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Thomas v. Bryant

United States District Court, S.D. Mississippi, Northern Division

February 5, 2019

JOSEPH THOMAS, et al. PLAINTIFFS
v.
PHIL BRYANT, et al. DEFENDANTS

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.

         On July 9, 2018, plaintiffs Joseph Thomas, Vernon Ayers, and Melvin Lawson filed this suit claiming that the boundaries of Mississippi Senate District 22 are drawn in violation of Section 2 of the Voting Rights Act. The new boundaries they propose would affect District 22 and two adjacent Districts.

         On August 8, 2018, in their answer, defendants Governor Phil Bryant, Attorney General Jim Hood, and Secretary of State Delbert Hosemann admitted that this Court has subject matter jurisdiction and can grant declaratory and injunctive relief. The parties proceeded to brief motions, exchange written discovery, designate experts, argue the defendants' dispositive motion, [1] take depositions, and prepare for a trial set to begin on February 6, 2019.

         Now, days before trial, two of the defendants (Bryant and Hosemann) have brought in new lawyers to present a new defensive theory.[2] They contend that this suit challenges “the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body, ” which, if true, would require a three-judge court. 28 U.S.C. § 2284(a). Unless such a court is convened, they argue that the case must be dismissed for lack of subject matter jurisdiction.

         Of course, the plaintiffs have not asserted any constitutional claims. The plaintiffs also do not seek to reapportion congressional districts or a statewide legislative body.

         The defendants nevertheless proceed with two lines of attack. They first argue that a Section 2 claim should be considered like a constitutional claim for the purpose of convening a three-judge court. In the alternative, they contend that the text and legislative history of § 2284(a) reveal that Congress wanted three-judge courts to be convened in cases like ours.[3]

         Three-judge courts are “an exceptional procedure.” Phillips v. United States, 312 U.S. 246, 248 (1941). They are rare in part because Congress has been “mindful that the requirement of three judges . . . entails a serious drain upon the federal judicial system, ” id. at 250, and in part because convening such a court “may often result in a delay in a matter needing swift initial adjudication, ” Allen v. State Bd. of Elections, 393 U.S. 544, 561 (1969) (citation omitted). The Supreme Court has “long held that congressional enactments providing for the convening of three-judge courts must be strictly construed.” Id. (citing Phillips, 312 U.S. at 246).

         Having considered the defendants' arguments and authorities against this standard, the Court finds that a three-judge court is not required in this case.

         First, there is no justification for treating Section 2 and constitutional claims as identical. They are different causes of action with different evidentiary requirements. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425, 442 (2006). As Chief Judge Bowdre recently concluded in a similar case, a “challenge only under Section 2 . . . is not a constitutional challenge” and does not require a three-judge court. Chestnut v. Merrill, --- F.Supp.3d ---, 2019 WL 338909, at *5 (N.D. Ala. Jan. 28, 2019).[4]

         As “master of the complaint, ” it is the plaintiff's choice to bring or forego a constitutional claim. Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (quotation marks and citation omitted). In this case, the plaintiffs have elected not to pursue one. Neither the defendants nor the Court can force them to change their minds. See Fortune v. XFit Brands, Inc., No. 3:18-CV-545-CWR-LRA, 2018 WL 6332640, at *3 (S.D.Miss. Dec. 4, 2018) (“If the plaintiff's decisions were so easily invalidated, so easily written off by the court or her opponent, she should not bother to file a complaint.”).

         Second, the defendants argue that § 2284(a) requires a three-judge court to hear any cause of action which seeks to redraw a portion of a statewide legislative body. In other words, they claim that Congress intended standalone Section 2 claims to be heard by a three-judge court.

         The defendants are incorrect. The plain language of the statute requires a three-judge court when plaintiffs challenge “the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” 28 U.S.C. § 2284(a) (emphasis added). The term “the constitutionality of” modifies all of the phrases which follow it, per the series-qualifier canon of construction.[5] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012).

         That is hardly the end of this exercise in textualism, however. The Supreme Court has cautioned that “there are two opposing canons on almost every point.” Lockhart v. United States, 136 S.Ct. 958, 968 (2016) (quoting Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 401 (1950)). Today's case is no different.

         The defendants contend that the series-qualifier canon results in needless words, in violation of the surplusage canon. See Scalia & Garner at 174. It is a fair point. If “the constitutionality of” is indeed carried over to all following phrases, the second use of “the apportionment of” is rendered unnecessary. ...


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