Opinion
CV 112-058
06-19-2012
KENNETH B. MARTIN; CHARLES N. CODY, SR.; BOBBY D. HARPER; SAMMIE L. SIAS; KENNETH L. WILLIAMS; A.J. SAUNDERS; MELVIN IVEY; GAIL HICKS; AND JOE E. HOWARD, Plaintiffs, v. AUGUSTA-RICHMOND COUNTY, GEORGIA, COMMISSION; DEKE S. COPENHAVER, in his official capacity as Mayor of Augusta- Richmond County; RICHMOND COUNTY, GEORGIA, BOARD OF EDUCATION; ALEX HOWARD, in his official capacity as President of the Richmond County Board of Education; LYNN BAILEY, in her official capacity as Executive Director of the Richmond County Board of Elections; DAVID RALSTON, in his official capacity as Speaker of the Georgia House of Representatives; and TOMMIE WILLIAMS, in his official Capacity as President Pro Tempore of the Georgia Senate, Defendants.
ORDER
This reapportionment case was initiated due to population shifts in Richmond County, Georgia which were revealed by the decennial 2010 census. Plaintiffs filed suit pursuant to 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment seeking declaratory, injunctive, and remedial relief relating to the reapportionment of the districts for the Augusta-Richmond County Commission ("County Commission") and the County Board of Education of Richmond County ("Board of Education"). (Doc. no. 1.)
I. BACKGROUND
In this Court's May 16, 2012 Order, the Court declared that the existing districts for the County Commission and Board of Education were unconstitutional because they violated the "one person, one vote" principle. Accordingly, the Court enjoined further use of those unconstitutional districts and enjoined the County Board of Elections from accepting qualifications and conducting elections under the existing malapportioned County Commission and Board of Education district maps. Additionally, the qualifying dates for the County Commission and Board of Education seats subject to this election cycle, scheduled for May 23-25, 2012, were delayed until further order of this Court. Finally, after considering the specialized skill required in map drawing and reapportionment, the Court appointed the Georgia Legislative and Congressional Reapportionment Office (and its necessary staff, including Regina Harbin Wright), as the Court's technical advisor and consultant in this matter.
As indicated at the injunction hearing held on May 16, 2012, the Court created a preliminary map for the eight County Commission and Board of Education single member districts and a preliminary map for the two super districts based on the 2010 decennial census results. The preliminary maps were presented for review by the parties and attached to the Court's June 5, 2012 Order as the Court's Exhibits 1 and 2. (Doc. no. 44.) The parties were afforded the opportunity to file written comments regarding the preliminary maps. The time for commenting on the maps has passed, and the Court will now adopt final remedial maps and set qualifying dates for the County Commission and Board of Education seats with terms expiring December 31, 2012.
II. DISCUSSION
Because the existing maps are unconstitutional, the Court, due to the failure of the Georgia General Assembly to legislatively implement a new map, is faced with the task of drawing new constitutional districts based on the 2010 decennial census results. Indeed, the Georgia General Assembly has the duty and responsibility to reapportion the County Commission and Board of Education districts during a regular or special session. Miller v. Johnson, 515 U.S. 900, 915 (1995) ("It is well settled that 'reapportionment is primarily the duty and responsibility of the State.'"); Smith v. Cobb Cnty. Bd. of Elections & Registrations, 314 F. Supp. 2d 1274, 1286 (N.D. Ga. 2002). However, the 2012 session of the Georgia General Assembly ended without the enactment of a map or plan that creates constitutionally proportional districts for the County Commission and Board of Education. Furthermore, it is undisputed that the Georgia General Assembly will not be reconvening prior to the upcoming 2012 elections. "In the wake of a legislature's failure constitutionally to reconcile . conflicting state and federal goals ... a federal court is left with the unwelcome obligation of performing in the legislature's stead . . . ." Connor et al. v. Finch et al., 431 U.S. 407, 415 (197 7); see also Swann et al. v. Charlotte-Mecklenburg Bd. of Educ. et al., 402 U.S. 1, 16 (1971) (noting that "judicial powers may be exercised only on the basis of a constitutional violation" and "[j]udicial authority enters only when local authority defaults.").
A. The New Map Was Created by the Court
Georgia is a covered district under § 5 of the Voting Rights Act of 1964, as amended. Therefore, any legislatively enacted reapportionment plan must be submitted for preclearance to either the Department of Justice or the District Court for the District of Columbia. 42 U.S.C. § 1973c. However, when a federal court devises its own plan, the new plan does not require federal preclearance. See Lopez et al. v. Monterey Cnty. et al., 525 U.S. 266, 286 (1999). Therefore, with the assistance of the Georgia Legislative and Congressional Reapportionment Office, the Court has fashioned its own map for the eight County Commission and Board of Education single member districts and the two super districts, using the 2002 plan as its benchmark.
The Ad Hoc Redistricting Committee passed Plan 3R (Final) and submitted it to the County Commission and Board of Education as a recommendation only. Although it was not submitted to the Georgia General Assembly by the Ad Hoc Committee for adoption, Wayne Howard, a member of the local Georgia House of Representative delegation, submitted Plan 3R (Final) to the Georgia House as HB 923 and HB 924. The Georgia House of Representatives approved Plan 3R (Final), but the Georgia Senate approved a wholly separate plan. The Georgia General Assembly adjourned the 2012 legislative session without enacting a final plan. Because the General Assembly did not pass. Flan 3B (Final), the Court's benchmark in this case is the 2002 plan.
B. The "One Person, One Vote" Requirement Is Met
While legislative bodies are given some leeway with regard to population deviations if those population deviations are supported by legitimate state interests, a court-ordered plan must be held to higher standards than a State's own plan unless there are persuasive justifications. See Chapman et al.v. Meier, 420 U.S. 1, 26-27 (1975). Moreover, "a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimus variation." Id. If a court deviates from substantial equality in drawing its plan, the court must support that deviation with "historically significant state policy or unique features." Id. at 26. In devising the remedial plan, this Court attempted to reduce the population deviations as much as possible, while minimizing the unnecessary splitting of precincts.
A final remedial map of the new single member districts and a map of the new super districts, along with a legal description of each district and a statistics sheet for each map describing certain relevant population percentages, are attached to this Order as the Court's Exhibit 1 and 2 ("the Final Plan"). The Final Plan contemplates the ideal population for each single member district as 25,069 and the ideal population for each super district as 100,275. The Final Plan has eight single member districts and two super districts, like the 2002 plan, and they break down accordingly:
+-------------------------------------+ ¦District ¦Population ¦Deviation % ¦ +----------+------------+-------------¦ ¦1 ¦25,126 ¦0.23% ¦ +----------+------------+-------------¦ ¦2 ¦25,049 ¦-0.08% ¦ +----------+------------+-------------¦ ¦3 ¦25,081 ¦0.05% ¦ +----------+------------+-------------¦ ¦4 ¦25,027 ¦-0.17% ¦ +----------+------------+-------------¦ ¦5 ¦25,038 ¦-0.12% ¦ +----------+------------+-------------¦ ¦6 ¦25,078 ¦0. 04% ¦ +-------------------------------------+
+------------------+ ¦7 ¦24,955 ¦-0.45%¦ +--+--------+------¦ ¦8 ¦25,195 ¦0.50% ¦ +--+--------+------¦ ¦9 ¦100,240 ¦-0.03%¦ +--+--------+------¦ ¦10¦100,309 ¦0. 03%¦ +------------------+
The new single member district map has an overall deviation of 0.96%, and no single member district deviates above the ideal size of 25,069 by more than 0.50% or less than -0.45%. The new single member district map also has a significantly lower overall deviation than both the 2002 plan (35.92%) and the 3R Plan (Final) (4.42%), Additionally, the new super district map has an overall deviation of 0.07%, and the super districts only deviate from the ideal size by 0.03% and -0.03% respectively. The Court acknowledges that the final remedial maps contain a small number of split precincts. However, such a result is unavoidable in light of the Court's population deviation objectives.
Accordingly, the Court finds that the Final Plan achieves the goal of population equality with de minimus variation and comports with the "one person, one vote requirement."
C. Traditional Redistricting Principles
Apart from mathematical percentages, the Court was also guided by traditional redistricting principles when drawing the new maps. These redistricting principles are: changing the old districts as little as possible, protecting incumbency, compactness, contiguity, maintenance of communities of interest, and compliance with §§ 2 and 5 of the Voting Rights Act. Johnson v. Miller, 922 F. Supp. 1556, 1564-66 (S.D. Ga. 1995). The most significant of these factors falls under the gambit of the "minimum change doctrine." See Upham v. Seamon, 456 U.S. 37, 43 (1982); Miller, 922 F. Supp. at 1559. Essentially, the Court is required to change only the faulty portions of the benchmark plan, as subtly as possible, in order to make the new plan constitutional. Id. Keeping the minimum change doctrine in mind, the Court only made the changes it deemed necessary to guarantee substantial equality and to honor traditional redistricting concerns. In fact, in every single member and super district, the Court preserved at least 74.19% of the benchmark district in the new plan. Thus, the Court preserved the core constituency of each district.
Furthermore, of the twenty incumbents on the County Commission and Board of Education, none were drawn out of their current district in the Final Plan. Moreover, none of the incumbents are competing for the same district seat. All ten districts are also both contiguous and compact. Contiguity requires that a person is able to walk to each part of the district without having to go through another district. Crumley, et al. v. Cobb Cnty. Bd. of Elections & Voter Registration, No. 1:12-CV-1301, doc. no. 45 at 28 (N.D. Ga. May 9, 2012). Compactness is an aesthetic factor requiring that there be no strangely shaped or bizarre looking districts. Id. at 27. The Court finds that the Final Plan respects these two principles.
The Court also considered the preservation of communities of interests. "People who share communities of interest logically belong within the same . . . district." Miller, 922 F. Supp. at 1562-63. The parties' comments on the preliminary maps relate almost exclusively to communities of interest. Plaintiffs as well as the Board of Education, Defendant Howard, and the County Commission all seek to have the neighborhood of Sandridge united into one single member district. The Board of Education and Defendant Howard also seek to have the neighborhood of Wood Lake united into one single member district. Finally, the Board of Education, Defendant Howard, and the County Commission request that Fort Gordon be divided equally into three single member districts, instead of the two single member districts that are included in the preliminary maps.
The parties failed to provide legal support, and the Court has not found any, for the proposition that a federal district court, when redrawing maps, should give special consideration to the military voting age population based on the military's historical propensity to not vote in the districts where members reside. Moreover, as discussed below, the Court cannot alter the preliminary maps in the manner proposed by the Board of Education and County Commission without violating equal population principles and the doctrine of minimal change.
Although the Court thoroughly considered the parties' comments to the preliminary maps and recognizes the merit of a single commissioner and Board member representing the interests of the Sandridge and Wood Lake neighborhoods, the Court finds that it cannot change the preliminary map to accommodate these comments in light of its application of constitutional considerations and traditional redistricting principles. For example, Plaintiffs' request to move Census Block 2000 from District 8 to District 4 in an effort to unite a portion of the Sandridge neighborhood would cause a deviation of 3.09% in District 4 and a deviation of -2.76% in District 8. This would result in a total overall deviation of 5.58% for the single member district map. (See Doc. no. 51.) As previously stated, the Court's remedial maps are held to a more stringent standard than legislatively created maps, and the Court cannot have more than de minimus population deviations. See Chapman, 420 U.S. at 26-27. Adopting the proposed changes suggested by the parties would force the Court to ignore the minimal change doctrine and equal population principles, something this Court is unwilling to do.
D. Requirements of the Voting Rights Act of 1964
Although in redistricting, "the overriding objective must be substantial equality of population among the various districts," Reynolds v. Sims, 377 U.S. 533, 579 (1964), all redistricting plans must comply with the Voting Rights Act of 1965, as amended. 42 U.S.C. § 1973 et seq. All jurisdictions must follow § 2 of the Voting Rights Act prohibiting minority vote dilution. In some jurisdictions, including Georgia and its political subdivisions, redistricting plans must also comply with § 5; that is, the plans must not have the "purpose or effect of denying or abridging the right to vote based on race, color or membership in a language minority." 42 U.S.C. § 1973c.
1. Section Two Analysis
Section 2 of the Voting Rights Act prohibits States from imposing or applying any voting practice or procedure that dilutes, denies, or abridges the right of any citizen of the United States to vote on account of that citizen's race or color. See 42 U.S.C. § 1973. In analyzing whether a particular apportionment plan complies with § 2, a court must consider whether, under the totality of circumstances, minorities have been granted an equal opportunity to participate in the political process and to elect representatives of their choice. Georgia v. Ashcroft, 539 U.S. 461, 478 (2003); see also Thornburg v. Glngles, 478 U.S. 30, 47 (1986) (noting the "essence" of a § 2 vote dilution claims is that "a certain electoral law, practice, or structure . . . cause[s] an ineguality in the opportunities enjoyed by black and white voters to elect their preferred representatives").
After considering the totality of circumstances, the Court finds that under its Final Plan, there has been no dilution of the minority voting strength, and minorities have been granted an equal opportunity to participate in the political process and to elect representatives of their choice.
2. Section Five Analysis
In contrast to § 2, which focuses upon ensuring that minority voters everywhere are afforded an equal opportunity to elect candidates of their choice, § 5 is directed toward preventing retrogression in the established opportunities of minority citizens to elect candidates of their choice in particular areas of the country with histories of discrimination in voting laws. Reno v. Bossier Parrish Sch. Bd., 528 U.S. 320, 335 (2000) ("Bossier Parrish II"). These "covered jurisdictions," including Georgia and its political subdivisions, must prove that redistricting plans have neither the purpose nor effect of worsening minority citizens' right to vote. 42 U.S.C. § 1973c. "[A] retrogression inquiry under § 5, 'by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan.'" Georgia, 539 U.S. at 478 (quoting Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 477 (1997) ("Bossier Parish I")). Here, the benchmark plan is the map drawn in 2002. The population and minority breakdown for the Court's Final Plan in comparison to the 2002 benchmark plan is as follows:
+---------------------------------------------------------------------------+ ¦ ¦2002 EXISTING ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦DISTRICTS ¦BENCHMARK ¦2012 FINAL REMEDIAL PLAN ¦DEVIATION ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦PLAN ¦ ¦ ¦ +--------------------+---------------+--------------------------+-----------¦ ¦DISTRICT 1 ¦ ¦ ¦ ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black ¦63.54% ¦67.90% ¦+ 4.36% ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black VAP ¦60.27% ¦64.57% ¦+ 4.30% ¦ +--------------------+---------------+--------------------------+-----------¦ +--------------------+---------------+--------------------------+-----------¦ ¦DISTRICT 2 ¦ ¦ ¦ ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black ¦75.77% ¦70.25% ¦- 5.52% ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black VAP ¦72.75% ¦67.17% ¦- 5.58% ¦ +--------------------+---------------+--------------------------+-----------¦ +--------------------+---------------+--------------------------+-----------¦ ¦DISTRICT 3 ¦ ¦ ¦ ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black ¦40.56% ¦40.51% ¦-0.05% ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black VAP ¦37.81% ¦38.07% ¦+ 0.26% ¦ +--------------------+---------------+--------------------------+-----------¦ +--------------------+---------------+--------------------------+-----------¦ ¦3 17db2917a ¦ ¦ ¦ ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black ¦76.33% ¦68.17% ¦-8.16% ¦ +--------------------+---------------+--------------------------+-----------¦ ¦% Total Black VAP ¦75.49% ¦65.16% ¦-10.33% ¦ +--------------------+---------------+--------------------------+-----------¦ +---------------------------------------------------------------------------+
"VAP" means voting age population.
--------
+----------------------------------------+ ¦DISTRICT 5 ¦ ¦ ¦ ¦ +-----------------+------+--------+------¦ ¦% Total Black ¦74.12%¦72.63% ¦-1.49%¦ +-----------------+------+--------+------¦ ¦% Total Black VAP¦71.45%¦69.37% ¦-2.08%¦ +-----------------+------+--------+------¦ +-----------------+------+--------+------¦ ¦DISTRICT 6 ¦ ¦ ¦ ¦ +-----------------+------+--------+------¦ ¦% Total Black ¦51.17%¦52.43% ¦+1.26%¦ +-----------------+------+--------+------¦ ¦% Total Black VAP¦47.65%¦49.35% ¦+1.70%¦ +-----------------+------+--------+------¦ +-----------------+------+--------+------¦ ¦DISTRICT 7 ¦ ¦ ¦ ¦ +-----------------+------+--------+------¦ ¦% Total Black ¦27.66%¦27 . 48%¦-0.18%¦ +-----------------+------+--------+------¦ ¦% Total Black ¦ ¦ ¦ ¦ ¦ ¦25.29%¦25.12% ¦-0.17%¦ ¦VAP ¦ ¦ ¦ ¦ +-----------------+------+--------+------¦ +-----------------+------+--------+------¦ ¦DISTRICT 8 ¦ ¦ ¦ ¦ +-----------------+------+--------+------¦ ¦% Total Black ¦31.39%¦33.99% ¦+2.60%¦ +-----------------+------+--------+------¦ ¦% Total Black VAP¦29.65%¦32.28% ¦+2.63%¦ +-----------------+------+--------+------¦ +-----------------+------+--------+------¦ ¦DISTRICT 9 ¦ ¦ ¦ ¦ +-----------------+------+--------+------¦ ¦% Total Black ¦72.84%¦69.73% ¦-3.11%¦ +-----------------+------+--------+------¦ ¦% Total Black VAP¦70.21%¦66.54% ¦-3.67%¦ +-----------------+------+--------+------¦ +----------------------------------------+
+--------------------------------------+ ¦DISTRICT 10 ¦ ¦ ¦ ¦ +-----------------+------+------+------¦ ¦% Total Black ¦37.40%¦38.61%¦+1.21%¦ +-----------------+------+------+------¦ ¦% Total Black VAP¦34.69%¦35.96%¦+1.27%¦ +--------------------------------------+
The Court finds that the Final Plan has not worsened the Augusta-Richmond County minority populations' equal opportunity to elect candidates of choice in a manner that constitutes retrogression under § 5. Like the benchmark plan, the new maps have four majority-minority single member districts and one majority-minority super district. The benchmark plan had four clear majority-minority single member districts: District 1 with a 60.27% black VAP, District 2 with a 72.75% black VAP, District 4 with a 75.49% black VAP, and District 5 with a 71.45% black VAP. District 6, though not a majority-minority district, had a "strong black influence" with a black VAP of 47.65%. See Markham v. Fulton Cnty. Bd. of Registrations & Elections, No. 1:02-CV-1111, 2002 WL 32587313, at *9 (N.D. Ga. May 29, 2002). The benchmark plan also had one majority-minority super district: District 9 with a 70.21% black VAP.
The Final Plan, like the benchmark plan, has four majority-minority single member districts: District 1 with a 64.57% black VAP, District 2 with a 67.17% black VAP, District 4 with a 65.16% black VAP, and District 5 with a 69.37% black VAP. District 6 remains a single member district with a "strong black influence." Indeed, its black VAP has increased from 47.65% to 49.35%. Finally, the new maps also have one majority-minority super district: District 9 with a 66.54% black VAP.
Based on the above analysis, the Court finds that retrogression, as it is prohibited under § 5 of the Voting Rights Act, has not occurred with the implementation of the Final Plan.
E. Qualification and Election Dates
Because the Final Plan has now been created, the Court finds it prudent to set the qualifying dates for the County Commission and Board of Education seats that were previously scheduled for May 23-25, 2012. As requested by Defendants, the Court will now schedule the qualification period to begin at 9:00 a.m. on August 6, 2012 and to end at 12:00 noon on August 8, 2012. Furthermore, elections for the County Commission and Board of Education seats with terms expiring December 31, 2012, will be conducted on November 6, 2012, in conjunction with the general elections in order to avoid the unnecessary cost to the citizens of Richmond County that a special election would require. Accordingly, Defendants' Motion for Injunctive Relief (doc. no. 30) is GRANTED.
III. CONCLUSION
For the reasons set forth above, the Court adopts the Final Plan attached to this Order as Court's Exhibits 1 and 2. Additionally, Defendants' motion for injunctive relief (doc. no. 30) is GRANTED and the qualification period for the County Commission and Board of Education seats shall begin at 9:00 a.m. on August 6, 2012 and end at 12:00 noon on August 8, 2012. Finally, Plaintiffs are ORDERED to submit a brief concerning the issue of costs and attorney's fees pursuant to 42 U.S.C. § 1988 within ten (10) days from the date of this Order. Defendants may respond within five (5) days from the date Plaintiffs submit their brief.
ORDER ENTERED at Augusta, Georgia, this 19th day of June, 2012.
_______________
HONORABLE J. RANDAL HALL
UNITED SATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GWEORGIA
Court's Exhibit 1
Final Remedial Map for Eight County
Commission and Board of Education
Single Member Districts
Court's Exhibit 2