Attala County, MS Branch v. Evans ( 2022 )


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  • Case: 20-60913     Document: 00516359240          Page: 1     Date Filed: 06/16/2022
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    June 16, 2022
    No. 20-60913                           Lyle W. Cayce
    Clerk
    Attala County, Mississippi Branch of the NAACP;
    Antonio Riley; Sharon N. Young; Charles Hampton;
    Ruth Robbins,
    Plaintiffs—Appellants,
    versus
    Doug Evans, in his official capacity as District Attorney of the
    Fifth Circuit Court District of Mississippi,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 4:19-CV-167
    Before Elrod, Southwick, and Costa, Circuit Judges.
    Leslie H. Southwick, Circuit Judge:
    A county chapter of the NAACP and four individual Plaintiffs brought
    suit against the district attorney for the Mississippi counties in which they
    live, claiming he regularly discriminates against black potential jurors by
    striking them from juries because of their race. The Plaintiffs asserted
    violations of their own constitutional rights to serve on juries. The district
    court determined that it should apply one of the Supreme Court’s abstention
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    doctrines and dismissed the case. We do not analyze abstention and instead
    conclude that the Plaintiffs do not have standing. We AFFIRM.
    FACTUAL AND PROCEDURAL BACKGROUND
    The Mississippi Fifth Circuit Court District covers seven counties,
    including Attala County, in the north central region of the state. The District
    Attorney for that district is Doug Evans, who, according to the complaint,
    has held the office since 1992. In November 2019, this suit began with the
    filing of a complaint in the United States District Court for the Northern
    District of Mississippi against Evans in his official capacity as District
    Attorney.
    The organizational Plaintiff is the chapter of the NAACP in Attala
    County. It brought suit “on behalf of its members, who are Black citizens of
    Attala County, are qualified for jury service in Circuit Court, and are subject
    to Evans’ policy, custom, or usage of racial discrimination in jury selection.”
    The four individual Plaintiffs are African-Americans who reside in the state’s
    Fifth Circuit Court District and are eligible for jury service.
    Suit was brought under 
    42 U.S.C. § 1983
     for an alleged violation of
    their Fourteenth Amendment rights of prospective jurors. The complaint
    refers to news reports of an investigation by a group of journalists into
    criminal trials in the state’s Fifth Circuit District. The data the journalists
    compiled allegedly supports that Evans and his office strike jurors due to their
    race. The complaint also specifically refers to the multiple trials of Curtis
    Flowers for murder, which generated claims that Evans and his office were
    improperly striking black jurors. We detail those.
    Flowers’s first conviction was reversed for “numerous instances of
    prosecutorial misconduct” at trial, though not misconduct in jury selection.
    Flowers v. State, 
    773 So. 2d 309
    , 327 (Miss. 2000). Flowers was again
    convicted after a second trial, and there too the Mississippi Supreme Court
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    reversed. Flowers v. State, 
    842 So. 2d 531
    , 564–65 (Miss. 2003). The court
    described instances of prosecutorial misconduct and admonished the state to
    give Flowers a fair trial instead of engaging “in tactics which mirror
    ‘prosecution overkill.’” 
    Id. at 564
    . The conviction that followed a third trial
    was reversed because of the prosecutor’s actions in jury selection: the appeal
    “present[ed] [the court] with as strong a prima facie case of racial
    discrimination as [it had] ever seen in the context of a Batson challenge.”
    Flowers v. State, 
    947 So. 2d 910
    , 935 (Miss. 2007) (referring to Batson v.
    Kentucky, 
    476 U.S. 79
     (1986)). The fourth and fifth trials ended with
    mistrials. See Flowers v. Mississippi, 
    139 S. Ct. 2228
    , 2237 (2019). The sixth
    trial resulted in a conviction, but the United States Supreme Court reversed.
    
    Id. at 2251
    . The Court stated that in each of the first four trials, prosecutors
    “appeared to proceed as if Batson had never been decided. The State’s
    relentless, determined effort to rid the jury of black individuals” in the first
    four trials, and the striking of five of six black jurors in the sixth trial, required
    reversal. 
    Id. at 2246, 2251
    .
    According to the Plaintiffs’ brief, Evans then requested that the state
    circuit judge who had presided over the latest trial contact the Mississippi
    Attorney General to determine if she would agree to have her office accept
    the case. See Miss. Code. Ann. § 7-5-53. Contact was made; the
    Attorney General took the case, and, after review, that office moved to
    dismiss all charges. The state circuit court granted the motion in September
    2020.
    Plaintiffs sought a declaratory judgment that Evans’s practices
    violated the constitutional rights of prospective jurors such as themselves.
    They also sought an injunction preventing Evans from continuing in these
    alleged practices, and attorneys’ fees under 
    42 U.S.C. § 1988
    . They did not
    seek damages.
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    Evans moved to dismiss on the basis that Plaintiffs lacked standing,
    that the claims were not ripe, and that the court should abstain. The district
    court did not discuss standing or ripeness, but it held that abstention was
    compelled by the Supreme Court’s decision in O’Shea v. Littleton, 
    414 U.S. 488
     (1974). It therefore dismissed the suit. The Plaintiffs timely appealed.
    DISCUSSION
    The Plaintiffs’ opening brief in this court understandably focused on
    the sole basis of the district court’s ruling, which was that abstention was
    appropriate. Evans’s responsive brief defended that ruling but also argued in
    the alternative that a lack of standing, which it also had urged in its motion to
    dismiss, was independently available as a basis to dismiss. In reply, the
    Plaintiffs presented significant argument as to why they had standing.
    A district court’s judgment can be affirmed on any basis, even one not
    reached by the court, that is supported by the record. Lindsey v. Bio-Medical
    Applications of La., L.L.C., 
    9 F.4th 317
    , 327 (5th Cir. 2021). We will use that
    authority to consider the question of standing and, since it supports
    affirmance, will not reach the issue of abstention. 1
    It is axiomatic that a plaintiff seeking redress in federal court must
    meet the initial “requirement imposed by Article III of the Constitution by
    alleging an actual case or controversy.” City of Los Angeles v. Lyons, 
    461 U.S. 95
    , 101 (1983). One aspect of the case-or-controversy requirement is that a
    plaintiff must establish standing to sue. Clapper v. Amnesty Int’l USA, 568
    1
    Our reluctance to analyze abstention arises in part from the fact that our research
    does not reveal any Supreme Court or Fifth Circuit opinions in which abstention as
    analyzed in Younger or Littleton applied when the plaintiffs had not been parties to state-
    court proceedings, nor could they be in the future. Past and prospective jurors are essential
    to the criminal proceedings, but they are not parties. The distinction may not make a
    difference, but no analysis is needed today.
    4
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    60913 U.S. 398
    , 408 (2013). To establish standing, each plaintiff must demonstrate
    an injury that is “concrete, particularized, and actual or imminent; fairly
    traceable to the challenged action; and redressable by a favorable
    ruling.” Monsanto Co. v. Geertson Seed Farms, 
    561 U.S. 139
    , 149 (2010). In
    analyzing whether a plaintiff has met these requirements, federal courts are
    skeptical of “standing theories that require guesswork as to how independent
    decisionmakers will exercise their judgment.” Clapper, 568 U.S. at 413.
    The type of relief sought also bears on whether the plaintiff has
    standing. See Lyons, 
    461 U.S. at 103
    . To prevail on a claim for prospective
    equitable relief, a plaintiff must demonstrate continuing harm or a “real and
    immediate threat of repeated injury in the future.” Society of Separationists,
    Inc. v. Herman, 
    959 F.2d 1283
    , 1285 (5th Cir. 1992). The threat of future
    harm must be “certainly impending”; mere “[a]llegations of possible future
    injury” do not suffice. Clapper, 568 U.S. at 409 (alteration in original;
    emphasis removed; quotation marks and citations omitted). Past wrongs are
    relevant to “whether there is a real and immediate threat of repeated injury,”
    but alone they may be insufficient to establish standing for prospective relief.
    Littleton, 
    414 U.S. at 496
    . Somewhat different phrasing is also used in other
    judicial opinions, namely, that there “must be at least a ‘substantial risk’ that
    the injury will occur.” Crawford v. Hinds Cnty. Bd. of Supervisors, 
    1 F.4th 371
    ,
    375 (5th Cir. 2021) (quoting Susan B. Anthony List v. Driehaus, 
    573 U.S. 149
    ,
    158 (2014)). We see no necessary difference between the concepts of a
    substantial risk and a real and immediate threat, though immediacy does
    imply a short timeframe.
    The Plaintiffs allege that their injury is the imminent threat that Evans
    will deny them an opportunity for jury service by excluding them because of
    their race. The Fourteenth Amendment protects the right of a citizen not to
    be excluded from a petit jury because of his or her race. See Powers v. Ohio,
    
    499 U.S. 400
    , 409 (1991). A juror who alleges being struck from a jury
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    because of race has alleged a cognizable injury for purposes of Article III
    standing. See 
    id. at 411
    . The Supreme Court, though, has recognized the
    practical difficulties and “daunting” barriers facing an excluded juror
    seeking forward-looking relief against a prosecutor. 
    Id. at 414
    . Unlike juror
    challenges to discriminatory practices by jury clerks and commissioners who
    tainted entire jury rolls with racial bias, the Court noted that it would be more
    difficult “for an individual juror to show a likelihood that discrimination
    against him at the voir dire stage will recur.” 
    Id. at 415
    .
    The difficulty for the Plaintiffs is showing a likelihood or imminence
    of the alleged future injury. Injury would require that a Plaintiff one day is
    called for jury service in a case assigned to Evans’s office; the prosecutor
    seeks to remove the person from the jury due to race; an independent
    decision-maker — namely a trial judge who reviews a Batson challenge —
    then fails to block the use of the discriminatory strike. See Clapper, 568 U.S.
    at 412–13. Yes, those events have happened to others, but we find that the
    Plaintiffs have not demonstrated a “real and immediate threat” or a
    “substantial risk” that all those events will occur to one of them. See Society
    of Separationists, 
    959 F.2d at 1285
    ; Crawford, 1 F.4th at 371. We explain.
    Save one, none of the Plaintiffs have ever been struck from a jury by
    Evans. Indeed, they have not even been called to jury service. Only Sharon
    Young (formerly Sharon Golden) was part of a venire in Evan’s district. She
    had stated during voir dire that she could not vote for the death penalty in one
    of the Curtis Flowers trials, and the state Supreme Court upheld striking her
    from the jury. See Flowers, 947 So. 2d at 919–21. It is proper for a prosecutor
    in a capital case to strike a member of the venire for cause if the prospective
    juror indicates a refusal to consider the death penalty. Uttecht v. Brown, 
    551 U.S. 1
    , 8–9 (2007) (applying Witherspoon v. Illinois, 
    391 U.S. 510
     (1968)). At
    least on its face, then, the strike of the one Plaintiff who has previously been
    called for jury duty was not unconstitutional.
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    The Plaintiffs analogize their injuries to those of a group of contractors
    who sued a city that had adopted a contract set-aside program for
    minority-owned businesses. See Northeast Fla. Chap. of the Associated Gen.
    Contractors of Am. v. City of Jacksonville, 
    508 U.S. 656
    , 659 (1993). The
    Supreme Court disagreed with the Eleventh Circuit’s decision that the
    contractors lacked standing, instead concluding that the contractors “need
    only demonstrate that it is able and ready to bid on contracts and that a
    discriminatory policy prevents it from doing so on an equal basis.” 
    Id. at 666
    .
    The Court noted that the “injury in fact” in an equal protection case of this
    variety “is the inability to compete on an equal footing in the bidding process,
    not the loss of a contract.” 
    Id.
     The current Plaintiffs are unlike the
    contractors inasmuch as these Plaintiffs have no right to initiate their
    participation in the competition for the desired benefit. If called, though,
    they have a “right not to be excluded from [a jury] on account of race.”
    Powers, 
    499 U.S. at 409
    . The Plaintiffs’ need to show imminence of injury
    remains.
    The Plaintiffs also compare their claim to those in certain cases in
    which plaintiffs were permitted to pursue claims of jury discrimination. The
    three cited cases alleged discrimination by officials charged with
    administering a state’s petit or grand jury rolls at a point well before any court
    proceedings took place, thus affecting the selection of the entire citizenry for
    jury or grand jury duty. See Carter v. Jury Comm’n of Greene Cnty., 
    396 U.S. 320
    , 322 (1970); Turner v. Fouche, 
    396 U.S. 346
    , 360 (1970); Ciudadanos
    Unidos de San Juan v. Hidalgo Cnty. Grand Jury Comm’rs, 
    622 F.2d 807
    , 811–
    12 (5th Cir. 1980). The distinction between being kept off a jury roll and
    being struck improperly at trial matters in deciding whether a plaintiff has
    demonstrated a likelihood of injury. If certain categories of individuals are
    made ineligible from being jurors even before a trial begins, then nothing
    more needs to be demonstrated to show they will not be selected as jurors.
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    Quite different is the needed demonstration of injury for a Plaintiff who could
    in fact be called for jury service; we have already outlined the combination of
    events that must occur before there would be an injury.
    Similarly, a panel of the Eleventh Circuit held that discrimination by
    officials controlling a locality’s entire jury roll is readily distinguishable from
    the behavior of a single state official exercising a handful of peremptory
    strikes during a trial. See Hall v. Valeska, 509 F. App’x 834, 836 (11th Cir.
    2012). It is true that the Eleventh Circuit relied on the analysis of abstention
    in Littleton to support its ruling. 
    Id.
     (discussing Littleton, 
    414 U.S. 488
    ).
    Nonetheless, the same logic applies to our focus on standing.
    We contrast the case before us with our recent decision in Crawford, 
    1 F.4th 371
    . There, the disabled plaintiff Crawford had twice been called for
    jury service at the county courthouse; he had faced serious “architectural
    barriers” while attempting to serve. 
    Id. at 374
    . He sued the county for
    injunctive relief, arguing that the courthouse violated the Americans with
    Disabilities Act. 
    Id.
     The district court, though, held he lacked standing. 
    Id.
    On appeal, we framed the key issue as “whether the possibility that Crawford
    will be called for and excluded from jury service in the future is too
    speculative to support standing for injunctive relief.” 
    Id.
     at 374–75. In
    concluding that he had standing, this court reasoned that (1) Crawford had
    already been called for jury duty twice before, a fact that the court repeatedly
    emphasized; (2) the county was relatively small so he might be called again;
    and (3) the “architectural barriers” amounted to a “systemic exclusion”
    rather than an “episodic” threat because they would manifest every time he
    was considered for jury duty. See 
    id. at 376
    .
    In summary, Crawford had already been called twice for jury duty, and
    if called again, the physical barrier — the courthouse — that impeded his
    ability to serve as a juror was literally set in concrete. The inevitability of that
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    barrier is akin to being left off the jury rolls completely. The likelihood of
    difficulties for the Plaintiffs in the current case are much less imminent. We
    start with the infrequency of any Plaintiff being called for jury duty. Then, if
    called, the Defendant Evans and his office would need to be unchastened by
    the reversals by the United States Supreme Court as well as by the
    Mississippi courts. Then, if a discriminatory strike were nonetheless made
    against one of these Plaintiffs, the presiding state trial judge would need to
    uphold it. We simply do not see a sufficient threat of a constitutional injury.
    We separately consider standing for the Attala County NAACP. The
    association can assert its members rights only if (1) its members could sue
    individually; (2) the interests in the suit are “germane to the organization’s
    purpose”; and (3) the claim and relief sought do not require the
    “participation of individual members in the lawsuit.” Texas Ass’n of Mfrs. v.
    U.S. Consumer Prod. Safety Comm’n, 
    989 F.3d 368
    , 377 (5th Cir. 2021)
    (quotation marks and citations omitted). As we have already analyzed as to
    the four individual Plaintiffs, eligibility for jury service is not enough. The
    members of the county chapter cannot demonstrate an imminent threat that
    they will be struck unconstitutionally from a petit jury by Evans.
    Our decision is unrelated to the plausibility of the allegations about
    jury selection in the state circuit court district. The claims’ gravity is
    supported not only by the journalists’ investigation referenced in the record
    but also by court decisions that the district attorney committed Batson
    violations in trials of Curtis Flowers. We hold only that these Plaintiffs have
    not alleged a certainly impending threat or a substantial risk to their rights
    that would satisfy the requirements of Article III.
    AFFIRMED.
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    Gregg Costa, Circuit Judge, dissenting:
    The percentage of citizens who show up for jury duty is staggeringly
    low. See Andrew Tilghman, Is There Justice if Most Who Show Up for Jury
    Duty Are White, Affluent?, Hous. Chron., Mar. 6, 2005 (revealing that
    only 17% of Houston-area jurors appear for service and noting that the ten zip
    codes with the lowest turnout—all below 10%—are predominately Black or
    Hispanic). The citizens bringing this lawsuit are a refreshing departure from
    those statistics—they are eager to do their civic duty. Yet today’s opinion
    holds that federal courts cannot hear their challenge to the discrimination
    that prevents them from participating equally in our justice system. It does
    so because plaintiffs only have standing to sue for a future injury if they show
    that harm is imminent. Imminence, however, is a question of probability.
    Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 564 n.2 (1992) (describing imminence
    as an “elastic concept” that requires speculation); Wright & Miller,
    Federal Practice & Procedure § 3531.4 (collecting cases of
    standing based on “probable” and “possible” injury). And these Americans
    seeking to perform their civic duty are just as likely—and actually more
    likely—to be called for jury duty in the near future than plaintiffs in other
    cases we have allowed prospective jurors to pursue. Our precedent thus
    dictates that they have standing to challenge District Attorney Evans’s
    longstanding discrimination against Black prospective jurors.
    First, consider a case from just last year holding that a plaintiff showed
    the necessary likelihood of being called for jury duty. We affirmed a disabled
    potential juror’s standing to challenge the inaccessibility of his local
    courthouse. See Crawford v. Hinds Cnty. Bd. of Supervisors, 
    1 F.4th 371
    , 373–
    77 (5th Cir. 2021). Standing turned on whether the juror established a
    “substantial risk of being called for jury duty” and being dismissed because
    the courthouse could not accommodate his wheelchair. 
    Id. at 376
    . We found
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    that sufficient probability because of the small size of the county and because
    the plaintiff had been summoned twice before. 
    Id. at 366
    .
    Both considerations—size of the jury pool and history of being
    called—make it more likely that the present Plaintiffs will be summoned than
    the Crawford plaintiff. The Crawford jury pool was Hinds County, which we
    described as “not extremely populous.” 1 1 F.4th at 376. In fact, Hinds is
    Mississippi’s largest county, with a population exceeding 220,000. If a
    county of that size is “not extremely populous,” then Attala County, which
    has a population one tenth of Hinds’s, is practically a ghost town. And unlike
    in Crawford, we do not have to guess about the probability of the Plaintiffs
    being called for jury duty. The complaint provides details, absent from our
    prior cases, about that likelihood. Attala County is home to approximately
    9,660 eligible jurors, 1,650 of whom are summoned annually. That is a
    roughly 1-in-6 chance of being called in any given year. And the fact that the
    named Plaintiffs have not been called recently increases those odds.
    Mississippians cannot serve on a jury if they have done so in the past two
    years. 
    Miss. Code Ann. § 13-5-1
    . By any statistical measure, then, an
    Attala County plaintiff in this case is more likely to be called for jury service
    in the near future than was Crawford.
    Citizens of Attala County are also more likely to be summoned for jury
    service than the plaintiffs in decades of precedents allowing prospective
    jurors to challenge discriminatory jury practices. Attala County is much
    smaller than Travis County, home to Austin and the plaintiff who
    1
    Though our precedent assumes that jurors in small counties are necessarily more
    likely to be called than those in larger counties, I am not convinced. Larger counties have
    more trials. So the more relevant metric is the number of people summoned each year as a
    percentage of the county’s eligible jurors. This case is exceptional in providing that data.
    But if we consider only the size of the county—as our precedents seem to do—the
    Plaintiffs’ case for standing is a slam dunk.
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    successfully challenged Texas’s ban on atheists serving on juries. See O’Hair
    v. White, 
    675 F.2d 680
    , 684, 691 (5th Cir. 1982) (en banc). And petit jury
    service is much more common than grand jury service, yet both our court and
    the Supreme Court have allowed plaintiffs to challenge discrimination in the
    selection of grand jurors. Turner v. Fouche, 
    396 U.S. 346
    , 349–50, 360 (1970)
    (reaching the merits of Black citizens’ claim that Georgia’s system for
    selecting grand jurors discriminated on the basis of race); Ciudadanos Unidos
    De San Juan v. Hidalgo Cnty. Grand Jury Com’rs, 
    622 F.2d 807
    , 817–18, 821
    (5th Cir. 1980) (allowing young, Mexican American, and impoverished jurors
    to contest their systemic exclusion from grand juries in two Rio Grande
    Valley counties); see also Carter v. Jury Comm’n of Greene Cnty., 
    396 U.S. 320
    ,
    321–22, 339–40 (1970) (permitting Black citizens to challenge their
    discriminatory exclusion from both grand and petit juries). 2
    Probability and precedent thus show that there is a substantial risk that
    these Plaintiffs will be called for jury duty.
    Mountainous evidence also shows that Plaintiffs, once summoned,
    face a “systemic” threat of being excluded from jury service because of their
    race. See Crawford, 1 F.4th at 376 (“[A] plaintiff with a substantial risk of
    being called for jury duty has standing to seek an injunction against a systemic
    exclusionary practice.”). District Attorney Evans’s discriminatory jury-
    selection practices are notorious. The Supreme Court recently considered
    Evans’s conduct in his repeated prosecutions of Curtis Flowers, a Black man
    accused of murdering four people in a Winona, Mississippi furniture store.
    2
    Only once before have we denied a prospective petit or grand juror standing. In
    that case, injury depended not only on the plaintiff being called for jury duty, but also being
    selected as part of the venire before a specific judge in an urban county with many judges.
    Soc’y of Separationists, Inc. v. Herman, 
    959 F.2d 1283
    , 1285 (5th Cir. 1992) (en banc). That
    additional requirement, which is not present here, made future injury too speculative to
    support standing. 
    Id.
     at 1285–86.
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    Flowers v. Mississippi, 
    139 S. Ct. 2228
    , 2236–38 (2019). Evans prosecuted
    Flowers for the murders six times, and each time, a court overturned
    Flowers’s conviction due to Evans’s discrimination and other misconduct.
    
    Id.
     In reversing Flowers’s sixth conviction, the Supreme Court chastised
    Evans for his “pattern of striking Black prospective jurors.” 
    Id. at 2251
    . In
    fact, Evans struck 41 of 42 Black prospective jurors across Flowers’s six
    trials. 
    Id. at 2251
    . “The numbers speak loudly.” 
    Id. at 2245
    . So loudly that
    we do not have to speculate about whether Evans will continue to try to seat
    only white jurors—his history speaks for itself. See 
    id. at 2246
    .
    Plaintiffs’ complaint nonetheless adds to the high court’s indictment
    of Evans’s conduct. Statistical analysis from over two hundred prosecutions
    between 1992 and 2017 reveals that Evans’s office struck Black jurors at 4.4
    times the rate it struck white jurors. 3 A regression analysis of a subset of those
    trials, which isolates race among more than sixty variables, is even more
    damning: “a Black juror faced odds of being struck that were 6.67 times those
    faced by similarly situated white jurors.” Contrast Soc’y of Separationists, 
    959 F.2d at 1286
     (concluding that juror did not establish a likelihood of being
    discriminated against because the allegedly improper conduct was a one-off
    incident and not the product of “any state or local rule or statute, or even
    some personal policy”). The majority speculates that Flowers might chasten
    Evans into changing his ways. Maj. Op. 9. But, as Plaintiffs allege, Evans’s
    own words dispel this optimism. Rather than accepting responsibility for his
    past discrimination, Evans called Flowers a “ridiculous ruling.” Amanda
    Sexton Ferguson, Flowers Case Sent Back to Circuit Court, Winona Times
    3
    Evans’s office tried 418 criminal cases in this time period. The analysis
    considered all 225 trials for which juror race data was available.
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    (Sept. 5. 2019). Plaintiffs have shown that they face an ongoing threat of
    being excluded from the jury for no reason other than the color of their skin.
    Once again, the grand jury cases support these Plaintiffs’ standing.
    The majority seems to view those cases as challenges to laws that
    categorically excluded certain groups of citizens from the grand jury rolls.
    Maj. Op. 7-8. But those cases, like this one, stemmed from officials’
    repeatedly exercising their discretion in a discriminatory manner. See
    Ciudadanos Unidos, 
    622 F.2d at 811
     (noting that the jury rolls excluded
    minorities because selection was “left entirely to the discretion of the jury
    commissioners”); Turner, 
    396 U.S. at 351
     (describing jury commissioners’
    freedom to exclude anyone they felt would not be good jurors from the rolls).
    At any moment, the commissioners could have changed their minds and
    started adding to the grand jury rolls citizens from the previously excluded
    groups. 4 But given the pattern of discrimination, that possibility did not
    destroy standing. It should not matter whether discrimination occurs before
    or after a juror arrives at the courthouse: Plaintiffs who have shown that
    officials predictably use their discretion to discriminate have standing to
    challenge that discriminatory practice. 5 To hold otherwise is especially
    problematic because of the history of cloaking discrimination in the
    “discretion” of local officials. See Michael J. Klarman, From Jim
    Crow to Civil Rights: The Supreme Court and the
    4
    In fact, by the time Turner reached the Supreme Court, eleven Black jurors had
    been included on the grand jury list in Taliaferro County, Georgia. Turner, 
    396 U.S. at 351
    .
    5
    The majority cites Hall v. Valeska, 509 F. App’x 834, 836 (11th Cir. 2012) (per
    curiam), as support for distinguishing between discrimination that occurs before trial and
    discrimination that occurs during trial. That case involved a similar allegation that a
    District Attorney pervasively struck Black jurors because of their race. Id. at 935. It is
    telling, however, that neither the district court nor the appellate court ruled that the Hall
    challengers failed to clear the jurisdictional hurdle of standing. See id. ; Hall v. Valeska, 
    849 F. Supp. 2d 1332
    , 1336 n.3 (M.D. Ala. 2012).
    14
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    No. 20-60913
    Struggle for Racial Equality 34–36, 85–86 (2004) (recounting
    how voting laws granting registrars wide discretion to determine eligibility
    were a cornerstone of disenfranchisement during Jim Crow); see also, e.g.,
    Lassiter v. Northampton Cnty. Bd. of Elecs., 
    360 U.S. 45
    , 53 (1959) (holding
    that Alabama’s literacy test, which vested “great discretion” in local
    registrars, was facially unconstitutional because it was “merely a device to
    make racial discrimination easy”).
    The Plaintiffs provided ample evidence of their substantial risk of
    being summoned and subjected to Evans’s discriminatory jury selection
    practices. It is hard to imagine what more they could have offered to prove
    an impending injury. If standing is lacking here despite more data on the
    likelihood of being summoned and then discriminated against than in past
    cases allowing prospective jurors’ standing, then I fear citizens will not be
    able to file lawsuits challenging racial or other barriers to jury service.
    Abandoning this type of civil rights suit that historically has allowed excluded
    jurors to participate in our justice system impairs the jury right itself.
    Jurors are the voice of We The People in the otherwise-insulated
    judiciary. And in a large country where many citizens feel detached from
    their leaders in the political branches—members of the House of
    Representatives today represent about 750,000 people—jury service
    increasingly is citizens’ greatest bond with our democracy. See Flowers, 
    139 S. Ct. at 2238
     (“Other than voting, serving on a jury is the most substantial
    opportunity that most citizens have to participate in the democratic
    process.”). Jury service also inculcates other civic virtues, like voting,
    volunteering, and discussing public issues with neighbors. John Gastil
    et al., The Jury and Democracy: How Jury Deliberation
    Promotes Civic Engagement and Political Participation
    10, 34–39, 106–128 (2010). Without standing to bring this lawsuit, Plaintiffs
    are left with little hope that they will have a fair chance at the “honor and
    15
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    No. 20-60913
    privilege” of fulfilling this vital civic duty. See Powers v. Ohio, 
    499 U.S. 400
    ,
    407 (1991).
    16