United States District Court for the District of Columbia
February 1, 2005.
FRANKLIN C. REAVES, et al., Plaintiffs,
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
The opinion of the court was delivered by: A. RAYMOND RANDOLPH, Circuit Judge PAUL FRIEDMAN, District Judge JOHN BATES, District Judge
Plaintiffs in this case are 27 United States citizens residing
in various counties within Senate District No. 30 in South
Carolina. Their claims arise from the decision of the South
Carolina Democratic Party to void a June 8, 2004 primary election
following an election contest, and to hold a special election on
September 28, 2004. The complaint asserts two claims under the
Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., against
defendants the Voting Section of the Civil Rights Division of the
United States Department of Justice, Attorney General John
Ashcroft, and Voting Section Chief Joseph D. Rich (the "federal
defendants"); and against the State of South Carolina.*fn1
Plaintiffs requested adjudication by a three-judge court, as
authorized by Section 5 of the Voting Rights Act,
42 U.S.C. § 1973c, see Application for Three-Judge Court, and Chief Judge
Ginsburg, at the request of the district judge to whom the case
initially assigned and pursuant to statute, appointed one Circuit
judge and an additional judge of this Court to serve on the
three-judge panel. See 28 U.S.C. § 2284.
The federal defendants and the State of South Carolina have
filed separate motions to dismiss. For the reasons discussed
below, the Court will grant the federal defendants' motion and
deny South Carolina's motion. It also will, sua sponte,
transfer the case to the United States District Court for the
District of South Carolina.
On June 8, 2004, the South Carolina Democratic Party held
primary elections in State Senate District No. 30. Because of an
election contest, the party invalidated the election on June 18,
2004.*fn2 At the request of the state Democratic Party and
the South Carolina State Election Commission, South Carolina
Governor Mark Sanford on September 7, 2004 issued an executive
order setting a special primary election for September 28, 2004.
See S.C. Exec. Order No. 2004-25 (Sep. 7, 2004); Complaint ¶
48. The next day, the State of South Carolina requested that the
Attorney General of the United States conduct an expedited review
of the executive order under Section 5 of the Voting Rights Act,
42 U.S.C. § 1973c. See United States'
Memorandum in Support of Motion to Dismiss and in Response to
Plaintiffs' Motion to Stay Election Results at 5 and Attachment
1. On September 17, 2004, the Chief of the Justice Department's
Voting Section responded to the request on behalf of the Attorney
General, informing South Carolina that the Attorney General would
not interpose any objection to the proposed change to state
election procedures. See id. at 5-6 and Attachment 2.
On October 22, 2004, plaintiffs, 27 African-American voters
from South Carolina State Senate District No. 30, filed this
action seeking to enjoin enforcement of the change to election
procedures. See Compl. ¶¶ 54, 59. The same day, plaintiffs
filed an application for a three-judge court as authorized by
Section 5. After notification by District Judge Paul L. Friedman,
to whom the case had originally been assigned, that the case
seemed appropriate for the appointment of a three-judge court,
Chief Judge Douglas H. Ginsburg of the United States Court of
Appeals for the District of Columbia Circuit designated Circuit
Judge A. Raymond Randolph and District Judge John D. Bates to
serve on a three-judge panel with Judge Friedman. See
Designation of Judges to Serve on Three-Judge District Court
(Nov. 2, 2004). On November 3, 2004, plaintiffs filed a motion to
stay the election results in Senate District No. 30.
The federal defendants have filed a motion to dismiss the
complaint, asserting that, to the extent the complaint seeks
review of the Attorney General's decision not to object to the
proposed change in voting procedures, it fails to state a claim
upon which relief may be granted, or, in the alternative, that
this Court is without subject matter jurisdiction to consider it;
that plaintiffs have failed to plead sufficient facts to confer
standing; and that plaintiffs' claim that South Carolina failed
to obtain preclearance of changes to polling places cannot be
asserted against the federal defendants. See United States'
Memorandum in Support of Motion to
Dismiss and in Response to Plaintiffs' Motion to Stay Election
Results at 1-2. The State of South Carolina also filed a motion
to dismiss plaintiffs' complaint, arguing that the state's
Eleventh Amendment sovereign immunity bars suit in federal court.
After review of the parties' filings, the Court will grant the
United States' motion to dismiss and deny South Carolina's motion
to dismiss. In the interests of justice, however, it will
transfer the case to the United States District Court for the
District of South Carolina.
A. Section 5 of the Voting Rights Act
Section 5 of the Voting Rights Act prohibits certain
jurisdictions, South Carolina included, from implementing any
change to state election practice or procedure without first
obtaining a declaratory judgment that the change "does not have
the purpose and will not have the effect of denying or abridging
the right to vote on account of race or color."
42 U.S.C. § 1973c. The United States District Court for the District of
Columbia has exclusive jurisdiction over such actions, which are
heard before a specially designated three-judge court. Id. As
an alternative to seeking a declaratory judgment, the state may
submit the proposed change to the Attorney General of the United
States for "preclearance." If the Attorney General affirmatively
indicates that he will raise no objection to the proposed change,
or fails to raise an objection within 60 days, the state may
enforce the change. 42 U.S.C. § 1973c. See also Lopez v.
Montgomery County, 519 U.S. 9, 11-12 (1996); New York v. United
States, 874 F. Supp. 394, 395-96 (D.D.C. 1994).
In addition to the declaratory judgment action explicitly
authorized by the statute, the Supreme Court has recognized two
causes of action implied by Section 5. First, the Attorney
General of the United States may seek an injunction prohibiting
the enforcement of a new voting regulation because of the
enacting state's failure to obtain preclearance under Section 5.
See Allen v. Bd. of Elections, 393 U.S. 544, 561 (1969).
Second, a private citizen may seek a declaratory judgment that a
new state enactment is governed by Section 5 and therefore is
subject to preclearance requirements. See id. at 555 & n. 19,
557; see also Lopez v. Montgomery County, 519 U.S. at 20.
Such "coverage suits" by private citizens must be heard by
three-judge courts, Allen v. Bd. of Elections, 393 U.S. at 563,
but because they address only the question of whether a
particular enactment is subject to the Voting Rights Act and not
the "difficult substantive issue" of whether it has a
discriminatory purpose or effect, the United States District
Court for the District of Columbia does not have exclusive
jurisdiction over such suits. Id. at 558-60; see also
Perkins v. Matthews, 400 U.S. 379, 383-86 (1971).*fn3
B. Federal Defendants' Motion to Dismiss
The federal defendants have moved to dismiss plaintiffs'
complaint for lack of subject matter jurisdiction and for failure
to state a claim. Because the Court finds that Count I of
plaintiffs' complaint does not state any cognizable cause of
action, and that Count II of the complaint establishes no "case
or controversy" with respect to the federal defendants, the Court
will grant the federal defendants' motion to dismiss those
defendants from the case.
1. Count I
Count I of plaintiffs' complaint challenges the United States
Attorney General's decision to grant preclearance to South
Carolina's decision to nullify the June 8 primary election and
schedule a special election for September 28, 2004. Compl. ¶¶ 37,
48-49, 51-53. Such a claim unquestionably is not cognizable under
Section 5: the Supreme Court has clearly held that Congress
intended the Attorney General's decision whether or not to object
to a proposed voting change under Section 5 to be discretionary
and unreviewable. See Morris v. Gressette, 432 U.S. 491,
504-07 & n. 22 (1977); see also Harris v. Bell, 562 F.2d 772,
773-74 (D.C. Cir. 1977); City of Rome v. United States,
450 F.Supp. 378, 380-81 (D.D.C. 1978). This is true even where, as
here, the Department of Justice is alleged to have violated its
own regulations governing the preclearance procedure. See
Harris v. Bell, 562 F.2d at 773-74.
Because a challenge to the Attorney General's refusal to object
to a voting procedure change under Section 5 is foreclosed by
previous and binding case law, plaintiffs have failed to state a
claim under Section 5 of the Voting Rights Act, and the Court
lacks subject matter jurisdiction. See City of Rome v. United
States, 450 F. Supp. at 380-81; see also Goosby v. Osser,
409 U.S. 512, 518 (1973); LaRouche v. Fowler, 152 F.3d 974,
981-82 (D.C. Cir. 1998). The Court therefore will dismiss Count I
of the complaint.
2. Count II
Count II of the complaint alleges that the State of South
Carolina changed the location of certain polling places in the
special election without obtaining the necessary preclearance
under Section 5 of the Voting Rights Act. Compl. ¶¶ 56-58. A
change in polling
places has been held to fall within the scope of Section 5, so
that Count II is not obviously without merit. See Perkins v.
Matthews, 400 U.S. at 387.
Nonetheless, there is no subject matter jurisdiction over Count
II with respect to the federal defendants. The power of the
federal courts under Article III of the Constitution extends only
to actual "cases" or "controversies." See, e.g., Allen v.
Wright, 468 U.S. 737, 750-52 (1984); Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 240-41 (1937). For the federal courts to
exercise jurisdiction, the plaintiff "must allege personal injury
fairly traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested relief." Allen v.
Wright, 468 U.S. at 751 (emphasis added). In this case, it is
not the allegedly unlawful conduct of the federal defendants but
that of the State of South Carolina that allegedly caused injury
to plaintiffs. Under Section 5 of the Voting Rights Act it is the
responsibility of the "state or subdivision" to obtain
preclearance for any change to voting procedures.
42 U.S.C. § 1973c. This Court could grant no relief vis a vis the federal
defendants that would redress plaintiffs' alleged injury;
therefore, no cognizable case or controversy exists with respect
to those defendants.
Because Count II alleges no "case or controversy" between
plaintiffs and the federal defendants, Count II must be dismissed
with respect to these defendants for lack of subject matter
C. Defendant South Carolina's Motion to Dismiss
The State of South Carolina raises only one argument in its
motion to dismiss: that its Eleventh Amendment sovereign immunity
bars this action. This contention is without
merit. In Nevada Department of Human Resources v. Hibbs,
538 U.S. 721 (2003), the Supreme Court held that although the
Constitution does not provide for federal jurisdiction over suits
against nonconsenting states, Congress may abrogate such immunity
in federal court "if it makes its intention to abrogate
unmistakably clear in the language of the statute and acts
pursuant to a valid exercise of its power [to enforce the
constitutional guarantee of due process] under § 5 of the
Fourteenth Amendment." Id. at 726. Congress has "parallel
power" to abrogate state sovereign immunity in enforcement of the
Fifteenth Amendment as well. City of Boerne v. Flores,
521 U.S. 507, 518 (1997) (citing South Carolina v. Katzenbach,
383 U.S. 301, 308 (1966)).
Although the Supreme Court has never explicitly held that
Section 5 of the Voting Rights Act abrogates state sovereign
immunity, in the face of challenges by the states it has upheld
Section 5 as a valid exercise of Congress' power to enforce the
guarantees of the Fifteenth Amendment against infringement by the
states. See South Carolina v. Katzenbach, 383 U.S. at 337;
see also Nevada Department of Human Resources v. Hibbs,
538 U.S. at 737; compare Bd. of Treasurers of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 373-74 (2000) (unfavorably comparing
Americans with Disabilities Act, which was held not to abrogate
state sovereign immunity, with Voting Rights Act, which had been
found to be "`appropriate' legislation to enforce the Fifteenth
Amendment's protection against racial discrimination in
voting."). Moreover, the Supreme Court repeatedly has held that
both states and their political subdivisions are subject to
"coverage suits" implied under Section 5. See Clark v.
Roemer, 500 U.S. 646, 652 (1991); Connor v. Walker,
421 U.S. 656 (1975); Allen v. Bd. of Elections, 393 U.S. at 564. The
inescapable conclusion is that Congress, in passing the Voting
Rights Act, effected a valid
abrogation of state sovereign immunity. See City of Boerne v.
Flores, 521 U.S. at 518 ("We have also concluded that other
measures protecting voting rights are within Congress' power to
enforce the Fourteenth and Fifteenth Amendments, despite the
burdens those measures placed on the States.") (citing South
Carolina v. Katzenbach, 383 U.S. at 308). Defendant South
Carolina's assertion of sovereign immunity with respect to
plaintiffs' claims under the Voting Rights Act therefore fails,
and South Carolina's motion to dismiss must be denied.*fn4
D. Transfer of Venue
Under the general federal change of venue statute,
28 U.S.C. § 1404, a court even though it has jurisdiction may "[f]or the
convenience of parties and witnesses, in the interest of justice
. . . transfer any civil action to any other district or division
where it might have been brought." 28 U.S.C. § 1404(a). The Court
may consider the following factors in determining whether a case
should be transferred under Section 1404(a):
[t]he convenience of the witnesses of plaintiff and
defendant; ease of access to sources of proof;
availability of compulsory process to compel the
attendance of unwilling witnesses; the amount of
expense for willing witnesses; the relative
congestion of the calendars of potential transferee
and transferor courts; and other practical aspect
[sic] of expeditiously and conveniently conducting a
Chung v. Chrysler Corp., 903 F. Supp. 160, 163-64 (D.D.C. 1995)
(quoting Armco Steel Co., L.P. v. CSX Corp., 790 F. Supp. 311,
323 (D.D.C. 1991)).
There is no question that this case could have been brought in
the District of South Carolina. In federal question cases, venue
is proper in "a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred."
28 U.S.C. § 1391(b). That is the case here, because both the initial
primary election and the disputed special election were held in
South Carolina, and the decision to change state election
procedures was made there.*fn5
As for convenience, all the individuals and entities now
parties to the case reside in the State of South Carolina (itself
the only remaining defendant), and the events giving rise to
plaintiffs' claims occurred there as well. Thus, any witnesses or
evidence necessary to the just adjudication of plaintiffs' claims
are far more likely to be located in South Carolina than in the
District of Columbia. Furthermore, a number of the named
plaintiffs in this case have in fact filed nearly identical
claims against the remaining defendant, the State of South
Carolina, in the United States District Court for the District of
South Carolina. See Reaves v. South Carolina Democratic
Party, Civil No. 04-2047 (D.S.C. filed June 25, 2004); Glover
v. South Carolina Democratic Party, Civil No. 04-2171 (D.S.C.
filed June 29, 2004); Reaves v. Sweeney, Civil No. 04-22206
(D.S.C. filed Sept. 13, 2004). It would be inefficient and unjust
to allow this parallel litigation, involving nearly identical
parties and claims, to continue in the District of Columbia,
rather than to transfer the case to the District of South
E. Motion to Amend Complaint
Plaintiffs also have moved to amend their complaint, apparently
to join the South Carolina Democratic Party as a defendant. See
Plaintiffs' Memorandum in Support of Plaintiffs' Amended Motion
in Opposition to Defendants' Motion to Dismiss and in Response to
Motion to Stay Election Results at 6. Plaintiffs cite as
authority Rules 10(c) and 15 of the Federal Rules of Civil
Procedure and Local Rules 10.03 and 15.01. Although the Court
recognizes the Federal Rules of Civil Procedure, there are no
Rules 10.03 or 15.01 of the Local Civil Rules of this Court.
Plaintiffs presumably have filed this motion, as they have
others, in accordance with the Local Civil Rules of the United
States District Court for the District of South Carolina.
Moreover, plaintiffs have filed a motion but have not actually
filed an amended complaint, as required by Civil Rule 15.1 of
this Court. Accordingly, the motion to amend will be denied
without prejudice to its being re-filed after transfer.
Because Count I of plaintiffs' complaint is wholly
insubstantial, and because Count II asserts no actual case or
controversy with respect to the federal defendants, plaintiffs'
claims against those defendants will be dismissed for lack of
subject matter jurisdiction. The Court makes no judgment about
the merits of Count II as asserted against the State of South
Carolina, but because South Carolina's sovereign immunity
argument is unsupportable, its motion to dismiss will be denied.
Nonetheless, the Court will, in the interests of justice as well
as for the convenience of the parties and any witnesses, transfer
the case to the United States
District Court for the District of South Carolina. See
28 U.S.C. § 1404(a). Plaintiffs' motion to amend their complaint
will also be denied without prejudice.
A separate Order consistent with this Opinion will issue this
For the reasons stated in the separate Opinion issued this same
day, it is hereby
ORDERED that plaintiffs' motion for emergency hearing to stay
election results in Senate District 30 and Marion County  is
DENIED without prejudice; it is
FURTHER ORDERED that plaintiffs' motion to amend their
complaint  is DENIED without prejudice; it is
FURTHER ORDERED that the United States' motion to dismiss 
is GRANTED and the claims against the federal defendants are
DISMISSED; it is
FURTHER ORDERED that the State of South Carolina's motion to
dismiss  is DENIED; and it is
FURTHER ORDERED sua sponte that this case shall be
transferred to the United States District Court for the District
of South Carolina and removed from the docket of this Court.