Case: 11-60446 Document: 00511973030 Page: 1 Date Filed: 08/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 31, 2012
No. 11-60446 Lyle W. Cayce
Clerk
HANCOCK COUNTY BOARD OF SUPERVISORS,
Plaintiff
v.
KAREN LADNER RUHR, in her official capacity as Hancock County Circuit
Clerk and Hancock County Registrar; ET AL,
Defendants
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of
Mississippi
Intervenor Defendant
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HAZLEHURST, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of themselves and all others similarly situated; NANETTE
THURMOND-SMITH,
Plaintiffs - Appellants
v.
COPIAH COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; COPIAH
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; COPIAH COUNTY, MISSISSIPPI REPUBLICAN PARTY
EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI BOARD OF
ELECTION COMMISSIONERS; EDNA STEVENS, in her official capacity as
Circuit Clerk,
Case: 11-60446 Document: 00511973030 Page: 2 Date Filed: 08/31/2012
Nos. 11-60446, 11-60676
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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REVEREND FRANK LEE, on behalf of him self and all others similarly
situated; PIKE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
PIKE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; PIKE COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; PIKE
COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS;
ROGER GRAVES, in his official capacity as Circuit Clerk; PIKE COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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SIMPSON COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of themselves and all others similarly situated; L. J. CAMPER, on
behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
SIMPSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; SIMPSON
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; SIMPSON COUNTY, MISSISSIPPI
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Nos. 11-60446, 11-60676
REPUBLICAN PARTY EXECUTIVE COMMITTEE; SIMPSON COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; CINDY
JENSEN, in her official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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AMITE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
Behalf of Themselves and all others Similarly Situated; GLENN WILSON, on
Behalf of Themselves and all others Similarly Situated,
Plaintiffs - Appellants
v.
AMITE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; AMITE
COUNTY, MISSISSIPPI DEMOCRATIC EXECUTIVE COMMITTEE;
AMITE COUNTY, MISSISSIPPI REPUBLICAN EXECUTIVE COMMITTEE;
AMITE COUNTY, MISSISSIPPI BOARD OF ELECTION
COMMISSIONERS; SHARON WALSH, in Her Official Capacity as Circuit
Clerk,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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WAYNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of themselves and all others similarly situated; LEAH PARSON, on
behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
WAYNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WAYNE
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
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Nos. 11-60446, 11-60676
COMMITTEE; WAYNE COUNTY, MISSISSIPPI REPUBLICAN PARTY
EXECUTIVE COMMITTEE; WAYNE COUNTY, MISSISSIPPI BOARD OF
ELECTION COMMISSIONERS; ROSE BINGHAM, in her official capacity as
Circuit Clerk,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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VICKSBURG, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of itself and
all others similarly situated,
Plaintiffs - Appellants
v.
WARREN COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WARREN
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; WARREN COUNTY, MISSISSIPPI REPUBLICAN PARTY
EXECUTIVE COMMITTEE; WARREN COUNTY, MISSISSIPPI BOARD OF
ELECTION COMMISSIONERS; SHELLY ASHLEY-PALMERTREE, in his
official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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CLAIBORNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of itself and all others similarly situtated,
Plaintiff - Appellant
v.
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Nos. 11-60446, 11-60676
CLAIBORNE COUNTY, MISSISSIPPI BORD OF SUPERVISORS;
CLAIBORNE COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; CLAIBORNE COUNTY, MISSISSIPPI REPUBLICAN
PARTY EXECUTIVE COMMITTEE; CLAIBORNE COUNTY, MISSISSIPPI
BOARD OF ELECTION COMMISSIONERS; SAMMIE GOOD, in her official
capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
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ADAMS COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of themselves and all others similarly situated; JACQUELINE
MARSAW, on behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
ADAMS COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; ADAMS
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; ADAMS COUNTY, MISSISSIPPI REPUBLICAN PARTY
EXECUTIVE COMMITTEE; ADAMS COUNTY, MISSISSIPPI BOARD OF
ELECTION COMMISSIONERS; EDWARD WALKER, in his official capacity
as Circuit Clerk,
Defendants - Appellees
JIM HOOD,
Intervenor Defendant - Appellee
Consolidated with Case No. 11-60676
TALLAHATCHIE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE;
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Nos. 11-60446, 11-60676
JOHNNY THOMAS, on behalf of themselves and all others similarly
situated,
Plaintiffs - Appellants
DOROTHY CHESTNUT,
Appellant
v.
TALLAHATCHIE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS;
TALLAHATCHIE COUNTY, MISSISSIPPI DEMOCRATIC PARTY
EXECUTIVE COMMITTEE; TALLAHATCHIE COUNTY, MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE COMMITTEE; TALLAHATCHIE
COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS;
STEPHANIE SIMS, in her official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex Rel. The State
of Mississippi,
Intervenor Defendant - Appellee
Appeals from the United States District Court
for the Southern District of Mississippi
USD No. 1:10-CV-564
Appeal from the United States District Court
for the Northern District of Mississippi
USD No. 2:11-CV-42
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Nos. 11-60446, 11-60676
This appeal challenges the dismissal of nine complaints asserting
Fourteenth Amendment “one person, one vote” claims against Mississippi
officials. Each Mississippi county has a Board of Supervisors and maintains five
supervisor districts. Primary elections for Board of Supervisors positions were
upcoming in August 2011, and the general elections were upcoming in November
2011. But in early February 2011, the United States Census Bureau released
data revealing malapportioned supervisor districts in several counties.
Consequently, local branches of the National Association for the Advancement
of Colored People (“NAACP”) and African-American voters brought suit against
officials in the malapportioned counties. One complaint was filed per county.
Each complaint alleged that the county’s supervisor districts violated the
Fourteenth Amendment’s “one person, one vote” guarantee, and sought
declaratory relief and the injunctive relief of delaying election deadlines and the
elections so that the county could redistrict before the elections were conducted.
The complaints were dismissed on the grounds of lack of standing and
failure to state a claim upon which relief could be granted. Although we
conclude that appellants had standing, the elections are over. We ultimately
VACATE the orders dismissing the complaints and REMAND for consideration
of whether this controversy is moot.
I
Nine Mississippi counties are involved in this appeal: Adams, Amite,
Claiborne, Copiah, Pike, Simpson, Warren, Wayne, and Tallahatchie County.
As noted, each county has a Board of Supervisors and maintains five supervisor
voting districts. Miss. Const., art. 6, §170; Miss. Code Ann. § 19-3-1. Each
district elects one Supervisor every four years; the Supervisors have four-year
terms. Miss. Code Ann. § 19-3-1. Each Board of Supervisors establishes the
supervisor voting district boundaries for its respective county. Miss. Code Ann.
§§ 23-15-281–83. The Boards of Supervisors had adopted their respective
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Nos. 11-60446, 11-60676
supervisor voting district boundaries following the 2000 decennial census. Those
boundaries were subsequently pre-cleared by the U.S. Department of Justice.
The 2011 election cycle for Mississippi county supervisors opened with
candidate qualifying on January 1, 2011. Candidate qualifying closed on March
1, 2011. Miss. Code. Ann. § 23-15-299(2). After qualifying closed, party
qualifying elections were held on August 2, 2011. Runoffs were completed on
August 23, 2011. General elections were held on November 8, 2011.
Meanwhile, on February 4, 2011—in the middle of the candidate
qualification period—the United States Census Bureau released its official 2010
Mississippi county population data. On February 28, 2011, local NAACP
branches and African-American voters brought “one person, one vote” actions in
several counties. These complaints alleged that the 2010 Census revealed
population changes in the counties that rendered the supervisor districts for the
impending Board of Supervisors elections unconstitutionally malapportioned, in
violation of the “one person, one vote” guarantee of the Equal Protection Clause
of the Fourteenth Amendment. One complaint per county was filed.
Nine of these complaints are relevant to this appeal. Complaints
regarding Adams, Amite, Claiborne, Copiah, Pike, Simpson, Warren, and Wayne
County were filed in the United States District Court for the Southern District
of Mississippi. One complaint, regarding Tallahatchie County, was filed in the
United States District Court for the Northern District of Mississippi.1
1
Appellants’ counsel filed sixteen such “one person, one vote” actions on February 28,
2011. Eight actions were filed in the Southern District, and eight in the Northern District.
The eight cases in the Southern District were consolidated. As noted below, the District Court
for the Southern District dismissed them and they are before us on appeal. The eight cases
in the Northern District were not consolidated. One case—regarding Tunica County—was
dismissed and then appealed to this Court, but that appeal was dismissed. Another
case—regarding Tallahatchie County—was dismissed and is now before us on appeal. The
remaining six cases in the Northern District are not before us.
Apart from these sixteen actions, the Hancock County Board of Supervisors and the
Madison County Board of Supervisors sued other divisions of their respective counties on
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Nos. 11-60446, 11-60676
Each complaint filed in Adams, Amite, Copiah, Simpson, Wayne, and
Tallahatchie was brought by: (1) the local NAACP branch for that county, which
the complaint alleged represented members who were voters in districts that
were overpopulated and under-represented; (2) an individual African-American
voter, but who—according to the complaint—hailed from an underpopulated,
over-represented district. The original complaint filed in Pike County, however,
was brought by an NAACP plaintiff and an individual African-American
plaintiff, Reverend Frank Lee, who was alleged to be a voter from an
overpopulated, under-represented district. Each original complaint filed in
Warren County and in Claiborne County was brought by a local NAACP plaintiff
but no individual plaintiff.
All the complaints requested the same relief: a declaratory judgment that
the county’s apportionment scheme was unconstitutional; an “injunction
enjoining the defendants from conducting elections” under the current
supervisor district lines; an injunction extending the statutory candidate
qualification deadline “for a short period of time in order to give the [county] an
opportunity to redistrict” the supervisor district lines and obtain constitutional
clearance; an injunction requiring new supervisor district lines to conform to
constitutional requirements; attorneys’ fees, courts costs; and “general relief.”
Each complaint named as defendants the county Board of Supervisors, the
county Clerk/Registrar, the county Republican Executive Committee, the county
Democratic Executive Committee, and the county Board of Elections
Commissioners. On March 25, 2011, the Mississippi Attorney General moved
to intervene as a defendant in all the lawsuits, and moved to dismiss all the
complaints filed in the Southern District under Rule 12(b)(1) and Rule 12(b)(6).
behalf of their voting residents. The District Court for the Southern District dismissed these
complaints for lack of standing. Neither the Hancock Board nor the Madison Board appealed
that ruling. Those counties are not involved in this appeal.
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Nos. 11-60446, 11-60676
In late March 2011, the plaintiffs within each county filed a motion to amend
their original complaint to include an additional plaintiff: an African-American
voter from an overpopulated, under-represented district.
On May 16, 2011, the District Court for the Southern District issued an
order dismissing the original complaints for lack of standing under Rule 12(b)(1).
Alternatively, the court dismissed the complaints for failing to state a claim
upon which relief could be granted under Rule 12(b)(6). The court also denied
the plaintiffs’ motions to amend their complaints as futile, reasoning that (1) the
plaintiffs could not amend their complaints without standing, and (2) even
amended complaints would fail to state a claim.
In late June 2011, the plaintiffs timely appealed from the court’s May 16
order dismissing their complaints, denying their motions for preliminary and
permanent injunctions, and denying their motions to amend their complaints.
The plaintiffs also appealed from the court’s June 13 orders denying their
motions to amend the judgment and their motions for a preliminary injunction
and a stay pending appeal.
Meanwhile, the Tallahatchie County case in the Northern District followed
a similar course. On September 14, 2011, the District Court for the Northern
District issued an order dismissing the case for failure to state a claim. The
plaintiffs timely appealed from that judgment. Here on appeal, the cases from
the Northern District and the Southern District have been consolidated.
II
A
Before we may consider the merits of this consolidated case, we must
discharge our “independent obligation to determine whether subject-matter
jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). “We
review all questions of subject matter jurisdiction, including the justiciability
issues of standing . . . and mootness, de novo.” Ctr. for Individual Freedom v.
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Nos. 11-60446, 11-60676
Carmouche, 449 F.3d 655, 659 (5th Cir. 2006). “When,” as here, “standing is
challenged on the basis of the pleadings, we must accept as true all material
allegations of the complaint and construe the complaint in favor of the
complaining party.” Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd.,
627 F.3d 547, 550 (5th Cir. 2010).
“As with all questions of subject matter jurisdiction except mootness,
standing is determined as of the date of the filing of the complaint.” Kitty Hawk
Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005) (internal quotation
mark omitted); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
830 (1989) (“The existence of federal jurisdiction ordinarily depends on the facts
as they exist when the complaint is filed.”). The constitutional elements of
standing, which emerge from Article III’s insistence on an actual case or
controversy, are familiar:
First, the plaintiff must have suffered an “injury in fact”—an
invasion of a legally protected interest which is (a) concrete and
particularized; and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Second, there must be a causal connection between
the injury and the conduct complained of—the injury has to be
“fairly traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not before
the court.” Third, it must be “likely,” as opposed to merely
“speculative,” that the injury will be “redressed by a favorable
decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (citations and
alterations omitted). “At the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice, for on a motion to dismiss
we presume that general allegations embrace those specific facts that are
necessary to support the claim.” Id. at 561 (internal quotation marks and
alterations omitted); see also Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir.
2009) (“At the pleading stage, allegations of injury are liberally construed.”).
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Nos. 11-60446, 11-60676
Notably, to satisfy the third element of redressability—which is critical to
this case—the plaintiff must show that the requested relief, if provided, will
likely redress the injury-in-fact. See Vt. Agency of Natural Res. v. United States
ex rel. Stevens, 529 U.S. 765, 771 (2000) (stating that plaintiff must show a
“‘substantial likelihood’ that the requested relief will remedy the injury in fact”);
accord United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 780
(5th Cir. 2006); see also Little v. Shell Exploration & Prod. Co., — F.3d — ,
No. 11-20320, 2012 WL 3089777, at *2 (5th Cir. July 31, 2012) (stating that
plaintiff must show that “a victory in litigation will likely redress the injury”);
Adar v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (“[A] favorable
decision is likely to redress the injury.”); Soc’y of Separationists, Inc. v. Herman,
959 F.2d 1283, 1285 (5th Cir. 1992) (“[R]elief from injury must be likely to follow
from a favorable ruling.”).
Under the doctrine of associational standing, furthermore, an association
may have standing to bring suit on behalf of its members when:
[1] its members would otherwise have standing to sue in their own
right; [2] the interests it seeks to protect are germane to the
organization’s purpose; and [3] neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit.
Am. Physicians, 627 F.3d at 550 (quoting Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977)). The first prong of the associational standing
test requires that at least one member of the association satisfy the Article III
elements and have standing to sue in his or her own right. Tex. Democratic
Party v. Benkiser, 459 F.3d 582, 587–88 (5th Cir. 2006); see also Warth v. Seldin,
422 U.S. 490, 511 (1975) (“The association must allege that its members, or any
one of them, are suffering immediate or threatened injury . . . .”).
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Nos. 11-60446, 11-60676
B
Applying this framework, we reason that appellants (the plaintiffs below)
alleged adequate facts to support standing in their “one person, one vote” actions
against appellees (the defendants below). We begin our discussion of standing
with the individual plaintiffs; we turn later to the institutional plaintiffs.
It is settled, and the parties agree, that a voter from a district that is
overpopulated and under-represented suffers an injury-in-fact. See Baker v.
Carr, 369 U.S. 186, 205–06 (1962) (observing that “voters who allege facts
showing disadvantage to themselves as individuals have standing to sue”);
Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“[A]n individual’s right to vote . . . is
unconstitutionally impaired when its weight is in a substantial fashion diluted
when compared with votes of citizens living [i]n other parts . . . .”); Fairley v.
Patterson, 493 F.2d 598, 603 (5th Cir. 1974) (noting that “sufficient damage
through under[-]representation to obtain standing will be inflicted if population
equality among voting units is not present”).2 Inversely, a voter who resides in
an underpopulated district cannot properly allege an injury-in-fact. Fairley, 493
F.2d at 603 (“[I]njury results only to those persons domiciled in the under-
2
Indeed, appellants alleged maximum deviation percentages of greater than 10% in the
nine counties at issue; it is well-settled that if a municipality tolerates an apportionment
scheme with a maximum deviation percentage of greater than 10%, then the municipality has
prima facie violated the “one person, one vote” principle of the Equal Protection Clause and
must justify the deviation. See Connor v. Finch, 431 U.S. 407, 418 (1977); Fairley v.
Hattiesburg, Miss., 584 F.3d 660, 675 (5th Cir. 2009) (“If a population deviance exceeds 10%,
it constitutes a prima facie case of invidious discrimination that requires the municipality to
prove a legitimate reason for the discrepancy.”); see also Brown v. Thomson, 462 U.S. 835, 843
(1983); Mahan v. Howell, 410 U.S. 315, 325 (1973); cf. Bd. of Estimate City of N.Y. v. Morris,
489 U.S. 688, 702 (1989) (“We note that no case of ours has indicated that a deviation of some
78% could ever be justified.”). Simply put, a county’s maximum deviation percentage is the
sum of (1) the percentage by which the district containing the largest population deviates from
the average district population and (2) the percentage by which the district containing the
smallest population deviates from the average district population.
The alleged maximum deviation percentages for the nine counties are the following:
Adams, 39.46%; Amite, 49.05%; Claiborne, 56.17%; Copiah, 40.36%; Pike, 18.86%; Simpson,
26.70%; Warren, 52.74%; Wayne, 30.20%; Tallahatchie, 113.53%.
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Nos. 11-60446, 11-60676
represented voting districts.”). The parties also agree that, with respect to a
voter from an overpopulated, under-represented district, there is a causal
connection between that voter’s injury and the conduct complained of.3
The parties disagree, however, on the issue of redressability. Appellees
argue that even if the district court had enjoined the qualifying deadlines, other
election deadlines, or the elections, “there still would have been no certainty”
that any county could complete the redistricting process before the current
supervisors’ terms expired. As appellees remind us: “New lines had to be drawn,
submitted to the public for comment, voted upon, and put through the
potentially lengthy process of submission and approval by the Department of
Justice.” Appellees thus contend that “there was never a guarantee that
granting appellants their requested relief would redress their alleged injury.”
Still, we find that appellees misconstrue the redressability element of
standing. To satisfy redressability, appellants were not required to show that
their requested relief would certainly redress their injuries; rather, they were
required to show that their requested relief would likely (or substantially likely)
redress their injuries. See Stevens, 529 U.S. at 771; Lujan, 504 U.S. at 561.
Moreover, the proper focus of the redressability inquiry is not whether the relief
is likely to be granted; rather, the focus is whether, assuming that the requested
relief is granted, that relief will likely redress the plaintiffs’ injuries. See Adar,
639 F.3d at 150; Rogers v. Brockette, 588 F.2d 1057, 1063 (5th Cir. 1979) (“There
must be a substantial probability that, if the court affords the relief requested,
the plaintiffs’ legal injuries will be remedied”) (internal quotation marks and
3
The causation element of standing requires appellees to have some connection with
the enforcement of the provisions at issue. See Okpalobi v. Foster, 244 F.3d 405, 426–28 (5th
Cir. 2001) (en banc). The parties agree that the officials named as defendants are responsible
for executing the Mississippi elections statutes.
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Nos. 11-60446, 11-60676
ellipses omitted).4 Appellees do not dispute that appellants’ complaints sought
broad relief; appellees concede that appellants sued to declare the current
supervisor district lines invalid, enjoin the qualifying deadlines, enjoin the
elections, and enjoin the establishment of invalid lines. But this relief, had it
been provided, would have very likely, if not unquestionably, redressed the
plaintiffs’ claimed injuries. If the district court had enjoined the election
deadlines and the elections, and the counties had redistricted to generate
constitutionally proportional districts, and the elections were then held pursuant
to these constitutional districts, the plaintiffs’ “one person, one vote” injuries
would very likely have been redressed.
We therefore disagree with the district court’s holding that appellants did
not adequately plead redressability. We conclude that those individual plaintiffs
who were voters in overpopulated, under-represented districts adequately
alleged facts to satisfy the elements of standing—including redressability.
C
The parties also disagree on whether the NAACP institutional plaintiffs
have associational standing. Appellants argue that the NAACP local branches
adequately pleaded facts supporting associational standing because: (1) in each
complaint, the NAACP branch pleaded that its members included voters in
overpopulated and under-represented districts, thereby alleging that these
members were suffering a concrete, particularized, and redressable injury; (2)
the interests the NAACP seeks to protect are germane to the purpose of the
NAACP; and (3) neither the claim asserted nor the relief requested requires
4
See also Bonas v. Town of North Smithfield, 265 F.3d 69, 73 n.4 (1st Cir. 2001)
(holding that plaintiffs had satisfied redressability because defendants’ challenge “boil[ed]
down to an assertion that a federal court cannot, or should not, order the remedy the plaintiffs
request,” but the plaintiffs’ “feared injury [was] the denial of the right to vote should the
defendants fail to hold the regularly scheduled election,” and “there is little doubt that
ordering the Town to hold the election would palliate that alleged transgression”).
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Nos. 11-60446, 11-60676
participation of individual NAACP members. Sensibly, appellees do not base
their justiciability challenge on the second or third element of associational
standing. Maintaining proportional districts, protecting the strength of votes,
and safeguarding the fairness of elections are surely germane to the NAACP’s
expansive mission. Furthermore, adjudicating a “one person, one vote” claim
does not demand factual development about any individual NAACP member; no
factual inquiry is necessary beyond the fact that the member is a voter in an
overpopulated, under-represented district. Likewise, to determine whether to
grant the requested relief of delaying election deadlines and elections, the
district court would not need individualized information about NAACP members.
Compare Am. Physicians, 627 F.3d at 553 (finding associational standing
because plaintiff sought only equitable relief and participation of few members
could supply proof of defendant’s misdeeds), with Friends for Am. Free Enter.
Ass’n v. Wal-Mart Stores, Inc., 284 F.3d 575, 577 (5th Cir. 2002) (rejecting
associational standing because plaintiff’s common law tortious interference
claims were fact-specific to individual members).
Appellees instead target the first prong of associational standing, arguing
that the local NAACP branches did not sufficiently allege injury-in-fact on behalf
of their members. Appellees note that no complaint identified, by name, any
member of the local NAACP branch who was a voter from an overpopulated,
under-represented district and who thereby suffered a “one person, one vote”
injury. According to appellees, a complaint cannot be said to allege a concrete,
particularized injury without setting forth the name of an NAACP member who
was allegedly injured; an NAACP branch may not establish associational
standing by asserting, in the abstract, that some of its members reside in
overpopulated, under-represented districts. In other words, according to
appellees, the NAACP branches must name names.
16
Case: 11-60446 Document: 00511973030 Page: 17 Date Filed: 08/31/2012
Nos. 11-60446, 11-60676
Yet appellees offer no authority for the proposition that an NAACP branch
must identify a particular NAACP member at the pleading stage. We are aware
of no precedent holding that an association must set forth the name of a
particular member in its complaint in order to survive a Rule 12(b)(1) motion to
dismiss based on a lack of associational standing. Cf. Church of Scientology v.
Cazares, 638 F.2d 1272, 1279 (5th Cir. 1981) (“[I]n determining whether an
association has standing to bring suit on behalf of its members, neither unusual
circumstances, inability of individual members to assert rights nor an explicit
statement of representation are requisites.”).5 Additionally, the NAACP
branches were not merely alleging that some members might suffer a “one
person, one vote” violation. The NAACP branches were alleging that some
members were suffering such a violation. By alleging that some of its members
were voters from overpopulated and under-represented districts, the NAACP
branches adequately alleged that some of its members were suffering a concrete,
particularized injury. We conclude that each NAACP branch adequately pleaded
the elements of associational standing.6
5
Persuasive authority from the Second Circuit supports our reasoning. In Building
and Construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development,
Inc., the Second Circuit observed the following:
The defendants’ argument that the persons allegedly injured must be identified
by name might have some validity if this litigation were at the summary
judgment stage. . . . But the Trades Council’s contention is unpersuasive on a
motion to dismiss, where standing is challenged based on the pleadings alone.
. . . An association bringing suit on behalf of its members must allege that one
or more of its members has suffered a concrete and particularized injury, as the
plaintiffs do. But the defendants cite to no authority—nor are we aware of
any—that supports the proposition that an association must ‘name names’ in
a complaint in order properly to allege injury in fact to its members.
448 F.3d 138, 145 (2d Cir. 2006) (citations omitted).
6
Although appellees’ argument against associational standing relies on NAACP v. City
of Kyle, Texas, 626 F.3d 233 (5th Cir. 2010), that case does not avail them. Kyle changed its
zoning ordinances, which caused the cost of entry-level, single-family residences to increase;
the NAACP plaintiffs alleged that this increase would disparately impact African-Americans
and Hispanics. Id. at 236. We held that the NAACP lacked associational standing principally
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Case: 11-60446 Document: 00511973030 Page: 18 Date Filed: 08/31/2012
Nos. 11-60446, 11-60676
Overall, we hold that the NAACP plaintiffs and any individual plaintiff
who is alleged to be a voter in an overpopulated, under-represented district has
adequately alleged facts supporting standing. We disagree with those portions
of the district court orders dismissing the complaints for lack of standing.
III
Although we have considered one component of our subject matter
jurisdiction—standing—the passage of time and the passing of the elections
compels us now to consider a related component of our subject matter
jurisdiction: mootness. “Mootness is the doctrine of standing in a time frame.
The requisite personal interest that must exist at the commencement of the
litigation (standing) must continue through its existence (mootness).” La. Envt’l
Action Network v. City of Baton Rouge, 677 F.3d 737, 743 (5th Cir. 2012)
(citation omitted). “If a case has been rendered moot, a federal court has no
constitutional authority to resolve the issues that it presents.” Id. As stated,
“[w]e review questions of federal jurisdiction de novo, including arguments that
a case or controversy has become moot.” Id.
Appellees, on one hand, argue that appellants’ claims are moot. To be
sure, the completion of the elections has arguably mooted the claims for
injunctive relief to enjoin election deadlines and elections. “Generally, a request
for an injunction is moot upon the happening of the event sought to be enjoined.”
Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012) (internal quotation marks
omitted); accord Harris v. City of Hous., 151 F.3d 186, 189 (5th Cir. 1989).
because “the alleged injury [was] neither concrete nor imminent,” as there was “no evidence
showing when and how the revised ordinances may deprive a NAACP member of the
opportunity to acquire a new residence in Kyle.” Id. at 237. City of Kyle is distinguishable not
only because of the difference in procedural posture, but also because an allegation that an
NAACP member is a voter in an overpopulated, under-represented district is an allegation of
a concrete, imminent injury.
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Case: 11-60446 Document: 00511973030 Page: 19 Date Filed: 08/31/2012
Nos. 11-60446, 11-60676
Appellants, on the other hand, urge that this controversy is live. First,
appellants argue that this case falls within the “capable of repetition, yet
evading review” exception to the mootness doctrine. Under this exception, a
party may save an otherwise moot claim by showing that: “(1) the challenged
action was in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again.” Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). Appellants declare: “[E]very twenty years
the parties and courts will be faced with the same election cycle when census
data and elections happen in the same year.” Second, appellants argue that
meaningful relief is still available and that, accordingly, the controversy remains
live. According to appellants, the completion of the elections has not mooted
their claims for declaratory relief or for general relief. Moreover, they are still
suffering a “one person, one vote” injury, which would be remedied by
invalidating the elections conducted pursuant to malapportioned districts and
ordering remedial elections after redistricting is finished.7
But as appellees counter, “a court will only invalidate an election in
exceptional circumstances, usually when there has been an egregious defiance
of the Voting Rights Act.” Wilson, 667 F.3d at 597 (internal quotation marks
omitted); accord Lopez v. City of Hous., 617 F.3d 336, 340 (5th Cir. 2010).8
7
See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12–13 (observing that
“if an event occurs while a case is pending on appeal that makes it impossible for the court to
grant ‘any effectual relief whatever’ to a prevailing party, that appeal must be dismissed,” but
holding that the “availability” of a “possible remedy” was sufficient “to prevent this case from
being moot”).
8
But see Taylor v. Monroe Cnty. Bd. of Supervisors, 421 F.2d 1028, 1039 (5th Cir. 1979)
(remanding to trial court to decide whether special elections were necessary after plaintiffs
sued based on extreme malapportionment of Mississippi supervisor districts but trial court
allowed elections to proceed); Keller v. Gilliam, 454 F.2d 55, 57 (5th Cir. 1972) (ordering
special elections after census revealed extreme malapportionment and plaintiffs brought “one
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Case: 11-60446 Document: 00511973030 Page: 20 Date Filed: 08/31/2012
Nos. 11-60446, 11-60676
Although the VRA is not at issue in this case, the point remains that appellants
have not alleged that appellees have acted egregiously or in bad faith. This
controversy, according to appellees, was simply a product of bad timing. Given
the mobility of modern populations, every decennial census will inevitably
shatter the fiction that districts have remained perfectly proportional since the
last decennial census. When census data is released just before an election,
latent malapportionment will rear its ugly head, notwithstanding the absence
of foul play. Or so one could argue.
Based on the record before us, however, we are unable to determine
whether this controversy is live. To illustrate, because the district court has not
evaluated mootness in the first instance, we lack access to factual findings with
which to determine whether the “capable of repetition, yet evading review”
exception to mootness is applicable to this case. Although we could assume that
this controversy will reoccur every twenty years when the election cycle and
census publication coincide, we decline the invitation to engage in such
speculation. Cf. Libertarian Party v. Dardenne, 595 F.3d 215, 217–19 (5th Cir.
2010) (relying on evidence developed in district court to affirm district court’s
order that rejected applicability of “capable of repetition, yet evading review”
exception and that dismissed case as moot); Osborne v. Coleman Co., Inc., 592
F.2d 1239, 1241 (5th Cir. 1979) (remanding for mootness determination because
“the court below has never considered the effect” of the arguably mooting event
“upon the instant appeal”); 13C Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 3533.10.3 (3d ed. 2012) (“If the appellate court
is unsure of the facts, it is common to remand for consideration of mootness by
the lower courts.”). Indeed, the district court has had no opportunity to consider
this case in its post-election posture. See Barrie v. Intervoice-Brite, Inc., 397 F.3d
person, one vote” action to enjoin upcoming Mississippi supervisor elections but district
allowed elections to proceed).
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Nos. 11-60446, 11-60676
249, 263 (5th Cir. 2005) (noting that “the normal procedure where the lower
court has not considered a pertinent issue is to remand a case”); Boire v. Miami
Herald Pub. Co., 343 F.2d 17, 25 (5th Cir. 1965) (noting the principle that “a
reviewing court should remand a case to the district court for consideration of
a question not previously considered there”).
In an abundance of caution, and because more factual development is
needed, we remand this consolidated case to the district court so that it can
determine whether this controversy is moot or is live. If the district court
determines that this controversy is moot, the court must dismiss the case. If the
district court determines that this controversy is live, the court must proceed to
determine whether appellants’ complaints—after allowing for proper
amendments—adequately state a claim upon which post-election relief can be
granted. Of course, new pleadings will be necessary; we do not forbid new
counts. But if the district court determines that the appellants’ complaints have
failed to state a claim for post-election relief, the court must dismiss the case.
At this time, then, we do not address those portions of the district court
orders dismissing the complaints based on their failure to state a claim. We
cannot leapfrog the justiciability inquiry to reach the merits of this case.9
IV
9
We note that appellants also appeal from the order by the district court denying their
motions to amend their complaints to add individual plaintiffs from overpopulated,
under-represented districts. The court denied those amendments as futile because the court
reasoned that (1) the plaintiffs could not amend their complaints without standing and (2)
even amended complaints would fail to state a claim.
Normally, we review the denial of leave to amend a complaint for abuse of discretion.
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002). And, as we explained,
we disagree with the district court that the additional plaintiffs would not have satisfied
redressability. However, because we cannot yet determine whether appellants’ complaints
have stated a claim upon which relief could be granted, we cannot yet review whether the
court abused its discretion in denying the amendments.
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Case: 11-60446 Document: 00511973030 Page: 22 Date Filed: 08/31/2012
Nos. 11-60446, 11-60676
For the foregoing reasons, we VACATE the district court orders dismissing
the complaints, and we REMAND the consolidated case to the United States
District Court for the Southern District of Mississippi for consideration of
mootness in accordance with this opinion.
VACATED and REMANDED.
22