holding appellants to the misguided legal theory they presented to the District Court, it allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama’s 35 majority-minority districts result from impermissible racial gerrymandering. In doing this, the Court disregards the detailed findings and thoroughly reasoned conclusions of the District Court–in particular its determination, reached after watching the development of the case from complaint to trial, that no appellant proved (or even pleaded) district-specific claims with respect to the majority-minority districts. Worse still, the Court ignores the Democratic Conference’s express waiver of these claims before this Court. It does this on the basis of a few stray comments, cherry-picked from district-court filings that are more Rorschach brief than Brandeis brief, in which the vague outline of what could be district-specific racial-gerrymandering claims begins to take shape only with the careful, post-hoc nudging of appellate counsel.
Racial gerrymandering strikes at the heart of our democratic process, undermining the electorate’s confidence in its government as representative of a cohesive body politic in which all citizens are equal before the law. It is therefore understandable, if not excusable, that the Court balks at denying merits review simply because appellants pursued a flawed litigation strategy. But allowing appellants a second bite at the apple invites lower courts similarly to depart from the premise that ours is an adversarial system whenever they deem the stakes sufficiently high. Because I do not believe that Article III empowers this Court to act as standby counsel for sympathetic litigants, I dissent.
I. The Alabama Democratic Conference
?????The District Court concluded that the Democratic Conference lacked standing to bring district-specific claims. It did so on the basis of the Conference’s failure to present any evidence that it had members who voted in the challenged districts, and because the individual Conference plaintiffs did not claim to vote in them. 989 F.?Supp. 2d, at 1292.
A voter has standing to bring a racial-gerrymandering claim only if he votes in a gerrymandered district, or if specific evidence demonstrates that he has suffered the special harms that attend racial gerrymandering. United States v. Hays, 515 U.?S. 737, 744-745 (1995). However, the Democratic Conference only claimed to have “chapters and members in almost all counties in the state.” Newton Plaintiffs’ Proposed Findings of Fact and Conclusions of Law in No. 12-cv-691, Doc. 195-1, pp. 3-4 (Democratic Conference Post-Trial Brief) (emphasis added). Yet the Court concludes that this fact, combined with the Conference’s self-description as a “?’statewide political caucus’?” that endorses candidates for political office, “supports an inference that the organization has members in all of the State’s majority-minority districts, other things being equal.” Ante, at 13. The Court provides no support for this theory of jurisdiction by illogical inference, perhaps because this Court has rejected other attempts to peddle more-likely-than-not standing. See Summers v. Earth Island Institute, 555 U.?S. 488, 497 (2009) (rejecting a test for organizational standing that asks “whether, accepting [an] organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury”).
The inference to be drawn from the Conference’s statements cuts in precisely the opposite direction. What is at issue here is not just counties but voting districts within counties. If the Conference has members in almost every county, then there must be counties in which it does not have members; and we have no basis for concluding (or inferring) that those counties do not contain all of the majority-minority voting districts. Morever, even in those counties in which the Conference does have members, we have no basis for concluding (or inferring) that those members vote in majority-minority districts. The Conference had plenty of opportunities, including at trial, to demonstrate that this was the case, and failed to do so. This failure lies with the Democratic Conference, and the consequences should be borne by it, not by the people of Alabama, who must now shoulder the expense of further litigation and the uncertainty that attends a resuscitated constitutional challenge to their legislative districts.
Incredibly, the Court thinks that “elementary principles of procedural fairness” require giving the Democratic Conference the opportunity to prove on appeal what it neglected to prove at trial. Ante, at 14. It observes that the Conference had no reason to believe it should provide such information because “the State did not contest its membership in every district,” and the opinion cites an affidavit lodged with this Court providing a list of the Conference’s members in each majority-minority district in Alabama. Ibid. I cannot imagine why the absence of a state challenge would matter. Whether or not there was such a challenge, it was the Conference’s responsibility, as “[t]he party invoking federal jurisdiction,” to establish standing. See Lujan v. Defenders of Wildlife, 504 U.?S. 555, 561 (1992). That responsibility was enforceable, challenge or no, by the court: “The federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’?” FW/PBS, Inc. v. Dallas, 493 U.?S. 215, 230-231 (1990) (citations omitted). And because standing is not a “mere pleading requiremen[t] but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e.,with the manner and degree of evidence required at the successive stages of the litigation.” Defenders of Wildlife, supra, at 561.
The Court points to Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.?S. 701, 718 (2007), as support for its decision to sandbag Alabama with the Democratic Conference’s out-of-time (indeed, out-of-court) lodging in this Court. The circumstances in that case, however, are far afield. The organization of parents in that case had established organizational standing in the lower court by showing that it had members with children who would be subject to the school district’s “integration tiebreaker,” which was applied at ninth grade. Brief for Respondents, O. T. 2006, No. 05-908, p.?16. By the time the case reached this Court, however, the youngest of these children had entered high school, and so would no longer be subject to the challenged policy. Ibid. Accordingly, we accepted a lodging that provided names of additional, younger children in order to show that the organization had not lost standing as a result of the long delay that often accompanies federal litigation. Here, by contrast, the Democratic Conference’s lodging in the Supreme Court is its first attempt to show that it has members in the majority-minority districts. This is too little, too late.
But that is just the start. Even if the Democratic Conference had standing to bring district-specific racial-gerrymandering claims, there remains the question whether it did bring them. Its complaint alleged three counts: (1) Violation of ?2 of the Voting Rights Act, (2) Racial gerrymandering in violation of the Equal Protection Clause, and (3) ?1983 violations of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. Complaint in No. 2:12-cv-1081, Doc. 1, pp. 17-18. The racial gerrymandering count alleged that “Alabama Acts 2012-602 and 2012-603 were drawn for the purpose and effect of minimizing the opportunity of minority voters to participate effectively in the political process,” and that this “racial gerrymandering by Alabama Acts 2012-602 and 2012-603 violates the rights of Plaintiffs.” Id., at 17. It made no reference to specific districts that were racially gerrymandered; indeed, the only particular jurisdictions mentioned anywhere in the complaint were Senate District 11, Senate District 22, Madison County Senate Districts, House District 73, and Jefferson and Montgomery County House Districts. None of the Senate Districts is majority-minority. Nor is House District 73. Jefferson County does, admittedly, contain 8 of the 27 majority-minority House Districts in Alabama, and Montgomery County contains another 4, making a total of 12. But they also contain 14 majority-white House Districts between them. In light of this, it is difficult to understand the Court’s statement that appellants’ “evidence and .?.?. arguments embody the claim that individual majority-minority districts were racially gerrymandered.” Ante, at 8.
That observation would, of course, make sense if the Democratic Conference had developed such a claim in the course of discovery and trial. But in its post-trial Proposed Findings of Fact and Conclusions of Law, the Conference hewed to its original charge of statewide racial gerrymandering–or, rather, it did so as much as it reasonably could without actually proposing that the Court find any racial gerrymandering, statewide or otherwise. Instead, the Conference chose only to pursue claims that Alabama violated ?2 of the Voting Rights Act under two theories. See Democratic Conference Post-Trial Brief 91-103 (alleging a violation of the results prong of Voting Rights Act ?2) and 103-124 (alleging a violation of the purpose prong of Voting Rights Act ?2).
To be sure, the Conference employed language and presented factual claims at various points in its 126-page post-trial brief that are evocative of a claim of racial gerrymandering. But in clinging to these stray comments to support its conclusion that the Conference made district-specific racial-gerrymandering claims, ante, at 9-10, the Court ignores the context in which these comments appear–the context of a clear Voting Rights Act ?2 claim. Voting Rights Act claims and racial-gerrymandering claims share some of the same elements. See League of United Latin American Citizens v. Perry, 548 U.?S. 399, 514 (2006) (SCALIA, J., concurring in judgment in part and dissenting in part). Thus, allegations made in the course of arguing a ?2 claim will often be indistinguishable from allegations that would be made in support of a racial-gerrymandering claim. The appearance of such allegations in one of the Conference’s briefs might support reversal if this case came to us on appeal from the District Court’s grant of a motion to dismiss. See Johnson v. City of Shelby, 574 U.?S. ___, ___ (2014) (per curiam) (slip op., at 1) (noting that the Federal Rules of Civil Procedure “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted”). But here the District Court held a full trial before concluding that the Conference failed to make or prove any district-specific racial-gerrymandering claims with respect to the majority-minority districts. In this posture, and on this record, I cannot agree with the Court that the Conference’s district-specific evidence, clearly made in the course of arguing a ?2 theory, should be read to give rise to district-specific claims of racial gerrymandering with respect to Alabama’s majority-minority districts.
The Court attempts to shift responsibility for the Democratic Conference’s ill-fated statewide theory from the Conference to the District Court, implying that it was the “legally erroneous” analysis of the District Court, ante, at 12, rather than the arguments made by the Conference, that conjured this “legal unicorn,” ante, at 7, so that the Conference did not forfeit the claims that the Court now attributes to it, ante, at 12. I suspect this will come as a great surprise to the Conference. Whatever may have been presented to the District Court, the Conference unequivocally stated in its opening brief: “Appellants challenge Alabama’s race-based statewide redistricting policy, not the design of any one particular election district.” Brief for Appellants in No. 13-1138, p. 2 (emphasis added). It drove the point home in its reply brief: “[I]f the Court were to apply a predominant-motive and narrow-tailoring analysis, that analysis should be applied to the state’s policy, not to the design of each particular district one-by-one.” Reply Brief in No. 11-1138, p.?7. How could anything be clearer? As the Court observes, the Conference attempted to walk back this unqualified description of its case at oral argument. Ante, at 11-12. Its assertion that what it really meant to challenge was the policy as applied to every district (not every majority-minority district, mind you) is not “clarification,” ante, at 12, but an entirely new argument–indeed, the same argument it expressly disclaimed in its briefing. “We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief.” Republic of Argentina v. NML Capital, Ltd., 573 U.?S. ___, ___, n.?2 (2014) (slip op., at 5, n.?2); we certainly should not do so when the issue is first presented at oral argument.
II. The Alabama Legislative Black Caucus
?????The Court does not bother to disentangle the independent claims brought by the Black Caucus from those of the Democratic Conference, but it strongly implies that both parties asserted racial-gerrymandering claims with respect to Alabama’s 35 majority-minority districts. As we have described, the Democratic Conference brought no such claims; and the Black Caucus’s filings provide even weaker support for the Court’s conclusion.
The Black Caucus complaint contained three counts: (1) Violation of One Person, One Vote, see Reynolds v. Sims, 377 U.?S. 533 (1964); (2) Dilution and Isolation of Black Voting Strength in violation of ?2 of the Voting Rights Act; and (3) Partisan Gerrymandering. Complaint in No. 2:12-cv-691, Doc. 1, pp. 15-22. The failure to raise any racial-gerrymandering claim was not a mere oversight or the consequence of inartful pleading. Indeed, in its amended complaint the Black Caucus specifically cited this Court’s leading racial-gerrymandering case for the proposition that “traditional or neutral districting principles may not be subordinated in a dominant fashion byeither racial or partisan interests absent a compelling state interest for doing so.” Amended Complaint in No. 2:12-cv-691, Doc. 60, p.?23 (citing Shaw v. Reno, 509 U.?S. 630, 642 (1993); emphasis added). This quote appears in the first paragraph under the “Partisan Gerrymandering” heading, and claims of subordination to racial interests are notably absent from the Black Caucus complaint.
Racial gerrymandering was not completely ignored, however. In a brief introductory paragraph to the amended complaint, before addressing jurisdiction and venue, the Black Caucus alleged that “Acts 2012-602 and 2012603 are racial gerrymanders that unnecessarily minimize population deviations and violate the whole-county provisions of the Alabama Constitution with both the purpose and effect of minimizing black voting strength and isolating from influence in the Alabama Legislature legislators chosen by African Americans.” Amended Complaint, at 3. This was the first and last mention of racial gerrymandering, and like the Democratic Conference’s complaint, it focused exclusively on the districting maps as a whole rather than individual districts. Moreover, even this allegation appears primarily concerned with the use of racially motivated districting as a means of violating one person, one vote (by splitting counties), and ?2 of the Voting Rights Act (by minimizing and isolating black voters and legislators).
To the extent the Black Caucus cited particular districts in the body of its complaint, it did so only with respect to its enumerated one-person, one-vote, Voting Rights Act, and partisan-gerrymandering counts. See, e.g., id., at 13-14 (alleging that the “deviation restriction and disregard of the ‘whole county’ requirements .?.?. facilitated the Republican majority’s efforts to gerrymander the district boundaries in Acts 2012-602 and 2012-603 for partisan purposes. By packing the majority-black House and Senate districts, the plans remove reliable Democratic voters from adjacent majority-white districts .?.?.”); id., at 36 (“The partisan purpose of [one] gerrymander was to remove predominately black Madison County precincts to SD 1, avoiding a potential crossover district”); id., at 44-45 (asserting that “splitting Jefferson County among 11 House and Senate districts” and “increasing the size of its local legislative delegation and the number of other counties whose residents elect members” of the delegation “dilut[es] the votes of Jefferson County residents” by diminishing their ability to control county-level legislation in the state legislature). And even these claims were made with a statewide scope in mind. Id., at 55 (“Viewed in their entirety, the plans in Acts 2012-602 and 2012-603 have the purpose and effect of minimizing the opportunities for black and white voters who support the Democratic Party to elect candidates of their choice”).
Here again, discovery and trial failed to produce any clear claims with respect to the majority-minority districts. In a curious inversion of the Democratic Conference’s practice of pleading racial gerrymandering and then effectively abandoning the claims, the Black Caucus, which failed to plead racial gerrymandering, did clearly advance the theory after the trial. See Alabama Legislative Black Caucus Plaintiffs’ Post-Trial Proposed Findings of Fact and Conclusions of Law in No. 2:12-cv-691, Doc. 194, pp. 48-51 (Black Caucus Post-Trial Brief). The Black Caucus asserted racial-gerrymandering claims in its post-trial brief, but they all had a clear statewide scope. It charged that Alabama “started their line drawing with the majority-black districts” so as to maximize the size of their black majorities, which “impacted the drawing of majority-white districts in nearly every part of the state.” Id., at 48-49. “[R]ace was the predominant factor in drafting both plans,” id., at 49, which “drove nearly every districting decision,” “dilut[ing] the influence of black voters in the majority-white districts,” id., at 50.
The Black Caucus did present district-specific evidence in the course of developing its other legal theories. Although this included evidence that Alabama manipulated the racial composition of certain majority-minority districts, it also included evidence that Alabama manipulated racial distributions with respect to the districting maps as a whole, id., at 6 (“Maintaining the same high black percentages had a predominant impact on the entire plan”), and with respect to majority-white districts, id., at 10-11 (“Asked why [majority-white] SD 11 was drawn in a semi-donut-shape that splits St. Clair, Talladega, and Shelby Counties, Sen. Dial blamed that also on the need to preserve the black majorities in Jefferson County Senate districts”), and 43-44 (“Sen. Irons’ quick, ‘primative’ [sic] analysis of the new [majority-white] SD 1 convinced her that it was designed to ‘shed’ the minority population of Sen. Sanford’s [majority-white] SD 7 to SD 1″ in order to “crack a minority influence district”). The Black Caucus was attacking the legislative districts from every angle. Nothing gives rise to an inference that it ever homed in on majority-minority districts–or, for that matter, any particular set of districts. Indeed, the fair reading of the Black Caucus’s filings is that it was presenting illustrative evidence in particular districts–majority-minority, minority-influence, and majority-white–in an effort to make out a claim of statewide racial gerrymandering. The fact that the Court now concludes that this is not a valid legal theory does not justify its repackaging the claims for a second round of litigation.
III. Conclusion
?????Frankly, I do not know what to make of appellants’ arguments. They are pleaded with such opacity that, squinting hard enough, one can find them to contain just about anything. This, the Court believes, justifies demanding that the District Court go back and squint harder, so that it may divine some new means of construing the filings. This disposition is based, it seems, on the implicit premise that plaintiffs only plead legally correct theories. That is a silly premise. We should not reward the practice of litigation by obfuscation, especially when we are dealing with a well-established legal claim that numerous plaintiffs have successfully brought in the past. See, e.g.,Amended Complaint and Motion for Preliminary and Permanent Injunction in Cromartie v. Hunt, No. 4:96-cv-104 (EDNC), Doc. 21, p.?9 (“Under the March 1997 redistricting plan, the Twelfth District and First District have boundaries which were drawn pursuant to a predominantly racial motivation,” which were “the fruit of [earlier] racially gerrymandered plans”). Even the complaint in Shaw, which established a cause of action for racial gerrymandering, displayed greater lucidity than appellants’, alleging that defendants “creat[ed] two amorphous districts which embody a scheme for segregation of voters by race in order to meet a racial quota” “totally unrelated to considerations of compactness, contiguous, and geographic or jurisdictional communities of interest.” Complaint and Motion for Preliminary and Permanent Injunction and for Temporary Restraining Order in Shaw v. Barr, No. 5:92-cv-202 (EDNC), Doc. 1, pp.?11-12.
The Court seems to acknowledge that appellants never focused their racial-gerrymandering claims on Alabama’s majority-minority districts. While remanding to consider whether the majority-minority districts were racially gerrymandered, it admits that plaintiffs “basically claim that the State, in adding so many new minority voters to majority-minority districts (and to others), went too far.” Ante, at 3 (emphasis added). It further concedes that appellants “relied heavily upon statewide evidence,” and that they “also sought to prove that the use of race to draw the boundaries of the majority-minority districts affected the boundaries of other districts as well.” Ante, at 10.
The only reason I see for the Court’s selection of the majority-minority districts as the relevant set of districts for the District Court to consider on remand is that this was the set chosen by appellants after losing on the claim they actually presented in the District Court. By playing along with appellants’ choose-your-own-adventure style of litigation, willingly turning back the page every time a strategic decision leads to a dead-end, the Court discourages careful litigation and punishes defendants who are denied both notice and repose. The consequences of this unprincipled decision will reverberate far beyond the narrow circumstances presented in this case.
Accordingly, I dissent.