Kingman Park Civic v. Williams, Anthony A.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2003 Decided November 14, 2003

No. 02-7100

KINGMAN PARK CIVIC ASSOCIATION AND
CHEVY CHASE CIVIC ASSOCIATION,
APPELLANTS

v.

ANTHONY A. WILLIAMS, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 01cv02675)

Frazer Walton, Jr. argued the cause for appellants. With
him on the briefs was Steven W. Teppler.
John R. Hoellen, Assistant General Counsel, argued the
cause for appellee Council of the District of Columbia. With
him on the brief were Charlotte Brookins-Hudson, General
Counsel, and Katherine Westcott, Assistant General Counsel.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Brian K. Flowers, Assistant General Counsel, entered an
appearance.
Michael F. Wasserman, Assistant Corporation Counsel,
argued the cause for appellee Mayor Anthony A. Williams.
With him on the brief was Charles L. Reischel, Deputy
Corporation Counsel at the time the brief was filed. Donna
M. Murasky, Senior Litigation Counsel, and Edward E.
Schwab, Assistant Corporation Counsel, entered appearances.
Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: This appeal involves a challenge
to the Ward Redistricting Amendment Act of 2001 (the
‘‘Ward Redistricting Act’’ or the ‘‘Act’’), which redrew the
boundaries of the District of Columbia’s eight electoral wards
following the 2000 census. See D.C. CODE § 1-1041.03 (Supp.
2003). Shortly before the new ward boundaries took effect,
appellants Kingman Park Civic Association (‘‘KPCA’’) and
Chevy Chase Civic Association (‘‘CCCA’’) brought suit in the
District Court against D.C. Mayor Anthony Williams (‘‘the
Mayor’’) in his official capacity and the members of the D.C.
Council (‘‘the Council’’) in their official capacities, seeking
declaratory and injunctive relief. Appellants claimed that the
Act dilutes African-American voting strength in Ward Six and
citywide in violation of § 2 of the Voting Rights Act of 1965
(‘‘Voting Rights Act’’), 42 U.S.C. § 1973 (2003), and violates
various provisions of D.C. law governing ward redistricting.
The Mayor and the Council moved separately to dismiss, or
in the alternative, for summary judgment. The District
Court first dismissed the complaint against the Council, hold-
ing that they are entitled to legislative immunity from suit in
connection with their ‘‘legitimate legislative activity’’ in draft-
ing and adopting the Act. The court then dismissed the
Voting Rights Act counts of the complaint against the Mayor
for failure to state a claim, and dismissed the pendent D.C.
law claims pursuant to 28 U.S.C. § 1367. Appellants chal-
lenge these rulings on appeal, renewing their Voting Rights
Act and D.C. law claims solely as to Wards Three and Six and
 3

alleging, for the first time, that the Act racially gerrymanders
ward boundaries in violation of the Fourteenth and Fifteenth
Amendments.
We affirm the judgment of the District Court. We do so,
however, on different grounds than those relied on by the
District Court. We hold that, although it was error for the
District Court to dismiss the Voting Rights Act counts of the
complaint for failure to state a claim, the Mayor is nonethe-
less entitled to summary judgment on those counts on the
record before us. Appellants have made no showing that
minority voters in the relevant wards are politically cohesive
or that the wards are characterized by racially polarized
voting. They therefore fail to establish a triable issue as to at
least two of the three conditions essential to a prima facie
case of vote dilution under § 2. We decline to reach appel-
lants’ Fourteenth and Fifteenth Amendment claims, which
were not raised before the District Court and were therefore
waived. Having resolved the federal claims in the Mayor’s
favor, we affirm the District Court’s dismissal of the pendent
D.C. law claims against him. Finally, we dismiss appellants’
claims against the Council for lack of a substantial federal
question. It is undisputed that appellants’ federal claims
against the Mayor and the Council are identical. The merits
of these claims having been resolved dispositively against
appellants, there remains no federal question requiring deci-
sion. We therefore dismiss the suit against the Council
without addressing their assertion of legislative immunity.

I. BACKGROUND
The District of Columbia is governed in part by a popularly
elected mayor and a popularly elected Council, the latter
being composed of five members elected at large and eight
members elected from single-member wards. See D.C. CODE
§§ 1-204.01 et seq., 1-204.21 et seq. (2001). D.C. law requires
that the Council, by act after public hearing, adjust the
boundaries of the city’s eight electoral wards as necessary
following each decennial census. D.C. CODE § 1-1011.01(a),
(b) (2001). The resulting wards must be compact, contiguous,
 4

and approximately equal in population, and must conform to
the greatest extent possible to census tract boundaries. See
D.C. CODE § 1-1011.01(c), (e) (2001). The population of each
ward must be within five percent of the mean ward popula-
tion, ‘‘unless the deviation results from the limitations of
census geography or from promotion of a rational public
policy, including but not limited to respect for the political
geography of the District, the natural geography of the
District, neighborhood cohesiveness, or the development of
compact and contiguous districts.’’ D.C. CODE § 1-1011.01(f)
(2001). D.C. law prohibits the adoption of any redistricting
plan or amendment to a redistricting plan with the ‘‘purpose
and effect of diluting the voting strength of minority citizens.’’
D.C. CODE § 1-1001.01(g) (2001).
The 2000 census results revealed a marked disproportion in
the population of the District’s eight electoral wards, attribut-
able to population growth in the western wards (Wards One,
Two, and Three) and a corresponding decline in the popula-
tion of the eastern wards (Wards Four, Five, Six, Seven, and
Eight). See Compl. for Declaratory J. Ex. 8 (map based on
U.S. Census Bureau data showing population changes from
1990 to 2000); see also District of Columbia Population by
Single Race and Hispanic Origin by Ward-2000 (prepared by
the D.C. Office of Planning/State Data Center from U.S.
Census Bureau data) (hereinafter ‘‘Pre-Redistricting Ward
Population By Race’’), reprinted in Joint Appendix (‘‘J.A.’’) C
(First Am. Compl. App. 10).
In June of 2001, the Council adopted and the Mayor signed
the Ward Redistricting Act, which adjusted the District’s
ward boundaries in light of the census results. After review
by both houses of the U.S. Congress, the Act became law on
October 2, 2001, and the ward boundary changes took effect
on January 1, 2002. See D.C. CODE § 1-1041.03 (Supp. 2003)
(legislative history). The Act adjusted ward boundaries to
bring the population of every ward to within five percent or
less of the mean ward population. See June 19, 2001 Final
Redistricting Summary Table, reprinted in J.A. C (First Am.
Compl. App. 5). In so doing, the Act transferred several
neighborhoods or portions of neighborhoods from one ward to
 5

another and altered the racial composition of several wards.
See Sewell Chan, Proposed Lines Divide D.C. Residents,
WASH. POST, May 7, 2001, at B2, reprinted in J.A. C (First
Am. Compl. App. 3).
Of particular importance for this litigation, the Act trans-
ferred approximately 1,840 residents of the predominantly
African-American neighborhood of Kingman Park from Ward
Six, located on the west side of the Anacostia River, to Ward
Seven, which otherwise is located completely on the east side
of the River. This boundary change allegedly was recom-
mended by the Ward Six redistricting task force, appointed in
the spring of 2001 by Sharon Ambrose, the D.C. Council
Member representing Ward Six. The Kingman Park trans-
fer, in conjunction with other boundary changes, reduced the
African-American proportion of the Ward Six population from
68.7% to 62.3%. Compare Pre-Redistricting Ward Population
By Race, supra, with District of Columbia Population by
Single Race and Hispanic Origin by Amended Plan H Ward-
2000 (prepared by the D.C. Office of Planning/State Data
Center from U.S. Census Bureau data) (hereinafter ‘‘Post-
Redistricting Ward Population By Race’’), reprinted in J.A. C
(First Am. Compl. App. 10). The African-American propor-
tion of the population in Ward Seven, into which the Kingman
Park residents were moved, changed from 96.9% to 96.8%.
See id.
The Act also moved a significant portion of the Chevy
Chase neighborhood, located on the western side of Rock
Creek Park, from Ward Three to Ward Four. Ward Four is
considered by some to be ‘‘the heart of the city’s upper- and
middle-class black establishment,’’ and, prior to redistricting,
was located completely on the eastern side of Rock Creek
Park. See Chan, supra, at B2. The African-American pro-
portion of the Ward Three population was reduced from 6.3%
to 5.1%. See Pre-Redistricting Ward Population By Race,
supra, and Post-Redistricting Ward Population By Race,
supra.
On December 27, 2001, five days before the new boundaries
took effect, appellant KPCA brought suit against the mem-
 6

bers of the Council in their official capacities and the Mayor
in his official capacity. On July 26, 2002, the complaint was
amended to include appellant CCCA as a co-plaintiff. KPCA
is an unincorporated neighborhood association established in
the 1920s. It has approximately 100 active members, all of
whom were registered voters of former Ward Six and appear
now to be divided between Wards Five, Six, and Seven. See
First Am. Compl. ¶ 4, reprinted in J.A. C; Tr. of Motions
Hearing at 31, Kingman Park Civic Ass’n v. Williams
(D.D.C. Aug. 13, 2002) (Civ. Action No. 01-2675) (hereinafter
‘‘Tr. of Motions Hearing’’), reprinted in J.A. E. CCCA is a
recently established unincorporated neighborhood association
with less than 25 active members, all of whom are registered
voters in Ward Three. First Am. Compl. ¶ 5(b), reprinted in
J.A. C.
The gravamen of appellants’ complaint is that the transfer
of the Kingman Park residents from Ward Six to Ward Seven
diluted African-American voting strength in violation of § 2 of
the Voting Rights Act. The complaint alleged, in addition,
that the Act diluted African-American voting strength
throughout the city by reducing African-American majorities
in wards with a significant white minority and ‘‘packing’’
African-American voters into wards with an African-American
supermajority. Appellants further claimed that the Act vio-
lated provisions of D.C. law prohibiting adoption of redistrict-
ing plans with the purpose and effect of diluting minority
voting strength, and requiring that wards be compact, ap-
proximately equal in size, and conform to census tracts.
Appellants initially alleged that the KPCA and its members
were excluded from participation in the Ward Six redistrict-
ing task force in violation of the due process clauses of the
Fifth and Fourteenth Amendments, but withdrew this claim
prior to the District Court’s decision. Kingman Park Civic
Ass’n v. Williams, Civ. Action No. 01-2675, slip op. at 11 n.9
(D.D.C. Aug. 14, 2002), reprinted in J.A. A.
The Council and the Mayor moved separately to dismiss, or
in the alternative, for summary judgment. The District
Court dismissed the complaint against the Council members
on the ground that they were entitled to absolute legislative
 7

immunity from suit for their official actions in connection with
the adoption of the Act. Id. at 4-5. The court went on to
dismiss all of appellants’ claims against the Mayor. As to the
claim of vote dilution in Wards Six and Seven, in which
appellant KPCA’s members reside, the court dismissed the
complaint for failure to state a claim under § 2 of the Voting
Rights Act. Id. at 6-9. The court held that appellants lacked
standing to challenge ‘‘citywide’’ vote dilution outside of
Wards Six, Seven, and Three, but concluded that, even if they
did have standing, they failed to state a claim under the
Voting Rights Act. Having dismissed appellants’ federal
claims, the court dismissed the pendent D.C. law claims
pursuant to 28 U.S.C. § 1367. Id. at 11. This appeal fol-
lowed.

II. ANALYSIS
Appellants maintain two claims on appeal. First, they
renew their claim that the Act dilutes African-American
voting strength, in violation of § 2 of the Voting Rights Act,
by transferring residents of Kingman Park from Ward Six to
Ward Seven and by transferring residents of Chevy Chase
from Ward Three to Ward Four. Second, they assert, for the
first time on appeal, that the Act results in racially discrimi-
natory gerrymandering in violation of the Fourteenth and
Fifteenth Amendments. We hold that the Mayor is entitled
to summary judgment on the first claim, and that the second
claim is not properly before this court because it was not
raised below.
A. Threshold Issues
A threshold concern is presented by the Mayor’s assertion
that he is entitled to legislative immunity from suit, because
his authority and actions in connection with the Ward Redis-
tricting Act are strictly legislative in nature. We decline to
reach the merits of this argument. In proceedings before the
District Court, counsel for the Mayor disavowed any claim to
legislative immunity in this action insofar as the Mayor was
sued in his official capacity. Tr. of Motions Hearing at 56-67.
 8

Therefore, the legislative immunity claim was expressly
waived and cannot be resurrected on appeal.
We likewise decline to address the merits of the Mayor’s
claim, raised for the first time on appeal, that the District of
Columbia is not a ‘‘State or political subdivision’’ to which § 2
of the Voting Rights Act applies. See 42 U.S.C. § 1973
(2003). ‘‘It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon
below.’’ Singleton v. Wulff, 428 U.S. 106, 120 (1976). The
Mayor’s claim raises a pure question of law, which is within
our discretionary authority to address. See Roosevelt v. E.I.
Du Pont de Nemours & Co., 958 F.2d 416, 419 & n.5 (D.C.
Cir. 1992). The issue presented, however, is of sufficient
public importance and complexity to counsel strongly against
deciding it in this posture. Appellants had no opportunity to
address this defense prior to filing their reply brief. See
Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d
685, 697 (D.C. Cir. 1991) (stating that, in exercising its
discretion as to whether to hear an issue not raised below, the
court will look to whether the issue has been fully briefed by
the parties). We need not resolve this question, moreover,
because we decide the Voting Rights Act claims in the
Mayor’s favor without turning to this untimely raised defense.
B. Voting Rights Act Claims
1. Dismissal for Failure to State a Claim
This court reviews de novo the District Court’s dismissal of
a complaint for failure to state a claim, accepting plaintiffs’
factual allegations as true, and giving plaintiffs ‘‘the benefit of
all inferences that can be derived from the facts alleged.’’
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)
(internal quotation marks and citation omitted); Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal quotation marks and citations omitted).
We find that the District Court erred in dismissing appel-
lants’ Voting Rights Act claims against the Mayor under Rule
12(b)(6) of the Federal Rules of Civil Procedure. A Rule
12(b)(6) motion is intended to test the legal sufficiency of the
 9

complaint. Browning, 292 F.3d at 242. But the complaint
need only set forth ‘‘a short and plain statement of the claim,’’
FED. R. CIV. P. 8(a)(2), giving the defendant fair notice of the
claim and the grounds upon which it rests. Conley v. Gibson,
355 U.S. 41, 47 (1957). ‘‘Such simplified ‘notice pleading’ is
made possible by the liberal opportunity for discovery and the
other pretrial procedures established by the Rules to disclose
more precisely the basis of both claim and defense and to
define more narrowly the disputed facts and issues.’’ Id. at
47-48. In light of these liberal pleading requirements, ‘‘a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.’’ Id. at 45-46.
Section 2(a) of the Voting Rights Act provides, in relevant
part, that ‘‘[n]o voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner
which results in a denial or abridgment of the right of any
citizen of the United States to vote on account of race or
colorTTTT’’ 42 U.S.C. § 1973(a) (2003). A violation of this
prohibition is established
if, based on the totality of the circumstances, it is
shown that the political processes leading to nomina-
tion or election in the State or political subdivision
are not equally open to participation by members of
a class of citizens protected by subsection (a) of this
section in that its members have less opportunity
than other members of the electorate to participate
in the political process and to elect representatives
of their choice.
42 U.S.C. § 1973(b) (2003).
In order to survive a motion to dismiss under Rule 12(b)(6),
appellants were required only to allege that the Ward Redis-
tricting Act dilutes minority voting strength such that minori-
ty voters in the relevant wards have ‘‘less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice.’’ See
 10

Sparrow, 216 F.3d at 1115 (‘‘Because racial discrimination in
employment is ‘a claim upon which relief can be granted,’TTTT
‘I was turned down for a job because of my race’ is all a
complaint has to say to survive a motion to dismiss under
Rule 12(b)(6).’’ (internal quotation marks and citations omit-
ted)). Appellants were not required on the face of their
complaint to allege every legal element or fact that must be
proven in a vote dilution claim. See id. at 1114-15; Krieger v.
Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (‘‘[C]omplaints
need not plead law or match facts to every element of a legal
theory.’’ (internal quotation marks and citation omitted));
Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C.
Cir. 1996) (‘‘A complaint TTT need not allege all that a plaintiff
must eventually prove.’’).
Appellants’ complaint clearly passes this test. Counts I, II,
and III of the complaint allege that the defendants manipulat-
ed ward boundaries with the purpose and effect of ‘‘packing’’
African-American voters into supermajority African-American
wards and decreasing the African-American proportion of the
overall and voting-age population in every ward in which the
white proportion of the population was 10.3% or greater. See
First Am. Compl. ¶ ¶ 27-47, reprinted in J.A. C. The com-
plaint specifically alleged that the Act resulted in the reduc-
tion of the African-American proportion of the Ward Six
population from 68.7% to 62.3%, in part by transferring 1,840
African-American voters from Kingman Park to Ward Seven,
a supermajority African-American ward. See id. ¶ ¶ 17-26.
No more was necessary to withstand a Rule 12(b)(6) motion.
We acknowledge that ‘‘it is possible for a plaintiff to plead
too much: that is, to plead himself out of court by alleging
facts that render success on the merits impossible.’’ Spar-
row, 216 F.3d at 1116. Appellants did not do so here.
Although appellants’ complaint alleges that African Ameri-
cans remain an absolute majority in Ward Six and in every
other ward in which they were a majority prior to redistrict-
ing, this does not suffice to place it ‘‘beyond doubt that the
plaintiff[s] can prove no set of facts in support of [their] claim
which would entitle [them] to relief.’’ Conley, 355 U.S. at 45-
46. Vote dilution claims must be assessed in light of the
 11

demographic and political context, and it is conceivable that
minority voters might have ‘‘less opportunity TTT to elect
representatives of their choice’’ even where they remain an
absolute majority in a contested voting district.
2. Summary Judgment
While we find that dismissal under Rule 12(b)(6) was
improper, we nevertheless affirm the District Court’s judg-
ment in favor of the Mayor on summary judgment grounds.
See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997) (‘‘Here
in fact the [defendant’s] motion to dismiss requested sum-
mary judgment in the alternative [to dismissal under Rule
12(b)(6)], and if summary judgment is the correct disposition,
we may convert and affirm on those grounds.’’).
Summary judgment under Rule 56 is appropriate where
the pleadings and the record ‘‘show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.’’ FED. R. CIV. P.
56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-
51 (1986). The moving party is not required to support its
motion for summary judgment with ‘‘affidavits or other simi-
lar materials negating the opponent’s claim.’’ Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (emphasis in original).
Rather,
the plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for dis-
covery and upon motion, against a party who fails to
make a showing sufficient to establish the existence
of an element essential to that party’s case, and on
which that party will bear the burden of proof at
trial.
Id. at 322.
Where the moving party has properly supported its motion,
Rule 56 does not permit the nonmoving party to rest upon its
pleadings. Rather, the nonmoving party’s opposition must,
by affidavits or otherwise, ‘‘set forth specific facts showing
that there is a genuine issue for trial.’’ FED. R. CIV. P. 56(e).
The District Court may deny or defer ruling on the motion
 12

for summary judgment in order to permit discovery. See
FED. R. CIV. P. 56(f); Anderson, 477 U.S. at 250 n.5 (noting
that summary judgment should be refused ‘‘where the non-
moving party has not had the opportunity to discover infor-
mation that is essential to his opposition’’).
In order to make out a prima facie case of vote dilution
under § 2, appellants must satisfy the three threshold condi-
tions set forth by the Supreme Court in Thornburg v. Gin-
gles, 478 U.S. 30 (1986). They must establish: (1) that the
minority group in question is ‘‘sufficiently large and geo-
graphically compact to constitute a majority in a single-
member district’’; (2) that the minority group is ‘‘politically
cohesive’’; and (3) that the ‘‘majority votes sufficiently as a
bloc to enable it TTT usually to defeat the minority’s preferred
candidate.’’ Id. at 50-51. While Gingles itself involved a
multimember district, the Supreme Court has made clear that
these conditions must likewise be met in actions, such as this,
challenging one or more single-member districts. See Growe
v. Emison, 507 U.S. 25, 40-41 (1993). If the Gingles condi-
tions are met, a court then must determine whether the
‘‘totality of the circumstances’’ indicates that minority voters
have been denied equal opportunity to participate in the
political process. See Johnson v. De Grandy, 512 U.S. 997,
1009-12 (1994).
To satisfy the first Gingles condition, appellants must show
‘‘the possibility of creating more than the existing number of
reasonably compact districts with a sufficiently large minority
population to elect candidates of its choice.’’ Id. at 1008.
Appellants fail to establish a triable issue as to this condition
with regard to Ward Three. African Americans represented
6.3% of the Ward Three population prior to redistricting, and
5.1% after redistricting. Appellants have not identified, nor
on the record does it appear possible to identify, an alterna-
tive plan creating more than the existing number of majority
African-American wards in the area shared by Ward Three
and the adjacent wards (i.e., Wards One, Two, and Four).
We will assume, without deciding, that appellants have met
the first Gingles condition with respect to Ward Six. Cf. id.
at 1009 (assuming, without deciding, that the first Gingles
 13

condition has been satisfied). While African Americans re-
main the majority in the post-redistricting Ward Six popula-
tion, it is at least conceivable that the reduction in the
African-American proportion of the population from 68.7% to
62.3% might deprive African Americans of an ‘‘effective’’ or
‘‘safe’’ voting majority in that ward. Given the high propor-
tion of African Americans in adjacent Ward Seven (96.8%), it
is possible that two ‘‘safe’’ majority-minority wards could be
created in the area shared by Ward Six and Ward Seven.
Even if appellants are given the benefit of this assumption,
however, they fail to establish a triable issue as to the second
and third Gingles conditions with regard to Ward Six or
Ward Three. Appellants have not alleged that African-
American voters in Ward Six or Ward Three are politically
cohesive or that Ward Six or Ward Three is characterized by
racially polarized voting. Nor have appellants submitted
affidavits or any other evidence supporting such a conclusion.
There is no evidence in the record relating to the breakdown
by racial group of voting preferences or patterns in Ward Six,
Ward Three, or elsewhere in the District. See Growe, 507
U.S. at 41-42 (holding that ‘‘Section 2 ‘does not assume the
existence of bloc voting: plaintiffs must prove it’ ’’) (quoting
Gingles, 478 U.S. at 46). Appellants did not seek discovery
on this issue, either before or after defendants submitted
their motions to dismiss or for summary judgment.
Appellants’ statement of material facts in dispute, submit-
ted with their motion opposing summary judgment, repeated-
ly states the legal conclusion that the redistricting plan
‘‘unlawfully diluted’’ minority voting strength, but it makes no
mention of minority political cohesiveness or racially polarized
voting. See Statement of Material Facts as to Which Exist
Genuine Issues in Dispute, reprinted in J.A. B. The four
declarations and 10 exhibits accompanying appellants’ opposi-
tion to summary judgment are likewise devoid of any state-
ment or evidence related to minority political cohesiveness or
racially polarized voting. See Opp’n to Council Def. and Def.
Williams’ Mot. to Dismiss or for Summ. J., reprinted in J.A.
B. Finally, in the hearing before the District Court on the
motion to dismiss or for summary judgment, counsel for
 14

appellants expressly stated that the only facts at issue in the
case were ‘‘missing’’ statistics as to the breakdown by race of
the voting-age population in the new wards created by the
Act. Tr. of Motions Hearing at 37-38. With that exception,
appellants maintained, ‘‘[e]verything else is undisputed.’’ Id.
at 37.
In sum, appellants have made no showing that there exists
a triable issue as to minority political cohesiveness or racially
polarized voting. As a result, they fail to make the required
showing as to the second and third Gingles conditions, which
are ‘‘element[s] essential to’’ their case upon which they will
bear the burden of proof at trial. See Celotex, 477 U.S. at
322. The Mayor therefore is entitled to summary judgment
on the Voting Rights claims against him.
C. Remaining Issues
In addition to the Voting Rights Act claims, appellants
assert, for the first time on appeal, that the Ward Redistrict-
ing Act violates the Fourteenth and Fifteenth Amendments.
They allege that race was the ‘‘predominate factor’’ in re-
drawing ward boundaries under the Act, and that the Act had
the purpose and effect of discriminating on the basis of race.
We decline to address the merits of this untimely claim.
Racial gerrymandering claims of this nature involve highly
complex factual inquiries, focusing on the interaction of geog-
raphy, demography, and politics. See, e.g., Easley v. Cromar-
tie, 532 U.S. 234, 241-58 (2001) (evaluating and overturning a
three-judge district court’s finding that race was the predomi-
nant factor in redistricting). The general presumption
against deciding claims not raised below is particularly strong
where, as here, the claim turns upon factual questions not yet
passed upon by the district court. See Boehner v. Anderson,
30 F.3d 156, 163 (D.C. Cir. 1994) (declining to reach a claim
predicated on a factual assumption not established below);
Texas Rural Legal Aid, 940 F.3d at 697 (in deciding whether
to hear a claim not raised below, the court will look to
‘‘whether decision of the issue would be aided by the develop-
ment of a factual record in the district court’’).
Having determined that the Mayor was entitled to sum-
mary judgment on the sole federal claim properly before this
 15

court, we affirm the District Court’s dismissal under 28
U.S.C. § 1367 of the pendent D.C. law claims against him.
That provision authorizes a district court to decline to exer-
cise supplemental jurisdiction over pendent claims if ‘‘the
district court has dismissed all claims over which it has
original jurisdictionTTTT’’ 28 U.S.C. § 1367(c) (1993). Dis-
missal of the pendent claims was appropriate here, where all
of the federal claims were properly resolved against appel-
lants. See United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 726 (1966).
Finally, we turn to appellants’ claims against the Council.
As noted above, appellants withdrew their due process claims
regarding the Ward Six redistricting task force before the
District Court issued its decision. Appellants’ only remaining
federal claim against the Council is the challenge, under § 2
of the Voting Rights Act, to the lawfulness of the Ward
Redistricting Act. This claim is identical to the Voting
Rights Act claim decided in favor of the Mayor. Because the
merits of the Voting Rights Act claim have been dispositively
resolved against appellants, the identical claim against the
Council no longer raises a substantial federal question.
Accordingly, we affirm the District Court’s dismissal of the
Voting Rights Act counts of the complaint against the Council
on the alternative ground that there was no substantial
federal question conferring jurisdiction. See World Wide
Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154,
1167 (D.C. Cir. 2002) (affirming the dismissal of claims
against one defendant for lack of a substantial federal ques-
tion, because the court had ‘‘dispositively resolve[d] the iden-
tical claims’’ against the other defendant on the same appeal),
cert. denied, 123 S. Ct. 1250 (2003). We affirm dismissal of
the pendent D.C. law claims against the Council on the same
basis. Consequently, we need not address the Council mem-
bers’ assertion of legislative immunity.

III. CONCLUSION
For the reasons stated above, we affirm the judgment of
the District Court in favor of the Mayor with respect to
 16

appellants’ Voting Rights Act claims. On the record before
us, the Mayor is entitled to summary judgment on these
claims. We likewise affirm the District Court’s dismissal of
the pendent D.C. law claims pursuant to 28 U.S.C. § 1367.
Finally, having dispositively resolved the merits of appellants’
Voting Rights Act claims in favor of the Mayor, we affirm
dismissal of the identical federal and pendent D.C. law claims
as to the Council for lack of a substantial federal question
conferring jurisdiction.