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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-24066-KMM

GRACE, INC., et al.,

Plaintiffs,

v.

CITY OF MIAMI,

Defendant.

/

PLAINTIFFS’ RESPONSE IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS

Plaintiffs oppose the City of Miami’s Motion to Dismiss (ECF No. 34, “Mot.”) their First 

Amended Complaint (ECF No. 23, “FAC”). Opting to ask rhetorical questions rather than engage 

with the merits of Plaintiffs’ claim, the City confuses and ignores the racial gerrymandering claim 

Plaintiffs advance. Plaintiffs advance a single claim that the City Commission racially 

gerrymandered the five City Commission districts in Resolution 22-131 (the “Enacted Plan”), 

drawing the districts based predominantly on race during the 2021–22 redistricting process.

Because Plaintiffs have more than plausibly alleged that race was a predominant factor in the 

Commission’s redistricting process, and that the City cannot prove that this racial classification is 

narrowly tailored to serve a compelling government interest, Plaintiffs have stated a claim, and the 

City’s Motion to Dismiss must be denied.

MEMORANDUM

I. Plaintiffs Have Standing

Determining whether the court has jurisdiction is a fundamental prerequisite to the court 

evaluating the merits of a complaint. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) 

(“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare 

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the law, and when it ceases to exist, the only function remaining to the court is that of announcing 

the fact and dismissing the cause.”). “ce requirement that jurisdiction be established as a threshold 

matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is 

‘inflexible and without exception.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95

(1998) (quoting Mansfield, C. & L.M. Ry. v. Swan, 111 U.S. 379, 382 (1884)); see also Haim v. 

Monroe Cnty., 479 F. Supp. 3d 1274, 1280 (S.D. Fla. 2020) (Moore, J.) (Whether plaintiffs have 

Article III standing is “[o]ne of the most important . . . constitutionally-based limits . . . [on] the 

power of a federal court.”). Plaintiffs unquestionably have standing to assert their claim that the 

City Commission districts enacted in Resolution 22-131 are unconstitutional racial gerrymanders.

ce Supreme Court has “set forth a bright-line standing rule for . . . cases alleging illegal 

racial gerrymandering with respect to voting districts: if the plaintiff lives in the racially 

gerrymandered district, she has standing[.]” Dillard v. Baldwin Cnty. Comm’rs, 225 F.3d 1271, 

1279 (11th Cir. 2000) (citing United States v. Hays, 515 U.S. 737, 744–45 (1995)). ce City 

concedes that Individual Plaintiffs live in Districts 2, 3, 4, and 5. Mot. at 18; see FAC ¶¶ 25–29.

cerefore, each Individual Plaintiff has standing to assert their claims. And Organizational 

Plaintiffs’ members, collectively, include Miamians from all five districts.

1 FAC ¶¶ 19–23. So, 

1 ce City cites Alabama Legislative Black Caucus v. Alabama (ALBC I), 573 U.S. 254 

(2015), to challenge Organizational Plaintiffs’ associational standing. Mot. at 18–19. In that case, 

the Supreme Court reversed the district court’s conclusion that the Alabama Democratic 

Conference lacked standing to challenge multiple districts as racial gerrymanders. ALBC I, 575 

U.S. at 268–69. ce Supreme Court held that when an “organization has members in all of the 

[challenged] districts,” it “is sufficient to meet the [organization’s] burden of establishing 

standing.” Id. at 270. ALBC I’s holding is directly contrary to the City’s argument that 

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Plaintiffs or Plaintiffs’ members live in all five districts—the racially gerrymandered districts 

Plaintiffs challenge.

ce City confuses the racial gerrymandering claim Plaintiffs advance, claiming that 

Plaintiffs “fail to identify how each Plaintiff is harmed.” Mot. at 18. Instead, the City tries to rewrite 

Plaintiffs’ Amended Complaint, suggesting that Plaintiffs allege a vote dilution claim under 

Section 2 of the Voting Rights Act (VRA).

2 cis is a misreading of the Amended Complaint and 

a plain attempt to muddy the waters. Plaintiffs’ sole claim, as discussed in greater detail below, is 

that the five City Commission districts are racial gerrymanders under the Fourteenth Amendment’s 

Equal Protection Clause: that the Commission drew these districts with race as the predominant 

factor, and that the use of race was not narrowly tailored to a compelling interest. ce 

constitutionally cognizable harm in a racial gerrymandering case is, itself, the use of race to draw 

the districts—the fact that Plaintiffs are classified based on their race. See ALBC I, 575 U.S. at 263) 

(“cose harms are personal. cey include being personally . . . subjected to a racial classification, 

as well as being represented by a legislator who believes his primary obligation is to represent only 

the members of a particular racial group.”) (cleaned up). Accordingly, each Individual Plaintiff 

and each Organizational Plaintiff properly alleges a harm—the City of Miami subjected Individual 

Plaintiffs and Organizational Plaintiffs’ members to a racial classification. ce maps, figures, and 

Organizational Plaintiffs lack standing. FAC ¶¶ 19–24, 30–32.

2 ce City also cites cases alleging partisan gerrymandering under the First Amendment and

various other theories no fewer than four times in their 19–page motion. Mot. at 4, 16, 17 (citing

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) and Gill v. Whitford, 138 S. Ct. 1916 (2018)).

cese cases are irrelevant, as Plaintiffs, again, allege one claim of racial gerrymandering under 

the Equal Protection Clause.

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direct quotes from the legislative record included in the Amended Complaint support that single 

racial classification claim.

ce City does not argue that there is no causal connection between the City’s 

unconstitutional racial classifications and the Plaintiffs’ harm, and the City does not argue that 

Plaintiffs’ injuries cannot be redressed by a favorable decision.3 See Mot. at 17–19. Accordingly, 

the City has waived these arguments. See, e.g., Hamilton v. Southland Christian Sch., 680 F.3d 

1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite authorities in support of 

an issue waives it.”).

Because the Individual Plaintiffs and Organizational Plaintiffs have standing, the Court 

should deny the City’s Motion to Dismiss on standing grounds.

II. Plaintiffs’ Complaint Is Not Shotgun Pleading

ce City’s argument that Plaintiffs’ Complaint constitutes shotgun pleading fails because 

Plaintiffs only plead one claim for relief and the City (despite its rhetorical questions suggesting

3 A favorable decision, of course, would quite easily redress the constitutional harm. What 

Plaintiffs seek is to vote and live in districts that either do not classify them based on their race, or 

otherwise do so in a way that is narrowly tailored to a compelling governmental interest. See 

Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1265 (11th Cir. 2020) (“[C]omplaints of racial

gerrymandering can rightly ask ‘for the elimination of a racial classification.’”) (quoting Rucho, 

139 S. Ct. at 2502); Jacksonville Branch of NAACP v. City of Jacksonville (Jacksonville I), --- F. 

Supp. 3d ---, 2022 WL 7089087, at *54 (M.D. Fla. Oct. 12, 2022) (granting preliminary injunction 

in racial gerrymandering case and ordering city to submit new map that does “not use race as a 

predominant factor in the design of any district unless that use of race is narrowly tailored to 

comply with a constitutionally permissible compelling government interest”).

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the contrary) has adequate notice of the claim against it.

“Shotgun pleading violates Rule 8, which requires ‘a short and plain statement of the claim 

showing that the pleader is entitled to relief,’ by ‘failing to one degree or another . . . to give the 

defendants adequate notice of the claims against them and the grounds upon which each claim 

rests.’” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294–95 (11th Cir. 2018) (cleaned up). ce 

most common type of shotgun pleading “is a complaint containing multiple counts.” Weiland v. 

Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015). “Such a shotgun pleading 

makes it ‘virtually impossible to know which allegations of fact are intended to support which 

claim(s) for relief.’” Plowright v. Miami-Dade Cnty., --- F. Supp. 3d ---, 2022 WL 18228314, at 

*5 (S.D. Fla. Dec. 5, 2022) (Moore, J.) (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. 

Coll., 77 F.3d 364, 366 (11th Cir. 1996)).

Plaintiffs’ Amended Complaint is not shotgun pleading because it asserts a single cause of 

action, to which all factual allegations flow. ce City contends that “[t]he Amended Complaint 

should only assert allegations that support a cause of action for racial gerrymandering in the 

redistricting process.” ECF No. 34 at 17. cat is precisely what the Amended Complaint does—

each factual allegation supports Plaintiffs’ single cause of action that the City unconstitutionally 

racially gerrymandered the City Commission districts in the 2021–22 redistricting process. ce 

City’s apparent argument that each individual plaintiff is required to assert a separate claim for 

each individual district is both an incorrect statement of the law and irrelevant to the City’s shotgun 

pleading argument. Plaintiffs challenge a single enactment—Resolution 22-131—as a racial 

classification. Although the legal analysis is district-by-district, ALBC I, 575 U.S. at 262, plaintiffs 

need not plead a separate count for each district. Compare Am. Compl. ¶¶ 52–55, Ala. Legis. Black 

Caucus v. Alabama, No. 2:12-cv-691 (M.D. Ala. Jan. 15, 2013), ECF No. 60 (single racial 

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gerrymandering count challenging 35 legislative districts across two separate redistricting maps) 

with Ala. Legis. Black Caucus v. Alabama, 231 F. Supp. 3d 1026 (M.D. Ala. Jan. 20, 2017) (threejudge court) (William Pryor, J.) (order on the merits conducting district-by-district analysis of all

35 districts).

Moreover, each of the five districts in the Enacted Plan abut at least three, and in one case 

all, of the other districts. Facts relevant to one district-by-district analysis will necessarily overlap 

with the analysis for adjacent districts when the Court determines whether race was the 

predominant factor in the Commission’s decision to place voters on one side of a line or the other.

Further, the City is adequately on notice that Plaintiffs allege the City unconstitutionally racially 

gerrymandered the City Commission districts enacted in Resolution 22-131. Accordingly, the 

Amended Complaint does not constitute shotgun pleading.

III. Plaintiffs State a Claim of Unconstitutional Racial Gerrymandering

ce City, perhaps confused, waves its hands at Plaintiffs’ use of the word “packing,” 

suggests “before and after pleading” is required, and contends that Plaintiffs “do not allege that 

racial electoral outcomes were affected in any way by the redistricting except in the most 

conclusory terms.” Mot. at 4, 10. cese arguments demonstrate the City’s fundamental 

misunderstanding of Plaintiffs’ singular claim and Plaintiffs’ burden at the pleading stage.

ce seminal racial gerrymandering case is Shaw v. Reno, 509 U.S. 630 (1993). In Shaw, 

the Supreme Court concluded that voters state an Equal Protection Clause claim for racial 

gerrymandering where they alleged that the redistricting process “rationally can be viewed only as 

an effort to segregate the races for purposes of voting, without regard to traditional districting 

principles and without sufficiently compelling justification.” Id. at 642. “Classifications of citizens 

solely on the basis of race ‘are by their very nature odious to a free people whose institutions are 

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founded upon the doctrine of equality.’” Id. at 643 (quoting Hirabayashi v. United States, 320 U.S. 

81, 100 (1943)). cese racial classifications “threaten to stigmatize individuals by reason of their 

membership in a racial group[.]” Id. (citing Richmond v. J.A. Croson Co., 488 U.S. 469, 493 

(1989)). Importantly, the Court noted that:

A reapportionment plan that includes in one district individuals who 

belong to the same race, but who are otherwise widely separated by 

geographical and political boundaries, and who may have little in 

common with one another but the color of their skin, bears an 

uncomfortable resemblance to political apartheid. It reinforces the 

perception that members of the same racial group—regardless of 

their age, education, economic status, or the community in which 

they live—think alike, share the same political interests, and will 

prefer the same candidates at the polls.

Id. at 647.

ce Supreme Court concluded that “a plaintiff challenging a reapportionment . . . under the 

Equal Protection Clause may state a claim by alleging that the legislation . . . rationally cannot be 

understood as anything other than an effort to separate voters into different districts on the basis of 

race, and that the separation lacks sufficient justification.” Id. at 649.

cis is precisely what Plaintiffs allege in the Amended Complaint. ce City engaged in a 

practice resembling political apartheid when, for example, it separated the “sirloin” Hispanic 

voters from the “bone” Anglo and Black voters. FAC ¶ 335. ce City reinforced the perception 

that members of the same racial group think alike, share the same political interests, and will prefer 

the same candidates at the polls when it ensured it would not “jeopardize the ethnic integrity of 

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our districts.” FAC ¶ 95. Plaintiffs’ Amended Complaint is indeed lengthy, as the City bemoans,

Mot. at 34, because the evidence that the Enacted Plan was drawn to separate voters on the basis 

of race is extensive.

ce City correctly notes that Plaintiffs bear the burden of establishing that “race was the 

predominant factor motivating the legislature’s decision to place a significant number of voters 

within or without a particular district.” Mot. at 10 (quoting Cooper v. Harris, 581 U.S. 285, 291 

(2017)). But the City (again) misunderstands Plaintiffs’ argument. Plaintiffs do not claim that only 

114 Black voters moved from District 2 to District 4 constitutes a significant number of voters.

See id. at 11. Rather, Plaintiffs allege that every voter in the City of Miami was placed within or 

without their City Commission district based on their race. Race was the predominant factor used 

to determine the overall shape of each district.

4 In any event, analyzing “the racial composition of 

4 cat is why the historical background of the Commission districts is relevant, and supports, 

rather than undermines, Plaintiffs’ claim. Cf. Mot. at 2–4. To the extent past redistricting plans 

were also drawn predominantly based on race, if the current Commission sought to perpetuate that 

racial classification by maintaining the cores of the inherited districts, their effort is also race-based 

and must comport with strict scrutiny. Plaintiffs take no position on whether the Commission map 

was sufficiently narrowly tailored in 1997, 2003, or 2013. What they allege is that the districts are 

race-based now, and that they must be narrowly tailored to a compelling interest now. See 

Jacksonville I, 2022 WL 7089087, at *37 (finding that historical evidence showing districts had 

been race-based for at least thirty years supported a finding that current map perpetuated those 

race-based district cores); Jacksonville Branch of NAACP v. City of Jacksonville, 2022 WL 

16573730, at *4 (M.D. Fla. Nov. 1, 2022) (“[T]he Enacted Plan inflicts a new harm on these 

Plaintiffs, and it is the actions of the current City Council in passing this Plan, the Enacted Plan, 

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populations moved into and out of disparate parts of [a] district”—looking at the areas moved—is 

exactly part of the “holistic analysis” a court conducts to determine whether race predominated in 

the line-drawing. Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 192 (2017).

ce City’s next argument, that the Amended Complaint fails to sufficiently allege that the 

use of race in drawing District 5 was not narrowly tailored to a compelling interest, Mot. at 12–

14, similarly misses the mark. First, once strict scrutiny is triggered, it is not Plaintiffs’ burden to 

show whether the challenged racial classification is narrowly tailored to a compelling government 

interest. cat burden shifts to the government. Cooper, 581 U.S. at 292 (“ce burden thus shifts to 

the State to prove that its race-based sorting of voters serves a ‘compelling interest’ and is 

‘narrowly tailored’ to that end.”); contra Mot. at 12. Further, Plaintiffs are not required to rebut 

the City’s defenses without the benefit of knowing what those defenses are or what compelling 

interests the City may raise to justify its race-based districts. Plaintiffs therefore adequately allege 

that the Commission’s use of race is not narrowly tailored to a compelling interest. See FAC ¶¶ 12, 

351–57.

Second, Plaintiffs do not concede that a “majority minority” district was required, Mot. at 

13, and the City’s assertion underscores its misapplication of the VRA (and lack of narrow 

tailoring) when crafting District 5. As Plaintiffs argue in their Motion for Preliminary Injunction, 

ECF No. 26 at 33–35, the VRA requires a district in which Black voters have an opportunity to 

elect candidates of their choice—not necessarily one with a majority of Black or “minority” voters.

which warrant injunctive relief.”) (emphases in original); Jacksonville Branch of NAACP v. City 

of Jacksonville, 2022 WL 16754389, at *3 (11th Cir. Nov. 7, 2022) (praising district court’s 

consideration of “relevant historical background” in determining enjoined districts were racebased).

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Caster v. Merrill, 2022 WL 264819, at *83 (N.D. Ala. Jan. 24, 2022) (three-judge court), cert. 

granted before judgment sub nom. Merrill v. Milligan, 142 S. Ct. 879 (2022); see Wright v. Sumter 

Cnty. Bd. of Elections, 979 F.3d 1282, 1299 (11th Cir. 2020) (affirming district court’s conclusion 

that “[t]he remedial plan should give[ ] African American voters a realistic opportunity to elect 

candidates of their choice”).

In short, Plaintiffs properly plead that the City of Miami violated the Equal Protection 

Clause of the Fourteenth Amendment when it blatantly and grossly sorted Miamians based on their 

race. Accordingly, the court should deny the City’s Motion to Dismiss.5

CONCLUSION

For the reasons above, and the reasons stated in the First Amended Complaint, Plaintiffs 

respectfully ask the Court to deny the City of Miami’s Motion to Dismiss.

5 ce City’s Motion includes another section, titled “ce Amended Complaint Creates a 

Conflict Between the Hispanic Population And the Black Population,” which asks many rhetorical 

questions but does not appear to make an argument for dismissal. Mot. at 15. To the extent the 

City asserts that it is a legal conflict of interest for the undersigned to represent clients of different 

races, a motion to dismiss is not the appropriate vehicle to make such an assertion. Furthermore, 

the City’s apparent belief that Hispanic and Black Miamians cannot share the same concerns about 

and suffer the same harms from racial gerrymandering demonstrates the City’s commitment to 

dividing Miamians by race through the redistricting process.

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Respectfully submitted this 10th day of March, 2023,

/s/ Nicholas L.V. Warren

Nicholas L.V. Warren (FBN 1019018)

ACLU Foundation of Florida, Inc.

336 East College Avenue, Suite 203

Tallahassee, FL 32301

(786) 363-1769

nwarren@aclufl.org

Daniel B. Tilley (FBN 102882)

Caroline A. McNamara (FBN 1038312)

ACLU Foundation of Florida, Inc.

4343 West Flagler Street, Suite 400

Miami, FL 33134

(786) 363-2714

dtilley@aclufl.org

cmcnamara@aclufl.org

Neil A. Steiner*

Dechert LLP

cree Bryant Park

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

neil.steiner@dechert.com

Christopher J. Merken*

Jocelyn Kirsch*

Dechert LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

(215) 994-2380

christopher.merken@dechert.com

jocelyn.kirsch@dechert.com

* Admitted pro hac vice

Counsel for Plaintiffs

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