[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 21, 2001
THOMAS K. KAHN
CLERK
No. 01-10806
D. C. Docket No. 00-00273-CV-TWT-1
TIBERIO P. DEJULIO,
EVA C. GALAMBOS,
Plaintiffs-Appellants,
versus
STATE OF GEORGIA,
ROY E. BARNES, in his official capacity
as the Governor of Georgia, et al.
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Georgia
(December 21, 2001)
Before BIRCH, COX and ALARCON*, Circuit Judges.
_____________________
*Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:
This appeal presents the following issues: (1) whether the procedures by
which the Georgia General Assembly considers “local legislation” violate the
principle of “one person, one vote,” and (2) whether the changes in internal rules
and procedures by which the General Assembly enacts local legislation are subject
to the preclearance requirement of the Voting Rights Act of 1965, 42 U.S.C. §
1973 et seq., as amended. As to the first issue, the district court determined that,
although the members of the Georgia General Assembly’s local delegations were
popularly elected, they did not engage in governmental functions, and, therefore,
the “one person, one vote” requirement does not apply. Under the circumstances
of this case, the district court should have invoked Pullman1 abstention concerning
this issue. Regarding the second issue, we affirm the court’s determination that the
preclearance requirements of the Voting Rights Act did not apply to the changes in
the General Assembly. Accordingly, we REVERSE in part and AFFIRM in part.
I. BACKGROUND
The legislative power of the state is vested in the General Assembly, which
1
The first abstention doctrine was created by the Supreme Court in Railroad Comm’n of
Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941).
2
consists of a House of Representatives and a Senate.2 Ga. Const., art. III, § 1, ¶ 1.
Both the House and Senate have adopted their own rules to govern organization
and basic rules of operation.3 Local legislation, which is legislation that applies to
a specific city, county, or special district, comprises a large part of the bills
introduced and enacted by the General Assembly each year.4 Because of this
volume, the House and the Senate have adopted local delegations for the
consideration of local legislation. Each county, municipality, or other jurisdiction
has a local delegation and any legislator whose district encompasses territory
within a specific city or county is a member of the local delegation for that entity.
The local delegations make recommendations to the House and Senate
standing committees, which then recommend local legislation to the entire body5.
A local bill must receive the requisite majority from the local delegation to be
2
Hereinafter, the Georgia House of Representatives and Georgia Senate will be referred
to respectively as “House” and “Senate.”
3
The district court took judicial notice of the 2000 Rules of the Georgia House of
Representatives and the 2000 Rules of the Georgia Senate. DeJulio v. Ga., 127 F. Supp.2d 1274,
1284 (N.D. Ga. 2001).
4
Local legislation is introduced to change city boundaries, create local authorities, or
make other changes that apply only to the particular political subdivision named in a bill.
Approximately one-third of all legislation enacted during the General Assembly’s 2000 session
was local legislation. DeJulio, 127 F. Supp.2d at 1280. In 1999, local legislation constituted
52.5% of all enacted legislation. Id.
5
The standing committees are the State Planning and Community Affairs Committee in
the House and the State and Local Government Operations Committee in the Senate. Id. at
1280-81.
3
reported favorably out of the standing committees with a “do pass”
recommendation. Absent local delegation rules filed in the House Standing
Committee, unanimous support from the local delegation is required for the
committee to report the legislation favorably to the full House with a “do pass”
recommendation.6 Similarly, Senate Rule 187(u) provides that local legislation
must be approved by a majority of the senators who represent the locality in
question. If the local delegation is equally divided on the proposed legislation,
however, the committee then considers the legislation on its own merits and can
report it with either a “do pass” or “do not pass” recommendation.
If local legislation has received the requisite number of signatures of
representatives and senators whose districts lie partially or wholly within the
locality which the legislation affects, it is ordinarily passed on an uncontested basis
as a matter of local courtesy.7 The underlying assumption of local courtesy is that
the bill affects only a certain city or county, and, therefore, representatives and
senators of other districts should defer to that local delegation’s judgment. Local
6
House Rule 11 provides that a majority of the representatives whose districts lie within
a political subdivision may file with the State Planning and Community Affairs Committee their
own local rules for consideration of local legislation.
7
Both the House and Senate permit numerous local bills to be voted on by the full body
through a “local consent calendar” that contains uncontested local legislation. DeJulio, 127 F.
Supp.2d at 1281.
4
courtesy is a custom, however, and is not provided for in either the House or
Senate rules. Should a member of the House or Senate choose to challenge local
legislation on the floor, local courtesy is not enforced.8
It is undisputed that these challenges seldom happen. The district court
noted that “in practice, the local delegations propose all local legislation; and this
legislation typically, but not always, is ‘rubber-stamped’ by the full General
Assembly without further discussion or debate.” DeJulio, 127 F. Supp.2d at 1281.
For local legislation to become law, however, the Governor must sign it within
forty days from the end of the legislative session. Id.
Plaintiffs-appellants, Tiberio P. DeJulio and Eva C. Galambos (hereinafter
“Voters”), filed a voting rights action pursuant to 42 U.S.C. § 1983, the Fourteenth
Amendment of the United States Constitution, and an action to enforce the
provisions of the Fourteenth Amendment and the Voting Rights Act of 1965, 42
U.S.C. § 1973 et seq., as amended. Voters alleged that the current procedures for
enactment of local legislation of the General Assembly constituted a violation of
the “one person, one vote” standard.9 Additionally, Voters argued that the changes
8
Senate Rule 113(e) provides that three senators, only one of whose district must lie
within the political subdivision directly affected, may have a particular local bill removed from
the local consent calendar by objecting to it in writing.
9
Voters’ argument is based on the undisputed population data for Georgia’s 159 counties
broken down according to the House and Senate Districts located in those counties. Voters
5
in the General Assembly’s internal rules are subject to the preclearance
requirement of Section 5 of the Voting Rights Act. DeJulio, 127 F. Supp.2d at
1282. The district court granted summary judgment to the appellees and
determined that: (1) the “one person, one vote” requirement did not apply to the
General Assembly’s local legislative delegations, and (2) the changes in internal
rules and procedures by which the General Assembly enacted local legislation were
not subject to the Voting Rights Act’s preclearance requirements. Id. at 1302.
Voters appeal this judgment on both issues.
II. DISCUSSION
We review a district court’s grant of summary judgment de novo, apply the
same standard as the district court, and review all facts and reasonable inferences
in the light most favorable to the nonmoving party. Allison v. McGhan Med.
Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Summary judgement is appropriate
when “the pleadings, depositions and answers to interrogatories, and admissions on
file, together with the affidavits, if any,” show there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law. Celotex v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553 (1986)(quoting Fed. R. Civ. P.
allege that a House or Senate member with constituents in the county have one vote on local
legislation while another House or Senate member with fewer constituents in the county also has
one vote on local legislation affecting the county.
6
56(c)).
A. “One Person, One Vote”
Because this issue is better determined by the state, the district court should
have invoked Pullman abstention.10 Under Pullman abstention, a federal court will
defer to “state court resolution of underlying issues of state law.” Harman v.
Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181 (1965). By abstaining in such
cases, federal courts “avoid unnecessary friction in federal-state relations,
interference with important state functions, tentative decisions on questions of state
law, and premature constitutional adjudication.” Id. at 534, 85 S.Ct. at 1182.
Two criteria have been established for application of the Pullman doctrine:
(1) the case must present an unsettled question of state law, and (2) the question of
state law must be dispositive of the case or would materially alter the constitutional
question presented. Duke v. James, 713 F.2d 1506, 1510 (11th Cir. 1983). A
question of state law is “unsettled” if it is “fairly subject to an avoiding
construction,” which means that the state court can render a fair interpretation of
state law that comports with the Constitution. Id. at 1510.
10
We are raising abstention sua sponte, Bellotti v. Baird, 428 U.S. 132, 143 n.10, 96
S.Ct. 2857, 2864 n.10 (1976), and have determined de novo the propriety of abstention in this
case. We join other circuits in this approach. See Columbia Basin Apartment Ass’n. v. City of
Pasco, 268 F.3d 791 (9th Cir. 2001); Robinson v. City of Omaha, Nebraska, 866 F.2d 1042 (8th
Cir. 1989); Grimes v. Crown Life Ins. Co., 857 F.2d 699 (10th Cir. 1988); Waldron v. McAfee,
723 F.3d 1348 (7th Cir. 1983).
7
In considering abstention, we must take into account the nature of the
controversy and the importance of the right allegedly impaired. Siegel v. Lepore,
234 F.3d 1163, 1174 (11th Cir. 2000)(en banc)(per curiam). Voters in this case
allege that the current procedures for enacting local legislation violate the “one
person, one vote” requirement of the Fourteenth Amendment. Specifically, Voters
contend that their vote is diluted compared to other Fulton County voters whose
representatives and senators represent only a portion of Fulton County, but who
have an equal vote in Fulton County local delegations.
An alleged denial of voting rights does not automatically trigger federal
involvement. Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. Unit B Sept.
1981).11 The abstention doctrines are not considered rules of law. Rather, they are
applied with the exercise of sound discretion based of the facts of each case. Hill
v. City of El Paso, Texas, 437 F.2d 352, 356 (5th Cir. 1971).
In this case, we risk interference with valid state procedures and
unnecessary federal constitutional adjudication. “How power shall be distributed
by a state among its governmental organs is commonly, if not always, a question
for the state itself.” Highland Farms Dairy v. Agnew, 300 U.S. 608, 612, 57 S.Ct.
11
Additionally, “[j]ust as an alleged denial of voting rights does not preclude federal
abstention, so the absence of pending state proceedings does not mandate federal adjudication.”
Ducan, 657 F.2d at 697.
8
549, 551 (1937). The Georgia Constitution authorizes the General Assembly to
create its own rules of procedure. Both the House and Senate have adopted
internal procedures for the consideration of local legislation to assist the General
Assembly in handling vast quantities of legislation. Whether the local delegations
perform governmental functions, which subjects them to the “one person, one
vote” requirement, is a fundamental matter of state law that is most appropriate for
state court determination. Because the relief sought by Voters regarding the
validity of the House and Senate rules may be available under Georgia law, we
conclude that the district court should not have decided the merits of the federal
constitutional claims presented in this complaint.
The dissent states that no unsettled state law questions are presented in this
case. However, the district court never considered deferral to the Georgia courts,
affording these courts the first opportunity to address what is purely and peculiarly
a state legislative voting procedure. We respectfully suggest that at this juncture it
is speculation to conclude that the Georgia courts are not capable of resolving this
dispute. Such a resolution on the basis of Georgia law would pretermit the
intervention of the federal courts into an area of state sovereignty.
While this is not a traditional “voting dispute” — it is once removed from
the familiar dispute — it is, nevertheless manifestly with in the aegis of that
9
concern. As we have observed:
Principles of federalism limit the power of federal courts
to intervene in state elections, however. The Constitution
leaves "the conduct of state elections to the states."
Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir.1980). We
have cautioned before against excessive entanglement of
federal courts in state elections. "The very nature of the
federal union contemplates separate functions for the
states. If every state election irregularity were considered
a federal constitutional deprivation, federal courts would
adjudicate every state election dispute...." Id.
Burton v. State of Georgia, 953 F.2d 1266, 1268 (11th Cir. 1992). As I understand
the law, “[o]nly in extraordinary circumstances will a challenge to a state election
rise to the level of a constitutional deprivation.” Curry v. Baker, 802 F.2d 1302,
1314 (11th Cir. 1986).
B. Section 5 of the Voting Rights Act
Section 5 of the Voting Rights Act requires a jurisdiction covered by the Act
to obtain either judicial or administrative preclearance before implementing a new
“voting qualification or prerequisite to voting, or standard, practice, or procedure
with respect to voting different from that in force or effect on November 1,
1964."12 42 U.S.C. § 1973c (Voting Rights Act of 1965 § 5). If a covered
jurisdiction fails to seek preclearance for a proposed voting-law change, a private
12
Georgia is a “covered jurisdiction,” as are its “political subunits.” 28 C.F.R. Part 1 & §
51.6.
10
party injured by that change can bring an action for a declaratory judgement and
injunctive relief by alleging that the change is within the scope of Section 5 and
that it requires preclearance. Id.
In this case, Voters, without identifying specific rule changes, argue that the
changes in Rules of the General Assembly are subject to preclearance. The
preclearance requirements of the Voting Rights Act apply to legislative internal
rule changes in only the most limited of circumstances: (1) changes to the manner
of voting; (2) changes to candidacy requirements and qualifications; (3) changes to
the composition of the electorate; and (4) changes that affect the creation or
abolition of an elective office. Presley v. Etowah County Commission, 502 U.S.
491, 493, 112 S.Ct. 820, 823 (1992). In Presley, the Court held that changes in the
decision-making authority of elected officials are not changes in voting practices or
procedures that require preclearance pursuant to Section 5 of the Voting Rights
Act. Id. at 503, 112 S.Ct. at 829. The change “concerns only the internal
operations of an elected body and the distribution of power among officials, and,
thus, has no direct relation to, or impact on, voting.” Id. at 492, 112 S.Ct. at 823.
Hence, the district court correctly determined that preclearance requirements did
not apply to changes in internal rules and procedures by which the General
Assembly enacted
11
local legislation applicable to a specific city, county, or district.
III. CONCLUSION
The district court noted, “[i]t...is not the province of the federal judiciary in
the name of the equal protection of the laws to interfere in such internal political
matters as how a state legislature seeks to reach consensus on local legislation.”
DeJulio, 127 F. Supp.2d at 1302. As we have explained, the district court should
have abstained from deciding whether the “one person, one vote” requirement
applied to local legislative delegations. Furthermore, the district court correctly
decided that procedural changes to the internal Rules of the General Assembly are
not subject to the preclearance requirement of the Voting Rights Act.
Accordingly, we REVERSE in part and AFFIRM in part the judgment of
the district court and REMAND for further proceedings consistent with this
opinion.
12
COX, Circuit Judge, concurring in part and dissenting in part:
I agree that summary judgment was appropriate on the Voting Rights Act
claims. However, I do not agree that the district court should have invoked
Pullman abstention on the federal “one person, one vote” equal protection claims.
Since, in my view, there are no unsettled questions of state law presented in this
case, I respectfully dissent from Part II.A. of the court’s opinion.
The voters filed a five count complaint in the United States District Court for
the Northern District of Georgia. Counts One, Two, and Three allege violations of
the Equal Protection Clause of the United States Constitution. (R.2-12 at 9-47.)
Counts Four and Five allege violations of the Voting Rights Act, 42 U.S.C. § 1973.
(R.2-12 at 47-51.) There are no state law claims.
The State of Georgia vigorously attacked the suit and raised several
defenses. However, throughout the litigation, Georgia never suggested that
abstention was appropriate and never once cited Pullman.
On summary judgment, the district court found that the voters had standing,
see Dejulio v. Ga., 127 F. Supp. 2d 1274, 1290-91 (N.D. Ga. 2001), that this case
did not implicate the political question doctrine, see id. at 1292, and that some
parties were improper, see id. at 1292-94. The district court also concluded that
the local delegations did not violate the “one person, one vote” principle because
13
the local delegations have no final authority, see id. at 1297, and that internal
changes in the local legislation process were not subject to preclearance under the
Voting Rights Act, see id. at 1301. But never in its lengthy and thorough opinion
did the district court mention abstention.
On appeal, neither party argued for abstention in its brief. Indeed, Pullman
abstention was first mentioned at oral argument in a question posed by this court.
Since Pullman abstention was never raised or argued, I would not bother to
raise it sua sponte in this case. However, once Pullman abstention is raised, it
should quickly be rejected since this case turns solely on an unavoidable
constitutional question. To put it plainly, there is no unsettled question of state law
presented in this case. Moreover, there is no interpretation of state law that would
allow us to avoid the constitutional question presented in this case. Thus, Pullman
abstention is inappropriate.
Pullman abstention is an “extraordinary and narrow exception” to the
exercise of federal jurisdiction, available only in “exceptional circumstances.”
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 187, 79 S. Ct. 1060,
1063 (1959). In this circuit, Pullman abstention is appropriate only when both of
the following circumstances are present: (1) the case presents an unsettled question
of state law; and (2) the question of state law is dispositive of the case or would
14
materially alter the constitutional question presented. See Siegel v. LePore, 234
F.3d 1163, 1174 (11th Cir. 2000) (en banc). Even when these circumstances are
present, Pullman abstention is still not required; it remains discretionary, to be
invoked only “when the question of state law can be fairly interpreted to avoid
adjudication of the constitutional question.” Id.
The complaint in this case contains five counts that raise federal claims and
questions of federal law. There are no claims under Georgia law.1 Though the
lack of state law claims does not end the abstention inquiry, see Reid v. Bd. of
Educ., 453 F.2d 238, 242 n.7 (2d Cir. 1971), the lack of unsettled state law
questions does. In this case, there are no unsettled state law questions. The
Georgia General Assembly created the local delegations through its own internal
procedures, and there is nothing unclear about these procedures or their
application. Simply put, there is no Georgia law that the Georgia courts could
construe to avoid adjudicating the “one person, one vote” claims raised in this case.
1
The only conceivable state claim would be an equal protection claim under the Georgia
Constitution. See Ga. Const. art. 1, § 1, ¶ 2, cl. 2 (“No person shall be denied the equal
protection of the laws.”). Under Georgia law, the equal protection clause of the Georgia
Constitution is considered identical to the equal protection clause of the Fourteenth Amendment.
See Nodvin v. State Bar of Ga., 544 S.E.2d 142, 145 (Ga. 2001) (“Because the protection
provided in the Equal Protection Clause of the United States Constitution is coextensive with
that provided in Art. 1, Sec. 1, Par. 2, of the Georgia Constitution of 1983, we apply them as
one.”) Since these clauses are mirror images, we should not ignore a federal claim under one
just because a state claim is available under the other. See Examining Bd. of Eng’rs v. Flores de
Otero, 426 U.S. 572, 598, 96 S. Ct. 2264, 2279 (1976); Fields v. Rockdale County, 785 F.2d
1558, 1561 (11th Cir. 1986); Henley v. Herring, 779 F.2d 1553, 1556 (11th Cir. 1986).
15
The success of the “one person, one vote” claims turns, as both parties and
the majority acknowledge, on whether Georgia’s local delegations perform
“governmental functions.” The resolution of this “governmental functions” issue
ultimately depends on federal equal protection law, not on Georgia law. See
Ramsbottom Co. v. Bass/Zebulon Rds. Neighborhood Ass’n, 546 S.E.2d 778, 779-
80 (Ga. 2001); Rich v. State, 227 S.E.2d 761, 766-67 (Ga. 1976); Grimes v. Clark,
173 S.E.2d 686, 689-91 (Ga. 1970) (each applying only federal principles in its
“one person, one vote” governmental functions analysis). We are, therefore,
squarely confronted with a constitutional question whose adjudication cannot be
avoided by interpreting state law.
Instead of pointing to an unsettled question of state law, the majority states
that Georgia’s courts should have the first opportunity to address its legislative
procedures. But this statement flies in the face of Pittman v. Cole, 267 F.3d 1269
(11th Cir. 2001), where we explicitly stated that Pullman abstention should not be
invoked so that state courts can “take the first crack at the federal constitutional
issues.” Id. at 1287. I do not doubt that Georgia’s courts are fully capable of
resolving the constitutional question in this case. But I believe, as the court in
Pittman believed, that “[a] federal court must grapple with difficult constitutional
16
questions that confront it squarely.” Pittman, 267 F.3d at 1286. We should
address the constitutional question presented in this case.
While adjudicating this case might interfere with Georgia’s political
procedures, it would not be the first time that a federal court has interfered with an
unconstitutional state political procedure. See, e.g., Rice v. Cayetano, 528 U.S.
495, 120 S. Ct. 1044 (2000) (striking down voting requirements for the Office of
Hawaiian Affairs); Bd. of Estimate v. Morris, 489 U.S. 688, 109 S. Ct. 1433 (1989)
(holding New York City borough presidents’ automatic board vote
unconstitutional); Hadley v. Junior Coll. Dist., 397 U.S. 50, 90 S. Ct. 791, (1970)
(finding unequal distribution of junior college trustees unconstitutional); Driskell v.
Edwards, 518 F.2d 890, 893 (5th Cir. 1975) (allowing federal court inquiry into
the structure of Lousiana’s constitutional convention). Such is the duty imposed
on us by the United States Constitution, see U.S. Const. art. III, § 2; U.S. Const.
art. VI, cl. 2, and the United States Congress, see 28 U.S.C. § 1331 (1993). In this
case, a group of voters claims that the “one person, one vote” principle of the
Equal Protection Clause of the United States Constitution has been violated. A
federal court should adjudicate these federal constitutional claims.
17