concurring in the judgment:
I concur with the majority’s ultimate holding that the claims in Counts One and Three should be dismissed for their failure to state a plausible claim, and that Plaintiffs’ Fourteenth Amendment claim against the State, asserted under § 1983, should be dismissed because we have no subject matter jurisdiction to consider it. I do not join in the decision to recite the long list of allegations in the Complaint because most aré not germane to the legal issues before this Court and because many of the allegations are conclusory and opinionated.
I write separately to underscore my regret that Eleventh Circuit precédent requires courts in our circuit to engage in a decision-making process antithetical to judicial restraint, economy, and otherwise practical results. These precedents here required us to address an assertion of Eleventh Amendment immunity even where other grounds exist to dismiss a claim. The Eleventh Amendment immunity asserted by the State was considered because the defense was not expressly asserted as “conditional” in the State’s pleadings and the State was not otherwise given the opportunity to advise us whether it requested its Eleventh Amendment arguments be addressed even if the Court found, as it does, that Count One fails to state a claim. I find the inflexible precedent in Seaborn v. State of Fla., Dep’t of Corr., 143 F.3d 1405 (11th Cir. 1998) and McClendon v. Georgia Dep’t of Cmty. Health, 261 F.3d 1252 (11th Cir. 2001) illogical as applied, and, in this case, results in the expenditure of judicial time and resources to express obligatory dicta. Before discussing our circuit’s 'Case law on this issue, I consider first the threshold question whether our three-judge panel is bound by Eleventh Circuit law at all.
Whether Circuit Authority is Binding on Three-Judge District Courts
The doctrine of stare decisis generally requires a lower court to follow the precedent of the courts that review its decisions. *1286See Parker v. Ohio, 263 F.Supp.2d 1100, 1112 n.3 (S.D. Ohio 2003). ,As the majority notes, where a three-judge district court considers the constitutionality, of a redistricting plan, its decisions are reviewed directly by the United States Supreme Court, not the United States Court of Appeals in which the district court is located. See 28 U.S.C. § 1253. Because of this unique appellate process, some judges have doubted whether a three-judge district court is bound by its circuit’s precedent. See Ala. Legislative Black Caucus, v. Alabama, 988 F.Supp.2d 1285, 1342 n.13 (M.D. Ala. 2013) (Thompson, J., concurring in part and dissenting in part); Parker, 263 F.Supp.2d at 1112 n.3; Poe v. Werner, 386 F.Supp. 1014, 1016-17 (M.D. Pa. 1974).
I am aware of only one three-judge district court that concluded it was not bound by its circuit’s precedent. See Jehovah’s Witnesses in the State of Wash. v. King Cty. Hosp. Unit No. 1, 278 F.Supp. 488, 504-505 (W.D. Wash. 1967) (per curiam) (“In this special three-judge court [] we are not bound by any judicial decisions other: than those of, the United States Supreme Court.”). The majority of three-judge district courts and circuit courts opine, albeit with little reasoning, that three-judge district courts are bound by the precedent in their circuit. See Finch v. Miss. State Med. Ass’n., Inc., 585 F.2d 765, 773 (5th Cir. 1978); Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970); Baksalary v. Smith, 579 F.Supp. 218, 227 (E.D. Penn. 1984); Russell v. Hathaway, 423 F.Supp. 833, 835 (N.D. Tex. 1976); Hopson v. Schilling, 418 F.Supp. 1223, 1234-35 n.15 (N.D. Ind. 1976); Athanson v. Grasso, 411 F.Supp. 1153, 1157 (D. Conn. 1976); Alabama NAACP State Conference of Branches v. Wallace, 269 F.Supp. 346, 350 (M.D. Ala. 1967).
The majority here elects to follow circuit precedent. I reach this conclusion reluc7 tantly in this case because I find that following circuit precedent promotes,. albeit to an uncertain degree, uniformity of the law. at least within a circuit. I also follow it knowing that application of circuit precedent in this case leads to a practically illogical. result. There is scant guidance from the Supreme Court regarding cases challenging the constitutionality of the apportionment of congressional or state legislative districts, and the law in this area is not well-settled. As the majority notes, this is'in part the result of the Supreme Court routinely issuing summary affirmances of three-judge district courts in voting eases. Those summary opinions most often state that a judgment was correct “but not necessarily the reasoning.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam) (quotation omitted). Circuit courts, however, have, on limited occasions, considered and ruled on similar claims in cases in which congressional or state legislative districts are not challenged, because these cases go through the normal appellate process. It seems the rationale for following circuit precedent is because courts have found that some law is better than no law.
I note also that, in other contexts, courts are, for various reasons, required to follow precedent that “does not perfectly. track the power of revisory review[,]” Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law? 68 Vand. L. Rev. 53, 78 (2015). For instance, the Erie doctrine requires federal courts to follow state high court precedent on questions of state law, see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and the Federal Circuit considers its decisions on matters of patent law to bind the other federal courts of appeals, despite that the courts of appeals are not subordinate to the Federal Circuit, see Midwest Indus., Inc. v. Karavan Trail*1287ers, Inc., 175 F.3d 1356, 1361. (Fed. Cir. 1999) (en banc). I conclude that, though it is unclear whether a three-judge panel is bound by its circuit’s precedent, I agree it should be followed here, even though in this case it leads to judicial inefficiency to do so.
Whether Courts Must Address Eleventh Amendment Immunity
Having agreed to follow Eleventh Circuit precedent, the next question is whether Eleventh Circuit cases require the Court to consider Eleventh Amendment immunity before addressing the merits of a claim. In Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Supreme Court held that federal courts are required to determine whether Article III jurisdiction exists prior to proceeding tó the merits of the case. Id. The prohibition stated in the Eleventh Amendment, however, is a “rather peculiar kind of ‘jurisdictional’ issue.” McClendon v. Georgia Dep’t of Comm’ty Health, 261 F.3d 1252, 1257 (11th Cir. 2001) (internal citations omitted) (quoting United States v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892 (D.C. Cir. 1999)). “Unlike most subject matter jurisdiction issues, which cannot be waived by the parties and must be raised by a court on its own initiative, the Eleventh Amendment does not automatically deprive a court of original jurisdiction.” Id. (citing Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998)). While courts have the discretion to raise Eleventh Amendment questions sua sponte, they are not required to do so. See Schacht, 524 U.S. at 387-89, 118 S.Ct. 2047; Nair v. Oakland Cty. Cmty. Mental Health Auth., 443 F.3d 469, 474 (6th Cir. 2006) (distinguishing Eleventh Amendment immunity from Article III jurisdiction).
In view of the unique nature of the Eleventh Amendment bar, the circuit courts are split on whether the Eleventh Amendment immunity question, like an Article III jurisdiction question, must be resolved before reaching the merits of a case. Nair, 443 F.3d at 476 (describing circuit split). “[T]he trend in this area seems to favor giving federal courts discretion over the issue[.]” Id.
The rule in our circuit, however, is that “[a]n assertion of Elevénth Amendment immunity essentially challenges a court’s subject matter jurisdiction!;,]” and thus “an assertion of Eleventh Amendment immunity must be resolved before a court may address the merits of the underlying claim(s).” Seaborn, 143 F.3d at 1407. In McClendon, the Eleventh Circuit announced an exception to what appeared to be a bright-line subject matter jurisdiction rule. In McClendon, the defendants argued that the Eleventh Circuit could affirm the district court’s dismissal of-the plaintiffs’ claims either on Eleventh Amendment grounds or because the plaintiffs’ complaint failed to state a claim. 261 F.3d at 1257. After summarizing their Eleventh Amendment defense, the defendants stated that the “dismissal of (the plaintiffs’] complaint can also be affirmed on the ground that [their] complaint failed to state a claim upon which relief could be granted.” Id. at 1257-58. At oral argument, counsel for the defendants stated that either the Eleventh Amendment or failure to state a claim was a sufficient basis to affirm the district court’s decision. Id. at 1258. The Eleventh Circuit “interpret[ed ] the defendants’ position as a conditional assertion of Eleventh Amendment sovereign immunity—they insist upon that defense only if it is necessary to prevent judgment against them on the merits.” Id. (emphasis added). The court found that, “(b]ecause the Eleventh Amendment ‘grants the State a legal power to assert a sovereign immunity defense should it *1288choose to do so,’ the defendants are free to conditionally assert that defense in order to allow a federal court to decide in their favor on the merits.” Jd. (quoting Schacht, 524 U.S. at 389, 118 S.Ct. 2047).
•The Eleventh Circuit specifically noted its holding in McClendon was “limited to the conclusion that the conditional assertion of the Eleventh Amendment gives a federal court the discretion to dispose of the merits favorably to the state or its officials if it chooses to do so.” Id. at 1259 (emphasis added). The court noted that its holding does not conflict with Seaborn, because, “in contrast to the defendants here, there is no indication that the defendants in Seaborn expressed a willingness to permit the court to reach the merits instead of considering the Eleventh Amendment issue.” Id. at 1258-59. McClendon appears to require an expression of a conditional assertion, at least in a written pleading or during oral argument.
Here, as in Seaborn, there is “no indication that [Defendants] ... expressed a willingness to permit the court to reach the merits instead of considering the Eleventh Amendment issue.” Id. In the absence of a written or other expression that Defendants’ assertion of Eleventh Amendment immunity is conditional, we are bound to apply Seaborn, which requires us to resolve Defendants’ “assertion of Eleventh Amendment immunity .,. before [we] may address the merits of the underlying claim(s).” Seaborn, 143 F.3d at 1407.1
I strongly disagree with the blight-line rule in Seaborn, including because the opinion fails to consider the substantial differences between Eleventh Amendment immunity and traditional Article III jurisdiction. In McClendon, the Eleventh Circuit, though recognizing these differences, was nevertheless constrained by its prior holding in Seaborn until there were statements made at oral argument allowing the court to find a conditional assertion exception—an exception unique to our circuit. The McClendon court favorably cited the First Circuit’s decision in Parella v. Ret. Bd. of Rhode Island Emps.’ Ret. Sys., 173 F.3d 46 (1st Cir. 1999), in which the First Circuit held a court may bypass the Eleventh Amendment issue where other dis-positive grounds exist. In Parella, the court reasoned that the distinctions between the Eleventh Amendment bar and ordinary restrictions on subject matter jurisdiction suggest “that Eleventh Amendment issues do not fall into the category of Article III questions that Steel Co. would define as necessarily antecedent.” Id. at 55. The Parella court noted that the Supreme Court in Steel Co. rejected the assertion of “hypothetical jurisdiction” where a court’s Article III jurisdiction is in doubt, because a court without Article III jurisdiction has no power to declare the law, and any opinion would thus be an advisory opinion. M. (citing Steel Co., 523 U.S. at 101, 118 S.Ct. 1003). The First Circuit explained that, in the Eleventh Amendment context, there is not the same risk of rendering an advisory opinion. The court reasoned:
[B]ecause Eleventh Amendment immunity can be waived, the présence of an Eleventh Amendment issue does not threaten the court’s underlying power to declare the'law. If this were not the case, sua sponte consideration of a possible Eleventh Amendment bar would have to be obligatory, not discretionary—but the Supreme Court has now clearly stated that courts are free to ignore possible Eleventh Amendment *1289concerns if a defendant chooses not to press them.
Id. (citation omitted).
Based on this reasoning, the First Circuit suggested that the “relevant maxim in the Eleventh Amendment context is not that federal courts cannot act without first establishing their jurisdiction, but rather that courts should ‘not reach constitutional questions in advance of the necessity of deciding them.’” Id. at 56 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 62, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (Ginsburg, J., concurring in part and concurring in the judgment)). The Parella court also noted that avoiding Eleventh Amendment questions where there are other dispositive issues would produce two positive outcomes: (1) avoiding squandering judicial resources, and (2) avoiding forcing defendants to expend their resources on Eleventh Amendment questions in situations in which they would rather not do so. Id. Finally, the Parella court noted that requiring courts to rule on Eleventh Amendment questions would require them, “under certain circumstances, to begin their opinions with the equivalent of ‘obligatory dicta.’ ” Id. at 57. The reasoning in Parella allowed the Eleventh Circuit to interpret an exception to the Seaborn bright-line test. The result in the majority opinion here is that the Court elected to engage in the Eleventh Amendment application analysis, which ultimately is unnecessary dicta in this case. I find the reasoning and the result in Parella legally and practically sound, as have the majority of the circuit courts. See Nair, 443 F.3d at 476.
I believe our circuit, if confronted with the facts here, would find a conditional assertion is implied where a state moves to dismiss counts for failure to state a claim, or an en bam panel of the Eleventh Circuit would overturn the inflexible rule in Seaborn altogether. This conclusion is supported by the circuit’s favorable review of Parella and its practical approach to evaluating Eleventh Amendment issues when other dispositive arguments are asserted. In Ramos v. Tomasino, 701 Fed.Appx. 798, 2017 WL 2889472 (11th Cir. July 7, 2017), a decision issued just last month, the defendant asserted several grounds for dismissal, including one based on Eleventh Amendment sovereign immunity. In choosing not to consider the defendant’s Eleventh Amendment sovereign immunity argument, the court stated: “Because all of Ramos’s claims are barred by Rooker-Feldman and Parker immunity grounds, we decline to address Ramos’s additional argument concerning Eleventh Amendment immunity, and those arguments that do not involve the application of immunity.” Id. at 805 n.4, 2017 WL 2889472 at *5 n.4. Though it is an unpublished decision, the circuit in Ramos, by declining to address the Eleventh Amendment immunity issue even in the absence of “conditional” language, accomplished the same practical results reached in McClendon, because “avoiding Eleventh Amendment questions where there are other dispositive issues ... permits courts to avoid squandering judicial resources.” McClendon, 261 F.3d at 1259 (alteration not adopted) (quoting Parella, 173 F.3d at 56).2
*1290In view of the Eleventh Circuit’s practical approach in declining to consider the Eleventh Amendment immunity issue in McClendon and in Ramos, I believe it would today decline to apply the inflexible standard in Seaborn. Instead, it' is the logical and reasonable next step for the circuit either' to overrule Seaborn or to “interpret” a failure to state a claim defense in a case like ours to imply a conditional assertion of the State’s Eleventh Amendment immunity defense and allow courts to decline to address Eleventh Amendment immunity where, as here, the claim against the State is dismissed on the merits. If we were not bound to apply Seaborn, I would avoid addressing an opinion on the application of the. Eleventh Amendment and whether Section 2, abrogates Eleventh Amendment immunity,which, as it turns out, is. the equivalent of <fobligatory dicta” in this opinion. See Parella, 173 F.3d at 57. Such a result also is consistent with the historic principles of judicial restraint. '
. It seems the majority opinion could have been more focused and this concurrence not necessary if the State was asked to advise us if its assertion of its Eleventh Amendment immunity was conditional or not.
. The judicially created “conditional” assertion of an Eleventh Amendment sovereign immunity defense promotes inconsistent results that do not promote stability. For example, if in one case a state defendant asserted Eleventh Amendment and Rule 12(b)(6) failure to state a claim grounds for dismissal and said the Eleventh Amendment defense was "conditional,” but in another case the state failed to state this apparently obligatory "conditional” language, even though it seeks for the Rule 12(b)(6) grounds to be determined first, the Court has to go through two different analytical processes even if in both cases there is a *1290finding that the claim fails to meet the Rule 12(b)(6) standard. In the case here where the obligatory "conditional” assertion language is not used, the Court and the parties, wasted time and effort to address the now inconsequential Eleventh Amendment argument. The better rule in cases where there is a motion to dismiss under Rule 12(b)(6) is always to first determine if a complaint even asserts pl.ausi-ble claims before deciding if the Eleventh Amendment bars them.