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Benisek v. Mack

United States District Court, D. Maryland

April 8, 2014

O. JOHN BENISEK, et al., Plaintiffs,
BOBBIE S. MACK, Chair, Maryland State Board of Elections, et al., in their official capacities, Defendants

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O. John Benisek, Plaintiff, Pro se, Williamsport, MD.

Stephen M. Shapiro, Plaintiff, Pro se, Bethesda, MD.

Maria B. Pycha, Plaintiff, Pro se, Baldwin, MD.

For Bobby S. Mack, Chairman, Linda H. Lamone, Defendants: Dan Friedman, LEAD ATTORNEY, Maryland Office of the Attorney General, Counsel to the General Assembly, Annapolis, MD; Jennifer L. Katz, Office of the Attorney General, Baltimore, MD.

Page 518


James K. Bredar, United States District Judge.

O. John Benisek, Stephen M. Shapiro, and Maria B. Pycha (collectively " Plaintiffs" ) brought this suit against Bobbie S. Mack, Chair of the Maryland State Board of Elections, and Linda H. Lamone, State Administrator of the Maryland State Board of Elections, (collectively " Defendants" ), in their official capacities, alleging that the 2011 congressional districts established by the Maryland General Assembly violate Plaintiffs' rights under Article I, Section 2 of the United States Constitution, as well as under the First and Fourteenth Amendments to the United States Constitution. Now pending before the Court is Defendants' motion to dismiss for failure to state a claim (ECF No. 13). The issues have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below, the motion will be granted.


In 2011, following the 2010 decennial census, the Maryland General Assembly enacted a congressional redistricting plan. Md. Code Ann., Elec. Law § § 8-701 et seq. ; (Am. Compl., ECF No. 11, at ¶ ¶ 7-8.) This plan closely followed the recommendations of the Governor's Redistricting Advisory Committee (" GRAC" ), which included the President of the Maryland Senate and the Speaker of the Maryland House of Delegates. (Am. Compl. at ¶ 8.) Several of the districts created under this plan--in particular the 4th, 6th, 7th, and 8th congressional districts--are composed of two " de-facto non-contiguous segments--i.e., discrete segments that would be wholly non-contiguous but for the placement of one or more narrow orifices or ribbons connecting the discrete segments." ( Id. at ¶ 10.) Further, in each of these districts, one of the two " de-facto non-continuous segments" is " far more populous than the other as well as being socioeconomically, demographically, and politically inconsistent with the other segment." ( Id. at ¶ 11.)

For example, Plaintiffs describe the 4th congressional district as follows [2]:

This district is a majority African-American district that was first developed in 1990 to account for the increasing population of African-American resident's within Prince George's County. The dominant portion of the 4th district is centered in the portion of Prince George's County within the Capital Beltway and bordering the District of Columbia. This portion of the [congressional] district contains 450,000 residents

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who are predominantly (74%) African-American (and 16% Hispanic and 6% white), urban, lower-middle income, and overwhelmingly Democratic voters. President Obama received 96% of the vote within this portion in 2008. This segment is attached through a narrow ribbon to the smaller segment of 185,000 residents in northeastern Anne Arundel County who are predominantly Republican voters. President Obama received 42% of the vote within this portion in 2008. These Anne Arundel residents share little in common with their Prince George's counterparts that is relevant to effective or meaningful representation. . . . Given the composition of this district, its Representative will be elected by the voters of the Prince George's segment, and will almost certainly be a Democrat. . . . As [a] practical matter, the election of the district's Representative will be determined by the Democratic primary election.

( Id. at ¶ ¶ 12(a)(1)-(2).)

On November 11, 2013, Plaintiffs filed this suit challenging " the narrow ribbons and orifices used to tie de-facto non-contiguous and demographically inconsistent segments into individual districts." ( Id. at ¶ 2.) Specifically, Plaintiffs allege that the " non-contiguous structure and discordant composition of the separate distinct pieces comprising the 4th, 6th, 7th, and 8th [c]ongressional districts" violates their rights " of representation as protected by Article I Section 2 of the U.S. Constitution," their " right to vote for . . . Representatives to Congress, as protected by both the first and second clauses to the 14th Amendment of the U.S. Constitution," and their " First Amendment rights of political association." ( Id. )

On December 2, 2013, Plaintiffs filed an amended complaint. (Am. Compl.) Defendants now move to dismiss this amended complaint for failure to state a claim for which relief can be granted. (ECF No. 13.)


The present action challenges the " constitutionality of the apportionment of congressional districts" and is therefore required to be heard and determined by a " district court of three judges." 28 U.S.C. § 2284(a). However, the single judge to whom the request for a three-judge panel is presented may " determine[] that three judges are not required" and " may conduct all proceedings except the trial and enter all orders permitted by the rules of civil procedure except as provided in this subsection." [3] § 2284(b)(1), (3). In particular, the single judge may grant a defendant's motion to dismiss under Rule 12(b)(6) where a plaintiffs pleadings fail to state a claim for which relief can be granted. Duckworth v. State Admin. Bd. Of Election Laws, 332 F.3d 769 (4th Cir. 2003).

This motion to dismiss, like all others under Rule 12(b)(6) of the Federal Rules of Civil Procedure, is a test of the legal sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). See also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell A. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court will therefore evaluate it under the usual Rule 12(b)(6) standard.

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The Court recognizes that some early cases appear to eschew the traditional 12(b)(6) standard in favor of one that looks to whether a plaintiff's complaint sets forth a " substantial question." Faustino v. Immigration and Naturalization Service, 302 F.Supp. 212, 213 (S.D.N.Y. 1969), aff'd 432 F.2d 429, cert. denied 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824; Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. 880, 884 (S.D.N.Y. 1967), aff'd 386 F.2d 449, cert. denied 391 U.S. 915, 88 S.Ct. 1811, 20 L.Ed.2d 654. In Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4th Cir. 1970), for example, the Fourth Circuit held that " [w]hen it appears that there is no substantial question for a three-judge court to answer, dismissal of the claim for injunctive relief by the single district judge is consistent with the purpose of the three-judge statutes, and it avoids the waste and delay inherent in a cumbersome procedure." Id. at 611 (emphasis added); see also Simkins v. Gressette, 631 F.2d 287, 295 (4th Cir. 1980) (" [T]he plaintiffs have not alleged sufficient facts to raise a substantial claim requiring the convening of a three-judge court." ) (emphasis added).

However, in fact, in the present context, the " substantial question" standard and the legal sufficiency standard are one and the same. In Duckworth, 332 F.3d 769, the Fourth Circuit clarified that where a plaintiffs " pleadings do not state a claim, then by definition they are insubstantial and so properly are subject to dismissal by the district court without convening a three-judge court." Id. at 772-73. Further, in Fletcher v. Lamone, 831 F.Supp.2d 887 (D. Md. 2011), a three-judge panel of this Court held that " [f]or purposes of construing § 2284, we find no material distinction" between the Rule 12(b)(6) standard and the " substantial question" standard. Id. at 892. Therefore, the Court will apply the usual Rule 12(b)(6) standard in deciding this motion.

To pass the Rule 12(b)(6) legal sufficiency test, a complaint need only present enough factual content to render its claims " plausible on [their] face" and enable the court to " draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The plaintiff may not, however, rely on naked assertions, speculation, or legal conclusions. Bell A. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In assessing the merits of a motion to dismiss, the court must take all well-pled factual allegations in the complaint as true and construe them in the light most favorable to the Plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). If after viewing the ...

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