NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HARI SHETTY, KAVITA SOOD & Nos. 22-16146 NEIGHBORHOOD ELECTIONS NOW, D.C. No. 2:22-cv-00534-JAM-JDP Appellants,
v. MEMORANDUM*
CITY OF FOLSOM
Appellee.
Appeal from the United States District Court for the Eastern District of California Hon. John Mendez, Presiding
Argued and Submitted October 4, 2023 San Francisco, California
Before: W. FLETCHER, TALLMAN, and LEE, Circuit Judges.
This case arises from a challenge to the City of Folsom’s at-large election
system under state and federal laws. The district court dismissed with prejudice the
federal law claims and declined supplemental jurisdiction over the state law claims,
dismissing them without prejudice so that they could be refiled in state court. We
affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 In October 2020, the plaintiffs sent a demand letter to Folsom asserting that
its at-large city council election system violated the California Voting Rights Act
(CVRA) by decreasing Asian-American residents’ influence on election outcomes.
They demanded that Folsom transition immediately to by-district elections.
After wrangling in state court, Folsom eventually began transitioning to by-
district elections and held public meetings to receive input on their new district map.
But before the city officially adopted a proposed map, the plaintiffs sued in state
court, alleging that—in addition to the CVRA—Folsom had violated (among other
laws) Section 2 of the federal Voting Rights Act (VRA) and the Fourteenth and
Fifteenth Amendments. After passing a resolution instituting by-district elections,
Folsom removed the lawsuit to federal court and filed a motion to dismiss.
The district court dismissed the federal claims with prejudice and declined
supplemental jurisdiction over the state claims, dismissing them without prejudice
to permit the plaintiffs to refile them in state court. The plaintiffs now appeal,
arguing that the district court erred in (1) dismissing their federal claims with
prejudice, (2) exercising jurisdiction over the plaintiffs’ state law CVRA claim, (3)
dismissing rather than remanding their state claims, and (4) failing to abstain from
hearing this case.
1. Dismissal with prejudice of the federal law claims. The district court
did not err in dismissing the federal claims with prejudice. While courts generally
2 allow a plaintiff to file an amended complaint after dismissal, we may uphold a
denial of leave to amend if “it is clear, upon de novo review, that the complaint could
not be saved by any amendment.” Mai v. United States, 952 F.3d 1106, 1112 (9th
Cir. 2020). In deciding whether amendment is futile, we may rely on any ground
the record supports, even if it is different from what the district court relied on.
Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000).
Here, the plaintiffs have alleged two forms of intentional discrimination.
First, under Garza v. County of Los Angeles, they allege that Folsom diluted Asian-
American votes to preserve political incumbencies in violation of the VRA and
Fourteenth Amendment. See 918 F.2d 763, 771 (9th Cir. 1990). Second, under
Larios v. Cox, they allege that the council set a population variance target in violation
of the Fourteenth Amendment. See 300 F. Supp. 2d 1320, 1338 (N.D. Ga. 2004),
aff’d 542 U.S. 947 (2004). Neither claim could be saved by amendment.
Generally, a plaintiff may not allege intentional discrimination using only
evidence of disparate impact. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 265 (1977). But Garza permits plaintiffs to proceed on disparate
impact theories if they show that a defendant chose the impact as an “avenue” to
preserve political incumbencies. 918 F.3d at 771. The plaintiffs here argue they have
alleged Garza discrimination by showing that the Folsom council intentionally
diluted Asian-American votes to preserve Republican incumbencies.
3 The plaintiffs’ Garza claim suffers two fundamental flaws: First, Folsom’s
map does not dilute Asian-American votes. Instead, the allegedly diluted district is
the whitest in Folsom, and the least diluted district is the most heavily populated
with Asian Americans. Second, the plaintiffs have not offered any evidence that
could support an inference of discriminatory intent—and the evidence they have
offered largely supports the opposite inference.1
Next, the plaintiffs allege that Folsom’s map violates the Fourteenth and
Fifteenth Amendments because the Folsom council set a “guiding principle” of
keeping the population variance around ten percent. The plaintiffs acknowledge that
because Folsom’s map has a variance below ten percent, the map is presumptively
equal under Harris v. Arizona Independent Redistricting Commission, 578 U.S. 253,
259 (2016). The plaintiffs also acknowledge that to rebut that presumption, they
must show it is “more probable than not” that Folsom’s population variance stems
from “illegitimate reapportionment factors rather than legitimate considerations.”
1 As evidence of discriminatory intent, the plaintiffs have offered (1) statements councilmembers made during public redistricting hearings, and (2) the decision to schedule the Asian-American district for election in non-gubernatorial years, when minority turnout may be low. However, the councilmember statements also show that the council sought to keep Asian-American voters together and protect them from population growth—and the plaintiffs concede that Folsom gave “no consideration to minority turnout” when scheduling elections, which means Folsom did not choose the election year to harm those voters. These allegations thus do not satisfy the plaintiffs’ heavy burden to prove intent. United States v. Carrillo-Lopez, 68 F.4th 1133, 1139 (9th Cir. 2023). 4 Id. (cleaned up).
The plaintiffs argue that they have rebutted the Harris presumption because,
under Larios, merely setting a variance target proves discriminatory intent. Larios,
300 F. Supp. 2d at 1325, 1341. This reading stretches Larios too far. In Larios, a
three-judge panel held that there was no safe harbor for population variance,
meaning that cities do not have free reign to create districts using any criteria they
wish—including racially discriminatory ones—so long as they keep total variance
below a given percentage. Id. at 1338. As the Supreme Court explained in Harris,
the Larios plaintiffs did not rely on population variance alone, but on evidence that
the population variance “did not result from any” legitimate considerations. 578
U.S. at 264.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HARI SHETTY, KAVITA SOOD & Nos. 22-16146 NEIGHBORHOOD ELECTIONS NOW, D.C. No. 2:22-cv-00534-JAM-JDP Appellants,
v. MEMORANDUM*
CITY OF FOLSOM
Appellee.
Appeal from the United States District Court for the Eastern District of California Hon. John Mendez, Presiding
Argued and Submitted October 4, 2023 San Francisco, California
Before: W. FLETCHER, TALLMAN, and LEE, Circuit Judges.
This case arises from a challenge to the City of Folsom’s at-large election
system under state and federal laws. The district court dismissed with prejudice the
federal law claims and declined supplemental jurisdiction over the state law claims,
dismissing them without prejudice so that they could be refiled in state court. We
affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 In October 2020, the plaintiffs sent a demand letter to Folsom asserting that
its at-large city council election system violated the California Voting Rights Act
(CVRA) by decreasing Asian-American residents’ influence on election outcomes.
They demanded that Folsom transition immediately to by-district elections.
After wrangling in state court, Folsom eventually began transitioning to by-
district elections and held public meetings to receive input on their new district map.
But before the city officially adopted a proposed map, the plaintiffs sued in state
court, alleging that—in addition to the CVRA—Folsom had violated (among other
laws) Section 2 of the federal Voting Rights Act (VRA) and the Fourteenth and
Fifteenth Amendments. After passing a resolution instituting by-district elections,
Folsom removed the lawsuit to federal court and filed a motion to dismiss.
The district court dismissed the federal claims with prejudice and declined
supplemental jurisdiction over the state claims, dismissing them without prejudice
to permit the plaintiffs to refile them in state court. The plaintiffs now appeal,
arguing that the district court erred in (1) dismissing their federal claims with
prejudice, (2) exercising jurisdiction over the plaintiffs’ state law CVRA claim, (3)
dismissing rather than remanding their state claims, and (4) failing to abstain from
hearing this case.
1. Dismissal with prejudice of the federal law claims. The district court
did not err in dismissing the federal claims with prejudice. While courts generally
2 allow a plaintiff to file an amended complaint after dismissal, we may uphold a
denial of leave to amend if “it is clear, upon de novo review, that the complaint could
not be saved by any amendment.” Mai v. United States, 952 F.3d 1106, 1112 (9th
Cir. 2020). In deciding whether amendment is futile, we may rely on any ground
the record supports, even if it is different from what the district court relied on.
Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000).
Here, the plaintiffs have alleged two forms of intentional discrimination.
First, under Garza v. County of Los Angeles, they allege that Folsom diluted Asian-
American votes to preserve political incumbencies in violation of the VRA and
Fourteenth Amendment. See 918 F.2d 763, 771 (9th Cir. 1990). Second, under
Larios v. Cox, they allege that the council set a population variance target in violation
of the Fourteenth Amendment. See 300 F. Supp. 2d 1320, 1338 (N.D. Ga. 2004),
aff’d 542 U.S. 947 (2004). Neither claim could be saved by amendment.
Generally, a plaintiff may not allege intentional discrimination using only
evidence of disparate impact. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 265 (1977). But Garza permits plaintiffs to proceed on disparate
impact theories if they show that a defendant chose the impact as an “avenue” to
preserve political incumbencies. 918 F.3d at 771. The plaintiffs here argue they have
alleged Garza discrimination by showing that the Folsom council intentionally
diluted Asian-American votes to preserve Republican incumbencies.
3 The plaintiffs’ Garza claim suffers two fundamental flaws: First, Folsom’s
map does not dilute Asian-American votes. Instead, the allegedly diluted district is
the whitest in Folsom, and the least diluted district is the most heavily populated
with Asian Americans. Second, the plaintiffs have not offered any evidence that
could support an inference of discriminatory intent—and the evidence they have
offered largely supports the opposite inference.1
Next, the plaintiffs allege that Folsom’s map violates the Fourteenth and
Fifteenth Amendments because the Folsom council set a “guiding principle” of
keeping the population variance around ten percent. The plaintiffs acknowledge that
because Folsom’s map has a variance below ten percent, the map is presumptively
equal under Harris v. Arizona Independent Redistricting Commission, 578 U.S. 253,
259 (2016). The plaintiffs also acknowledge that to rebut that presumption, they
must show it is “more probable than not” that Folsom’s population variance stems
from “illegitimate reapportionment factors rather than legitimate considerations.”
1 As evidence of discriminatory intent, the plaintiffs have offered (1) statements councilmembers made during public redistricting hearings, and (2) the decision to schedule the Asian-American district for election in non-gubernatorial years, when minority turnout may be low. However, the councilmember statements also show that the council sought to keep Asian-American voters together and protect them from population growth—and the plaintiffs concede that Folsom gave “no consideration to minority turnout” when scheduling elections, which means Folsom did not choose the election year to harm those voters. These allegations thus do not satisfy the plaintiffs’ heavy burden to prove intent. United States v. Carrillo-Lopez, 68 F.4th 1133, 1139 (9th Cir. 2023). 4 Id. (cleaned up).
The plaintiffs argue that they have rebutted the Harris presumption because,
under Larios, merely setting a variance target proves discriminatory intent. Larios,
300 F. Supp. 2d at 1325, 1341. This reading stretches Larios too far. In Larios, a
three-judge panel held that there was no safe harbor for population variance,
meaning that cities do not have free reign to create districts using any criteria they
wish—including racially discriminatory ones—so long as they keep total variance
below a given percentage. Id. at 1338. As the Supreme Court explained in Harris,
the Larios plaintiffs did not rely on population variance alone, but on evidence that
the population variance “did not result from any” legitimate considerations. 578
U.S. at 264.
Here, the plaintiffs’ evidence shows that Folsom set a variance target because
the Folsom council wanted to maximally under-populate the Asian-American
district to protect it against expected population growth. The plaintiffs concede that
cities may consider population growth, especially to protect minority voters. Garza,
918 F.2d at 772. Folsom’s population variance is thus legitimate, and the plaintiffs’
Larios claim fails.
Because no additional facts could overcome the problems with plaintiffs’
federal claims, any amendment would be futile. Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir. 1995).
5 2. Supplemental jurisdiction over CVRA claim. The plaintiffs argue that the
district court erred by exercising subject-matter jurisdiction over the CVRA claim.
Ordinarily, a party waives its objection to the discretionary exercise of supplemental
jurisdiction when it fails to raise the objection before the district court. See Acri v.
Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc). The plaintiffs
concede that they did not object to the exercise of supplemental jurisdiction before
the district court. Accordingly, the plaintiffs waived their objection. Acri, 114 F.3d
at 1000.
3. Dismissal of state law claims. The district court did not err in
dismissing, rather than remanding, the state law claims after dismissing the federal
claims. Absent prejudice to the plaintiffs, district courts have discretion to decide
whether to remand or dismiss state claims when declining to exercise jurisdiction
over those claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351–52 (1988).
The plaintiffs here have not identified any prejudice and have already refiled their
state law claims in California state court. Remand would thus be a “waste of judicial
resources.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 n.8 (9th Cir. 2010).
4. Germano abstention. Finally, the plaintiffs appeal on the basis of
Germano abstention. Scott v. Germano holds that federal courts should abstain from
impeding states’ rights to apportion their legislatures. 381 U.S. 407, 408 (1965). If
unresolved state districting decisions affect federal claims, Germano may also
6 require a district court to stay those claims until the state adopts a final plan. See
Benavidez v. Eu, 34 F.3d 825, 833–34 (9th Cir. 1994). Germano abstention does not
apply here because the district court did not impede the state’s right to apportion its
legislature—it dismissed the case. Moreover, the federal claims did not depend on
any unresolved state districting decisions because Folsom adopted its final map
before the case was removed.
AFFIRMED.2
2 The plaintiffs’ motions to strike the Supplemental Excerpts of Record, ECF No. 35, and for judicial notice, ECF No. 45, are denied as moot. Folsom’s unopposed motion for judicial notice of the refiled state law case, ECF No. 34, is granted. 7