Attala County, MS Branch v. Evans

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.
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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).
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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
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privilege” of fulfilling this vital civic duty. See Powers v. Ohio, 499 U.S. 400,
407 (1991).
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