19‐576‐cv
NAACP v. Merrill


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   August Term 2019

         (Argued: September 10, 2019             Decided: September 24, 2019)

                                  Docket No. 19‐576‐cv



        NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
                   NAACP CONNECTICUT STATE CONFERENCE,
              JUSTIN FARMER, GERMANO KIMBRO, CONLEY MONK, JR.,
                        GARRY MONK, DIONE ZACKERY,

                                                       Plaintiffs‐Appellees,

                                       ‐ against ‐

        DENISE MERRILL, Secretary of State, EDWARD LAMONT, JR., Governor,

                                                       Defendants‐Appellants.*



                   ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF CONNECTICUT



Before:
                        WESLEY, CHIN, and BIANCO, Circuit Judges.




*     The Clerk of the Court is respectfully directed to amend the official caption to
conform to the above.
             Interlocutory appeal from an order of the district court (Eginton, J.)

denying defendantsʹ motion to dismiss for lack of subject matter jurisdiction.

Plaintiffs allege that Connecticutʹs redistricting plan, which counts incarcerated

individuals in the district in which their prison is located rather than the district

in which they permanently reside, violates the ʺone person, one voteʺ principle of

the Fourteenth Amendment. On appeal, defendants argue that the district court

lacks jurisdiction because Eleventh Amendment immunity applies and the claim

presents a nonjusticiable political question.

             AFFIRMED IN PART AND REMANDED.


                          ALAA CHAKER, Law Student Intern (Michael J. Wishnie,
                               Supervising Attorney, on the brief), Peter Gruber
                               Rule of Law Clinic, Yale Law School, for Plaintiffs‐
                               Appellees.

                          ALEXANDER T. TAUBES (David N. Rosen, on the brief),
                               David Rosen & Associates, P.C., New Haven,
                               Connecticut; Benjamin D. Alter, Bradford M.
                               Berry, National Association for the Advancement
                               of Colored People, Inc., New York, New York,
                               and Baltimore, Maryland, for Plaintiffs‐Appellees.

                          MICHAEL K. SKOLD, Assistant Attorney General (Maura
                              Murphy Osborne, Assistant Attorney General, on
                              the brief), for William Tong, Attorney General of
                              Connecticut, Hartford, Connecticut, for
                              Defendants‐Appellants.



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PER CURIAM:

             Defendants‐appellants Denise Merrill and Edward Lamont, Jr., in

their official capacities as the Secretary of State and Governor of Connecticut,

respectively (together, ʺDefendantsʺ),1 appeal the February 15, 2019 order of the

district court (Eginton, J.) denying their motion to dismiss for lack of jurisdiction

and for failure to state a claim. Plaintiffs‐appellees the National Association for

the Advancement of Colored People (the ʺNAACPʺ), its Connecticut Conference,

and five individuals filed a complaint (the ʺComplaintʺ) on June 28, 2018,

challenging Connecticutʹs 2011 redistricting plan (the ʺRedistricting Planʺ).

             The Complaint alleges that the Redistricting Plan violates the

Fourteenth Amendmentʹs principle of ʺone person, one vote.ʺ The Redistricting

Plan counts incarcerated individuals in the district in which their prison is

located (their ʺprison districtʺ), rather than the district in which they

permanently reside (their ʺhome districtʺ). This is despite the fact that under

Connecticut law, most incarcerated individuals do not have the right to vote, and

those who can vote may do so only in their home district, rather than in their

prison district. See Conn. Gen. Stat. §§ 9‐46, 9‐14. Moreover, Plaintiffs contend,



1    Plaintiffs sued then‐Governor Daniel P. Malloy. Malloy was succeeded as
Governor of Connecticut by Lamont in January 2019.
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prisoners typically have no contact with their prison districtʹs elected officials,

cannot patronize public or private establishments in their prison district, and

cannot drive on their prison districtʹs roads or send their children to their prison

districtʹs schools. Hence, according to the Complaint, the Redistricting Plan

artificially inflates the representation of some parts of the state at the expense of

others: the representational power of the predominantly White residents living

in the prisonersʹ mostly rural prison districts is artificially inflated, while the

representational power of the predominantly Black and Latino residents living in

prisonersʹ more urban home districts is artificially deflated.

             On September 6, 2018, Defendants moved to dismiss the Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that its

allegations of an ongoing violation of federal law are frivolous or insubstantial

and, thus, that Eleventh Amendment immunity applies. Defendants also moved

to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief

can be granted. On February 15, 2019, the district court denied both prongs of

the motion to dismiss, holding that Defendants were not immune from suit

under the Eleventh Amendment because the Complaint plausibly alleged an

ongoing violation of federal law that falls within the Ex parte Young exception to



                                           4
the Eleventh Amendmentʹs bar on suits against states and their officials. See Ex

parte Young, 209 U.S. 123 (1908). This appeal followed.

                                    DISCUSSION

I.    Appellate Jurisdiction

             Although the parties appear to agree that we have appellate

jurisdiction, we are obliged to raise the issue of our jurisdiction nostra sponte

ʺwhen it is questionable.ʺ Henrietta D. v. Giuliani, 246 F.3d 176, 179 (2d Cir. 2001).

We conclude that we have jurisdiction over this appeal. Under the collateral

order doctrine, we have jurisdiction to hear immediate appeals of nonfinal orders

denying Eleventh Amendment immunity. Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 142‐46 (1993). Defendants appeal the district

courtʹs order only to the extent it ʺdeni[ed] Defendantsʹ Eleventh Amendment

immunity defense.ʺ App. at 47.

             This straightforward conclusion is complicated somewhat by the

fact that this case involves a challenge to the constitutionality of the

apportionment of a statewide legislative body, which must be heard by a three‐

judge district court. 28 U.S.C. § 2284(b)(3). ʺ[T]he three‐judge requirement in 28

U.S.C. § 2284 is jurisdictional,ʺ Kalson v. Paterson, 542 F.3d 281, 287 (2d Cir. 2008),

and thus ʺthe district judge [is] required to refer the case to a three‐judge courtʺ

                                           5
where the statutory requirements are met, Shapiro v. McManus, 136 S. Ct. 450, 454

(2015). Before convening a three‐judge court, ʺall the district judge must

determine is whether the request for three judges is made in a case covered by

§ 2284(a) ‐‐ no more, no less.ʺ Id. (internal quotation marks omitted). But a

ʺthree‐judge court is not required where the district court itself lacks jurisdiction

of the complaint or the complaint is not justiciable in the federal courts.ʺ Id.

(internal quotation marks omitted). Hence, a complaint must satisfy two criteria

before it must be referred to a three‐judge court: (1) it commences an action

ʺchallenging the constitutionality of . . . the apportionment of any statewide

legislative body,ʺ 28 U.S.C. § 2284(a), and (2) it is justiciable and otherwise

confers subject matter jurisdiction on the federal courts, Shapiro, 136 S. Ct. at 455.

As part of this second inquiry, a single judge may review whether a claim

presents a ʺsubstantial federal questionʺ that is justiciable. Id.

             It follows that a single district judge is empowered to determine

whether the Eleventh Amendment bars a claim that would otherwise fall within

§ 2284(a). By its terms, the Eleventh Amendment provides that ʺ[t]he Judicial

power of the United States shall not be construed to extend to any suit . . .

commenced or prosecuted against one of the United States by Citizens of another

State.ʺ U.S. Const. Amend. XI. Thus, the Eleventh Amendment ʺgoes to the

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jurisdiction of the federal court, as opposed to the underlying liability of the State

or state entity.ʺ Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 150 (Stevens, J.,

dissenting); see also id. at 144 (majority opinion) (noting that the Eleventh

Amendment is a ʺwithdrawal of jurisdictionʺ). Accordingly, the district court

had jurisdiction to determine that the Complaint satisfied the requirements of Ex

parte Young, and we have jurisdiction to review that determination on appeal.

II.   Eleventh Amendment Immunity

      A.     Standard of Review

             We review a district courtʹs legal conclusion that state officials are

not immune from suit under the Eleventh Amendment de novo. CSX Transp., Inc.

v. N.Y. State Office of Real Prop. Servs., 306 F.3d 87, 94 (2d Cir. 2002). When we

ʺreview[] the legal merits of a claim for purposes of Ex parte Young, [we] review[]

only whether a violation of federal law is alleged; appellate review of allegations

is necessarily deferential, and only frivolous and insubstantial claims will not

survive its scrutiny.ʺ In re Deposit Ins. Agency, 482 F.3d 612, 623 (2d Cir. 2007).

      B.     Applicable Law

             The Eleventh Amendment bars suits against states and their officials

unless the state consents to suit, Congress abrogates the stateʹs immunity, or the

case falls within the Ex parte Young exception. Id. at 617. The Ex parte Young

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doctrine ʺoperates to end ongoing violations of federal law and vindicate the

overriding federal interest in assuring the supremacy of [the] law.ʺ Id. at 618

(internal quotation marks omitted). A plaintiff may invoke this exception

ʺprovided that his complaint (a) alleges an ongoing violation of federal law and

(b) seeks relief properly characterized as prospective.ʺ Id. (internal quotation

marks omitted). The first requirement is satisfied if the claim of an ongoing

violation of federal law is ʺneither insubstantial nor frivolous.ʺ Id. A claim is

ʺinsubstantialʺ for purposes of rejecting federal jurisdiction if it is ʺimplausible,

foreclosed by prior decisions of the Supreme Court, or otherwise completely

devoid of merit.ʺ S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 133 (2d

Cir. 2010) (alterations omitted). It follows that a claim is not ʺʹinsubstantialʹ

merely because it might ultimately be unsuccessful on its merits.ʺ Id. The second

requirement is satisfied if the relief sought is prospective ‐‐ that is, it is not

ʺretrospective or designed to compensate for a past violation of federal law.ʺ In

re Deposit Ins., 482 F.3d at 619.

      C.     Application

              Application of the Ex parte Young inquiry demonstrates that the

Eleventh Amendment does not immunize Defendants from this suit. As to the

first requirement, Plaintiffs have sued Connecticutʹs Governor and Secretary of

                                            8
State in their official capacities, and they allege a violation of the Constitution,

namely that the Redistricting Plan violates the Fourteenth Amendment and will

continue to do so as long as it remains in place. As to the second requirement,

Plaintiffs have requested only prospective relief: a declaratory judgment and an

injunction requiring Defendants to adopt a new districting plan for future

elections.

             Defendants do not dispute that the relief sought is prospective;

rather, they contend that the allegations are insubstantial. They make three

principal arguments, which we discuss in turn.

             1.     Evenwel v. Abbott

             The Supreme Court has long held that ʺthe Equal Protection Clause

requires that seats in both houses of a bicameral state legislature must be

apportioned on a population basis,ʺ which means that a state must make ʺan

honest and good faith effort to construct districts . . . as nearly of equal

population as is practicable.ʺ Reynolds v. Sims, 377 U.S. 533, 568, 577 (1964).

Because ʺsome deviations from population equality may be necessary to permit

the States to pursue other legitimate objectives[,] . . . ʹminor deviations from

mathematical equality among state legislative districts are insufficient to make

out a prima facie case of invidious discrimination under the Fourteenth

                                           9
Amendment so as to require justification by the State.ʹʺ Brown v. Thompson, 462

U.S. 835, 842 (1983) (quoting Reynolds, 377 U.S. at 745).

             Based on these considerations, the Court has established that ʺas a

general matter, . . . an apportionment plan with a maximum population deviation

under 10% falls within this category of minor deviations.ʺ Id. (emphasis added);

accord Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016). Thus, a plan with a

population deviation greater than 10% ʺcreates a prima facie case of

discrimination and therefore must be justified by the State,ʺ Brown, 462 U.S. at

482‐83, while a population deviation below 10% is ʺinsufficient to make out a

prima facie case of invidious discrimination under the Fourteenth Amendment

so as to require justification by the State,ʺ Gaffney v. Cummings, 412 U.S. 735, 745

(1973). Where the 10% threshold is not met, ʺapportionment schemes . . . will

constitute an invidious discrimination only if it can be shown that designedly or

otherwise, a multi‐member constituency apportionment scheme, under the

circumstances of a particular case, would operate to minimize or cancel out the

voting strength of racial or political elements of the voting population.ʺ Burns v.

Richardson, 384 U.S. 73, 88 (1966) (emphasis added and internal quotation marks

omitted).



                                         10
             In Evenwel v. Abbott, the Supreme Court rejected the argument that

the Constitution requires that state voting districts be drawn to have equal voter‐

eligible populations. 136 S. Ct. at 1132. The Court instead held that, based on

ʺconstitutional history, [the Supreme] Courtʹs decisions, and longstanding

practice, . . . a State may draw its legislative districts based on total population,ʺ

including from raw Census data, without running afoul of the ʺone person, one

voteʺ principle. Id. at 1123.

             Defendants argue that Evenwel and its predecessors foreclose

Plaintiffsʹ claim. According to Defendants, the Redistricting Plan is based on

total population from the 2010 decennial Census and the population deviation

between the largest and smallest district is under 10%. As an evidentiary matter,

then, the Redistricting Plan ʺpresumptively compliesʺ with the ʺone person, one

voteʺ principle. See id. at 1124. But Defendants confuse the requirements of a

prima facie showing of discrimination with a pleading requirement to invoke

federal jurisdiction.

             A ʺprima facie case . . . is an evidentiary standard, not a pleading

requirement.ʺ Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002).

Consequently, ʺit is not appropriate to require a plaintiff to plead facts

establishing a prima facie case,ʺ id. at 511, because ʺthe precise requirements of a

                                          11
prima facie case can vary depending on . . . context,ʺ and ʺit may be difficult to

define the precise formulation of the required prima facie case in a particular

caseʺ before ʺdiscovery has unearthed relevant facts and evidence,ʺ id. at 512.

The Supreme Court has never held that a prima facie showing of discrimination

is required at the pleading stage of a case alleging discriminatory districting at the

state level to invoke the jurisdiction of the federal courts. See Wright v. North

Carolina, 787 F.3d 256, 267‐69 (4th Cir. 2015) (reversing dismissal of state

apportionment claim where maximum population deviation was below 10%

because plaintiffs alleged that districting plan had effect of discriminating

against urban voters in favor of rural voters). In other words, the 10% threshold

is not a safe harbor. On ʺreview[ing] the legal merits of a claim for purposes of

Ex parte Young, [we] review[] only whether a violation of federal law is alleged.ʺ

In re Deposit Ins. Agency, 482 F.3d at 623. Here, plaintiffs have alleged an ongoing

constitutional violation.

             2.    Abbott v. Perez

             Defendants contend that federal courts are prohibited from

interfering with a state legislatureʹs choice about how to count prisoners in the

population base. In Burns v. Richardson, the Supreme Court held that state

redistricting is a judgment ʺexclusively for the legislature to make.ʺ 384 U.S. at

                                          12
89. In Abbott v. Perez, the Court clarified that redistricting is ʺprimarily the duty

and responsibility of the stateʺ and that ʺfederal‐court review of districting

legislation represents a serious intrusion on the most vital of local functions.ʺ 138

S. Ct. 2305, 2324 (2018) (internal quotation marks and alterations omitted).

             These cases do not foreclose Plaintiffsʹ claim. As Burns held,

redistricting decisions are ʺsubject to constitutional challenge . . . upon a

demonstration that the . . . apportionment . . . would operate to minimize or

cancel out the voting strength of racial or political elements of the voting

population.ʺ Burns, 384 U.S. at 89 (internal quotation marks omitted). Plaintiffs

here have alleged that the Redistricting Plan will operate to minimize

representational strength in prisonersʹ urban home districts, which they allege

are predominantly Black and Latino, in favor of the predominantly White rural

prison districts. Thus, Plaintiffsʹ claim is not foreclosed on this basis.

             3.     Davidson v. City of Cranston

             Defendants argue that Davidson v. City of Cranston, which involved

facts that Defendants contend are substantially similar to those presented here,

demonstrates that Plaintiffsʹ claim is insubstantial. 837 F.3d 135 (1st Cir. 2016). A

decision of the First Circuit, while potentially a persuasive authority as to the

merits of the case, is not ʺa prior decision of the Supreme Courtʺ that

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ʺforeclose[s]ʺ Plaintiffsʹ claim at this stage. S. New England Tel. Co., 624 F.3d at

133 (alterations omitted).2

             In sum, Plaintiffsʹ claim seeking prospective relief from a

purportedly ongoing constitutional violation falls within the Ex parte Young

doctrine. The claim is neither frivolous nor insubstantial. The district court thus

has subject matter jurisdiction over the claim. ʺPerhaps [Plaintiffs] will

ultimately fail on the merits of their suit, but § 2284 entitles them to make their

case before a three‐judge district court.ʺ Shapiro, 136 S. Ct. at 456. Accordingly,

we affirm the order of the district court to the extent it denies Defendantsʹ motion

to dismiss the Complaint for lack of jurisdiction. We again emphasize that we do

not take any position on the ultimate merits of the case and nothing in this

opinion shall be construed to indicate otherwise.




2      As discussed above, Defendants rely heavily on Evenwel in arguing that they are
entitled to Eleventh Amendment immunity. We note, however, that there are
differences at least arguably sufficient to distinguish the claims in this case from those
in Evenwel. Indeed, in Davidson, which Defendants characterize as ʺan identical
prisoner‐based claim,ʺ Appellantsʹ Br. at 4, the First Circuit noted that ʺEvenwel did not
decide the precise question before us,ʺ Davidson, 837 F.3d at 141. At this extraordinarily
preliminary juncture, we need not determine whether Evenwel will ultimately decide
the merits of this case and take no position on that issue.
                                              14
III.   Justiciability

             Defendants argue that because the Redistricting Plan does not allege

a prima facie violation of the ʺone person, one voteʺ principle, Plaintiffsʹ claim

presents a nonjusticiable political question about the meaning of fair and

equitable representation. We disagree.

             Plaintiffs allege that the Redistricting Plan operates to minimize the

voting strength of the predominantly Black and Latino constituents living in

prisonersʹ home districts and to increase the voting strength of the

predominantly White constituents living in prisonersʹ prison districts. Such a

claim is justiciable. See Rucho v. Common Cause, 139 S. Ct. 2484, 2496 (2019)

(reaffirming that ʺclaim[s] of population inequality among districtsʺ are

justiciable because they can ʺbe decided under basic equal protection principlesʺ

(citing Baker v. Carr, 369 U.S. 186, 226 (1962))). The Courtʹs holding in Rucho that

partisan gerrymandering claims are not justiciable, id. at 2500, therefore does not

preclude Plaintiffsʹ claim.

IV.    Failure to State a Claim

             Although we are without jurisdiction to correct the error, we are

obliged to note that the district court lacked jurisdiction to decide Defendantsʹ

motion to dismiss for failure to state a claim and that it should have referred that

                                         15
aspect of the case to a three‐judge district court. See Idlewild Bon Voyage Corp. v.

Epstein, 370 U.S. 713, 715 (1962) (per curiam) (noting that although courts of

appeals are ʺprecluded from reviewing on the merits of a case which should have

originally been determined by a court of three judges,ʺ they are not ʺpowerless

ever to give any guidance when a single judge has erroneously invaded the

province of a three‐judge courtʺ).

             The Supreme Court has made explicit that a single judge is required

to refer a case to a three‐judge court, regardless of whether an application by the

parties is made, as soon as it is determined that the claim falls within § 2284(a)

and that jurisdiction in federal court is proper. See Shapiro, 136 S. Ct. at 454‐55.

This is so because, as noted above, § 2284(a) is jurisdictional and a single judge

has no power over a case that falls within § 2284(a) other than to refer the case to

a three‐judge panel. See id.; Idlewild Bon Voyage Corp., 370 U.S. at 715 (noting that

where statute requires a three‐judge district court to be empaneled, ʺthe

applicable jurisdictional statute . . . made it impermissible for a single judge to

decide the merits of the case, either by granting or withholding reliefʺ).

             Moreover, the Supreme Court has held that a ruling on a motion to

dismiss for failure to state a claim goes beyond a mere assessment of whether a

complaint pleads a jurisdiction‐conferring claim. In Shapiro, plaintiffs challenged

                                          16
the constitutionality of the apportionment of congressional districts. 136 S. Ct. at

453. The ʺDistrict Judge dismissed petitionersʹ complaint not because he thought

he lacked jurisdiction, but because he concluded that the allegations failed to

state a claim for relief on the merits.ʺ Id. at 455. But as the Court noted, ʺ[w]e

have long distinguished between failing to raise a substantial federal question for

jurisdictional purposes . . . and failing to state a claim for relief on the merits.ʺ

Id.; see also S. New England Tel. Co., 624 F.3d at 132 (ʺ[W]hether a plaintiff has pled

a jurisdiction‐conferring claim is a wholly separate issue from whether the

complaint adequately states a legally cognizable claim for relief on the merits.ʺ).

The Court reversed the judgment and remanded the case after concluding that

the complaint raised a substantial federal question. Shapiro, 136 S. Ct. at 456. On

remand, the case was promptly referred to a three‐judge district court. Benisek v.

Lamone, No. 13‐cv‐3233 (D. Md. Feb. 4, 2016), Dkt. No. 39.

             While the district court here did not discuss the Rule 12(b)(6) prong

of Defendantsʹ motion to dismiss at length, it expressly denied the motion to

dismiss for failure to state a claim, ruled that the Complaint ʺplausibly alleged

[an] ongoing violation of federal law,ʺ and concluded that ʺwhether the

Redistricting Plan violates the Equal Protection Clause is appropriate for

summary judgment.ʺ App. at 46 (emphasis added); see also id. at 36. In doing so,

                                           17
the district court went beyond deciding that the Complaint raised a jurisdiction‐

conferring claim.

                                   CONCLUSION

             Accordingly, we AFFIRM IN PART the order of the district court, to

the extent it held that the Eleventh Amendment bar on suits against states does

not apply to Plaintiffsʹ claim and denied Defendantsʹ motion to dismiss for lack

of jurisdiction. To the extent the district court denied Defendantsʹ motion to

dismiss for failure to state a claim, the district court lacked jurisdiction to do so.

We REMAND the case to the district court. Because this case falls within

§ 2284(a) and Plaintiffsʹ claim presents a substantial federal question, on remand

the district court shall refer the matter to a three‐judge court for further

proceedings.




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