EFILE,REFCNF,RMS
U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:18−cv−01094−JBA−PWH−JMW

National Association for the Advancement of Colored People et al v. Merrill et al Panel: Judge Janet Bond Arterton
Circuit Judge Peter W. Hall Senior Circuit Judge John M Walker, Jr Referred to: Judge Robert M. Spector (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/28/2018 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

National Association for the Advancement of Colored People

represented by Michael J. Wishnie Jerome N. Frank Legal Services − Wall St Yale Law School 127 Wall Street New Haven, CT 06511 203−432−4800 Fax: 203−432−1426 Email: michael.wishnie@ylsclinics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander T. Taubes David Rosen & Associates 400 Orange Street New Haven, CT 06511 203−787−3513 Fax: 203−789−1605 Email: ataubes@davidrosenlaw.com ATTORNEY TO BE NOTICED

Benjamin Dylan Alter National Association for the Advancement of Colored People 50 Broadway, 31st Floor New York, NY 10004 212−626−6412 Email: balter@naacpnet.org TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED

David N. Rosen David N. Rosen & Associates, P.C. 400 Orange St New Haven, CT 06511 203−787−3513 Fax: 203−789−1605 Email: drosen@davidrosenlaw.com ATTORNEY TO BE NOTICED

Hope R. Metcalf Yale Law School 127 Wall St. New Haven, CT 06520 203−432−9404 Email: hope.metcalf@yale.edu ATTORNEY TO BE NOTICED

Plaintiff NAACP Connecticut State Conference

represented by

Plaintiff Justin Farmer
Plaintiff Germano Kimbro
Plaintiff Conley Monk TERMINATED: 10/15/2019

Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander T. Taubes (See above for address) ATTORNEY TO BE NOTICED
Benjamin Dylan Alter (See above for address) TERMINATED: 08/29/2019 ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
Hope R. Metcalf (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander T. Taubes (See above for address) ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
Hope R. Metcalf (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander T. Taubes (See above for address) ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
Hope R. Metcalf (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Garry Monk
Plaintiff Dione Zackery
Plaintiff Conley Monk, Jr.
V. Defendant Denise Merrill Secretary of State

Alexander T. Taubes (See above for address) ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
Hope R. Metcalf (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander T. Taubes (See above for address) ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
Hope R. Metcalf (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander T. Taubes (See above for address) ATTORNEY TO BE NOTICED
David N. Rosen (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Maura Murphy−Osborne Attorney General's Office −Elm Htfd 55 Elm Street P.O. Box 120 Hartford, CT 06141 860−808−5020 Fax: 860−808−5347 Email: maura.murphyosborne@ct.gov

Defendant Dannel P. Malloy Governor TERMINATED: 10/15/2019
Defendant Edward Lamont, Jr. Governor

ATTORNEY TO BE NOTICED
Michael Skold Office of the Attorney General 55 Elm Street Hartford, CT 06106 860−808−5020 Email: michael.skold@ct.gov ATTORNEY TO BE NOTICED
represented by Maura Murphy−Osborne (See above for address) ATTORNEY TO BE NOTICED
Michael Skold (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/28/2018
06/28/2018 06/28/2018 06/28/2018 06/28/2018 06/28/2018 06/28/2018
06/28/2018
07/16/2018

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $400 receipt number ACTDC−4883484.), filed by Garry Monk, Justin Farmer, Dione Zackery, NAACP Connecticut State Conference, Germano Kimbro, National Association for the Advancement of Colored People, Conley Monk.(Wishnie, Michael) (Entered: 06/28/2018)
Request for Clerk to issue summons as to All Defendants. (Wishnie, Michael) (Entered: 06/28/2018)
Judge Warren W. Eginton added. (Oliver, T.) (Entered: 06/28/2018)
2 Order on Pretrial Deadlines: Amended Pleadings due by 8/27/2018. Discovery due by 12/28/2018. Dispositive Motions due by 2/1/2019. Signed by Clerk on 6/28/2018.(Fazekas, J.) (Entered: 06/28/2018)
3 ELECTRONIC FILING ORDER FOR COUNSEL − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Warren W. Eginton on 6/28/2018.(Fazekas, J.) (Entered: 06/28/2018)
4 STANDING PROTECTIVE ORDER Signed by Judge Warren W. Eginton on 6/28/2018.(Fazekas, J.) (Entered: 06/28/2018)
5 NOTICE TO COUNSEL/SELF−REPRESENTED PARTIES : Counsel or self−represented parties initiating or removing this action are responsible for serving all parties with attached documents and copies of 4 Standing Protective Order, 2 Order on Pretrial Deadlines, 3 Electronic Filing Order, 1 Complaint, filed by Dione Zackery, National Association for the Advancement of Colored People, NAACP Connecticut State Conference, Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk Signed by Clerk on 6/28/2018.(Fazekas, J.) (Entered: 06/28/2018)
6 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Dannel P. Malloy, Denise Merrill* with answer to complaint due within *21* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services − Wall St* *Yale Law School, 127 Wall Street* *New Haven, CT 06511*. (Fazekas, J.) (Entered: 06/28/2018)
7 NOTICE of Appearance by Michael Skold on behalf of Dannel P. Malloy, Denise Merrill (Skold, Michael) (Entered: 07/16/2018)

07/16/2018 07/16/2018 07/17/2018 07/17/2018 07/20/2018
08/15/2018 08/25/2018 09/06/2018 09/06/2018 09/14/2018
09/17/2018 10/04/2018 10/04/2018 10/04/2018
10/04/2018 10/05/2018

8 Consent MOTION for Extension of Time until 09/06/2018 To Respond to Complaint 1 Complaint, by Dannel P. Malloy, Denise Merrill. (Skold, Michael) (Entered: 07/16/2018)
9 NOTICE of Appearance by Maura Murphy−Osborne on behalf of Dannel P. Malloy, Denise Merrill (Murphy−Osborne, Maura) (Entered: 07/16/2018)
10 ORDER granting 8 Motion for Extension of Time. Signed by Judge Warren W. Eginton on 7/17/2018. (Gould, K.) (Entered: 07/17/2018)
Answer deadline updated for Dannel P. Malloy to 9/6/2018; Denise Merrill to 9/6/2018. (Gould, K.) (Entered: 07/17/2018)
11 AFFIDAVIT of Service for Complaint, Summons and pretrial orders served on Denise Merrill and Dannel Malloy on July 2, 2018, filed by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Attachments: # 1 Exhibit A)(Wishnie, Michael) (Entered: 07/20/2018)
12 NOTICE of Appearance by Hope R. Metcalf on behalf of Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People (Metcalf, Hope) (Entered: 08/15/2018)
13 Joint REPORT of Rule 26(f) Planning Meeting. (Wishnie, Michael) (Entered: 08/25/2018)
14 MOTION to Dismiss by Dannel P. Malloy, Denise Merrill.Responses due by 9/27/2018 (Attachments: # 1 Memorandum in Support of Motion to Dismiss)(Skold, Michael) (Entered: 09/06/2018)
15 MOTION to Stay re 14 MOTION to Dismiss by Dannel P. Malloy, Denise Merrill.Responses due by 9/27/2018 (Skold, Michael) (Entered: 09/06/2018)
16 Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss , 15 MOTION to Stay re 14 MOTION to Dismiss until October 4, 2018 by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Wishnie, Michael) (Entered: 09/14/2018)
17 ORDER granting 16 Motion for Extension of Time to File Response/Reply re 14 MOTION to Dismiss , 15 MOTION to Stay re 14 MOTION to Dismiss Responses due by 10/4/2018. Signed by Judge Warren W. Eginton on 9/17/2018. (Gould, K.) (Entered: 09/17/2018)
18 NOTICE of Appearance by David N. Rosen on behalf of Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery (Rosen, David) (Entered: 10/04/2018)
19 NOTICE of Appearance by Alexander T. Taubes on behalf of Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery (Taubes, Alexander) (Entered: 10/04/2018)
20 Final Memorandum in Opposition to Defendants' Motion to Stay Discovery re 15 MOTION to Stay re 14 MOTION to Dismiss filed by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Attachments: # 1 Exhibit Exhibit A)(Wishnie, Michael) (Entered: 10/04/2018)
21 Final Memorandum in Opposition to Defendants' Motion to Dismiss re 14 MOTION to Dismiss filed by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Wishnie, Michael) (Entered: 10/04/2018)
22 Final MOTION for Leave to Appear Law Student Interns under the supervision of Attorney Michael J. Wishnie. by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the

10/17/2018 10/18/2018 10/18/2018 11/05/2018 02/15/2019
02/25/2019 03/07/2019 03/07/2019 03/08/2019
03/08/2019 03/15/2019
03/19/2019 03/19/2019
03/20/2019 03/25/2019 03/25/2019

Advancement of Colored People, Dione Zackery. (Attachments: # 1 Supplement)(Wishnie, Michael) (Entered: 10/05/2018)
23 ORDER granting 22 Motion to Appear. Signed by Judge Warren W. Eginton on 10/17/2018. (LaMura, K.) (Entered: 10/17/2018)
24 REPLY to Response to 14 MOTION to Dismiss filed by Dannel P. Malloy, Denise Merrill. (Skold, Michael) (Entered: 10/18/2018)
25 REPLY to Response to 15 MOTION to Stay re 14 MOTION to Dismiss filed by Dannel P. Malloy, Denise Merrill. (Skold, Michael) (Entered: 10/18/2018)
26 ORDER granting 15 Motion to Stay. Signed by Judge Warren W. Eginton on 11/5/2018. (LaMura, K.) (Entered: 11/05/2018)
27 ORDER denying 14 Motion to Dismiss. Within 21 days of this ruling, the parties should submit a schedule relevant to discovery and dispositive motion deadlines. Signed by Judge Warren W. Eginton on 2/15/19. (Imbriani, Susan) (Entered: 02/19/2019)
Set Deadlines: Status report as to a schedule relevant to discovery and dispositive motion deadlines due by 3/8/2019 (LaMura, K.) (Entered: 02/25/2019)
28 NOTICE OF APPEAL as to 27 Order on Motion to Dismiss by Dannel P. Malloy, Denise Merrill. Filing fee $ 505, receipt number ACTDC−5184004. (Skold, Michael) (Entered: 03/07/2019)
29 MOTION to Stay by Dannel P. Malloy, Denise Merrill.Responses due by 3/28/2019 (Skold, Michael) (Entered: 03/07/2019)
30 CLERK'S CERTIFICATE RE: INDEX AND RECORD ON APPEAL re: 28 Notice of Appeal. The attached docket sheet is hereby certified as the entire Index/Record on Appeal in this matter and electronically sent to the Court of Appeals, with the exception of any manually filed documents as noted below. Robin D. Tabora, Clerk. Documents manually filed not included in this transmission: none (Corriette, M.) (Entered: 03/08/2019)
31 Supplemental REPORT of Rule 26(f) Planning Meeting. (Wishnie, Michael) (Entered: 03/08/2019)
32 Memorandum in Opposition re 29 MOTION to Stay filed by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Rosen, David) (Entered: 03/15/2019)
33 REPLY to Response to 29 MOTION to Stay Reply Brief in Further Support of Their Motion for Stay filed by Dannel P. Malloy, Denise Merrill. (Skold, Michael) (Entered: 03/19/2019)
34 MOTION for Attorney(s) Benjamin Alter to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5200333) by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Attachments: # 1 Affidavit of Benjamin Alter)(Wishnie, Michael) (Entered: 03/19/2019)
35 ORDER granting 34 Motion to Appear Pro Hac Vice for Benjamin Alter. Certificate of Good Standing due by 5/19/2019. Signed by Clerk on 3/20/19. (Imbriani, Susan) (Entered: 03/20/2019)
36 NOTICE of Appearance by Benjamin Dylan Alter on behalf of NAACP Connecticut State Conference, National Association for the Advancement of Colored People (Alter, Benjamin) (Entered: 03/25/2019)
37 CERTIFICATE OF GOOD STANDING re 34 MOTION for Attorney(s) Benjamin Alter to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5200333) by NAACP Connecticut State Conference, National Association for the Advancement of Colored People. (Alter, Benjamin) (Entered: 03/25/2019)

04/25/2019
05/07/2019
05/07/2019 05/08/2019 05/08/2019
05/08/2019 05/15/2019 05/16/2019
07/15/2019 08/22/2019 08/29/2019 09/25/2019 09/26/2019 09/27/2019 10/03/2019
10/08/2019 10/08/2019

38 MOTION for Status Conference by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Taubes, Alexander) (Entered: 04/25/2019)
39 NOTICE by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery re 38 MOTION for Status Conference of Letter to Court (Rosen, David) (Entered: 05/07/2019)
40 RESPONSE re 39 Notice (Other), 38 MOTION for Status Conference filed by Dannel P. Malloy, Denise Merrill. (Skold, Michael) (Entered: 05/07/2019)
41 ORDER denying 29 Motion to Stay. Signed by Judge Warren W. Eginton on 5/8/19. (Imbriani, Susan) (Entered: 05/08/2019)
43 VACATED − ORDER referring case to Magistrate Judge Spector for a discovery and scheduling conference. Signed by Judge Warren W. Eginton on 5/8/19.(Imbriani, Susan) Modified text on 10/9/2019 (Barry, Donna). (Entered: 05/08/2019)
44 ORDER finding as moot 38 Motion for Conference. Signed by Judge Warren W. Eginton on 5/8/19. (Imbriani, Susan) (Entered: 05/08/2019)
45 ORDER of USCA as to 28 Notice of Appeal filed by Dannel P. Malloy, Denise Merrill. USCA Case Number 19−576. (Imbriani, Susan) (Entered: 05/15/2019)
46 ORDER: In light of the Order of the Second Circuit, entered on May 15, 2019 (Doc. No. 45), the telephonic discovery and scheduling call scheduled before Judge Spector for Friday, May 17, 2019 at 9:30am is cancelled, and will be rescheduled promptly after the Second Circuit issues a decision and the temporary stay of the district court proceedings is lifted. Signed by Judge Robert M. Spector on 5/16/2019.(Watson, M.) (Entered: 05/16/2019)
47 ORDER of USCA as to 28 Notice of Appeal filed by Dannel P. Malloy, Denise Merrill. USCA Case Number 19−576. (Imbriani, Susan) (Entered: 07/16/2019)
48 MOTION for Benjamin D. Alter to Withdraw as Attorney by NAACP Connecticut State Conference, National Association for the Advancement of Colored People. Motions referred to Robert M. Spector(Alter, Benjamin) (Entered: 08/22/2019)
49 ORDER granting 48 Motion to Withdraw as Attorney. Attorney Benjamin Dylan Alter terminated. Signed by Judge Warren W. Eginton on 8/29/2019. (Welles, T.) (Entered: 08/29/2019)
50 ORDER of USCA as to 28 Notice of Appeal filed by Dannel P. Malloy, Denise Merrill. USCA Case Number 19−576. (Imbriani, Susan) (Entered: 09/25/2019)
51 ORDER OF TRANSFER. Case reassigned to Judge Janet Bond Arterton for all further proceedings. Signed by Judge Warren W. Eginton on 9/26/2019.(Hushin, Z.) (Entered: 09/26/2019)
A telephonic status conference will be held 10/8/2019 at 2:30 p.m. Defense counsel shall initiate the conference call to chambers: 203−773−2737. (Tooker, A.) (Entered: 09/27/2019)
52 Final MOTION for Leave to Appear as Law Student Intern under the supervision of Attorney Michael J. Wishnie. by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Attachments: # 1 Supplement Law Student Intern Appearance)Motions referred to Robert M. Spector(Wishnie, Michael) (Entered: 10/03/2019)
53 ORDER granting 52 Motion to Appear Law Student Intern. Signed by Judge Janet Bond Arterton on 10/8/2019. (Tooker, A.) (Entered: 10/08/2019)
54 SCHEDULING ORDER: Amended Pleadings due by 10/15/2019 Rule 26 Meeting Report due by 10/29/2019 Signed by Judge Janet Bond Arterton on 10/8/19.(Tooker, A.) (Entered: 10/08/2019)

10/08/2019 10/08/2019
10/10/2019 10/15/2019 10/15/2019 10/17/2019
10/17/2019 10/21/2019 10/29/2019 10/30/2019 10/30/2019 11/08/2019

55 Minute Entry for proceedings held before Judge Janet Bond Arterton: Telephonic Status Conference held on 10/8/2019. Total Time: 1 hours(Court Reporter Melissa Cianciullo) (Barry, Donna) Modified text on 10/9/2019 (Barry, Donna). (Entered: 10/09/2019)
56 ORDER vacating 43 Order referring case to Magistrate Judge Spector for a discovery and scheduling conference in accordance with the scheduling order (Doc. 54) entered 10/08/19. Signed by Judge Janet Bond Arterton on 10/08/19. (Barry, Donna) (Entered: 10/09/2019)
57 Correspondence from Judge Janet Bond Arterton to Chief Judge Robert A. Katzmann regarding three−judge court. Signed by Judge Janet Bond Arterton on 10/8/2019.(Tooker, A.) (Entered: 10/10/2019)
58 AMENDED COMPLAINT against Dannel P. Malloy, Denise Merrill, filed by Garry Monk, Justin Farmer, Dione Zackery, NAACP Connecticut State Conference, Germano Kimbro, National Association for the Advancement of Colored People, Conley Monk.(Wishnie, Michael) (Entered: 10/15/2019)
59 MANDATE of USCA dated 10/15/2019 re 28 Notice of Appeal filed by Dannel P. Malloy, Denise Merrill. (Freberg, B) (Entered: 10/16/2019)
60 MOTION for Leave to Appear as Law Student Interns under the supervision of Attorney Michael J. Wishnie. by Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Attachments: # 1 Supplement Law Student Intern Appearances)(Wishnie, Michael) (Entered: 10/17/2019)
61 MANDATE Designation of Three Judge Panel Pursuant to 28 USC 2284(b) Signed by Chief Circuit Judge Robert A. Katzmann on 10/17/19.(Bauer, J.) (Entered: 10/17/2019)
62 ORDER granting 60 Motion for Law Student Intern to appear. Signed by Judge Janet Bond Arterton on 10/18/19. (Tooker, A.) (Entered: 10/21/2019)
63 Joint MOTION for Extension of Time to Submit Rule 26(f) Report by Justin Farmer, Germano Kimbro, Conley Monk, Jr, Conley Monk, Garry Monk, NAACP Connecticut State Conference, National Association for the Advancement of Colored People, Dione Zackery. (Wishnie, Michael) (Entered: 10/29/2019)
64 ORDER granting 63 Parties' Joint Motion for a Ten−Day Extension of Time to submit the Supplemental Rule 26(f) Planning Report. The Parties shall submit the Supplemental Rule 26(f) report by November 8, 2019. Signed by Judge Janet Bond Arterton on 10/30/19. (Gutierrez, A.) (Entered: 10/30/2019)
Set Deadlines/Hearings: Rule 26 Meeting Report due by 11/8/2019 (Tooker, A.) (Entered: 10/30/2019)
65 Supplemental REPORT of Rule 26(f) Planning Meeting. (Wishnie, Michael) (Entered: 11/08/2019)

 
 Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NAACP CONNECTICUT STATE CONFERENCE, JUSTIN FARMER, GERMANO KIMBRO, CONLEY MONK, JR., GARRY MONK, and DIONE ZACKERY,
Plaintiffs,
v.
DENISE MERRILL, SECRETARY OF STATE, and DANNEL P. MALLOY, GOVERNOR,
Defendants.

Civil Action No. ________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. Connecticut’s state legislative redistricting plan, adopted in 2011 and scheduled for use in the 2018 and 2020 elections, violates the “one person, one vote” requirement of the Fourteenth Amendment because the plan is based on unlawful prison gerrymandering. 2. “Prison gerrymandering” is the practice whereby Connecticut counts incarcerated people as residing in the state facility where they are imprisoned, rather than at their preincarceration address, for the purpose of drawing lines for state legislative districts. 3. Connecticut’s prisoners are disproportionately African-American and Latino, and many maintain a permanent domicile in the state’s urban centers. Nevertheless, many of these individuals are incarcerated in correctional facilities that the State has located primarily in rural, lightly populated, predominantly white parts of Connecticut.
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4. Persons incarcerated in districts far from their home communities have no meaningful connection to the towns in which they are incarcerated. They are separated from their families and friends and have little contact with citizens residing immediately outside the walls of the prisons. Incarcerated persons cannot visit or patronize public or private establishments, such as parks, churches, businesses, or public transportation, in their surrounding communities.
5. Moreover, most Connecticut prisoners cannot vote under state law and have no contact with the representatives of the districts in which they are incarcerated. Local legislators do not visit prisoners incarcerated in their districts. Consequently, the districts’ representatives do not, in practice, represent these incarcerated persons or perform legislative services for them.
6. Despite the welcome decline in the State’s overall prison population, the disproportionate incarceration of African-American and Latino residents, and their confinement in distant, predominantly white districts, harms the communities they leave behind, as well. The voting power of these communities is diluted when incarcerated persons are removed from the apportionment base. Families bear severe emotional and financial hardships, neighborhoods experience economic and social instability, and entire communities lose their voice in state affairs when fathers, sons, daughters, and mothers are shipped to remote, rural prisons.
7. The Supreme Court has long recognized that variations of ten percent or more in the population of electoral districts raises constitutional concerns under the “one person, one vote” requirements of the Fourteenth Amendment.
8. Because Connecticut counts prisoners where they are incarcerated rather than where they permanently reside, the actual number of constituents (exclusive of prisoners) in as many as nine Connecticut House districts is more than ten percent smaller than the number of
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constituents in the State’s largest House district. The number of constituents in one Senate District is more than nine percent smaller than the largest Senate district.
9. Permanent residents of the prison-gerrymandered districts thus have more influence over local affairs and greater voting power than residents in other districts, particularly in the urban districts that many prisoners call home.
10. Defendants’ prison gerrymandering violates the “one person, one vote” principle of the Fourteenth Amendment to the United States Constitution. It impermissibly inflates the voting strength of predominantly white voters residing in certain Connecticut House and Senate Districts, as compared to the voting strength of persons residing in all other House and Senate districts.
11. By counting prisoners in the districts where they are imprisoned instead of their pre-incarceration residences, prison gerrymandering dilutes the votes of residents in their home communities, who are disproportionally African-American and Latino, as compared to residents in other communities and districts.
12. Plaintiffs seek a declaration that Defendants’ prison gerrymandering violates the Fourteenth Amendment to the U.S. Constitution and an injunction against the use of the 2011 Redistricting Plan in the 2020 elections.
JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 1357. This suit is authorized by 42 U.S.C. § 1983. 14. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Plaintiffs NAACP Connecticut State Conference, Justin Farmer, Germano Kimbro, Conley Monk, Jr., Garry Monk, and Dione Zackery and all Defendants reside in the District of Connecticut, the
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facts that give rise to this suit occurred in the District of Connecticut, and no real property is involved in this dispute.
15. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES 16. Plaintiff National Association for the Advancement of Colored People (“NAACP”) is a non-profit, non-partisan corporation with over 300,000 members, including approximately 5,000 members residing in Connecticut, many of whom are registered to vote. Many NAACP members in Connecticut who are registered voters reside in state legislative districts that are overcrowded as a result of prison gerrymandering, as set forth below. 17. The NAACP works to enhance civic engagement among African American communities by increasing voter registration and through get-out-the-vote efforts. In its national get-out-the-vote effort in 2016, the NAACP targeted fifteen states, including Connecticut, which in 2012 had lower than expected African American voter turnout, with a campaign titled “Our Votes Matter.” The NAACP relies on a fair and effective electoral process to help achieve its organizational missions of improving civic engagement, education, criminal justice, environmental justice, economic opportunity, and healthcare. 18. Members of the NAACP pay dues, elect the members of the NAACP Board of Directors, and are eligible, if elected, to serve on the NAACP Board of Directors. The NAACP’s policies and procedures are established at an annual national convention by voting delegates representing each NAACP State Conference, Local Branch, and Youth Unit, elected by the members of those units.
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19. In addition, the NAACP has had to divert organizational resources, including staff time, travel expenses, and other costs, to address unlawful prison gerrymandering in Connecticut.
20. The NAACP brings this action in its representative capacity on behalf of its members who are adversely affected by the unequal population of the legislative districts created by the 2011 Redistricting Plan, and in its organizational capacity.
21. Plaintiff Connecticut State Conference of the National Association for the Advancement of Colored People (“NAACP-CT”) is a non-profit, non-partisan organization with nearly 5,000 members, all of whom reside or work in Connecticut, and many of whom are registered to vote. Many NAACP members in Connecticut who are registered voters reside in state legislative districts that are overcrowded as a result of prison gerrymandering, including members that reside in House Districts 88, 91, 94, 95, 96, and 97, among others.
22. NAACP-CT seeks to support the mission of the NAACP by organizing its members in Connecticut to advocate for political, educational, social and economic equality of rights. NAACP-CT devoted its April 2018 conference to criminal justice reform with the opportunity for attendees to meet candidates for Governor of Connecticut.
23. The members of NAACP-CT elect the Executive Committee of the NAACP-CT, and are eligible to serve on the Executive Committee if duly elected. The members of NAACPCT elect voting delegates to represent NAACP-CT and the NAACP national convention.
24. In addition, the NAACP-CT has had to divert organizational resources to address unlawful prison gerrymandering in Connecticut.
25. NAACP-CT brings this action in its representative capacity on behalf of its members who are adversely affected by the unequal population of the legislative districts created
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 6 of 22
by the 2011 Redistricting Plan, and in its organizational capacity as well. NAACP-CT has members that reside in House Districts 88, 91, 94, 95, 96, and 97, among others.
26. Plaintiff Justin Farmer is a 23 year-old Jamaican-American resident of Hamden, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has lived in Connecticut his entire life and currently resides at 231 Butler Street, Hamden, Connecticut. Mr. Farmer is a registered voter in Connecticut State House District 94 and regularly votes in state and local elections. Mr. Farmer is a student at Southern Connecticut State University in the Political Science Department, where he hopes to earn his B.A. in 2020. In 2017, he was elected to the Hamden Legislative Council, the town legislature, representing the Fifth District, which includes some of the poorest and wealthiest residents of Hamden. Mr. Farmer wears headphones to manage his Tourette’s Syndrome, a movement disorder, which has contributed to law enforcement stopping Mr. Farmer more than thirty times on the street. Mr. Farmer has close family members who have been incarcerated. He is a member of the NAACP and NAACP-CT.
27. Plaintiff Germano Kimbro is a 58 year-old African-American resident of New Haven, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has lived in Connecticut his entire life and currently resides at 126 Spring Street, New Haven, Connecticut. Mr. Kimbro is a registered voter in Connecticut State House District 95 and regularly votes in state and local elections. He also regularly participates in voter registration drives and volunteers for local, state and federal campaigns. Mr. Kimbro, a graduate of Springfield College, has worked for decades to reform the criminal justice system. As a young man, Mr. Kimbro was incarcerated, at which point he turned to education and service. Once he returned to the community, Mr. Kimbro dedicated himself to assisting people in overcoming the
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 7 of 22
stigma of criminal convictions and poverty. He has worked in a variety of human services positions and helped to launch the Pardon Me Program, through which he educated hundreds of Connecticut residents so that they could apply for pardons. He has worked for numerous state legislative reforms, including to establish the Connecticut Fatherhood Initiative (P.A. 99-193), to “Ban the Box” (P.A. No. 16-83), and to limit solitary confinement (P.A. 17-239). He is a member of Just Leadership USA and a lifelong member of the NAACP and NAACP-CT.
28. Plaintiff Conley Monk, Jr. is a 69 year-old African-American resident of Hamden, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has lived in Connecticut for nearly his whole life, and currently resides at 2360 Shepard Ave in Hamden, Connecticut. Mr. Monk is a registered voter in Connecticut State House District 88, and regularly votes in state and local elections. Mr. Monk is also a Marine Corps combat veteran of the Vietnam War, the Director of the National Veteran’s Council for Legal Redress, a Connecticut-based Veterans service organization, and participates in community development through his family organization, the Monk Council. Mr. Monk is a member of the NAACP and NAACP-CT.
29. Plaintiff Garry Monk is a 59 year-old African-American resident of New Haven, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has resided in Connecticut for more than twenty years, and currently lives at 140 Fountain Terrace in New Haven, Connecticut. Mr. Monk is a registered voter in Connecticut State House District 92, and regularly votes in state and local elections. Mr. Monk is a veteran of the U.S. Air Force and serves as the Executive Director of the National Veteran’s Council for Legal Redress, participates in community development through the Monk Council, and is an active member of the Thomas Chapel Church of Christ. Mr. Monk is a member of the NAACP and NAACP-CT.
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 8 of 22
30. Plaintiffs Conley and Garry Monk are brothers, and have a nephew who was incarcerated in Enfield Correctional Institution. This nephew was supported by the Monk family while incarcerated, and has recently returned to live in New Haven.
31. Plaintiff Dione Zackery is a 49 year-old African-American resident of New Haven, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. She currently resides at 1435 Quinnipiac Ave. Unit 5, New Haven, Connecticut. Ms. Zackery is a registered voter in Connecticut State House District 97 and regularly votes in state and local elections. Ms. Zackery has been a registered voter since age eighteen, when she first registered to vote in Connecticut. She has multiple family members who have been incarcerated in Connecticut prisons, including several cousins who are currently incarcerated. Ms. Zackery’s former partner, the father of her children, is formerly incarcerated. One cousin resided with Ms. Zackery before entering prison. He has now been released and is living on his own nearby. During the period of his incarceration, they wrote to each other and spoke on the phone. Ms. Zackery is a member of the NAACP and NAACP-CT.
32. Defendant Denise Merrill is a resident of Connecticut and is Connecticut’s Secretary of State and Chair of the State Elections Board. She is sued in her official capacity. Secretary of State Merrill is the Constitutional officer of the State charged with publishing the legislative district map and conducting elections in Connecticut in a manner consistent with federal constitutional and statutory requirements.
33. Defendant Dannel P. Malloy is the Governor of Connecticut. He is sued in his official capacity. Governor Malloy is the Constitutional officer of the State charged with appointing Reapportionment Commissions for the purposes of adopting state assembly and senatorial districting plans.
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 9 of 22
FACTUAL ALLEGATIONS A. Mass Incarceration and Prison Construction in Connecticut 34. In recent decades, the United States’ incarceration rate has surged. Since the 1970s, the United States penal population exploded from approximately 300,000 to more than 2 million. The United States imprisons more people, per capita, than any other nation. 35. Persons with a felony conviction are more likely to become homeless and lose custody of their children, and less likely to find employment and complete their educations. 36. African Americans and Latinos experience an especially high rate of imprisonment and tend to live in racially and economically segregated neighborhoods. As a result, the social and political effects of imprisonment are focused in their communities. 37. Connecticut is no exception. The state has the fifth-highest rate of incarceration of African American men in the country. Whites outnumber African Americans and Latinos by an almost 3-to-1 ratio in the state’s general population, but there are twice as many African Americans and Latinos as whites in Connecticut prisons. 38. African Americans in Connecticut are almost ten times more likely to be incarcerated than whites, and Latinos are almost four times more likely to be incarcerated than whites. 39. The problem of prison gerrymandering is particularly severe in Connecticut because of the State’s concentration of prisoners at facilities that are significant distances from their home communities. 40. Before 1980, Connecticut maintained correctional facilities at eight sites dispersed across the state, as illustrated in Figure 1.
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 10 of 22
Prisons in Connecticut Before 1980
41. The prison population in Connecticut increased from 3,828 in 1980 to 18,416 in 2010. This increase coincided with a surge of prison construction and expansion projects in the 1980s and 1990s.
42. Of the twenty-one prison expansion projects Connecticut undertook between 1842 and 2003, fifteen – nearly all – were completed between 1988 and 1998. During this decade, the State expanded seven facilities: Manson Youth Institution, York Correctional Institution, Brooklyn Correctional Institution, Hartford Correctional Center, New Haven Correctional Center, Cheshire Correctional Institution, and MacDougall-Walker Correctional Institution.
43. As Connecticut incarcerated more of its residents over the past three decades, the State concentrated prisons in a few discrete geographic areas whose economies became dependent on these correctional facilities.
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 11 of 22 44. Out of ten prison expansion projects finished between 1990 and 1997, the State completed half within three adjacent cities—Enfield, Somers and Suffield—along the northern border of central Connecticut, a region that already had three existing prisons. 45. Connecticut’s correctional facilities are now even more concentrated in two areas: the Enfield-Suffield-Somers region along the northern border and Cheshire, in the central part of the state. The distribution of correctional facilities as of the 2010 census is set forth in Figure 2.
Prisons in Connecticut in 2010
46. The overall prison population has declined during the tenure of Defendant Governor Malloy, but the residual population in the Department of Correction’s fourteen currently operating prisons remains concentrated in lightly-populated or rural areas.
47. A large and disproportionate number of Connecticut prisoners are African American or Latino persons who maintained a permanent address, pre-incarceration, in one of
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 12 of 22 the State’s three urban centers of Hartford, Bridgeport, and New Haven and their immediate suburbs.
48. The pre-incarceration addresses of Connecticut’s prisoners are illustrated in Figure 3. The sizes of the colored circles correspond to the percentage of Connecticut’s prisoners who resided in that particular geographic area immediately prior to incarceration.
Where Incarcerated Residents Lived Prior to Incarceration
49. Connecticut relocates nearly all of its prisoners to a correctional facility in a rural, predominantly white, lightly-populated area, especially in the Enfield-Somers-Suffield area along the northern border. The State maintains a second concentration of prisoners in the Cheshire area.
50. The siting of prisons in locations far from the urban centers where most prisoners maintained a permanent domicile, combined with a lack of public transportation, creates further hardship for incarcerated people and their families.
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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 13 of 22 51. The location of prisoners by population as of the 2010 census is illustrated in Figure 4. The sizes of the colored shapes correspond to the percentage of incarcerated people who are housed in a prison located in that particular geographic area.
Where Prisoners are Incarcerated
Prison and District Populations 52. Hartford Correctional Institution (Hartford) is located in House District 5. 53. York Correctional Institution (East Lyme) is located in House District 37. 54. Corrigan-Radgowski Correctional Center (Montville) is located in House District
42. 55. Osborn Correctional Institution (Osborn) and Northern Correctional Institution
(Northern) are located in House District 52. 56. Robinson Correctional Institution (Robinson) and Willard-Cybulski Correctional
Institution (Willard-Cybulski) are located in House District 59. Enfield Correctional Institution 13

Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 14 of 22
(Enfield), which was operational during the 2010 Census and 2011 redistricting plan, and which continued operating until January 23, 2018, is also located in House District 59.
57. MacDougall Walker Correctional Institution (MacDougall-Walker) is located in House District 61.
58. Manson Youth Correctional Institution (Manson) and Cheshire Correctional Institution (Cheshire) are located in House District 103.
59. Garner Correctional Institution (Newtown) is located in House District 106. 60. MacDougall-Walker, Robinson, Enfield, Willard-Cybulski, Osborn, and Northern are all located in Senate District 7. B. State Legislative Redistricting in Connecticut 61. The Connecticut legislature, exercising authority granted by Article III of the state Constitution, appointed a Reapportionment Committee following the 2010 Census. 62. The Reapportionment Committee failed to meet its September 15, 2011 deadline to submit a redistricting plan. Pursuant to Article III of the Connecticut Constitution, Governor Malloy appointed a Reapportionment Commission on October 5, 2011. 63. On November 30, 2011, the Reapportionment Commission unanimously adopted a state legislative redistricting plan and submitted it to Defendant Merrill. 64. The state legislative redistricting plan became effective soon thereafter upon publication by Defendant Merrill. See Conn. Const., Art. 3 § 6(c) (“Upon receiving such plan [from the Reapportionment Commission] the secretary [of state] shall publish the same forthwith, and, upon publication, such plan of districting shall have the full force of law.”).
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65. According to the Connecticut Department of Corrections, and as counted in the 2010 Census, each prison described in paragraphs 52 through 60 held the following number of incarcerated people in March 2010:

Facility Hartford York Corrigan-Radgowski Osborn Northern Robinson Enfield Willard-Cybulski MacDougall-Walker Manson Cheshire Garner

Prisoners 1,095 2,014 1,511 1,980 356 1,486 724 1,164 2,137 608 1,494 608

66. The Connecticut Legislature commissioned a report from the Office of Legislative Research in 2010 that indicated the majority of people incarcerated in these prisons were not residents of the districts in which they were incarcerated.
67. No Connecticut state law requires counting prisoners where they are incarcerated. Counting prisoners where they are incarcerated is a choice made by the Reapportionment Commission appointed by Governor Malloy and reflected in the plan published by Defendant Merrill.

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Case 3:18-cv-01094-WWE Document 1 Filed 06/28/18 Page 16 of 22
68. The Connecticut Legislature has considered legislation mandating that prisoners be counted at their pre-incarceration addresses for reapportionment purposes in its 2011, 2013, 2015, and 2016 legislative sessions. Lawmakers failed to enact legislation in each instance, leaving the 2011 Redistricting Plan unchanged.
69. A significant number of the people incarcerated in Connecticut’s fourteen operational prison facilities are ineligible to vote because they have been convicted of a felony. CONN. GEN. STAT. § 9-46 (“persons with a felony conviction [are] not eligible to vote in Connecticut elections”).
70. Connecticut statutes treat the few incarcerated people who are eligible to vote as residents of their pre-incarceration domiciles and prohibit these voters from claiming residence for voting purposes in the district in which they are incarcerated. CONN. GEN. STAT. §§ 9-14, 914a.
71. When combined with the practice of prison gerrymandering, the geographic concentration of prison facilities results in the dilution of the votes of residents in urban voting districts that are overpopulated as compared to districts that contain prison facilities.
72. Because they reside in such overpopulated districts, Plaintiffs Justin Farmer, Germano Kimbro, Conley Monk, Jr., Garry Monk, and Dione Zackery (hereafter “individual Plaintiffs”) and members of Plaintiffs NAACP and NAACP- CT (hereafter collectively “the NAACP”) have substantially less voting power than residents of at least five State House Districts, and as many as nine House Districts. These include Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108, and Senate District 7 (hereinafter “gerrymandered districts”).
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73. Data locating prisoners at their exact pre-incarceration addresses is not publicly available. Home district of origin may be approximated, however, using public records detailing the home towns and cities of prisoners at the time of their admission.
74. When district population size is calculated using these prisoner reallocation estimates, nine State House districts (Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108) have more than ten percent fewer people than the most populated House district (District 97).
75. Even when prisoners are removed from the apportionment base rather than counted in their approximate pre-incarceration districts, five House districts (Districts 5, 52, 59, 61, and 103) are more than ten percent smaller than the largest House District (District 88).
76. For every 85 residents in District 59 (which encompasses Robinson, Enfield, and Willard-Cybulski Correctional Institutes), there are over 100 residents in District 97 (located in New Haven). The vote of a District 97 resident thus counts for less than 85% of the vote of a District 59 resident. Similar imbalances occur in the other gerrymandered districts.
77. Because their individual votes count for less, individual Plaintiffs, NAACP members, and their fellow residents must invest greater energy to elect representatives of their choice. Plaintiffs in District 97 have over 15% more doors to knock on, voters to call, and mailings to send if they wish to have an equal influence over the political process as residents of District 59. Because of this increased need for resources, their campaign donations go less far.
78. Because their district is overpopulated in this manner, the influence of individual Plaintiffs’ and NAACP members over their representatives is also diluted. For example, District 97 Representative Al Paolillo has 3,751 more constituents than District 59 Representative Carol Hall. Thus, to serve his full body of constituents, Rep. Paolillo must fully listen and respond to 15% more people despite working with the same level of funding, staff, and hours in the day.
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79. The Connecticut State House of Representatives has 151 members, and the Connecticut State Senate has 36 members, each of whom is elected by an individual district.
80. The 151 individual House districts each elect one member to the State House of Representatives, and the 36 individual Senate districts each elect one member to the State Senate.
81. The “ideal” district size is defined by the total state population divided by the number of districts.
82. According to Connecticut State’s published data after the 2011 redistricting, the ideal House district size is 23,670 residents.
83. The gerrymandered districts, however, have substantially fewer residents than the ideal population, and are thus more than ten percent smaller than the largest state district, District 97.
84. For instance, as of November 2011, District 59 contained only 21,001 residents when prisoners are counted in their home districts. When compared with District 97, which would have a population of approximately 24,752 residents when prisoners are counted in their home districts, the actual number of constituents in District 59 was 15.84% smaller.
85. The following table sets forth the populations and deviation from District 97, the largest district, of other House Districts, including and excluding prisoners:

District
5 37 42 52

Population (prisoners counted where incarcerated)
23,000
23,310
23,663 23,531

Population (prisoners counted in approximate home districts)
22,139
21,333
22,218 21,250

Deviation from the largest
district 11.04%
14.44%
10.70% 14.79%

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59

24,314

61

23,448

103

23,005

106

22,971

108

23,531

21,001 21,330 21,543 22,382 22,234

15.84% 14.45% 13.56% 10.01% 10.64%

86. The ideal Senate district size is 99,280 residents. Senate District 7 contained 102,622 residents as of 2011.
87. Senate District 7 contained 94,692 residents when incarcerated persons are counted in their home districts. There are 9.53% fewer residents in Senate District 7 than in District 26, the largest Senate district.
88. The most recent census data, based on the 2011-2015 American Community Survey (ACS) five-year estimates, demonstrates that the above discrepancies have worsened based on population changes since district lines were drawn.
89. As a result of the current districting plan, residents of the prison gerrymandered districts possess artificially inflated voting and representational power compared to those in other districts, whereas the people incarcerated in the gerrymandered districts have effectively no representation.
90. For instance, upon information and belief, State Senator John Kissel (S-7) has not visited incarcerated people in any of the five prisons located in his district over his past two terms.
91. The effect is that Connecticut’s 2011 Redistricting Plan reflects neither electoral equality nor representational equality.

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92. It would have been possible for the Reapportionment Committee or Reapportionment Commission to adjust district boundaries so as to prevent creating nine malapportioned House districts containing prisons, thus safeguarding the principle of one person, one vote, but they did not do so. This remedy would require minor alterations to approximately 30 additional contiguous districts, and can be accomplished without introducing incumbent conflicts.
93. Prison gerrymandering also deprives the state of Connecticut of at least one minority opportunity district. The same districting plan which would restore “one person one vote” also has the effect of raising the Citizen Voting Age Population in House District 14 from 20.2% under the current plan to nearly 45%, thus enhancing the potential for the Connecticut legislature to more accurately reflect the choices of Connecticut’s voting population.
94. Plaintiffs are suffering irreparable harm as a result of Defendants’ actions, and that harm will continue unless defendants’ current practice of counting prison populations for the purpose of apportionment is declared unlawful and enjoined.
95. Plaintiffs have no adequate remedy at law other than this action for declaratory and injunctive relief.
FIRST CAUSE OF ACTION (Violation of 42 U.S.C. § 1983 and Equal Protection) 96. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 97. Section 1 of the Fourteenth Amendment to the United States Constitution provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
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98. The “one person, one vote” principle of the Equal Protection Clause of the Fourteenth Amendment mandates that each person’s vote shall be equal to that of his or her fellow citizens.
99. Defendants’ reliance on the incarcerated population in determining the geographic boundaries of House Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108, and Senate District 7 under the 2011 Redistricting Plan inflates the voting strength and political influence of the residents in these districts and dilutes the voting strength and political influence of Plaintiffs and other persons residing outside of these districts, in violation of the Equal Protection requirements of Section 1 of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court to: 1) Exercise jurisdiction over Plaintiffs’ claims; 2) Declare that the use of prison gerrymandering in the 2011 Redistricting Plan adopted by Connecticut violates the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983; 3) Enjoin Defendants and their agents, employees, and representatives from conducting elections for the Connecticut House of Representatives and Senate under the 2011 Redistricting Plan in the 2020 electoral cycle; 4) In the event Defendants fail or are unable to implement a redistricting plan that comports with the Constitution and laws of the United States, enforce a court-ordered redistricting plan;
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5) Award Plaintiffs the expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988;
6) Exercise continuing jurisdiction over this action during the enforcement of its judgment; and
7) Award any other and further relief this Court deems proper and just. Dated this 28th day of June 2018.

Respectfully submitted,
/s/ Michael J. Wishnie
Ashley Hall, Law Student Intern* Keturah James, Law Student Intern* Richard Medina, Law Graduate Alden Pinkham, Law Student Intern* John Super, Law Student Intern* Hope Metcalf (ct27184) Michael J. Wishnie (ct27221) Rule of Law Clinic Yale Law School 127 Wall Street New Haven, CT 06511 (203) 436-4780 michael.wishnie@ylsclinics.org
Counsel for Plaintiffs

Bradford M. Berry** National Association for the Advancement
of Colored People, Inc. Office of General Counsel 4805 Mount Hope Drive Baltimore, MD 21215 (410) 580-5797 bberry@naacpnet.org

* Motion for law student appearance forthcoming ** Motion for admission pro hac vice forthcoming

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 Case 3:18-cv-01094-JBA-PWH-JMW Document 27 Filed 02/15/19 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (“NAACP”), NAACP CONNECTICUT STATE CONFERENCE, JUSTIN FARMER, GERMANO KIMBRO, CONLEY MONK, GARRY MONK, DIONE ZACKERY,
Plaintiffs,

v.

3:18cv1094 (WWE)

DENISE MERRILL, Secretary of State, et al.,
Defendants RULING ON MOTION TO DISMISS
In this action, plaintiffs NAACP, NAACP Connecticut State Conference, Justin Farmer, Germano Kimbro, Conley Monk, Garry Monk and Dione Zackery bring a constitutional challenge to the legislative Redistricting Plan that Connecticut adopted in 2011; plaintiffs assert this action against the Connecticut Secretary of State and Governor. Plaintiffs seek a declaration that that the Redistricting Plan violates the Fourteenth Amendment to the United States Constitution and seek an injunction against its use in the 2020 elections. Specifically, plaintiffs allege that the legislative

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Redistricting Plan’s “unlawful prison gerrymandering” violates the principle of “one person, one vote” encompassed by the Fourteenth Amendment.
Defendants have filed a motion to dismiss for lack of jurisdiction and failure to state a claim. For the following reasons, the Court will deny the motion to dismiss.
FACTUAL BACKGROUND For purposes of ruling on this motion to dismiss, the Court assumes that the factual allegations in the complaint are true. Plaintiff NAACP brings this action in its organizational capacity and its representative capacity on behalf of its members who are adversely affected by the unequal population of the legislative districts created by the 2011 Redistricting Plan. Plaintiff NAACP Connecticut State Conference brings this action in its representative capacity on behalf of its approximately 5,000 members, many of whom are registered voters residing in the state legislative districts affected by the Redistricting Plan’s prison gerrymandering, including House Districts 88, 91, 94, 95, 96, and 97. Plaintiff Justin Farmer is a resident of Hamden, Connecticut. He is a registered voter in Connecticut State House District 94. In 2017, he was
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elected to the Hamden Legislative Council representing the Fifth District in Hamden. Plaintiff Germano Kimbro is a resident of New Haven, Connecticut. He is a registered voter in Connecticut State House District 95. Plaintiff Conley Monk is a resident of Hamden and a registered voter in Connecticut State House District 88. Plaintiff Garry Monk is a resident of New Haven and is a registered voter in Connecticut State House District 92. Plaintiff Dione Zackery is a resident of New Haven and registered voter in Connecticut State House District 97.
By Connecticut statutory law, no person is deemed to have lost his or her residence in any town by reason of that person’s “absence therefrom in any institution maintained by the state,” and “[n]o person who resides in any institution maintained by the state shall be admitted as an elector in the town in which such institution is located,” unless that person “proves to the satisfaction of the admitting official that he is a bona fide resident of such institution.” Conn. Gen. Stat. § 9-14.
Plaintiffs allege that defendants have engaged in prison gerrymandering by counting incarcerated people as residing in the state facility where they are imprisoned, rather than at their preincarceration address, for the purpose of drawing lines for state legislative districts.
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Connecticut’s prisoners are disproportionately African-American and Latino, and many prisoners maintain a permanent domicile in the state’s urban centers. Many of the correctional facilities in Connecticut are located in rural or lightly populated districts with large amounts of individuals of Caucasian descent.
Prison gerrymandering coupled with the geographic concentration of prison facilities in certain rural areas results in the dilution of the votes of residents in urban voting districts that are overpopulated as compared to the districts that contain prison facilities. Thus, the individual plaintiffs, who live in overpopulated districts, have substantially less voting power than the residents of at least five State House Districts, and as many as nine House Districts, including Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108 and Senate District 7.
Most Connecticut prisoners cannot vote under state law and have no contact with the representatives of the districts in which they are incarcerated. Incarcerated individuals do not visit or utilize public or private establishments in the areas where they are incarcerated.
When the incarcerated individuals are counted in their preincarcerated districts, the gerrymandered House districts containing
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prison populations (House Districts 5, 37, 42, 52, 59, 61 103, 106, 108) have more than 10% fewer residents than House District 97, the largest House district; and Senate District 7 has more than 9% fewer residents than Senate District 26, the largest Senate district.
Thus, plaintiffs allege that the permanent residents of the prisongerrymandered districts have more influence over local affairs and greater voting power than residents in other districts, including those districts that were home to the prisoners prior to incarceration.
Connecticut’s 2011 Redistricting Plan reflects neither electoral nor representational equality.
DISCUSSION “The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). The function of a motion to dismiss is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). In deciding a motion
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to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On a motion to dismiss for lack of subject matter jurisdiction, the party who invokes federal jurisdiction bears the burden of proof to demonstrate the existence of subject matter jurisdiction; on a motion to dismiss for failure to make a claim, the movant bears the burden of proof. Gonzalez v. Option One Mortg. Corp., 2014 WL 2475893, at *2 (D. Conn. June 3, 2014).
Defendants maintain that plaintiffs have failed to allege that they are subjected to an ongoing violation of federal law, and therefore, this action is barred by Eleventh Amendment and should be dismissed for failure to state a claim.
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The Eleventh Amendment prohibits suits against a state, its administrative agencies, and its state officials acting in their official capacities, absent the state’s consent. See Alabama v. Pugh, 438 U.S. 781, 781–782 (1978);. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). In Ex Parte Young, 209 U.S. 123, 160 (1908), the Supreme Court recognized a limited exception to Eleventh Amendment immunity for suits against state officials in their official capacities seeking prospective relief to prevent a continuing violation of federal law “because a state does not have the power to shield its officials by granting them immunity from responsibility to the supreme authority of the United States.” In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 371 (2d Cir. 2005).
“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The fundamental principle of representative government in this country is one of equal representation for equal numbers of people. Evenwel v. Abbott, 136 S. Ct. 1120, 1131 (2016).
[A]s a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an
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individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in substantial fashion diluted when compared with votes of citizens living in other parts of the state. Reynolds v. Sims, 377 U.S. 533, 568 (1964). In Reynolds, the Supreme Court explained: “Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” Id. at 579. States must make “an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” Id. at 577. “When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.” Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960). Thus, federal courts have jurisdiction to consider constitutional challenges to state legislative redistricting plans. Baker v. Carr, 369 U.S. 186, 237 (1962) (allegations of denial of equal protection present justiciable cause of action). Nevertheless, federal court review of redistricting legislation “represents a serious intrusion on the most vital of local functions,” and federal courts “must be sensitive” to the states’
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exercise of discretion and political judgment when balancing competing interests in this area. Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018).
A redistricting map “presumptively complies with the one-person, one- vote rule” if the “maximum population deviation between the largest and the small district is less than 10%” when measured by a facially neutral population baseline. Evenwel, 136 S. Ct. at 1124. A plaintiff bears the burden to overcome the presumption of compliance by showing that the legislature acted with “invidious intent” rather than good faith. Perez, 138 S. Ct. at 2325. Generally, total-population as measured by the decennial census constitutes a permissible unit for calculating population equality for drawing districts, although certain states do adjust those numbers to remove certain groups from the total-population apportionment. Id. at 1124 n.3, & 1132.
If a redistricting plan results in a population deviation of 10% or more between the smallest and largest district, plaintiff has established a prima facie case of an equal protection violation. Brown v. Thomson, 462 U.S. 835, 842-43 (1983). A defendant must then show that the plan is nevertheless “an honest good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.”
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Reynolds, 377 U.S. at 577. The state must show that the “legislature's plan may reasonably be said to advance a rational state policy and, if so, whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.” Brown, 462 U.S. at 843.
Defendants maintain that plaintiff cannot establish a prima facie case with population deviations of 10% or more based on the total population census data that were actually used for the redistricting. Defendants assert that plaintiffs have improperly claimed to have established the prima facie case by showing population deviations of more than 10% based upon a population formula modified according to plaintiffs’ “own subjective beliefs that prisoners do not receive effective representation from legislators in their districts.” Defendants argue that this “is precisely the kind of political judgment about the ‘nature of representation’ that this Court cannot interfere with absent a showing of intentional discrimination.”
Plaintiffs counter that states are not free to define inhabitants in a manner that diminishes meaningful equal representation for its residents. Plaintiffs point out that the Supreme Court has previously recognized that total population census data should be modified when it results in
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“significant population disparities” that violate the Equal Protection Clause. See Mahan v. Howell, 410 U.S. 315, 332 (1973) (holding that district court did not err in declining to accord conclusive weight to the legislative reliance on census figures). In Gaffney v. Cummings, 412 U.S. 735, 749 (1973), the Supreme Court noted that “[f]air and effective representation may be destroyed by gross population variations among districts…” and that “other relevant factors” and “important interests” may be taken into account. Gaffney elaborated:
An unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement. Id.
The instant case may be distinguishable from Evenwel, which held that a redistricting plan had appropriately used total population census numbers in the context of an action asserting that the Texas legislature should draw legislative districts based upon the citizen-voting-agepopulation. 136 S. Ct. at 1127. The Court reasoned that adopting votereligible apportionment would undermine “equitable and fair representation”
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because representatives serve all residents, not just those eligible or registered to vote, and because nonvoters, such as children, have an important stake in the district’s policy debates. Id. at 1132. The instant case implicates the plausible compromise of fair and effective representation due to the Redistricting Plan’s reliance upon total population census data when, by state law, incarcerated individuals are not even considered residents of their prison location. Conn. Gen. Stat. § 9-14.
Accordingly, construing all inferences of law and fact in favor of plaintiff, the Court finds that it has jurisdiction over the plausibly alleged ongoing violation of federal law. Review of whether the Redistricting Plan violates the Equal Protection Clause is appropriate for a motion for summary judgment. The Court will leave plaintiffs to their proof.
CONCLUSION For the foregoing reasons, defendants’ motion to dismiss [doc. #14] is DENIED. Within 21 days of this ruling’s filing date, the parties should submit a schedule relevant to discovery and dispositive motion deadlines. Dated this 15th day of February 2019 at Bridgeport, Connecticut.
/s/Warren W. Eginton Warren W. Eginton Senior U.S. District Judge
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 Case 3:18-cv-01094-JBA Document 58 Filed 10/15/19 Page 1 of 30

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NAACP CONNECTICUT STATE CONFERENCE, JUSTIN FARMER, GERMANO KIMBRO, CONLEY MONK, JR., GARRY MONK, and DIONE ZACKERY,
Plaintiffs,
v.
DENISE MERRILL, SECRETARY OF STATE, and EDWARD LAMONT, JR., GOVERNOR,
Defendants.

No. 3:18-cv-01094-JBA
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. Connecticut’s State legislative Redistricting Plan, adopted in 2011 and scheduled for use in the 2020 election cycle, violates the “one person, one vote” requirement of the Fourteenth Amendment because the plan is based on unlawful prison gerrymandering. 2. “Prison gerrymandering” is the practice whereby a state counts incarcerated people as residing in the state facility where they are imprisoned, rather than at their preincarceration address, for the purpose of drawing lines for state legislative districts. 3. Connecticut’s incarcerated individuals are disproportionately African American and Latino, and many maintain a permanent domicile in the State’s urban centers. Nevertheless, many of these individuals are incarcerated in correctional facilities that the State has located primarily in rural, lightly populated, and predominantly white parts of Connecticut.
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4. Persons incarcerated in districts far from their home communities have no meaningful connection to the towns in which they are incarcerated. They are separated from their families and friends and have little contact with citizens residing immediately outside the walls of the prisons.
5. Moreover, most incarcerated people in Connecticut cannot vote under state law and have no contact with the representatives of the districts in which they are incarcerated. Those few incarcerated people who can vote are explicitly required to do so as residents of their preincarceration domiciles under Connecticut law.
6. Despite the welcome decline in the State’s overall prison population, the disproportionate incarceration of African American and Latino residents, and their confinement in distant, predominantly white districts, harms the communities they leave behind, as well. The voting power of these communities is diluted when incarcerated persons are removed from the apportionment base. Families bear severe emotional and financial hardships, neighborhoods experience economic and social instability, and entire communities lose their voice in State affairs when fathers, sons, daughters, and mothers are shipped to remote, rural prisons.
7. The Supreme Court has long recognized the principle of “one person, one vote,” which requires representative districts to contain roughly the same number of people. Variations of ten percent or more in the population of electoral districts create a prima facie case of unconstitutional discrimination under the Fourteenth Amendment and shift the burden of justification to the State.
8. The ten percent benchmark is not a safe harbor, however. The ultimate inquiry is one of rationality, and plans must be free from any taint of arbitrariness or discrimination. As the Second Circuit recently affirmed in this case, even if the ten percent threshold is not met, an
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apportionment scheme may still constitute invidious discrimination if, designedly or otherwise, it operates to minimize or cancel out the voting strength of racial elements of the voting population.
9. Because Connecticut counts incarcerated people where they are incarcerated rather than where they permanently reside, the actual number of constituents (exclusive of those incarcerated) in as many as nine Connecticut House districts is more than ten percent smaller than the number of constituents in the State’s largest House district. The number of constituents in one Senate district is more than nine percent smaller than the largest Senate district.
10. Permanent residents of the prison-gerrymandered districts thus have more influence over local affairs and greater voting power than residents of other districts, particularly the urban districts that many incarcerated people call home.
11. Defendants’ prison gerrymandering violates the “one person, one vote” principle of the Fourteenth Amendment to the United States Constitution. It impermissibly inflates the voting strength of predominantly white voters residing in certain Connecticut House and Senate districts, as compared to the voting strength of persons residing in all other House and Senate districts. Prison gerrymandering also dilutes the votes of residents in incarcerated people’s home communities, who are disproportionally African American and Latino.
12. As a result, prison gerrymandering operates to minimize the voting strength of the African American and Latino elements of the voting population of Connecticut, and thus the ability of these groups to advocate for their interests in the political process and exercise their rights to full membership in our democratic society.
13. Plaintiffs seek a declaration that Defendants’ use of prison gerrymandering in the 2011 Redistricting Plan, or any subsequent Redistricting Plan that also engages in substantially
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similar prison gerrymandering, violates the Fourteenth Amendment to the U.S. Constitution; and an injunction against the use of the 2011 Redistricting Plan in the 2020 elections.
JURISDICTION AND VENUE 14. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 1357. This suit is authorized by 42 U.S.C. § 1983. 15. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Plaintiffs NAACP Connecticut State Conference, Justin Farmer, Germano Kimbro, Conley Monk, Jr., Garry Monk, and Dione Zackery and all Defendants reside in the District of Connecticut, the facts that give rise to this suit occurred in the District of Connecticut, and no real property is involved in this dispute. 16. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES 17. Plaintiff National Association for the Advancement of Colored People (“NAACP”) is a non-profit, non-partisan corporation with over 300,000 members, including approximately 5,000 members residing in Connecticut, many of whom are registered to vote. Many NAACP members in Connecticut who are registered voters reside in State legislative districts that are underrepresented as a result of prison gerrymandering, as set forth below. Because the NAACP has members across the State, it will continue to have members who reside in districts underrepresented as a result of prison gerrymandering when the 2021 Redistricting Plan again uses the practice. 18. The NAACP works to enhance civic engagement among African American communities by increasing voter registration and through get-out-the-vote efforts. In its national
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get-out-the-vote effort in 2016, the NAACP targeted fifteen states, including Connecticut, which in 2012 had lower than expected African American voter turnout, with a campaign titled “Our Votes Matter.” The NAACP relies on a fair and effective electoral process to help achieve its organizational missions of improving civic engagement, education, criminal justice, environmental justice, economic opportunity, and healthcare.
19. Members of the NAACP pay dues, elect branch officers, and are eligible to serve on the NAACP Board of Directors. The NAACP’s policies and procedures are established at an annual national convention by voting delegates representing each NAACP State Conference, Local Branch, and Youth Unit, elected by the members of those units.
20. In addition, the NAACP has had to divert organizational resources, including staff time, travel expenses, and other costs, to address unlawful prison gerrymandering in Connecticut.
21. The NAACP brings this action in its representative capacity on behalf of its members who are adversely affected by the unequal population of the legislative districts created by engaging in unlawful prison gerrymandering, and in its organizational capacity.
22. Plaintiff Connecticut State Conference of the National Association for the Advancement of Colored People (“NAACP-CT”) is a non-profit, non-partisan organization with approximately 5,000 members, all of whom reside or work in Connecticut, and many of whom are registered to vote. Many NAACP members in Connecticut who are registered voters reside in State legislative districts that are underrepresented as a result of prison gerrymandering, including members that reside in current House Districts 88, 91, 94, 95, 96, and 97, among others. Because NAACP-CT has members across the State, it will continue to have members who reside in districts that are underrepresented as a result of prison gerrymandering when the 2021 Redistricting Plan again uses the practice.
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23. NAACP-CT seeks to support the mission of the NAACP by organizing its members in Connecticut to advocate for political, educational, social, and economic equality of rights. NAACP-CT devoted its April 2018 conference to criminal justice reform with the opportunity for attendees to meet candidates for Governor of Connecticut. NAACP-CT’s 2019 annual convention, to be held in October, will also include workshops on criminal justice reform and voter empowerment.
24. Members of NAACP-CT branches elect voting delegates who, in turn, elect the Executive Committee of the NAACP-CT every two years. Members of NAACP-CT branches are eligible to serve on the NAACP-CT Executive Committee if duly elected. Members of NAACP-CT branches also elect voting delegates to represent NAACP-CT at the NAACP national convention.
25. In addition, the NAACP-CT has had to divert organizational resources to address unlawful prison gerrymandering in Connecticut.
26. NAACP-CT brings this action in its representative capacity on behalf of its members who are adversely affected by the unequal population of the legislative districts created by engaging in unlawful prison gerrymandering, and in its organizational capacity as well. NAACP-CT has members that reside in current House Districts 88, 91, 94, 95, 96, and 97, among others.
27. Plaintiff Justin Farmer is a 25 year-old Jamaican-American resident of Hamden, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has lived in Connecticut his entire life and currently resides at 231 Butler Street, Hamden, Connecticut. Mr. Farmer is a registered voter in Connecticut State House District 94 and regularly votes in state and local elections. Mr. Farmer is a student at Southern Connecticut State
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University in the Political Science Department, where he hopes to earn his B.A. in 2020. In 2017, he was elected to the Hamden Legislative Council, the town legislature, representing the Fifth District, which includes some of the poorest and wealthiest residents of Hamden, and he is a candidate for re-election in November 2019. Mr. Farmer wears headphones to manage his Tourette’s Syndrome, a movement disorder, which has contributed to law enforcement stopping Mr. Farmer more than thirty times on the street. Mr. Farmer has close family members who have been incarcerated. He is a member of the NAACP and NAACP-CT.
28. Plaintiff Germano Kimbro is a 59 year-old African American resident of New Haven, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has lived in Connecticut his entire life and currently resides at 126 Spring Street, New Haven, Connecticut. Mr. Kimbro is a registered voter in Connecticut State House District 95 and regularly votes in state and local elections. In 2019, he was a candidate for a New Haven Board of Alders seat in the Democratic primary. He also regularly participates in voter registration drives and volunteers for local, state, and federal campaigns.
29. Mr. Kimbro, a graduate of Springfield College, has worked for decades to reform the criminal justice system. As a young man, Mr. Kimbro was incarcerated, at which point he turned to education and service. Once he returned to the community, Mr. Kimbro dedicated himself to assisting people in overcoming the stigma of criminal convictions and poverty. He has worked in a variety of human services positions and helped to launch the Pardon Me Program, through which he educated hundreds of Connecticut residents so that they could apply for pardons. He has worked for numerous State legislative reforms, including to establish the Connecticut Fatherhood Initiative (P.A. 99-193), to “Ban the Box” (P.A. 16-83), and to limit
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solitary confinement (P.A. 17-239). He is a member of Just Leadership USA and a lifelong member of the NAACP and NAACP-CT.
30. Plaintiff Conley Monk, Jr. is a 71 year-old African American resident of Hamden, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has lived in Connecticut for nearly his whole life, and currently resides at 2360 Shepard Avenue, Hamden, Connecticut. Mr. Monk is a registered voter in Connecticut State House District 88, and regularly votes in state and local elections. Mr. Monk is also a Marine Corps combat veteran of the Vietnam War, the Director of the National Veteran’s Council for Legal Redress, a Connecticut-based Veterans service organization, and participates in community development through his family organization, the Monk Council. Mr. Monk is a member of the NAACP and NAACP-CT.
31. Plaintiff Garry Monk is a 60 year-old African American resident of New Haven, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. He has resided in Connecticut for more than twenty years, and currently lives at 245 Highland Street, New Haven, Connecticut. Mr. Monk is a registered voter in Connecticut State House District 94, and regularly votes in state and local elections. Mr. Monk is a veteran of the U.S. Air Force and serves as the Executive Director of the National Veteran’s Council for Legal Redress, participates in community development through the Monk Council, is a Board member of the New Haven Fair Rent Housing Commission, and is an active member of the Thomas Chapel Church of Christ. Mr. Monk is a member of the NAACP and NAACP-CT.
32. Plaintiffs Conley and Garry Monk are brothers, and have a nephew who was incarcerated in Enfield Correctional Institution. This nephew was supported by the Monk family while incarcerated, and he returned to live in New Haven after his release.
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33. Plaintiff Dione Zackery is a 51 year-old African American resident of New Haven, Connecticut and a duly qualified elector eligible to vote in local, state, and federal elections. She currently resides at 1435 Quinnipiac Avenue, Unit 5, New Haven, Connecticut. Ms. Zackery is a registered voter in Connecticut State House District 97 and regularly votes in state and local elections. Ms. Zackery has been a registered voter since age 18, when she first registered to vote in Connecticut. She has multiple family members who have been incarcerated in Connecticut prisons. Ms. Zackery’s former partner, the father of her children, is formerly incarcerated. One of Ms. Zackery’s cousins, who is currently incarcerated, resided with her before entering prison. While her cousin has been incarcerated, they have communicated with each other by mail and over the phone. Ms. Zackery is a member of the NAACP and NAACPCT.
34. Defendant Denise Merrill is a resident of Connecticut and is Connecticut’s Secretary of State and Chair of the State Elections Board. She is sued in her official capacity. Secretary of State Merrill is the Constitutional officer of the State charged with publishing the legislative district map and conducting elections in Connecticut in a manner consistent with federal constitutional and statutory requirements.
35. Defendant Edward Lamont, Jr. is the Governor of Connecticut. He is sued in his official capacity. Governor Lamont is the Constitutional officer of the State charged with appointing Reapportionment Commissions for the purposes of adopting State house and senatorial districting plans.
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FACTUAL ALLEGATIONS A. Mass Incarceration and Prison Construction in Connecticut 36. In recent decades, the United States’ incarceration rate has surged. Since the 1970s, the United States penal population exploded from approximately 300,000 to more than 2 million. The United States imprisons more people, per capita, than any other nation. 37. Persons with felony convictions are more likely to become homeless and lose custody of their children, and less likely to find employment and complete their education. 38. African Americans and Latinos experience especially high rates of imprisonment and tend to live in racially and economically segregated neighborhoods. As a result, the social and political effects of imprisonment are focused in their communities. 39. Connecticut is no exception. The State has the fifth-highest rate of incarceration of African American men in the country. Whites outnumber African Americans and Latinos by an almost 3-to-1 ratio in the State’s general population, but there are twice as many African Americans and Latinos as whites in Connecticut prisons. 40. African Americans in Connecticut are almost ten times more likely to be incarcerated than whites, and Latinos are almost four times more likely to be incarcerated than whites. 41. These disparities in the criminal justice system occur in the context of widespread racial inequalities in Connecticut, including in employment, economic stability, education, and health care. 42. The problem of prison gerrymandering is particularly severe in Connecticut because of the State’s concentration of incarcerated individuals at facilities that are significant distances from their home communities.
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Case 3:18-cv-01094-JBA Document 58 Filed 10/15/19 Page 11 of 30 43. Before 1980, Connecticut maintained correctional facilities at eight sites dispersed across the State, as illustrated in Figure 1.
Figure 1: Prisons in Connecticut Before 1980
44. The prison population in Connecticut increased from 3,828 in 1980 to 18,416 in 2010. This increase coincided with a surge of prison construction and expansion projects.
45. Of the twenty-one prison expansion projects Connecticut undertook between 1842 and 2003, fifteen—nearly all—were completed between 1988 and 1998. During this decade, the State expanded seven facilities: Manson Youth Institution, York Correctional Institution, Brooklyn Correctional Institution, Hartford Correctional Center, New Haven Correctional Center, Cheshire Correctional Institution, and MacDougall-Walker Correctional Institution.
46. As Connecticut incarcerated more of its residents over the past three decades, the State concentrated prisons in a few discrete geographic areas whose economies became dependent on these correctional facilities.
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Case 3:18-cv-01094-JBA Document 58 Filed 10/15/19 Page 12 of 30 47. Out of ten prison expansion projects finished between 1990 and 1997, the State completed half within three adjacent cities—Enfield, Somers, and Suffield—along the northern border of central Connecticut, a region that already had three existing prisons. 48. Connecticut’s correctional facilities are now even more concentrated in two areas: the Enfield-Suffield-Somers region along the northern border and Cheshire, in the central part of the State. The distribution of correctional facilities as of the 2010 census is set forth in Figure 2.
Figure 2: Prisons in Connecticut in 2010
49. The overall prison population has declined in recent years, but the residual population in the Department of Correction’s fourteen currently-operating prisons remains concentrated in lightly-populated or rural areas.
50. Areas in which prisons are concentrated tend to be disproportionately white compared to the State as a whole. For example, Enfield, Somers, and Cheshire are each over 80% white, excluding people who are incarcerated in those communities. The majority of the
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African American population in Enfield, Somers, and Cheshire is incarcerated—including roughly 95% of the African Americans residents of Somers. Enfield, Somers, and Cheshire each have 10% or less African American and Latino residents, excluding people who are incarcerated.
Table 1: Racial Makeup of Prison Communities

Rural Area with Prison Concentration
Enfield (Willard-Cybulski, Robinson,
and Enfield Correctional Institutions)

Proportion of White
Residents

Proportion of Proportion of

African American Latino

Residents

Residents

84%

2%

8%

Somers (Osborn and Northern
Correctional Institutions)

92%

0%

2%

Cheshire (Cheshire Correctional
Institution and Manson Youth Institution)

85%

1%

4%

Connecticut

69%

10 %

15%

Tables 1, 2, 4, and 5 exclude incarcerated persons. The analysis is based on 2012-2016 American Community Survey (ACS) five-year estimates and July 2014 Connecticut Department of Corrections Monthly Statistics, the midpoint of the ACS data. For comparability, the racial groups listed from the ACS data are for “White alone”; “Black or African American alone”; and “Hispanic or Latino (of any race).”

51. A large and disproportionate number of Connecticut’s incarcerated individuals are

African American or Latino persons who maintained a permanent address, pre-incarceration, in

one of the State’s three urban centers of Hartford, New Haven, and Bridgeport, and their

immediate suburbs.

52. Those urban centers of Hartford, New Haven, and Bridgeport are home to a

higher proportion of African American and Latino residents than the State as a whole, as the

table below demonstrates—the converse of the areas where prisons are concentrated.

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Table 2: Racial Makeup of Urban Centers

Urban Center
Hartford New Haven Bridgeport Connecticut

Proportion of White
Residents 15%
31%
22%

Proportion of African American
Residents
35%

Proportion of Latino
Residents
44%

33%

29%

33%

39%

69%

10 %

15%

53. The pre-incarceration addresses of Connecticut’s incarcerated people are illustrated in Figure 3. The sizes of the colored circles correspond to the percentage of Connecticut’s incarcerated individuals who resided in that particular geographic area immediately prior to incarceration.
Figure 3: Where Incarcerated Residents Lived Prior to Incarceration

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Case 3:18-cv-01094-JBA Document 58 Filed 10/15/19 Page 15 of 30 54. Connecticut relocates nearly all of its incarcerated people to serve out their sentences at correctional facilities in rural or suburban areas that are predominantly white. The Enfield-Somers-Suffield area along the northern border of the State accounts for nearly threequarters of the State’s sentenced, incarcerated people. The State maintains a second concentration of incarcerated people in the Cheshire area. 55. The placement of prisons in locations far from the urban centers where most incarcerated people maintained a permanent domicile, combined with a lack of public transportation, creates further hardship for incarcerated people and their families. 56. The location of incarcerated people by population as of the 2010 census is illustrated in Figure 4. The sizes of the colored shapes correspond to the percentage of incarcerated people who are housed in a prison located in that particular geographic area.
Figure 4: Where Incarcerated People are Incarcerated
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Current Prison and District Populations 57. Hartford Correctional Institution (“CI”) (Hartford) is in House District 5. 58. York CI (East Lyme) is in House District 37. 59. Corrigan-Radgowski Correctional Center (Montville) is in House District 42. 60. Osborn CI (Osborn) and Northern CI (Northern) are in House District 52. 61. Robinson CI (Robinson) and Willard-Cybulski CI (Willard-Cybulski) are in
House District 59. Enfield CI (Enfield), which was operational during the 2010 census and 2011 Redistricting Plan, and which operated until January 23, 2018, is also in House District 59.
62. MacDougall-Walker CI (MacDougall-Walker) is in House District 61. 63. Manson Youth CI (Manson) and Cheshire CI (Cheshire) are in House District 103. 64. Garner CI (Newtown) is in House District 106. 65. MacDougall-Walker, Robinson, Enfield, Willard-Cybulski, Osborn, and Northern are all in Senate District 7. 66. According to the Connecticut Department of Corrections, and as counted in the 2010 census, each prison described in paragraphs 57 through 64 held the following number of incarcerated people in March 2010:
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Table 3: Connecticut State Prison Populations

Facility

Incarcerated Individuals

Hartford

1,095

York

2,014

Corrigan-Radgowski

1,511

Osborn

1,980

Northern

356

Robinson

1,486

Enfield

724

Willard-Cybulski

1,164

MacDougall-Walker

2,137

Manson

608

Cheshire

1,494

Garner

608

B. State Legislative Redistricting in Connecticut in 2011 67. The Connecticut Legislature, exercising authority granted by Article III of the State Constitution, appointed a Reapportionment Committee following the 2010 census. 68. The Reapportionment Committee failed to meet its September 15, 2011 deadline to submit a Redistricting Plan. Pursuant to Article III of the Connecticut Constitution, thenGovernor Dannel P. Malloy appointed a Reapportionment Commission on October 5, 2011. 69. On November 30, 2011, the Reapportionment Commission unanimously adopted a State legislative Redistricting Plan and submitted it to Defendant Merrill.

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70. The State legislative Redistricting Plan became effective soon thereafter upon publication by Defendant Merrill. See Conn. Const., Art. 3 § 6(c) (“Upon receiving such plan [from the Reapportionment Commission] the secretary [of state] shall publish the same forthwith, and, upon publication, such plan of districting shall have the full force of law.”).
71. The Connecticut Legislature commissioned a report from the Office of Legislative Research in 2010, received prior to the redistricting process, which indicated that the majority of people incarcerated in the prisons described in paragraphs 57 through 64 were not residents of the districts in which they were incarcerated.
72. No Connecticut state law requires counting incarcerated individuals where they are incarcerated. Counting incarcerated people where they are incarcerated was an arbitrary choice made by the Reapportionment Commission and reflected in the plan published by Defendant Merrill, and a choice that produced discriminatory results. The Reapportionment Committee received public testimony highlighting the problems with counting incarcerated people where they are incarcerated, but neither the meeting minutes of the Commission nor the Committee provide any explanation for this choice.
73. The Connecticut Legislature has considered legislation mandating that incarcerated people be counted at their pre-incarceration addresses for reapportionment purposes in its 2011, 2013, 2015, 2016, and 2019 legislative sessions. As part of this consideration, the Legislature heard extensive public testimony as to the problems associated with prison gerrymandering, including its disproportionate racial impact. Nevertheless, lawmakers failed to enact legislation in each instance, leaving the 2011 Redistricting Plan unchanged.
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74. A significant number of the people incarcerated in Connecticut’s fourteen operational prison facilities are ineligible to vote because they have been convicted of a felony. CONN. GEN. STAT. § 9-46.
75. Connecticut statutes treat those incarcerated people who are eligible to vote as residents of their pre-incarceration domiciles and prohibit these voters from claiming residence for voting purposes in the district in which they are incarcerated. CONN. GEN. STAT. §§ 9-14, 914a. Thus, Connecticut’s current practice is to count incarcerated people, for reapportionment purposes, in the districts in which they are not legal residents for voting purposes under explicit Connecticut law.
76. When combined with the practice of prison gerrymandering, the geographic concentration of prison facilities results in the dilution of the votes of residents in urban voting districts that are overpopulated as compared to districts that contain prison facilities.
77. Because they reside in such overpopulated districts, Plaintiffs Justin Farmer, Germano Kimbro, Conley Monk, Jr., Garry Monk, and Dione Zackery (hereafter “individual Plaintiffs”) and members of Plaintiffs NAACP and NAACP-CT (hereafter collectively “the NAACP”) have substantially less voting power and political representation than residents of at least five, and as many as nine, State House districts. The overpopulated districts include House Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108, and Senate District 7 (hereinafter “gerrymandered districts”).
78. Data locating incarcerated individuals at their exact pre-incarceration addresses is not publicly available, though it is readily available to the State. Home district of origin may be approximated, however, using public records detailing the home towns and cities of incarcerated people at the time of their admission.
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79. When district population size is calculated using these estimates, nine State House districts (Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108) have more than ten percent fewer people than the most populated House district (District 97).
80. Even when incarcerated people are removed from the apportionment base rather than counted in their approximate pre-incarceration districts, five House districts (Districts 5, 52, 59, 61, and 103) are more than ten percent smaller than the largest House district (District 88).
81. For every 85 residents in District 59 (which encompasses Robinson, Enfield, and Willard-Cybulski Correctional Institutions), there are over 100 residents in District 97 (located in New Haven). The vote of a District 97 resident thus counts for less than 85% of the vote of a District 59 resident. District 59 is roughly 89% white, compared to 69% for the State as a whole, while District 97 is only 38% white.
82. Similarly, for every 85 residents of District 52 (which encompasses Osborn and Northern Correctional Institutions), there are roughly 100 residents in District 97. The vote of a District 97 resident thus counts for about 85% of the vote of a District 52 resident. District 52 is roughly 92% white, compared to 69% for the State as a whole. Similar imbalances occur in the other gerrymandered districts.
83. Because their individual votes count for less, individual Plaintiffs, NAACP members, and their fellow residents must invest greater energy to elect representatives of their choice. Plaintiffs in District 97 have over 15% more doors to knock on, voters to call, and mailings to send if they wish to have an equal influence over the political process as residents of District 59. Because of this increased need for resources, their campaign donations go less far.
84. Because their districts are overpopulated and underrepresented in this manner, the influence of individual Plaintiffs and NAACP members over their representatives is also diluted.
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For example, District 97 Representative Al Paolillo has 3,751 more constituents than District 59 Representative Carol Hall, and 3,502 more constituents than District 52 Representative Kurt Vail. Thus, to serve his full body of constituents, Rep. Paolillo must fully listen and respond to roughly 15% more people despite working with the same level of funding and staff.
85. The malapportioned districts in which Plaintiffs reside, or have members residing in, are also generally districts with a disproportionate African American or Latino population compared to the State as a whole. As the table below indicates, each district except District 88 is disproportionately African American or Latino, often substantially so.
Table 4: Racial Makeup of Relevant Connecticut Districts

District
88 91 94 95 96 97

Proportion of White Residents 79% 58% 27% 12% 61% 38%

CT Total

69%

Proportion of African American Residents
8% 22% 46% 24% 12% 23%
10%

Proportion of Latino Residents 5% 12% 16% 60% 15% 36%
15%

86. Conversely, the gerrymandered districts are disproportionately white compared to the State as a whole with the exception of District 5, as the following table shows. More than three-quarters of residents of all the overpopulated House districts except District 5 are white, while fewer than 5% of the residents of all those districts are African American, after excluding people who are incarcerated from the population totals of those districts.

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87. In House Districts 52, 59, and 106, nearly the entire African American population is incarcerated; there are close to no African American residents if people who are incarcerated are excluded from the population totals of these districts. And about half of the African American population in Senate District 7 is incarcerated; as a result, only 3% of the district’s non-incarcerated residents are African American, compared to 86% who are white.
Table 5: Racial Makeup of Overpopulated Connecticut Districts

District

Proportion of White Residents

5

19%

37

84%

42

79%

52

92%

59

89%

61

86%

103

86%

106

90%

108

82%

Senate 7

86%

CT Total

69%

Proportion of African American Residents
58% 2% 2% 0% 1% 4% 2% 0% 2% 3%
10%

Proportion of Latino Residents 20% 6% 5% 3% 4% 5% 4% 7% 11% 5%
15%

88. The overpopulated districts are disproportionately African American and Latino and the gerrymandered districts are disproportionately white. This means that the communities that receive less representation due to prison gerrymandering are disproportionately African American and Latino, and the communities that receive more representation are disproportionately white.

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Case 3:18-cv-01094-JBA Document 58 Filed 10/15/19 Page 23 of 30
89. The Connecticut State House of Representatives currently has 151 members, and the State Senate has 36 members, each of whom is elected by an individual district.
90. The 151 individual House districts each elect one member to the State House of Representatives, and the 36 individual Senate districts each elect one member to the State Senate.
91. The “ideal” district size is defined by the total state population divided by the number of districts.
92. According to Connecticut State’s published data after the 2011 redistricting, the ideal House district size is 23,670 residents.
93. The gerrymandered districts, however, have substantially fewer residents than the ideal population, and are thus more than ten percent smaller than the largest State district, District 97.
94. For instance, as of November 2011, District 59 contained only 21,001 residents when incarcerated individuals are counted in their home districts. When compared with District 97, which would have a population of approximately 24,752 residents when incarcerated individuals are counted in their home districts, the actual number of constituents in District 59 was 15.84% smaller. Likewise, District 52 contained only 21,250 residents when incarcerated individuals are counted in their home districts, or 14.79% fewer than District 97.
95. The following table sets forth the populations of the gerrymandered House districts with incarcerated people counted where they are incarcerated, incarcerated people counted in their approximated home districts, and the deviation of the latter from the population of District 97, the largest district.
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Table 6: Population Deviations of Connecticut Districts as a Result of Prison Gerrymandering

District

Population
(incarcerated individuals counted where incarcerated)

Population
(incarcerated individuals counted in approximate
home districts)

Deviation from the largest district

5

23,000

22,139

11.04%

37

23,310

21,333

14.44%

42

23,663

22,218

10.70%

52

23,531

21,250

14.79%

59

24,314

21,001

15.84%

61

23,448

21,330

14.45%

103

23,005

21,543

13.56%

106

22,971

22,382

10.01%

108

23,531

22,234

10.64%

96. Still other House districts have meaningful population deviations due to prison gerrymandering, though less than 10%, and a racially disparate impact.
97. The ideal Senate district size is 99,280 residents. Senate District 7 contained 102,622 residents as of 2011.
98. Senate District 7 contained 94,692 residents when incarcerated persons are counted in their home districts. There are 9.53% fewer residents in Senate District 7 than in District 26, the largest Senate district.
99. As a result of the current districting plan, residents of the prison gerrymandered districts possess artificially inflated voting and representational power compared to those in other districts, whereas the people incarcerated in the gerrymandered districts have effectively no representation.

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100. For instance, upon information and belief, State Senator John Kissel (S-7) has not visited incarcerated people in any of the five prisons located in his district over his past two terms.
101. The effect is that Connecticut’s 2011 Redistricting Plan subverts representational equality.
102. It would have been possible for the Reapportionment Committee or Reapportionment Commission to adjust district boundaries so as to prevent creating nine malapportioned House districts due to prison gerrymandering, thus safeguarding the principle of “one person, one vote,” but they did not do so. This remedy would require minor alterations to approximately 30 additional contiguous districts, and can generally be accomplished without introducing incumbent conflicts.
103. Prison gerrymandering also deprives the State of Connecticut of at least one minority opportunity district. The same districting plan which would restore “one person, one vote” also has the effect of raising the Citizen Voting Age Population in House District 14 from 20.2% under the current plan to nearly 45%, thus enhancing the potential for the Connecticut Legislature to more accurately reflect the choices of Connecticut’s voting population.
C. State Legislative Redistricting in 2021 104. Following the 2020 census, Connecticut will undertake a similar redistricting process as occurred in 2011. 105. State law requires that, in 2021, the General Assembly will appoint a Reapportionment Committee. 106. If the Reapportionment Committee fails to submit a proposed Redistricting Plan to the Legislature by September 15, 2021, then Governor Lamont will appoint a Redistricting
25

Case 3:18-cv-01094-JBA Document 58 Filed 10/15/19 Page 26 of 30
Committee, which must submit a Redistricting Plan to Defendant Merrill, who will publish the plan, making it effective under state law. See Conn. Const., Art. 3 § 6.
107. For decades, the State Legislature has counted incarcerated persons where they are incarcerated, rather than where they reside, and there is no evidence or reason to believe that the Redistricting Committee or Redistricting Commission appointed in 2021 will depart from this longstanding practice.
108. Since commencement of this litigation, Defendant Merrill has issued multiple public statements criticizing the practice of prison gerrymandering. For example, when Plaintiffs filed suit, Defendant Merrill stated, “[I] believe that people who are in prison should be counted where they resided prior to their incarceration, and not in the prison in which they are incarcerated . . . Prison gerrymandering unfairly inflates the size of some districts at the expense of others, and ending the practice will give a more accurate population count of our urban communities.”
109. The State of Connecticut has never disavowed this practice, however, and the Office of the Attorney General has, throughout this litigation, defended the right of the State to engage in prison gerrymandering, even when this practice results in population deviations in excess of 10% between legislative districts and has significant racial impacts.
110. Incarcerated people in Connecticut serving their sentences will continue to be concentrated in the predominantly white, rural, or suburban Enfield-Somers-Suffield and Cheshire areas. There is no evidence or reason to believe this will change prior to the 2021 redistricting process.
111. Incarcerated people in Connecticut will continue to be disproportionately African American and Latino. The most recent statistics on the incarcerated population, as of October 1,
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2019, indicate that the State’s incarcerated population is roughly 43% African American and 27% Latino. There is no evidence or reason to believe this will change to any significant degree prior to the 2021 redistricting process.
112. In a 2021 Redistricting Plan drawn using prison gerrymandering, residents of the prison gerrymandered districts will continue to possess artificially inflated voting and representational power compared to those in other districts, and the people incarcerated in the gerrymandered districts will continue to have effectively no representation. The Plan will again subvert representational equality.
113. Plaintiffs are suffering irreparable harm as a result of Defendants’ actions, and that harm will continue unless Defendants’ current practice of counting prison populations for the purpose of apportionment is declared unlawful and enjoined.
114. Plaintiffs have no adequate remedy at law other than this action for declaratory and injunctive relief.
FIRST CAUSE OF ACTION (Violation of 42 U.S.C. § 1983 and Equal Protection) 115. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 116. Section 1 of the Fourteenth Amendment to the United States Constitution provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 117. The “one person, one vote” principle of the Equal Protection Clause of the Fourteenth Amendment mandates that each person’s vote shall be equal to that of his or her fellow citizens.
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118. Defendants’ reliance on the incarcerated population in determining the geographic boundaries of House Districts 5, 37, 42, 52, 59, 61, 103, 106, and 108, and Senate District 7 under the 2011 Redistricting Plan subverts equal representation. Prison gerrymandering inflates the voting strength and political influence of the residents in these districts and dilutes the voting strength and political influence of Plaintiffs and other persons residing outside of these districts, in violation of the Equal Protection requirements of Section 1 of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
119. Defendants’ reliance on the incarcerated population in the 2011 Redistricting Plan inflates the voting strength of the disproportionately white districts in which prisons are located at the expense of disproportionately African American and Latino districts elsewhere in the State, even in districts with a deviation of less than 10% from the ideal district.
120. Defendants’ prison gerrymandering has racially disparate impacts in districts with less than 10% deviation and operates to minimize the voting strength of the African American and Latino communities in Connecticut, in violation of the “one person, one vote” principle of the Equal Protection Clause.
121. Defendants intend to continue their longstanding practices of counting incarcerated persons where they are confined rather than where they reside under state law, contrary to state law, see CONN. GEN. STAT. 9-14, in the 2021 state legislative redistricting.
122. A 2021 Redistricting Plan that is drawn using substantially similar prison gerrymandering will result in the same type of constitutional violations that have occurred as a result of the 2011 Redistricting Plan.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court to: 1) Exercise jurisdiction over Plaintiffs’ claims; 2) Declare that the use of prison gerrymandering in the 2011 Redistricting Plan, or any subsequent Redistricting Plan that also engages in substantially similar prison gerrymandering, violates the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983; 3) Enjoin Defendants and their agents, employees, and representatives from conducting elections for the Connecticut House of Representatives and Senate under the 2011 Redistricting Plan in the 2020 electoral cycle; 4) In the event Defendants fail or are unable to implement a Redistricting Plan that comports with the Constitution and laws of the United States, enforce a court-ordered Redistricting Plan; 5) Award Plaintiffs the expenses, costs, fees, and other disbursements associated with the filing and maintenance of this action, including reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988; 6) Exercise continuing jurisdiction over this action during the enforcement of its judgment; and 7) Award any other and further relief this Court deems proper and just. Dated: October 15, 2019
Respectfully submitted, /s/ Michael J. Wishnie
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Nicole Billington, Law Student Intern* Doni Bloomfield, Law Student Intern Alexander Boudreau, Law Student Intern* Alaa Chaker, Law Student Intern Brandon DeBot, Law Student Intern* Ayoub Ouederni, Law Student Intern Laura Pietrantoni, Law Student Intern* Mary Ella Simmons, Law Student Intern* Hope Metcalf (ct27184) Michael J. Wishnie (ct27221) Peter Gruber Rule of Law Clinic Yale Law School 127 Wall Street New Haven, CT 06511 (203) 436-478 michael.wishnie@ylsclinics.org
Bradford M. Berry** National Association for the Advancement
of Colored People, Inc. Office of General Counsel 4805 Mount Hope Drive Baltimore, MD 21215 (410) 580-5797 bberry@naacpnet.org

David N. Rosen (ct00196) Alexander T. Taubes (ct30100) David Rosen & Associates, P.C. 400 Orange Street New Haven, CT 06511 (203) 787-3513 drosen@davidrosenlaw.com

Counsel for Plaintiffs
* Motion for law student appearance forthcoming ** Motion for admission pro hac vice forthcoming

30

 
 National Association for Advancement of Colored People v. Merrill, 939 F.3d 470 (2019)

939 F.3d 470 United States Court of Appeals, Second Circuit.
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,
v. Denise MERRILL, Secretary of State, Edward Lamont, Jr., Governor, Defendants-Appellants.*
Docket No. 19-576-cv |
August Term 2019 |
Argued: September 10, 2019 |
Decided: September 24, 2019
Synopsis Background: Advocacy group and its members brought action against state’s governor and secretary of state alleging that state’s redistricting plan violated Fourteenth Amendment’s principle of “one person, one vote.” The United States District Court for the District of Connecticut, Warren W. Eginton, Senior District Judge, denied officials’ motion to dismiss, and they filed interlocutory appeal.
Holdings: The Court of Appeals held that:
single district judge had jurisdiction to determine whether Eleventh Amendment barred action;
action fell within scope of Ex parte Young exception to Eleventh Amendment;
action did not present nonjusticiable political question; and
only three-judge panel of district court had jurisdiction to decide state officials’ motion to dismiss for failure to state claim.
Affirmed in part and remanded.
1

Procedural Posture(s): Interlocutory Appeal; Motion to Dismiss for Failure to State a Claim; Motion to Dismiss for Lack of Subject Matter Jurisdiction.

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

Attorneys and Law Firms

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.

Before: Wesley, Chin, and Bianco, Circuit Judges.

Opinion

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, “Defendants”),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 “NAACP”), its Connecticut Conference, and five individuals filed a complaint (the “Complaint”) on June 28, 2018, challenging Connecticut’s 2011 redistricting plan (the “Redistricting Plan”).
The Complaint alleges that the Redistricting Plan violates the Fourteenth Amendment’s principle of “one person, one vote.” The Redistricting Plan counts incarcerated

National Association for Advancement of Colored People v. Merrill, 939 F.3d 470 (2019)

*474 individuals in the district in which their prison is located (their “prison district”), rather than the district in which they permanently reside (their “home district”). 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, prisoners typically have no contact with their prison district’s elected officials, cannot patronize public or private establishments in their prison district, and cannot drive on their prison district’s roads or send their children to their prison district’s 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 prisoners’ mostly rural prison districts is artificially inflated, while the representational power of the predominantly Black and Latino residents living in prisoners’ 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 the Eleventh Amendment’s bar on suits against states and their officials. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (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 “when it is questionable.”
2

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, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Defendants appeal the district court’s order only to the extent it “deni[ed] Defendants’ Eleventh Amendment immunity defense.” 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). “[T]he three-judge requirement in 28 U.S.C. § 2284 is jurisdictional,” Kalson v. Paterson, 542 F.3d 281, 287 (2d Cir. 2008), and thus “the district judge [is] required to refer the case to a three-judge court” where the statutory requirements are met, Shapiro v. McManus, ––– U.S. ––––, 136 S. Ct. 450, 454, 193 L.Ed.2d 279 (2015). Before convening a three-judge court, “all 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.” Id. (internal quotation marks omitted). But a “three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable *475 in the federal courts.” 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 “challenging the constitutionality of ... the apportionment of any statewide legislative body,” 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 “substantial federal question” 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 “[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.” U.S. Const. Amend. XI. Thus, the Eleventh Amendment “goes to the jurisdiction of the federal court, as opposed to the underlying liability of the State or state entity.” Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 150, 113 S.Ct. 684 (Stevens, J., dissenting); see also id. at 144, 113 S.Ct. 684 (majority opinion) (noting that the Eleventh

National Association for Advancement of Colored People v. Merrill, 939 F.3d 470 (2019)

Amendment is a “withdrawal of jurisdiction”). 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.

relief sought is prospective -- that is, it is not “retrospective or designed to compensate for a past violation of federal law.” In re Deposit Ins., 482 F.3d at 619.

II. Eleventh Amendment Immunity
A. Standard of Review We review a district court’s 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 “review[ ] 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.” 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 state’s immunity, or the case falls within the Ex parte Young exception. Id. at 617. The Ex parte Young doctrine “operates to end ongoing violations of federal law and vindicate the overriding federal interest in assuring the supremacy of [the] law.” Id. at 618 (internal quotation marks omitted). A plaintiff may invoke this exception “provided that his complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective.” Id. (internal quotation marks omitted). The first requirement is satisfied if the claim of an ongoing violation of federal law is “neither insubstantial nor frivolous.” Id. A claim is “insubstantial” for purposes of rejecting federal jurisdiction if it is “implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit.” 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 “ ‘insubstantial’ merely because it might ultimately be unsuccessful on its merits.” Id. The second requirement is satisfied if the
3

C. Application Application of the Ex parte Young inquiry demonstrates that the Eleventh *476 Amendment does not immunize Defendants from this suit. As to the first requirement, Plaintiffs have sued Connecticut’s Governor and Secretary of 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 “the Equal Protection Clause requires that seats in both houses of a bicameral state legislature must be apportioned on a population basis,” which means that a state must make “an honest and good faith effort to construct districts ... as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 568, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Because “some deviations from population equality may be necessary to permit the States to pursue other legitimate objectives[,] ... ‘minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.’” Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (quoting Reynolds, 377 U.S. at 745, 84 S.Ct. 1362).

National Association for Advancement of Colored People v. Merrill, 939 F.3d 470 (2019)

Based on these considerations, the Court has established that “as a general matter, ... an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations.” Id. (emphasis added); accord Evenwel v. Abbott, ––– U.S. ––––, 136 S. Ct. 1120, 1124, 194 L.Ed.2d 291 (2016). Thus, a plan with a population deviation greater than 10% “creates a prima facie case of discrimination and therefore must be justified by the State,” Brown, 462 U.S. at 842-43, 103 S.Ct. 2690, while a population deviation below 10% is “insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State,” Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). Where the 10% threshold is not met, “apportionment 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.” Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (emphasis added and internal quotation marks omitted).
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 “constitutional history, [the Supreme] Court’s decisions, and longstanding practice, ... a State may draw its legislative districts based on total population,” including from raw Census data, without running afoul of the “one person, one vote” principle. Id. at 1123.
Defendants argue that Evenwel and its predecessors foreclose Plaintiffs’ claim. According to Defendants, the Redistricting Plan is based on total population from the 2010 decennial Census and the population *477 deviation between the largest and smallest district is under 10%. As an evidentiary matter, then, the Redistricting Plan “presumptively complies” with the “one person, one vote” 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 “prima facie case ... is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Consequently, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case,” id. at 511,
4

122 S.Ct. 992, because “the precise requirements of a prima facie case can vary depending on ... context,” and “it may be difficult to define the precise formulation of the required prima facie case in a particular case” before “discovery has unearthed relevant facts and evidence,” id. at 512, 122 S.Ct. 992. 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 “review[ing] the legal merits of a claim for purposes of Ex parte Young, [we] review[ ] only whether a violation of federal law is alleged.” 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 legislature’s choice about how to count prisoners in the population base. In Burns v. Richardson, the Supreme Court held that state redistricting is a judgment “exclusively for the legislature to make.” 384 U.S. at 89, 86 S.Ct. 1286. In Abbott v. Perez, the Court clarified that redistricting is “primarily the duty and responsibility of the state” and that “federal-court review of districting legislation represents a serious intrusion on the most vital of local functions.” ––– U.S. ––––, 138 S. Ct. 2305, 2324, 201 L.Ed.2d 714 (2018) (internal quotation marks and alterations omitted).
These cases do not foreclose Plaintiffs’ claim. As Burns held, redistricting decisions are “subject 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.” Burns, 384 U.S. at 89, 86 S.Ct. 1286 (internal quotation marks omitted). Plaintiffs here have alleged that the Redistricting Plan will operate to minimize representational strength in prisoners’ urban home districts, which they allege are predominantly Black

National Association for Advancement of Colored People v. Merrill, 939 F.3d 470 (2019)

and Latino, in favor of the predominantly White rural prison districts. Thus, Plaintiffs’ 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 Plaintiffs’ 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 “a prior decision of the Supreme Court” that “foreclose[s]” Plaintiffs’ claim at this *478 stage. S. New England Tel. Co., 624 F.3d at 133 (alterations omitted).2
In sum, Plaintiffs’ 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. “Perhaps [Plaintiffs] will ultimately fail on the merits of their suit, but § 2284 entitles them to make their case before a three-judge district court.” Shapiro, 136 S. Ct. at 456. Accordingly, we affirm the order of the district court to the extent it denies Defendants’ 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.
III. Justiciability Defendants argue that because the Redistricting Plan does not allege a prima facie violation of the “one person, one vote” principle, Plaintiffs’ 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 prisoners’ home districts and to increase the voting strength of the predominantly White constituents living in prisoners’ prison districts. Such a claim is justiciable. See Rucho v. Common Cause,
5

––– U.S. ––––, 139 S. Ct. 2484, 2496, 204 L.Ed.2d 931 (2019) (reaffirming that “claim[s] of population inequality among districts” are justiciable because they can “be decided under basic equal protection principles” (citing Baker v. Carr, 369 U.S. 186, 226, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))). The Court’s holding in Rucho that partisan gerrymandering claims are not justiciable, id. at 2500, therefore does not preclude Plaintiffs’ 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 Defendants’ motion to dismiss for failure to state a claim and that it should have referred that aspect of the case to a three-judge district court. See Idlewild Bon Voyage Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam) (noting that although courts of appeals are “precluded from reviewing on the merits of a case which should have originally been determined by a court of three judges,” they are not “powerless ever to give any guidance when a single judge has erroneously invaded the province of a three-judge court”).
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 *479 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, 82 S.Ct. 1294 (noting that where statute requires a three-judge district court to be empaneled, “the applicable jurisdictional statute ... made it impermissible for a single judge to decide the merits of the case, either by granting or withholding relief”).
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 the constitutionality of the apportionment of congressional districts. 136 S. Ct. at 453. The “District Judge dismissed petitioners’ complaint not because he thought he lacked jurisdiction, but because he concluded

National Association for Advancement of Colored People v. Merrill, 939 F.3d 470 (2019)

that the allegations failed to state a claim for relief on the merits.” Id. at 455. But as the Court noted, “[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.” Id.; see also S. New England Tel. Co., 624 F.3d at 132 (“[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.”). 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 Defendants’ motion to dismiss at length, it expressly denied the motion to dismiss for failure to state a claim, ruled that the Complaint “plausibly alleged [an] ongoing violation of federal law,” and concluded that “whether the Redistricting Plan violates the Equal Protection Clause is appropriate for summary judgment.” App. at 46 (emphasis added); see also id. at 36. In doing so, 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 Plaintiffs’ claim and denied Defendants’ motion to dismiss for lack of jurisdiction. To the extent the district court denied Defendants’ 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 Plaintiffs’ claim presents a substantial federal question, on remand the district court shall refer the matter to a three-judge court for further proceedings.
All Citations
939 F.3d 470

Footnotes

*

The Clerk of the Court is respectfully directed to amend the official caption to conform to the above.

1

Plaintiffs sued then-Governor Daniel P. Malloy. Malloy was succeeded as Governor of Connecticut by Lamont in January 2019.

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 “an identical prisoner-based claim,” Appellants’ Br. at 4, the First Circuit

noted that “Evenwel did not decide the precise question before us,” 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.

6