                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0950n.06

                                   Case No. 14-5473

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


HARRISON KERR TIGRETT; REGINA                  )                FILED
SUGARMON; RUSSELL SUGARMON; JAMES                            Dec 30, 2014
                                               )
WESLEY GIBSON, II; KATHY BUCKMAN                         DEBORAH S. HUNT, Clerk
                                               )
GIBSON; MIKE CARPENTER; MARTAVIUS
                                               )
D. JONES,
                                               )
       Plaintiffs-Appellants,                  )
                                               )
and                                            )
                                               )
MAXINE SMITH                                   )
                                               )      ON APPEAL FROM THE
       Plaintiff,
v.                                             )      UNITED STATES DISTRICT
                                               )      COURT FOR THE WESTERN
ROBERT E. COOPER, JR.; TRE HARGETT;            )      DISTRICT OF TENNESSEE
TENNESSEE DEPARTMENT OF STATE:                 )
DIVISION OF ELECTIONS; SHELBY                  )
COUNTY ELECTIONS COMMISSION;                   )
WILLIAM GIANNINI; MYRA STILES; J.H.
                                               )                    OPINION
JOHNSON; ROBERT D. MEYERS; STEVE
STAMSON,                                       )
                                               )
       Defendants-Appellees,                   )
v.                                             )
                                               )
TOWN OF ARLINGTON; CITY OF
                                               )
BARTLETT; TOWN OF COLLIERVILLE; CITY
OF GERMANTOWN                                  )
                                               )
Intervenors/Defendants-Appellees               )
Case No. 14-5473
Harrison Tigrett, et al. v. Robert Cooper, Jr., et al.

BEFORE:        COLE, Chief Judge; GRIFFIN, Circuit Judge; and CARR, District Judge.*

       COLE, Chief Judge. Article XI, Section 9, of the Tennessee Constitution and its enabling

legislation permit the consolidation of a city and a county if a majority of the voters in the

principal city and a majority of the county voters outside the principal city vote in favor of

consolidation. This requirement is referred to as the “dual-majority vote requirement.” Plaintiffs

allege the dual-majority vote requirement violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution and Section 2 of the Voting Rights Act of 1965.

The district court granted summary judgment to defendants. Plaintiffs now appeal the district

court’s ruling. Because we find the case to be moot, we dismiss their appeal.

                                        I. BACKGROUND

       Article XI, Section 9, of the Tennessee Constitution provides:

               The General Assembly may provide for the consolidation of any or all of
       the governmental and corporate functions now or hereafter vested in municipal
       corporations with the governmental and corporate functions now or hereafter
       vested in the counties in which such municipal corporations are located; provided,
       such consolidations shall not become effective until submitted to the qualified
       voters residing within the municipal corporation and in the county outside thereof,
       and approved by a majority of those voting within the municipal corporation and
       by a majority of those voting in the county outside the municipal corporation.

Tenn. Const. art. XI, § 9.

       To implement this constitutional provision, the Tennessee General Assembly adopted the

“Metropolitan Charter” scheme. Tenn. Code Ann. §§ 7-2-101–108. Under the scheme, the first

step towards consolidation is the creation of a metropolitan-government charter commission. A

commission can be created in one of three ways: (1) through the adoption of a consolidation

resolution by the governing body of a county and the governing body of the principal city; (2) by

*
 The Honorable James G. Carr, Senior District Judge for the United States District Court for the
Northern District of Ohio, sitting by designation.
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Case No. 14-5473
Harrison Tigrett, et al. v. Robert Cooper, Jr., et al.

a legislative act of the Tennessee General Assembly; or (3) through voter petition. Tenn. Code

Ann. § 7-2-101.

          Once the consolidation resolution is adopted, the county election commission must hold a

special referendum election for the ratification or rejection of the proposed charter. Tenn. Code

Ann. § 7-2-106(a)–(b). The charter is deemed ratified only if approved by a majority of those

voting within the county outside principal city and by a majority of those inside the principal

city. Tenn. Code Ann. § 7-2-106(c)–(d). The principal city is the “municipal corporation having

the largest population of any municipality in a particular county.” Tenn. Code Ann. § 7-1-

101(7).

          Pursuant to this scheme, the City of Memphis and Shelby County, Tennessee, decided to

consider consolidation.      Memphis is the principal city in Shelby County accounting for

approximately 73 percent of Shelby County’s population. The remainder of Shelby County is

composed of the municipalities of Germantown, Bartlett, Arlington, Millington, Collierville, and

Lakeland, as well as unincorporated areas. While a majority of Memphis residents are black, the

majority of residents in Shelby County outside of Memphis are white.

          On August 26 and September 15, 2009, the City of Memphis and Shelby County,

Tennessee, respectively, adopted resolutions establishing the Memphis and Shelby County

Metropolitan Government Charter Commission. The Commission adopted the Charter of the

Memphis Shelby County Metropolitan Government on August 9, 2010, filed it with the Shelby

County Election Commission on August 10, 2010, and requested that the charter be placed on

the ballot to the voters of Memphis and Shelby County in a referendum election.

          On October 7, 2010, plaintiffs—Memphis residents and registered voters—filed a

complaint for declaratory, preliminary, and injunctive relief, challenging the validity of Article


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Case No. 14-5473
Harrison Tigrett, et al. v. Robert Cooper, Jr., et al.

XI, Section 9, of the Tennessee Constitution and its enabling legislation. In their complaint,

plaintiffs allege that the Tennessee Constitution and its enabling legislation requiring a dual-

majority vote for consolidation (1) violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution and (2) violates Section 2 of the Voting Rights Act

of 1965. Specifically, plaintiffs argue that the dual-majority vote requirement violates the Equal

Protection Clause by impermissibly diluting the voting strength of voters within the City of

Memphis. They also argue that the dual-majority vote requirement violates Section 2 of the

Voting Rights Act of 1965 by impermissibly diluting the voting strength of blacks in the City of

Memphis.

       On November 2, 2010, the countywide consolidation referendum was held. Of the non-

Memphis Shelby County voters, 63.3 percent voted against consolidation and 36.4 percent voted

in favor of consolidation.      Of the City of Memphis voters, 49.2 percent voted against

consolidation and 50.8 percent voted in favor of consolidation.

       Defendants moved to dismiss the action as moot. The district court denied the motion

finding that there was a reasonable expectation that this controversy would recur.

       On March 29, 2011, and June 6, 2011, the Town of Arlington, City of Bartlett, Town of

Collierville, City of Germantown, and City of Millington sought to intervene in the action. The

district court initially denied the motions, but, upon reconsideration, permitted them to intervene

solely as to plaintiffs’ residency-based equal protection claim.

       On May 29, 2013, the parties filed cross-motions for summary judgment, and on March

17, 2014, the district court granted defendants’ motion for summary judgment.            Plaintiffs

appealed.




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                                           II. ANALYSIS

       Although the parties did not address mootness in their appeal, mootness is an element of

justiciability and the court has a duty to consider it sua sponte. See Libertarian Party of Ohio v.

Blackwell, 462 F.3d 579, 583–84 (6th Cir. 2006). A case is moot if “the issues presented are no

longer live or the parties lack a legally cognizable interest in the outcome.” Id. at 584 (quoting

L.A. Cnty. v. Davis, 440 U.S. 625, 631 (1979)).

       “Even when an actual controversy does not exist, an appellate court may appropriately

adjudicate an issue when it is one that is ‘capable of repetition, yet evading review.’” Corrigan

v. City of Newaygo, 55 F.3d 1211, 1213 (6th Cir. 1995) (citations omitted). “This doctrine

applies in exceptional situations in which two conditions exist: ‘(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.’” Speer v. City of Or., 847 F.2d 310, 311 (6th Cir. 1988) (quoting Weinstein v. Bradford,

423 U.S. 147, 149 (1975)).

       In this appeal, the first prong is easily met. “Legal disputes involving election laws

almost always take more time to resolve than the election cycle permits.” Libertarian Party of

Ohio, 462 F.3d at 584. Less than one month elapsed between the filing of the lawsuit and the

election. See id. However, the second prong has not been met because plaintiffs have not shown

that there is a “reasonable expectation” that they will be “subjected to the same action again.”

Speer, 847 F.2d at 311 (quoting Weinstein, 423 U.S. at 149).

       While the second prong of the mootness exception is “somewhat relaxed in election

cases,” Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005), the consolidation referendum

here differs from other elections courts have reviewed. In this election, the referendum for


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consolidation did not pass and would not have passed even if there had been no dual-majority

vote requirement. Moreover, unlike in most elections, consolidation elections are not regularly

scheduled and do not occur frequently.         In order for a consolidation election to occur, a

metropolitan-government charter commission must be created. However, there is no indication

that the governing bodies of the City of Memphis or Shelby County intend to consolidate

through the formation of another commission in the near future. In the past century, only three

consolidation elections have taken place in the City of Memphis and Shelby County. The last

consolidation election before the present took place nearly 40 years ago. It is possible that the

next consolidation election will not occur again for another half-century. Therefore, there is no

indication that the same parties will be subjected to this violation again. “The [Supreme] Court

has never held that a mere physical or theoretical possibility was sufficient to satisfy the test

stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable.”

Murphy v. Hunt, 455 U.S. 478, 482 (1982).

                                        III. CONCLUSION

       For the foregoing reasons, we dismiss the appeal as moot.




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