Marnika Lewis v. Governor of Alabama ( 2018 )

Case: 17-11009 Date Filed: 07/25/2018 Page: 1 of 30
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11009
________________________
D.C. Docket No. 2:16-cv-00690-RDP
MARNIKA LEWIS,
ANTOIN ADAMS,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE,
GREATER BIRMINGHAM MINISTRIES,
MARIKA COLEMAN,
JOHN ROGERS,
PRISCILLA DUNN,
JUANDALYNN GIVAN,
LOUISE ALEXANDER,
WILLIAM MUHAMMAD,
RODGER SMITHERMAN,
OLIVER ROBINSON,
ALABAMA LEGISLATIVE BLACK CAUCUS,
MARY MOORE,
Plaintiffs - Appellants,
versus
GOVERNOR OF ALABAMA,
in his Official Capacity as Governor of the State of Alabama,
ATTORNEY GENERAL, STATE OF ALABAMA,
in his Official Capacity as Attorney General of the State of Alabama,
STATE OF ALABAMA, THE,
Case: 17-11009 Date Filed: 07/25/2018 Page: 2 of 30
BIRMINGHAM, CITY OF, THE,
WILLIAM A. BELL, SR.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 25, 2018)
Before WILSON and JORDAN, Circuit Judges, and CONWAY, ∗ District Judge.
WILSON, Circuit Judge:
For a single day in February 2016, Marnika Lewis and Antoin Adams
secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just
affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed
Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the
following afternoon, Alabama Governor Robert Bentley signed the Minimum
Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The
Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all
local labor and employment regulation, and mandated a uniform minimum wage
throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of
this appeal is whether Lewis and Adams have stated a plausible claim that the
∗
Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,
sitting by designation.
2
Case: 17-11009 Date Filed: 07/25/2018 Page: 3 of 30
Minimum Wage Act had the purpose and effect of discriminating against
Birmingham’s black citizens, in violation of the Equal Protection Clause of the
Fourteenth Amendment. Because they have, we reverse the dismissal of that
claim. We affirm the dismissal of all other claims.
I.
The events giving rise to this proceeding began in April 2015, when the
Birmingham City Council passed a resolution calling upon the state legislature to
raise the minimum wage to $10 per hour across Alabama. At that time, no
Alabama municipality had a minimum wage above the federal floor of $7.25. See
29 U.S.C. § 206(a)(1)(C). After the state refused the city’s request, the city council
adopted its own minimum wage law that August. The unanimous ordinance,
which was scheduled to take effect in July 2016, raised the minimum wage to
$8.50 per hour, and to $10.10 in 2017. The ordinance declared the need “to take
legislative steps to help lift working families out of poverty, decrease income
inequality, and boost [Birmingham’s] economy.” Birmingham, the largest city in
Alabama, has more total residents living in poverty (30% of its citizens) than
anywhere else in the state.1 The city is also home to the largest black population in
Alabama (72%), which is reflected in the racial composition of its city council.
1
All census data is derived from Quick Facts: Birmingham City, Alabama; Mountain Brook
City, Alabama, United States Census Bureau, https://www.census.gov/quickfacts/fact/table/
birminghamcityalabama,mountainbrookcityalabama/PST045216.
3
Case: 17-11009 Date Filed: 07/25/2018 Page: 4 of 30
About a week after the ordinance’s approval, a white state representative
from the neighboring community of Mountain Brook (where only 1.5% of
residents are black and just 3% of residents live below the poverty line) introduced
a bill in the Alabama House of Representatives designed to quash Birmingham’s
ordinance and establish a uniform minimum wage throughout the state. The bill
stalled, but at the start of the 2016 session, a variation of the bill (now called HB
174) was introduced by the same representative, this time with the support of fifty-
two additional sponsors, all of whom were white.
Things progressed quickly. Within a week of its introduction on February 9,
2016, HB 174 sailed through the House Committee on State Government and won
the approval of a majority of the House, 71-31. No black member of the House
voted in favor of the bill. Thirty-six hours later, the bill cleared the Alabama
Senate Committee on Governmental Affairs and was on its way to the Senate floor.
Meanwhile, the Birmingham City Council moved to accelerate the
implementation of its own minimum wage law. On February 23, it adopted
Ordinance No. 16-28, raising the minimum wage for Birmingham workers to
$10.10 per hour, adjusted annually, effective immediately. Mayor Bell signed it
into law the following day. Notice of the new minimum wage was slated for
publication in the Sunday edition of the Birmingham News.
4
Case: 17-11009 Date Filed: 07/25/2018 Page: 5 of 30
But on February 25, just a day after Birmingham raised its minimum wage,
the Alabama Senate approved the Minimum Wage Act, 23-12, rendering
Ordinance No. 16-28 null and void. The Act lacked support from any black
senators. Governor Bentley signed it into law less than two hours later.
The Minimum Wage Act, codified at Alabama Code §§ 25-7-40 et seq.,
“establish[es] within the Legislature complete control over regulation and policy
pertaining to collective bargaining . . . or the wages, leave, or other employment
benefits provided by an employer to an employee . . . in order to ensure that such
regulation and policy is applied uniformly throughout the state.” Id. § 25-7-45(a).
To that end, the Act “occupies and preempts the entire field of regulation” in these
areas “to the complete exclusion of any policy, ordinance, rule, or other mandate
promulgated or enforced by any . . . political subdivision of th[e] state.” Id. § 25-
7-45(b).
A few months after the Alabama Legislature passed the Minimum Wage
Act, Lewis and Adams—who live in Birmingham and make less than $10.10 per
hour—along with several public interest groups, sued the Governor and the
Attorney General of Alabama, claiming racial discrimination under multiple
theories. The plaintiffs amended their complaint to include claims under the
Thirteenth, Fourteenth, and Fifteenth Amendments and § 2 of the Voting Rights
Act. They also added the State of Alabama, the City of Birmingham, and
5
Case: 17-11009 Date Filed: 07/25/2018 Page: 6 of 30
Birmingham Mayor William Bell as defendants, while dropping the governor from
the suit. The defendants moved to dismiss for lack of standing and failure to state
a claim.
The district court agreed with the defendants and dismissed the complaint. It
concluded that the plaintiffs lacked Article III standing to sue any of the
defendants; that the attorney general was an improper defendant under Ex parte
Young, 209 U.S. 123, 28 S. Ct. 441 (1908); that § 2 of the Voting Rights Act did
not abrogate Eleventh Amendment state sovereign immunity; and that, in any
event, the plaintiffs had failed to assert any plausible claims. The plaintiffs now
appeal the dismissal of their Fourteenth and Fifteenth Amendment claims against
the attorney general and the City of Birmingham, 2 and their Voting Rights Act
claim against the State of Alabama.
II.
We review both subject matter jurisdiction and Eleventh Amendment
sovereign immunity issues de novo. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d
1326, 1333–34 (11th Cir. 1999). Likewise, we review the grant of a Rule 12(b)(6)
motion to dismiss de novo, “accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Mills v. Foremost Ins.
Co., 511 F.3d 1300, 1303 (11th Cir. 2008). “‘[W]hen standing becomes an issue
2
The plaintiffs do not challenge the dismissal of the Mayor of Birmingham on appeal.
6
Case: 17-11009 Date Filed: 07/25/2018 Page: 7 of 30
on a motion to dismiss, general factual allegations of injury resulting from the
defendant’s conduct may be sufficient to show standing.’” Moody v. Warden, 887
F.3d 1281, 1286 (11th Cir. 2018) (quoting Bischoff v. Osceola Cnty., 222 F.3d 874,
878 (11th Cir. 2000)).
III.
A.
We begin, as we must, by addressing whether the plaintiffs have standing to
sue each of the defendants for each of the claims asserted. See Jackson v.
Okaloosa Cty., Fla., 21 F.3d 1531, 1536 (11th Cir. 1994). This is a threshold
requirement that “springs from the nature and limits of the judicial power of the
United States.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95, 118 S.
Ct. 1003, 1012 (1998) (alteration adopted). If the plaintiffs lack standing, “the
‘case’ or ‘controversy’ requirement of Article III, § 2 of the U.S. Constitution is
not satisfied, and the case must be dismissed.” Koziara v. City of Casselberry, 392
F.3d 1302, 1304 (11th Cir. 2004).
“[T]he irreducible constitutional minimum of standing contains three
elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,
2136 (1992). The plaintiffs must show: (1) that they have suffered an injury in fact
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) that there is a causal connection, so that the injury is fairly
7
Case: 17-11009 Date Filed: 07/25/2018 Page: 8 of 30
traceable to the challenged action of the defendant; and (3) that it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable
decision. Id. at 560–61, 112 S. Ct. at 2136. An injury in fact must be a cognizable
harm, but that harm may be “physical, economic, reputational, contractual, or even
aesthetic.” Koziara, 392 F.3d at 1305. “[I]n evaluating Article III’s causation (or
‘traceability’) requirement, we are concerned with something less than the concept
of ‘proximate cause.’” Focus on the Family v. Pinellas Suncoast Transit Auth.,
344 F.3d 1263, 1273 (11th Cir. 2003). “‘Proximate cause’ . . . ‘is not a
requirement of Article III standing.’” Moody, 887 F.3d at 1287 (citation omitted).
“[E]ven harms that flow indirectly from the action in question can be said to be
‘fairly traceable’ to that action for standing purposes.” Focus on the Family, 344
F.3d at 1273.
An organization has suffered a concrete injury and thus “has standing to sue
on its own behalf if the defendant’s illegal acts impair its ability to engage in its
projects by forcing the organization to divert resources to counteract those illegal
acts.” Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1165 (11th
Cir. 2008).
On appeal, the plaintiffs allege (1) that the Minimum Wage Act denies
Birmingham’s black citizens economic opportunities and abridges their right to
vote on the basis of race; (2) that these harms are fairly traceable to the Act and to
8
Case: 17-11009 Date Filed: 07/25/2018 Page: 9 of 30
the defendants due to their enforcement roles; and (3) that their injuries can be
redressed by enjoining the attorney general from enforcing the Act or by ordering
the city to start enforcing Birmingham’s minimum wage ordinance. The
defendants contest each of these claims.
As an initial matter, we have little trouble concluding that the plaintiffs have
suffered concrete injuries as a result of the Minimum Wage Act. According to the
amended complaint, Lewis and Adams work in Birmingham and earn less than
$10.10 per hour. Birmingham Ordinance No. 16-28 guaranteed them $10.10 per
hour, adjusted annually to a cost of living index. And the Minimum Wage Act
nullified Ordinance No. 16-28, in effect depriving Lewis and Adams of a
significant increase in their hourly wage. If the Act is unlawful, they suffer an
injury in fact with each working hour. Likewise, the plaintiff organizations, which
are devoted to social, economic, and political improvements for Alabama’s black
citizens, have put forth sufficient facts demonstrating they have diverted resources
to counteract the effects of the Minimum Wage Act on their operations. The
plaintiffs have met Article III’s injury requirement.
Next, we address whether these injuries can be attributed to these
defendants. See generally Hollywood Mobile Estates Ltd. v. Seminole Tribe, 641
F.3d 1259, 1265–66 (11th Cir. 2011). We start with the attorney general. The
attorney general’s broad authority to interpret and enforce the Minimum Wage Act
9
Case: 17-11009 Date Filed: 07/25/2018 Page: 10 of 30
illustrates his Article III connection to the defendants’ harm, which is the direct
consequence of the Act’s continued enforcement. Alabama imbues the attorney
general with sweeping authority to interpret, enforce, and defend the laws and
interests of the state, see Ala. Code §§ 36-15-1; 36-15-12; 36-15-21, which
includes the responsibility to examine the laws’ “constitutional validity,” id. § 36-
15-1(7). What’s more, the attorney general is given sole authority to direct and
control all litigation concerning the interests of the state, id. § 36-15-21, and is
empowered to “institute and prosecute, in the name of the state, all civil actions
and other proceedings necessary to protect the rights and interests of the state,” id.
§ 36-15-12. Undoubtedly that authority applies to the Minimum Wage Act.
Indeed, the defendants conceded at oral argument that if Birmingham implemented
its minimum wage ordinance in spite of the Minimum Wage Act, the attorney
general could sue the city to compel compliance.
And in fact, the attorney general recently did just that. After Birmingham
erected a plywood barrier around one of its Confederate monuments, the attorney
general sued the city and mayor to enforce the Alabama Memorial Preservation
Act, citing his general authority under Ala. Code § 36-15-12 “to institute and
prosecute, in the name of the state, all civil actions and other proceedings
necessary to protect the rights and interests of the state.” See Complaint at 1–2,
10
Case: 17-11009 Date Filed: 07/25/2018 Page: 11 of 30
Alabama ex rel. Att’y Gen. Steve Marshall v. City of Birmingham, No. 01-CV-
2017-903426.00 (Jefferson Cty. Cir. Ct. Aug. 16, 2017). 3
Of course, the preceding discussion naturally leads us to conclude that an
injunction against the attorney general “would amount to a significant increase in
the likelihood that the plaintiff[s] would obtain relief that directly redresses the
injury suffered.” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th
Cir. 2010). Aside from the attorney general’s authority to direct and control
enforcement litigation, he is also responsible for determining whether Alabama’s
statutes are constitutional, Ala. Code § 36-15-1(7), and for reporting invalidated
laws to the governor and judiciary committees of the legislature. Id. § 36-15-1(8).
We have little doubt that an injunction declaring the Minimum Wage Act
unconstitutional and prohibiting the attorney general from enforcing it—thereby
requiring him to announce its invalidity to the governor and the legislature—would
3
Because we independently take judicial notice of the attorney general’s recently filed
complaint, we deny Plaintiffs-Appellants’ Request for Judicial Notice as moot. The defendants
argue that because the Alabama Memorial Preservation Act explicitly contemplates a role for the
attorney general (to collect fines), the situation in Alabama v. Birmingham is categorically
different from the one here. We disagree. The attorney general’s complaint in Alabama v.
Birmingham asserts standing to sue solely based on his general enforcement authority granted in
Ala. Code §§ 36-15-1; 36-15-12. And under Count 1, which seeks a declaratory judgment, the
attorney general quotes from Ala. Code § 36-15-12 when proclaiming “the responsibility and
duty of the Attorney General to protect the rights and interest of the state in the enforcement of
its laws, including the Alabama Memorial Preservation Act.” Id. at 4. The complaint in
Alabama v. Birmingham provides a template for how the attorney general might likewise
“protect the rights and interests of the state” in the enforcement of the Minimum Wage Act.
11
Case: 17-11009 Date Filed: 07/25/2018 Page: 12 of 30
go a long way toward redressing the plaintiffs’ injuries. The plaintiffs have
fulfilled the Article III standing requirements to sue the attorney general.
The City of Birmingham, on the other hand, is not a proper defendant for
these claims. The plaintiffs allege that the city’s failure to enforce its own
minimum wage law sufficiently connects it to their injuries sustained under the
Minimum Wage Act. But the city’s refusal to implement a nullified law does not
make it the cause of the plaintiffs’ injuries. And besides, the attorney general has
the authority to enforce the Minimum Wage Act against the City of Birmingham,
whether it wills to resist state supremacy or not. Thus, ordering Birmingham to
implement Ordinance No. 16-28 would only kick the (wrong) can down the road
and leave the plaintiffs subject to the same allegedly discriminatory statute from
which they seek relief. 4 The plaintiffs’ injuries are not traceable to the City of
Birmingham, which is powerless to redress them. Accordingly, we affirm the
dismissal of the city from the suit, but we reverse the district court’s holding that
the plaintiffs lack Article III standing to assert their claims against the attorney
general and the State of Alabama.
4
Contrary to what the plaintiffs claim, an injunction against the City of Birmingham is
unnecessary to afford them full relief. According to the city, Ordinance No. 16-28 is still on the
books. If the Minimum Wage Act were declared unconstitutional, then the ordinance would
govern Birmingham residents unless the city sees some reason to repeal or alter it. This is the
city’s political prerogative, not ours.
12
Case: 17-11009 Date Filed: 07/25/2018 Page: 13 of 30
B.
Before we move on to the merits, two other matters need addressing.
Besides dismissing the plaintiffs’ claims for lack of Article III standing, the district
court also found that they were barred on sovereign immunity grounds. Thus, we
must determine whether the attorney general was an improper substitute for the
state under Ex parte Young, and whether Eleventh Amendment immunity bars the
Voting Rights Act claim against the State of Alabama—that is, whether § 2 of the
Voting Rights Act abrogated state sovereign immunity.
The Eleventh Amendment generally bars suits against a state by its own
citizens. See Hans v. Louisiana, 134 U.S. 1, 10–15, 10 S. Ct. 504, 505–07 (1890).
Under the longstanding doctrine enunciated in Ex parte Young, however, “a suit
alleging a violation of the federal constitution against a state official in his official
capacity for injunctive relief on a prospective basis is not a suit against the state,
and, accordingly, does not violate the Eleventh Amendment.” Grizzle v. Kemp,
634 F.3d 1314, 1319 (11th Cir. 2011). This exception to state sovereign immunity
“gives life to the Supremacy Clause,” Green v. Mansour, 474 U.S. 64, 68, 106 S.
Ct. 423, 426 (1985), by providing private parties a means to contest continuing
violations of federal law by the states. See Frew ex rel. Frew v. Hawkins, 540 U.S.
431, 437, 124 S. Ct. 899, 903 (2004); Edelman v. Jordan, 415 U.S. 651, 664, 94 S.
Ct. 1347, 1356 (1974) (“[Ex parte Young] has permitted the Civil War
13
Case: 17-11009 Date Filed: 07/25/2018 Page: 14 of 30
Amendments to the Constitution to serve as a sword, rather than merely as a shield,
for those whom they were designed to protect.”). But where the state officer lacks
any responsibility to enforce the statute at issue, the foundation supporting the Ex
parte Young “fiction” erodes. In that case, “the state is, in fact, the real party in
interest,” and the suit remains prohibited by the Eleventh Amendment. See Summit
Med. Assocs., 180 F.3d at 1336, 1341.
In determining whether the Alabama Attorney General is, in fact, a proper
party in interest, we turn to Ex parte Young for guidance. There, the Supreme
Court permitted a Fourteenth Amendment suit against the Minnesota Attorney
General because “[h]is power by virtue of his office sufficiently connected him
with the duty of enforcement to make him a proper party.” Ex parte Young, 209
U.S. at 161, 28 S. Ct. at 454. The same is true here. As discussed above, Alabama
law grants the attorney general broad authority to interpret, enforce, and defend the
laws and interests of the state, see Ala. Code §§ 36-15-1; 36-15-12; 36-15-21,
which includes the authority to examine the “constitutional validity” of the state’s
laws, id. § 36-15-1(7), and to institute, direct, and control all civil actions
necessary to protect the state’s interests, id. §§ 36-15-21; 36-15-12. The attorney
general is sufficiently connected to the enforcement of the Minimum Wage Act to
satisfy Ex parte Young’s demands.
14
Case: 17-11009 Date Filed: 07/25/2018 Page: 15 of 30
Nevertheless, the defendants claim that the text of the Minimum Wage Act
itself must authorize the attorney general to enforce it. This position contradicts
precedent and, as demonstrated by recent litigation, practice. “The important and
material fact,” under Ex parte Young, is whether “the state officer, by virtue of his
office, has some connection with the enforcement” of the Minimum Wage Act,
“and whether it arises out of the general law, or is specially created by the act
itself, is not material so long as it exists.” 209 U.S. at 157, 28 S. Ct. at 453. We
have no doubt the connection exists here, and that the plaintiffs have standing to
assert their claims against the attorney general, for whom the Eleventh Amendment
provides no shield.
Next, we consider whether the plaintiffs can sue the State of Alabama under
§ 2 of the Voting Rights Act. This requires us to determine whether § 2 validly
abrogated the states’ Eleventh Amendment immunity from suit. We join the Fifth
and Sixth circuits in concluding that § 2 did abrogate state sovereign immunity,
and thus find that we have jurisdiction to hear the plaintiffs’ claim against
Alabama. See OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir. 2017);
Mixon v. State of Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999); see also Ga. State
Conf. of NAACP v. State, 269 F. Supp. 3d 1266, 1274 (N.D. Ga. 2017) (three-judge
district court); Ala State Conf. of NAACP v. State, 264 F. Supp. 3d 1280, 1291–92
(M.D. Ala. 2017); Hall v. Louisiana, 974 F. Supp. 2d 944, 953 (M.D. La. 2013);
15
Case: 17-11009 Date Filed: 07/25/2018 Page: 16 of 30
Reeves v. U.S. D.O.J., 355 F. Supp. 2d 510, 515–16 (D.D.C. 2005) (three-judge
district court).
In determining whether Congress has validly abrogated the states’ sovereign
immunity, we first ask “whether Congress has unequivocally expressed its intent to
abrogate the immunity;” if it has, then we must determine “whether Congress has
acted pursuant to a valid exercise of power.” Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 55, 116 S. Ct. 1114, 1123 (1996) (internal quotation marks omitted
and alterations adopted). As to the first inquiry, we agree with the Sixth Circuit
that it is “unmistakably clear in the language of the statute,” id. at 56, 116 S. Ct. at
1123, that Congress intended § 2 to be enforced directly against the states. See
Mixon, 193 F.3d at 398. The text of the statute explicitly prohibits “any State”
from imposing voting qualifications, practices, or procedures that abridge the right
to vote on account of race or color. 52 U.S.C. § 10301(a). The defendants insist
that because the statute only provides an implied right of action, § 2 cannot have
abrogated Eleventh Amendment immunity. We disagree. Congress “clearly
intended” § 2 to be enforceable by private action, Morse v. Republican Party of
Va., 517 U.S. 186, 232, 116 S. Ct. 1186, 1212 (1996), and Congress clearly
intended § 2 to be enforceable directly against the states. Accordingly, we find
that Congress unequivocally expressed its intent to abrogate the states’ Eleventh
16
Case: 17-11009 Date Filed: 07/25/2018 Page: 17 of 30
Amendment immunity through § 2. See Seminole Tribe, 517 U.S. at 55, 116 S. Ct.
at 1123.
In so doing, Congress acted pursuant to a valid exercise of constitutional
power: § 2 of the Fifteenth Amendment. The Civil War Amendments, which
“were specifically designed as an expansion of federal power and an intrusion on
state sovereignty,” City of Rome v. United States, 446 U.S. 156, 179, 100 S. Ct.
1548, 1563 (1980), abrogated on other grounds by Shelby Cty., Ala. v. Holder, 570
U.S. 529, 133 S. Ct. 2612 (2013), “fundamentally altered the balance of state and
federal power struck by the Constitution.” Seminole Tribe, 517 U.S. at 59, 116 S.
Ct. at 1125. Recognizing this, the Supreme Court has held that the enforcement
provision of the Fourteenth Amendment, U.S. Const. amend. XIV, § 5, extended
federal power “to intrude upon the province of the Eleventh Amendment and . . .
allowed Congress to abrogate the immunity from suit guaranteed by that
Amendment.” Seminole Tribe, 517 U.S. at 59, 116 S. Ct. at 1125; Fitzpatrick v.
Bitzer, 427 U.S. 445, 455–56, 96 S. Ct. 2666, 2671 (1976). The Voting Rights
Act, which “is designed to implement the Fifteenth Amendment and, in some
respects, the Fourteenth Amendment,” United States v. Bd. of Comm’rs of
Sheffield, Ala., 435 U.S. 110, 126–27, 98 S. Ct. 965, 976–77 (1978), was enacted
pursuant to an identical enforcement provision, U.S. Const. amend. XV, § 2, which
the Supreme Court has referred to as a “parallel power to enforce the provisions of
17
Case: 17-11009 Date Filed: 07/25/2018 Page: 18 of 30
the Fifteenth Amendment.” City of Boerne v. Flores, 521 U.S. 507, 518, 117 S. Ct.
2157, 2163 (1997). The textual, historical, and jurisprudential justifications for
Congress’ power to abrogate state sovereign immunity through § 5 of the
Fourteenth Amendment apply with equal force and validity to congressional action
under § 2 of the Fifteenth Amendment. Like the Sixth Circuit, we see no reason to
treat the identical provisions differently. See Mixon, 193 F.3d at 399.
Accordingly, we conclude that Congress validly abrogated state sovereign
immunity in § 2 of the Voting Rights Act; therefore, the Eleventh Amendment
does not prohibit the plaintiffs’ claim against the State of Alabama.
IV.
Having settled all jurisdictional disputes, we now reach the heart of the
matter. Our final task is to determine whether the plaintiffs’ claims survive a
12(b)(6) motion to dismiss; that is, whether the amended complaint “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
(2007)). First, we address the plaintiffs’ two Fourteenth Amendment claims. We
then turn to their voting claims under the Fifteenth Amendment and § 2 of the
Voting Rights Act.
18
Case: 17-11009 Date Filed: 07/25/2018 Page: 19 of 30
A.
The plaintiffs allege two equal protection violations in their amended
complaint: (1) the Minimum Wage Act purposely discriminates against
Birmingham’s black citizens by denying them economic opportunities on account
of their race; and (2) the Act violates the political-process doctrine by transferring
control from the majority-black Birmingham City Council to the majority-white
Alabama Legislature, in order to “uniquely burden the ability of Plaintiffs to obtain
employment-related ordinances that Birmingham’s African-American community
strongly favored.” We address each allegation in turn.
1. Intentional Discrimination Claim
In order to prevail on an equal protection challenge to a facially neutral law,
plaintiffs must prove both discriminatory impact and discriminatory intent or
purpose. See I.L. v. Alabama, 739 F.3d 1273, 1286 (11th Cir. 2014).
“Discriminatory intent means that racial discrimination was a substantial or
motivating factor behind enactment of the law.” Id. (alteration adopted) (internal
quotation marks omitted). Because “[o]utright admissions of impermissible racial
motivation are infrequent,” Hunt v. Cromartie, 526 U.S. 541, 553, 119 S. Ct. 1545,
1552 (1999), “[d]etermining whether invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266, 97 S.
19
Case: 17-11009 Date Filed: 07/25/2018 Page: 20 of 30
Ct. at 564. “Subjects of proper inquiry in determining whether racially
discriminatory intent existed” include: the racial “impact of the official action;” the
“historical background of the decision;” the “specific sequence of events leading
up” to the challenged law; departures from substantive and procedural norms; and
“legislative or administrative history.” Id. at 266–68, 97 S. Ct. at 564–65.
Our starting point is the law’s impact. See id. at 266, 97 S. Ct. at 564. The
Minimum Wage Act denied 37% of Birmingham’s black wage workers a higher
hourly wage, compared to only 27% of white wage workers. What’s more, black
wage workers in Birmingham make, on average, $1.41 less per hour than white
wage workers, and $2.12 less per hour statewide. Given these numbers, we find it
plausible that the Minimum Wage Act “bears more heavily on one race than
another.” Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1045
(11th Cir. 2008).
The defendants, however, maintain that these “cherry picked” statistics fail
to demonstrate disparate impact because the Minimum Wage Act applies statewide
and inures to the general benefit. To accept this argument would be to ignore the
allegations in this case. The Minimum Wage Act was passed in direct response to
Birmingham’s minimum wage ordinances, which made it the only municipality in
Alabama guaranteeing an hourly wage above the federal floor. Thus, it was not
“cherry picking” for the plaintiffs to focus on Birmingham, the community at
20
Case: 17-11009 Date Filed: 07/25/2018 Page: 21 of 30
which the law was primarily directed and where its impact was most transparent.
This is not the place to debate the Minimum Wage Act’s long term macroeconomic
merits. What we know from the pleadings is that the Act immediately denied a
significant wage increase to roughly 40,000 Birmingham residents, the vast
majority of whom were black. These facts are more than sufficient to support a
plausible allegation that the Minimum Wage Act burdens black citizens more than
white ones.
This leads us to the more challenging question: have the plaintiffs alleged
facts plausibly supporting a conclusion that the Minimum Wage Act was enacted
with a discriminatory purpose? A sensitive inquiry into the direct and
circumstantial evidence leads us to conclude that they have. Arlington Heights,
429 U.S. at 266, 97 S. Ct. at 564.
The plaintiffs’ amended complaint presents detailed factual allegations
which go to the heart of multiple Arlington Heights considerations, including the
disproportionate effect of the Minimum Wage Act on Birmingham’s poorest black
residents; the rushed, reactionary, and racially polarized nature of the legislative
process; and Alabama’s historical use of state power to deny local black majorities
authority over economic decision-making. The Minimum Wage Act responded
directly to the legislative efforts of the majority-black Birmingham City Council,
which represents more black citizens (and more black citizens living in poverty)
21
Case: 17-11009 Date Filed: 07/25/2018 Page: 22 of 30
than any other city in Alabama. The Act swiftly nullified efforts of those
Birmingham City Council members to benefit their majority-black constituents
even though the Alabama legislature had previously “failed to take any action to
establish a statewide minimum wage law and had [ ] been indifferent to efforts to
establish such a law.” D.E. 18 at ¶ 83. The Act was introduced by a white
representative from Alabama’s least diverse area, with the help of fifty-two other
white sponsors, and was objected to by all black members of the House and
Senate. And it was accelerated through the legislative process in sixteen days with
little or no opportunity for public comment or debate. These facts plausibly imply
discriminatory motivations were at play.
Furthermore, the plaintiffs put forth extensive evidence suggesting that the
Minimum Wage Act reflects Alabama’s longstanding history “of official actions
taken for invidious purposes.” Arlington Heights, 429 U.S. at 267, 97 S. Ct. at
564. Rooted into the foundations of the state’s 1901 Constitution, Hunter v.
Underwood, 471 U.S. 222, 229, 105 S. Ct. 1916, 1920–21 (1985), Alabama’s
“deep and troubled history of racial discrimination,” I.L., 739 F.3d at 1288, has
consistently impeded the efforts of its black citizens to achieve social and
economic equality. See Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1356–60
(M.D. Ala. 1986); Wayne Flynt, Alabama’s Shame: The Historical Origins of the
1901 Constitution, 53 Ala. L. Rev. 67, 70–76 (2001). Although the defendants
22
Case: 17-11009 Date Filed: 07/25/2018 Page: 23 of 30
question the relevance of this history, we have repeatedly reaffirmed its importance
when determining whether neutral laws may nonetheless bear discriminatory
purposes. See Burton v. City of Belle Glade, 178 F.3d 1175, 1189 (11th Cir. 1999).
Here, the plaintiffs allege that the circumstances of the Minimum Wage Act reflect
a motivation consistent with Alabama’s many historical “barriers [erected] to keep
black persons from full and equal participation in the social, economic, and
political life of the state.” Dillard, 640 F. Supp. at 1360. We believe their
“allegations entitle them to make good on their claim.” Gomillion v. Lightfoot, 364
U.S. 339, 341, 81 S. Ct. 125, 127 (1960).
The defendants respond that the Minimum Wage Act is a neutral, economic
law similar to the one adopted by twenty-two other states, and that the plaintiffs’
allegations of discrimination cannot overcome the law’s obvious legitimate
purpose. Likewise, the district court held that because legitimate reasons support
the legislation, Arlington Heights is inapposite, and “only the clearest proof will
suffice” to establish discriminatory intent. This position gravely misstates the law.
The inquiry before us is simply whether the plaintiffs have plausibly stated a
claim of disparate impact and discriminatory intent. If they establish their
allegations, the defendants will have their turn to prove that “the same decision
would have been made for a legitimate reason,” Burton, 178 F.3d at 1189—a
factual demonstration which cannot be settled on their motion to dismiss.
23
Case: 17-11009 Date Filed: 07/25/2018 Page: 24 of 30
But most perturbing is the so-called “clearest proof” standard applied by the
district court and defended on appeal. Recklessly plucked from an unrelated line
of precedent, this requirement runs contrary to decades of established equal
protection jurisprudence. The district court derived the “clearest proof” rule from a
line of cases dealing with ex post facto challenges to civil statutes. See Smith v.
Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147 (2003); Flemming v. Nestor, 363 U.S.
603, 80 S. Ct. 1367 (1960). Even a slight bit of context illustrates the danger of
extracting this law from its intended setting: ‘“only the clearest proof’ will suffice
to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Smith, 538 U.S. at 92, 123 S. Ct. at 1147(emphasis added). This standard has no place in equal protection law, which
remains governed by the longstanding framework established in Arlington Heights,
429 U.S. at 266, 97 S. Ct. at 564. See also Veasey v. Abbott, 830 F.3d 216, 231
n.12 (5th Cir. 2016) (rejecting “clearest proof” standard in voting rights context).
Requiring the “clearest proof” of discriminatory purpose not only ignores
the history of equal protection law but also turns a blind eye to the realities of
modern discrimination. Today, racism is no longer pledged from the portico of the
capitol 5 or exclaimed from the floor of the constitutional convention; 6 it hides,
5
See Inaugural Address of Governor George C. Wallace, January 14, 1963, at 2, Alabama
Department of Archives & History, http://digital.archives.alabama.gov/cdm/ref/collection/
24
Case: 17-11009 Date Filed: 07/25/2018 Page: 25 of 30
abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering
government power toward no less invidious ends. Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 619, 111 S. Ct. 2077, 2082 (1991) (“Racial discrimination” is
“invidious in all contexts.”). Recognizing this truth over forty years ago, the
Supreme Court mandated that we review both direct and circumstantial evidence to
determine whether, absent an outright admission, some discriminatory purpose
may yet exist; and it planted signposts to help guide this inquiry. Arlington
Heights, 429 U.S. at 266, 97 S. Ct. at 564; see also Hunt, 526 U.S. at 553, 119 S.
Ct. at 1552. Here, a sensitive but thorough examination of the plaintiffs’ detailed
allegations leads us to conclude that they have plausibly alleged a discriminatory
motivation behind the Minimum Wage Act, despite the law’s neutrality and
rationale. This is all that is required for their claim to survive a motion to dismiss.
We say nothing of “the ability of petitioners to sustain their allegations by proof,”
but we do hold that they have the right to try. Gomillion, 364 U.S. at 341, 81 S. Ct.
at 127. Accordingly, we reverse the dismissal of their Fourteenth Amendment
intentional discrimination claim against the attorney general.
voices/id/2952 (“I draw the line in the dust and toss the gauntlet before the feet of tyranny . . .
and I say . . . segregation now . . . segregation tomorrow . . . segregation forever.”).
6
See 1 Journal of the Proceedings of the Constitutional Convention of the State of Alabama,
Commencing May 21st, 1901, at 9 (1901) (“And what is it that we want to do? Why it is within
the limits imposed by the Federal Constitution, to establish white supremacy in this State.”).
25
Case: 17-11009 Date Filed: 07/25/2018 Page: 26 of 30
2. Political-Process Claim
The plaintiffs’ second theory for equal protection relief rests on the political-
process doctrine. This doctrine evolved from the Supreme Court’s recognition that
the Fourteenth Amendment guarantee to “full participation in the political life of
the community” extends to “a political structure that treats all individuals as
equals, yet more subtly distorts governmental processes in such a way as to place
special burdens on the ability of minority groups to achieve beneficial legislation.”
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467, 102 S. Ct. 3187, 3193
(1982) (citation omitted). Historically, this equal protection principle has
prohibited majorities from restructuring the political process to frustrate the ability
of minorities to enact legislation explicitly addressing “racial issues.” See, e.g.,
Seattle, 458 U.S. at 474, 102 S. Ct. at 3197 (school integration); Hunter v.
Erickson, 393 U.S. 385, 386, 89 S. Ct. 557, 558 (1969) (fair housing).
However, the Supreme Court’s most recent consideration of the doctrine has
called its former interpretations into question. In Schuette v. Coalition to Defend
Affirmative Action, ___ U.S. ___, 134 S. Ct. 1623 (2014), five justices repudiated
the traditional political-process framework, either in part, id. at ___, 134 S. Ct. at1631–37 (plurality opinion), or in whole, id. at ___, 134 S. Ct. at 1643 (Scalia, J.,
concurring in the judgment). These justices were in agreement that the broad
26
Case: 17-11009 Date Filed: 07/25/2018 Page: 27 of 30
rationale of Seattle, which would require courts “to determine and declare which
political policies serve the ‘interest’ of a group defined in racial terms,” “has no
support in precedent,” “raises serious constitutional concerns,” and “must be
rejected.” See id. at ___, 134 S. Ct. at 1634 (plurality opinion); id. at ___, 134 S.
Ct. at 1640 (Scalia, J., concurring in the judgment). But see id. at ___, 134 S. Ct. at
1659 (Sotomayor, J., dissenting) (reaffirming the traditional Seattle framework).
While refusing to overturn Hunter and Seattle, the plurality opinion suggested that
these cases are “best understood” as those where “the state action in question . . .
had the serious risk, if not purpose, of causing specific injuries on account of race.”
Id. at ___, 134 S. Ct. at 1633 (plurality opinion). But see id. at ___, 134 S. Ct. at
1640 (Scalia, J., concurring in the judgment) (calling this interpretation “cloudy
and doctrinally anomalous”).
Mindful of the doctrine’s historical standing and the Supreme Court’s recent
directives, we turn, cautiously, to whether the plaintiffs have stated a plausible
political-process claim. A comparison to the salient precedent, in light of the
Court’s recent interpretation, leads us to conclude that they have not. The
minimum wage laws at issue here are neutral, economic regulations that impact a
significant percentage of both black and white hourly wage workers. Cf. Schuette,
___U.S. at ___, 134 S. Ct. at 1653 (Sotomayor, J., dissenting) (“Hunter and
Seattle” recognized that “[w]hen the majority reconfigures the political process in a
27
Case: 17-11009 Date Filed: 07/25/2018 Page: 28 of 30
manner that burdens only a racial minority, that alteration triggers strict judicial
scrutiny.”). Thus, while we acknowledge the social and economic history behind
the plaintiffs’ assertion that the minimum wage is a racial issue, their claim still
falls outside the Supreme Court’s limited application of the political-process
doctrine to laws explicitly addressing racial harms such as segregation, Seattle, 458
U.S. at 474, 102 S. Ct. at 3197, and discrimination in the housing market, Hunter,
393 U.S. at 386, 89 S. Ct. at 558. See Schuette, ___U.S. at ___, 134 S. Ct. at 1635(plurality opinion) (rejecting broad interpretation of Seattle because it would
apparently have “no limiting standards” and could be read to include “wage
regulations”). And to the extent that the plaintiffs allege that the minimum wage
policy was “racialized” because the “Birmingham African-American community
strongly favored” it, that argument clashes with the Supreme Court’s clear
instructions in Schuette, ___ U.S. at ___, 134 S. Ct. at 1634, and cannot sustain
their claim. Accordingly, we affirm the dismissal of the plaintiffs’ Fourteenth
Amendment political-process claim.
B.
Finally, we address whether the plaintiffs have stated plausible voting rights
claims under the Fifteenth Amendment and § 2 of the Voting Rights Act. In their
amended complaint, the plaintiffs allege that the Minimum Wage Act abridges
their right to vote on account of race, because it “reverses a scheme of local control
28
Case: 17-11009 Date Filed: 07/25/2018 Page: 29 of 30
by citizens of Birmingham over the power to enact minimum wages” and
“prohibits the majority-black electorate of the City of Birmingham from exercising
their electoral power over local government.” The plaintiffs’ voting claims fall
short for the simple reason that their allegations have nothing to do with voting.
“The essence of a § 2 claim is that a certain electoral law, practice, or
structure interacts with social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their preferred
representatives.” Thornburg v. Gingles, 478 U.S. 30, 47, 106 S. Ct. 2752, 2764
(1986). The plaintiffs allege that the Minimum Wage Act affects their ability to
participate in the political process because it now occupies a field in which a
majority-black legislature previously enacted laws that they support. But this
grievance is simply not one recognized by § 2 of the Voting Rights Act. Section 2,
which gives effect to the Fifteenth Amendment’s guarantees, protects against any
“standard, practice, or procedure . . . which results in a denial or abridgement of
the right . . . to vote on account of race or color,” due to unequal opportunity “to
participate in the political process and to elect representatives of [one’s] choice.”
52 U.S.C. § 10301. The Supreme Court has emphasized that the statute protects
only one right—the right to vote—and that “the opportunity to participate and the
opportunity to elect [are] inextricably linked.” Chisom v. Roemer, 501 U.S. 380,
397, 111 S. Ct. 2354, 2365 (1991). But here, the plaintiffs have not alleged any
29
Case: 17-11009 Date Filed: 07/25/2018 Page: 30 of 30
denial, abridgment, or dilution of their voting ability in connection with any
election—past or future—as a result of the Minimum Wage Act. And we find no
authority under § 2 for a free-floating political process right unrelated to any vote
or election. Therefore, because the plaintiffs have not plausibly alleged the
invasion of any legal rights established by the Fifteenth Amendment or § 2 of the
Voting Rights Act, we affirm the dismissal of those claims against the attorney
general and the State of Alabama.
V.
The plaintiffs have stated a plausible claim that the Minimum Wage Act had
the purpose and effect of depriving Birmingham’s black citizens equal economic
opportunities on the basis of race, in violation of the Equal Protection Clause of the
Fourteenth Amendment. Accordingly, we reverse the dismissal of that claim
against the Attorney General of Alabama. We affirm the dismissal of all other
claims and all other defendants.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
30