Opinion
Docket No. 3:99 CV 2250 (SRU)
March 24, 2004
ROBERT A. HEGHMANN, Stamford, Connecticut, for Plaintiff
SUSAN QUINN COBB, KERRY W. KIRCHER, for the United State House of Representatives, Washington, D.C.
Richard Blumenthal, Gregory T. D'Auria, Jane R. Rosenberg, for Defendants
WINTER, Circuit Judge, HALL, and UNDERHILL, District Judges
MEMORANDUM AND ORDER
Wade H. Horsey moves for reconsideration of our grant of summary judgment to the defendants. See Horsey v. Bysiewicz, No. 3:99CV2250 SRU, at 3 (D. Conn. Sept. 18, 2002) (memorandum and order) ("Horsey I"). He also asks us to order the defendants to show cause why they should not be ordered to request that the Department of Commerce, Bureau of Census provide the parties and the court with Census 2000 Supplementary Survey Profiles of fourteen Connecticut State House of Representatives voting districts established in 1991.
In our prior decision, id., familiarity with which is assumed, we granted summary judgment against Horsey on his claim that apportioning voting districts solely on total population denies him equal protection of the laws because, as a suburban voter, his vote is diluted relative to that of an urban voter for purposes of elections to the United States House of Representatives and to the Connecticut House of Representatives. Underlying this claim is Horsey's factual assertion that urban districts have disproportionate (to suburban districts) numbers of persons who are not eligible voters because they are aliens, minors, or we might add, felons. We concluded that Horsey had submitted only "speculative evidence based on various, often non-comparable demographic data," that was insufficient as a matter of law to support these factual claims, Horsey I, at 3, or to allow a redrawing of the districts, id. at 14. We did, however, hold out the possibility that Horsey might cure the evidentiary deficiencies on a motion for reconsideration. See id. at 16-17 n. 3.
On October 17, 2002, Horsey moved for reconsideration and submitted further evidentiary data in a supporting affidavit. The defendants argue that Horsey's motion is untimely under Rule 9(e)(1) of the Local Rules of the District of Connecticut and that it has been submitted without the accompanying memorandum of law as required under Rule 9(e). Defendants also request that this court deny Horsey's application for an order to show cause because he has provided no legal basis for requiring defendants to gather evidentiary support on his behalf. We grant Horsey's motion for reconsideration, reaffirm our grant of summary judgment and deny Horsey's request for an Order to Show Cause.
DISCUSSION
A. Untimely Filing under Local Rule 9(e)(1)
Local Rule 9(e)(1) requires that motions for reconsideration be "filed and served within ten (10) days of the filing of the decision or order from which such relief is sought, and [that such motions] shall be accompanied by a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court overlooked in the initial decision or order." D. Conn. L. Civ. R. 9(e)(1) (reserved and recodified at D. Conn. L. Civ. R. 7(c)(1) (2003)). Defendants are correct that Horsey's motion is untimely by almost three weeks and lacks a supporting memorandum of law.
Motions for reconsideration under Local Rule 9(e) are essentially motions for amendment of judgment under Fed.R.Civ.P. 59(e). See City of Hartford v. Chase, 942 F.2d 130, 133 (2d Cir. 1991). When such motions are untimely, they are construed as motions for relief from judgment under Fed.R.Civ.P. 60(b). See Wright, Miller Kane, Federal Practice and Procedure § 2817 n. 16, at 184 (1995). Although a district court retains the "inherent power to decide when a departure from its Local Rules should be excused or overlooked,"see Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1048 (2d Cir. 1991), specific provisions of the Federal Rules of Civil Procedure may shed light on whether a district court has abused its discretion in departing from its local rules. See Ass'n for Retarded Citizens of Conn., Inc. v. Thorne, 68 F.3d 547, 553-54 (2d Cir. 1995) (finding no abuse of discretion where district court's consideration of untimely motion was "[b]ased on rationales for granting Rule 60(b) relief").
While reluctant to disregard rules and deadlines, and mindful of Horsey's failure in other regards to observe procedural niceties,see Horsey I, at 5-6, we will entertain his motion. First, Horsey's motion is somewhat unusual in that we invited him to submit this data, see id., at 16-17 n. 3, rendering his motion equally analogous to a supplement of the summary judgment record as to a motion for reconsideration. Second, some of Horsey's claims raise serious constitutional issues, in particular whether a disproportionate number of non-voting-eligible persons in one district violates the rights of voters in other districts. We are reluctant in such circumstances not to give him every opportunity to pursue his claim.
Courts have the latitude to deal with extenuating circumstances under Fed.R.Civ.P. 60(b)(6), which provides that courts may relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment." For these reasons, we grant Horsey's motion for reconsideration and consider the impact of his new data on our prior summary judgment order.
B. The Nature of Horsey's Claims
In his pleadings and other submissions, Horsey challenges the apportionment of: (i) Connecticut State House of Representatives districts; (ii) United States congressional districts within Connecticut; and (iii) Congressional districts nationally, in particular, Connecticut, New York and California. Horsey also challenges the manner in which the federal government allocates the number of seats to the United States House of Representatives.
In our prior opinion, we viewed Horsey's claim of unconstitutional dilution as mainly based on the disproportionate combination of residents who were either non-citizens or were citizens ineligible to vote (hereafter "ineligible citizens"). See id. at 2. However, we do note that, at times, Horsey has characterized his apportionment challenges as based solely on disparities in the numbers of citizens and non-citizens among legislative districts, and that, at other times, he has described his claims as based solely on disparities in the numbers of ineligible citizens. See Second Amended Compl. at ¶¶ 12, 13, 16, 17, 22, 25, 27, 28, 30, 33, 51. See also Horsey I, at 2 (characterizing Horsey's claim as focused on apportionment practices that have "given no regard to whether the number of citizens eligible to register to vote (`eligible voters') in the resultant districts is also equal"). Our analysis of Horsey's new evidence varies depending on whether his claims are characterized as based on disparities resulting from the number of aliens, ineligible citizens, or a combination thereof.
See, e.g., Second Amended Compl. at 22 (demanding preliminary and permanent injunction preventing Clerk of the U.S. House of Representatives from including representatives from any state "in which election districts are not apportioned to reflect as nearly as possible equal percentages of the citizen population"); Plaintiff's Reply to Defendants' Objections to the Plaintiff's Motion for Reconsideration and Application for an Order to Show Cause at 2-3:
Because the Census Bureau has now published detailed reports congressional district by congressional district stating with 90% accuracy the number of non-citizens in each district, the plaintiff if permitted to do so can now factually demonstrate the constitutional violation.
The constitutional issue simply stated is does the disparity in the vote total between voting districts reflect the disparity in the distribution of the citizen population . . . Now the plaintiff can use the Census Bureau Community Surveys to link the disparity in the distribution of the citizen population with the disparity in the vote totals.
(emphasis added)
An equal protection claim that apportionment must be based solely on the number of citizens resident in a district differs crucially from a claim that apportionment must be based solely on the number of eligible voters. Whereas upholding the former would exclude aliens, upholding the latter would exclude citizens as well, principally minors and felons. There is of course a tension between equality of representation and equality of voting power. However, a claim of dilution seems intuitively weaker when based solely on disparities in ineligible citizens resident in a district. For example, dilution of voting power in one district based on a disproportionate number of minor citizens in another does not discriminate between groups with differential claims to representation in the political process. Minors are denied the right to vote on grounds of judgment and independence rather than a weak claim to representation. Aliens, however, are denied the right to vote based on potential loyalty to another nation, their presumed smaller stake in the outcomes of American elections, etc.
C. Horsey's New Evidentiary Submission
Horsey's affidavit offers three sets of data based on Census 2000 Supplemental Survey Profiles. Two sets compare Connecticut's Sixth Congressional District to a total of eight or nine congressional districts in California and New York. Horsey's first set of data shows that the total number of votes cast in the Sixth Congressional District exceeded by more than 100,000 the total number of votes cast in the New York and California districts. See Heghmann Aff. at ¶ 8. Horsey's second set of data shows that whereas Connecticut's Sixth Congressional District has 2.9 percent non-citizens, nine congressional districts spread across California and New York have non-citizen populations of between 17.8 percent and 40.7 percent. See id. at ¶ 12. A third set of data shows that Connecticut has a total non-citizen population of 4.9 percent whereas California's non-citizen population is 15.7 percent and New York's is 10.9 percent. See id. at ¶ 14.
Ironically, Connecticut's Sixth Congressional District no longer exists following reapportionment after the 2000 census although the apportionment of state House of Representatives districts is unaffected by these changes. Horsey's claims as to federal House districts are nonetheless not moot because they might escape review and recur. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (providing an exception to the mootness doctrine for situations "capable of repetition, yet evading review.").
Horsey has also instructed this court on how to compile a fourth data set providing information on the numbers of citizens and non-citizens in Connecticut's congressional districts. See Heghmann Aff. at ¶ 5.
We find this submission insufficient to justify overturning our prior decision for the reasons that follow.
1. Claims Regarding Ineligible Citizens or a Combination of Ineligible Citizens and Aliens
Horsey's new submission provides no support for his claims regarding disparities resulting from the number of ineligible citizens or a combination of ineligible citizens and aliens among Connecticut state legislative and federal congressional districts. The submission includes data showing only the distribution of citizens and aliens within districts, whereas his factual claims as to the inclusion of ineligible citizens or a combination of ineligible citizens and aliens require a different and more refined showing.
Although there is an overlap between citizenship and voter eligibility, the need for naked speculation to support his claim regarding the distribution of ineligible citizens in the various voting districts at issue is not eliminated by the new data. To uphold his factual claim we would need to know the distribution of those under 18 who are citizens in each district and the distribution of those who are over 18 but ineligible to vote as felons in each district. It might also be necessary for Horsey to provide evidence showing how many residents of particular areas live in "institutions, college dormitories, and other group quarters," their eligibility to vote, and where they are registered to vote. See id., at A-6 note. None of this information is included in the census data presented. See id. Finally, for remedial purposes, far more localized information would be necessary to redraw the boundaries of the districts involved.
While we construe the record in the light most favorable to the non-movant on a summary judgment motion, and draw all permissible inferences in his favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), a non-movant cannot "escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts," Borthwick v. First Georgetown Sec., Inc., 892 F.2d 178, 181 (2d Cir. 1989), "or defeat the motion through mere speculation or conjecture," W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotation marks and citations omitted).
As explained above, Horsey's new submission does not eliminate the need for wholly speculative inferences, and we therefore adhere to our prior grant of summary judgment to the defendants on these claims.
2. Claims Regarding Citizens and Aliens
Because Horsey offers information regarding the percentages of citizens and non-citizens in different states and certain congressional districts,see Heghmann Aff. at ¶¶ 12, 14, there may be some evidentiary support for his claim that including non-citizens for apportionment purposes substantially dilutes his vote.
(i)
Apportionment of State House of Representatives Districts
The citizen/non-citizen evidence submitted by Horsey relates only to the composition of districts for the United States House of Representatives. This evidence, therefore, has no bearing on his claims regarding the composition of Connecticut's House of Representatives' districts, and we adhere to our prior ruling on this claim.
(ii)
Apportionment of Congressional Districts within Connecticut
In our prior decision, we noted that Horsey had expressly waived mandatory relief relating to the apportionment of congressional districts within Connecticut, see Horsey I, at 6, but that he continued to seek a declaratory judgment that these apportionments are unconstitutional, see id.
In view of our disposition, we need not reach the propriety of both waiving relief and seeking a declaratory judgment in these circumstances.
In his affidavit accompanying his new submission, Horsey provides instructions on how to compile comparative citizen/non-citizen data for Connecticut's six congressional districts as they existed in the year 2000. See Heghmann Aff. at ¶ 5. While Horsey states that, if we follow these instructions we will have "all the statistical evidence [we] need to rule [on] the issues raised by [Horsey] regarding the dilution of his vote in congressional elections," id., he neither compiles the statistical information nor elaborates on its relevance to, or effect on, his equal protection claim.
While we are reluctant to interpret data that is not properly submitted or explained, we consider it, such as it is, but find it unpersuasive. The data reveal that the percentage of non-citizens in Connecticut's congressional districts varies from between 2.2 percent and 9.7 percent. However, this is within a generally accepted range of deviation from equality. See Chen v. City of Houston, 206 F.3d 502, 522 (5th Cir. 2000) (less than 10% deviation is constitutionally tolerated for state elections); Garza v. County of Los Angeles, 918 F.2d 763, 785-86 (9th Cir. 1990) (Kozinski, J., concurring in part and dissenting in part) (same).
Moreover, it is not at all clear, and Horsey's papers are unhelpful in this regard, that the data offered is sufficiently refined to allow the redrawing of congressional districts to achieve the equality in citizen population that he wants. A similar lack of refined data was in part the basis for our earlier decision. See Horsey I, at 14.
(iii)
Apportionment of Congressional Districts Nationally
As noted in our prior decision, Horsey filed a waiver of relief of all claims relating to the apportionment of congressional seats among the states, although he continues to seek a declaratory judgment that these apportionments are unconstitutional. See id., at 6. Horsey's new evidence — which indicates that some states may receive a disproportionate share of congressional seats due to higher numbers of non-citizens — provides factual support for his claim. Nevertheless, his claim is foreclosed by the text of the Constitution.
The Fourteenth Amendment states that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." U.S. Const. amend. XIV, § 2 (emphasis added). For Horsey's claim to have merit, i.e., for us to conclude that the federal government has unconstitutionally included non-citizens in its apportionment determination, the meaning of "persons" would have to be restricted to "citizens." The text of the Fourteenth Amendment clearly indicates that this interpretation is incorrect. Section 1 of the Fourteenth Amendment uses both terms in a manner suggesting that "persons" comprises a broader category of people that includes both citizens and non-citizens. See U.S. Const, amend. XIV, § ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") (emphasis added).
Nor does the pre-Civil War text of the Constitution lend support to Horsey's argument that the apportionment of representatives is restricted to citizens. As originally enacted, the Constitution deliberately "diluted" the voting power of citizens living in free states by counting three-fifths of all slaves in the apportionment determination.See U.S. Const, art. I, § 2, cl. 3 ("Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."). While Horsey's new evidence may support his argument that there is a disparity between citizenship and the allocation of congressional representatives among the fifty states, this disparity is sanctioned by the Constitution.
Horsey's remaining claim is therefore limited to disparities among congressional districts in California and among congressional districts in New York with regard to the numbers of resident citizens and non-citizens. However, Horsey lacks standing to bring such a claim. As a non-resident of either state, Horsey has suffered no cognizable injury from the alleged malapportionment of California's or New York's congressional districts. Nor may Horsey bring an equal protection claim on behalf of California and New York residents who have had their votes diluted by their respective states' redistricting. See United States v. Hays, 515 U.S. 737, 739 (1995) (holding that plaintiff lacks standing to assert an equal protection voting rights claim in a state where he or she is not a resident of the challenged district); see also Dillard v. Baldwin County Comm'rs, 225 F.3d 1271, 1279 (11th Cir. 2000) (interpreting Hays to mean that "if the plaintiff lives in the racially gerrymandered district, she has standing; if she does not, she must produce specific evidence of harm other than the fact that the composition of her district might have been different were it not for the gerrymandering of the other district."); cf. Alien v. Wright, 468 U.S. 737, 755 (1984) (plaintiff only has standing to bring equal protection challenge where he is "personally denied equal treatment"); Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 489-90 n. 26 (1982) (disapproving the proposition that every citizen has "standing to challenge every affirmative-action program on the basis of a personal right to a government that does not deny equal protection of the laws").
c) Request for an Order to Show Cause
Horsey requests that we order the defendants to show cause why they should not be ordered to request that the Bureau of Census provide the parties and the court with Census 2000 Supplemental Survey Profiles of fourteen Connecticut State House of Representatives voting districts established in 1991. We deny this request. Not only could Horsey have purchased a Special Tabulation showing the percentages of non-citizens in various Connecticut State House of Representatives districts from the Bureau of Census, but it remains unclear whether such a tabulation would contain sufficient data to permit findings on the number of eligible voters in the state districts.
In order to obtain these numbers, Horsey would have had to determine which census tracts corresponded to the state house districts. Once he had this information, the census could have performed a statistical breakdown similar to one Horsey provided for congressional districts in the affidavit accompanying his motion for reconsideration.
CONCLUSION
For the reasons indicated, we grant Horsey's motion for reconsideration, reaffirm our earlier grant of summary judgment for the defendants, and deny Horsey's request for an Order to Show Cause. We again emphasize that we intimate no view on whether Horsey's claims, if factually supported, would be valid.