United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
this Court are the objections of the Alabama Legislative
Black Caucus plaintiffs to the remedial redistricting plans
enacted by the State of Alabama and a motion to intervene to
object to the remedial plans filed by Sandra Arnold and
Louella Kelly. (Docs. 345, 350, 363). First, we deny the
motion to intervene as untimely, Fed.R.Civ.P. 24. Second,
because the Black Caucus plaintiffs lack standing to
challenge House Districts 14 and 16 and Senate District 5, we
dismiss their objections that are based on racial
gerrymandering. Third, we dismiss the Black Caucus
plaintiffs' partisan gerrymandering objection to the same
districts because the Black Caucus plaintiffs lack standing
to bring a partisan gerrymandering challenge to the relevant
districts. In the alternative, we hold that the Black Caucus
plaintiffs have not articulated an adequate standard for
adjudicating the partisan gerrymandering objection.
memorandum opinion and order entered January 20, 2017, this
Court declared 12 of Alabama's legislative districts
unconstitutional racial gerrymanders and enjoined the use of
those districts in future elections. (Doc. 316 at 4-5). In a
separate order entered the same day, this Court directed the
parties to confer and, if possible, agree to a joint
procedure for the remedial phase of this litigation, (Doc.
318 at 3), which they did. (Docs. 326, 327). The joint
procedure gave Alabama until May 23 to enact a remedial
redistricting plan and gave the Alabama Democratic Conference
plaintiffs and Alabama Legislative Black Caucus plaintiffs
until June 13 to file objections to the plan. (Doc. 326 at 2;
Doc. 327 at 2, 4).
met its deadline and enacted Senate Bill 403 and House Bill
571 to cure the constitutional violations identified by this
Court. (Doc. 318 at 2; Doc. 335-1 at 273; Doc. 337-1 at 584).
Although we enjoined only the use of twelve of the
majority-black house and senate districts, (Doc. 316 at 4-5),
the remedial plans redrew all of the majority-black
districts. (Doc. 335 at 4). The drafters of the remedial
plans did not consider race when they initially drew the
remedial districts. (Doc. 335 at 4-5). The drafters
considered the racial composition of a district only if,
after changes had been made to the district, the black voting
age population fell below 50 percent. (Doc. 335 at 5).
plaintiffs posed no objection to the majority-black districts
in the remedial plans. The Democratic Conference plaintiffs
agreed with Alabama that Senate Bill 403 and House Bill 571
cured the impermissible use of race in the former
majority-black districts. (Doc. 349). The Democratic
Conference plaintiffs explained that “[t]he new plans
for both the House and Senate split significantly fewer
counties and precincts, and reduce black population
percentages in the vast majority of the black-majority House
and Senate districts, without compromising the ability of
[Alabama Democratic Conference] members to elect
representatives of their choice.” (Id. at 1).
The Black Caucus plaintiffs also posed no objection to the
majority-black districts as drawn in Senate Bill 403 and
House Bill 571. (Doc. 345 at 2).
Black Caucus plaintiffs instead moved to object to three
majority-white districts never before challenged in this
litigation-House Districts 14 and 16, and Senate District 5.
(Id.). House Districts 14 and 16 are part of the
Jefferson County House Delegation, and Senate District 5 is
part of the Jefferson County Senate Delegation. (Id.
at 19, 23). The Black Caucus plaintiffs argue that the
drafters included these districts in Jefferson County to
“maintain more majority-white than majority-black
districts in the Jefferson County” House and Senate
delegations. (Id. at 19, 23). The Black Caucus
plaintiffs complain that all three districts protrude into
Jefferson County but none of the representatives of the
districts reside in Jefferson County, establishing that the
districts are racial gerrymanders. (Id. at 2, 13,
19, 23). The Black Caucus plaintiffs contend that their
proposed alternative remedial plans, which removed Senate
District 5 and House District 14 from Jefferson County, cured
the racial gerrymanders of the Jefferson County delegations.
(Id. at 2).
Black Caucus plaintiffs also argue that the Jefferson County
districts are partisan gerrymanders that violate the First
and Fourteenth Amendments. (Doc. 363 at 3). In support of
this objection, the Black Caucus plaintiffs point to the
possibility that the Supreme Court will address partisan
gerrymandering in the October 2017 term. (Id. at 2).
Arnold, a resident and registered voter of House District 14,
and Louella Kelly, a resident and registered voter in House
District 16, moved to intervene in the case, Fed.R.Civ.P. 24,
to join the Black Caucus plaintiffs in their challenge of
these districts. (Doc. 350 at 1, 3). Arnold and Kelly assert
that they have an interest in this action now that Alabama
has enacted remedial plans that altered the design of House
Districts 14 and 16. (Id. at 2). Arnold and Kelly
acknowledge, however, that if their “motion to
intervene is denied, . . . the plaintiffs may be held to lack
standing to challenge” House Districts 14 and 16
because no plaintiff lives in those districts. (Id.
at 3). In their defense of the motion to intervene, the Black
Caucus plaintiffs also admit that neither intervenor resides
in Senate District 5, “[s]o neither movant nor any
[Black Caucus] plaintiff has standing to pursue a racial
gerrymandering claim with respect to [Senate District]
5.” (Doc. 357 at 2).
divide this discussion in three parts. We first explain that
the motion to intervene to challenge House Districts 14 and
16 is untimely. We next explain that the Black Caucus
plaintiffs lack standing to challenge Senate District 5 and
House Districts 14 and 16 as racial gerrymanders. Finally, we
explain that the Black Caucus plaintiffs lack standing to
raise their partisan gerrymandering challenge, and we hold,
in the alternative, that the Black Caucus plaintiffs have
failed to articulate a standard for adjudicating their
partisan gerrymandering objection.
Motion to Intervene Is Untimely.
succeed on their motion to intervene, Arnold and Kelly must
establish as a threshold matter that their motion is timely.
See Fed. R. Civ. P. 24; Howse v. S/V
Canada Goose I, 641 F.2d 317, 320 (5th Cir. 1981)
(“Timely application is a requirement for both
intervention of right and permissive intervention.”).
We consider four factors to determine if a motion to
intervene is timely:
(1) the length of time during which the would-be intervenor
knew or reasonably should have known of his interest in the
case before he petitioned for leave to intervene; (2) the
extent of prejudice to the existing parties as a result of
the would-be intervenor's failure to apply as soon as he
knew or reasonably should have known of his interest; (3) the
extent of prejudice to the would-be intervenor if his
petition is denied; and (4) the existence of unusual
circumstances militating either for or against a
determination that the application is timely.
United States v. Jefferson Cty., 720 F.2d 1511, 1516
(11th Cir. 1983). Although Arnold and Kelly contend that
these factors favor intervention, (Doc. 350 at 2-5; Doc. ...