Opinion
Civil Action No. 1:12–CV–01301–SCJ.
2012-05-9
Jonathan D. CRUMLY, Sr., Cobb County Board of Commissioners, Timothy D. Lee, Chairman, in his official capacity; George Woody Thompson., Jr., Commissioner, in his official capacity; Helen C. Goreham, Commissioner, in her official capacity; Robert J. Ott, Commissioner, in his official capacity; and Joann K. Birrell, Commissioner in her official capacity, Plaintiffs, v. COBB COUNTY BOARD OF ELECTIONS AND VOTER REGISTRATION; Janine Everler, Director, in her official capacity, Defendants.
Joseph Blackshear Atkins, Office of Cobb County Attorney, Marietta, GA, for Cobb County Board of Commissioners, George Woody Thompson, Jr., Helen C. Goreham, JoAnn K. Birrell, Robert J. Ott and Timothy D. Lee. Jonathan Dean Crumly, Maner Crumley Chambliss, LLP, Atlanta, GA, for Jonathan D. Crumly, Sr.
Joseph Blackshear Atkins, Office of Cobb County Attorney, Marietta, GA, for Cobb County Board of Commissioners, George Woody Thompson, Jr., Helen C. Goreham, JoAnn K. Birrell, Robert J. Ott and Timothy D. Lee. Jonathan Dean Crumly, Maner Crumley Chambliss, LLP, Atlanta, GA, for Jonathan D. Crumly, Sr.
Jefferson Moseley Jeter, Jefferson Jeter, Attorney at Law, Atlanta, GA, for Viveca R. Famber–Powell.
Gregg Earl Litchfield, Haynie Litchfield & Crane, Marietta, GA, for Cobb County Board of Elections and Voter Registration and Janine Everler.
ORDER
STEVE C. JONES, District Judge.
This case involves the reapportionment of the electoral commission districts for the voters of Cobb County, Georgia. The case appears before the Court on a Complaint for Declaratory and Injunctive Relief against the Cobb County Board of Elections and Voter Registration, and its director, Janine Everler. Doc. No. 1.
Background
This action was originally brought by Plaintiff Jonathan D. Crumly, Sr., against the Cobb County Board of Commissioners, each of the five commissioners named above in their official capacities, the Cobb County Board of Elections and Voter Registration and its Director, Janine Everler. Doc. No. 1.
In his Complaint, Plaintiff challenges the constitutionality of the current Cobb County Board of Commissioners districts under 42 U.S.C. § 1983 and the Equal Protection Clauses of the United States and Georgia Constitutions. Plaintiff alleges that the present districts of the County Commission are so disproportionate in population that they violate the principle of “one person, one vote.” Doc. No. 1, p. 2. Plaintiff seeks declaratory and injunctive relief preventing the future use of Cobb County's Board of Commissioners districts. Id. Plaintiff also requests that the Court impose a remedial plan for use in the 2012 election cycle and in all future election cycles unless lawfully amended for elections after 2012. Id.
After the filing of the Complaint, upon motion of the Board of Commissioners and the individual commissioners (hereinafter collectively referred to as “Board of Commissioners”), the Court permitted realignment of the parties (based on their similar interests and goals in the present litigation) so that the board and its named commissioners were realigned as plaintiffs in this case. Doc. No. 37.
On April 27, 2012, the parties entered into a stipulation [Doc. No. 15] as to certain findings of fact and conclusions of law, which the Court will incorporate into its findings herein.
Cobb County, Georgia is a political subdivision of the State of Georgia and is governed by the Cobb County Board of Commissioners.
Plaintiffs Timothy D. Lee, Helen C. Goreham, Robert J. Ott, JoAnn K. Birrell, and George Woody Thompson, Jr. are members of the Cobb County Board of Commissioners. The Board's chairman, Timothy D. Lee is elected on an at-large basis by all voters in the County. For the purposes of electing the remaining four district commissioners, Cobb County is divided geographically into four single-member electoral districts. Each of the four district commissioners are required to reside in specific districts. Only the registered voters residing in the commissioner's district are eligible to vote for that commissioner's district seat. The residential addresses of the district commissioners are as follows:
Goreham: 3528 West Hampton Drive, N.W., Marietta, Georgia 30064
Ott: 1477 Pebble Creek Road, S.E., Marietta, Georgia 30067
Birrell: 1228 Nottoway Trail, N.E., Marietta, Georgia 30066
Thompson: 6280 Austin Drive, Mableton, Georgia 30126
Plaintiff Jonathan D. Crumly, Sr. is a resident and elector of Cobb County, Georgia, who resides in Marietta, Georgia and votes in Commission District 1.
The Court has also granted Viveca R. Famber–Powell, who resides in Mableton, Georgia and votes in Commission District 2 amicus curiae status.
Ms. Famber–Powell initially sought to intervene in this matter; however, after consideration of applicable authority, the Court denied said motion and permitted amicus curiae status so that Ms. Famber–Powell has been allowed to legally comment on the matters before the Court. Doc. No. 44.
The named defendants, the Cobb County Board of Elections and Registration and its director, Janine Everler, have the lawfulduty to: receive notices of candidacy and qualifying fees from candidates seeking election to the County Commission; prepare and publish all notices and advertisements in connection with the conduct of elections; transmit to the Secretary of State a copy of any publication in which a call for an election is issued; prepare, equip and furnish all polling places; conduct elections for the county; count all ballots; and certify the results of all elections as prescribed by law.
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 2201. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).
As stated above, this case involves the “one person, one vote” constitutional principle. As evidenced by the most recent United States decennial census, due to material shifts in the populations within Cobb County's four Commission districts over the past decade, the number of citizens in each of the existing commissioner districts is not equal.
The County Commission districts, as currently configured, are accurately represented by the map at Exhibit 1, Doc. No. 15–1. These existing districts were drawn in 2002 by the Honorable Julie Carnes, Chief Judge of the Northern District of Georgia, under similar, expedited circumstances as the present case—that is because the Georgia Legislature had ended its regular session without redistricting Cobb County based on the population results of the 2000 Census. An equal protection civil action was filed in the United States District Court, Northern District of Georgia weeks prior to the qualification and election deadlines. Smith, Perry et al. v. Cobb County Board of Elections, et al., 314 F.Supp.2d 1274 (N.D.Ga.2002).
Said case involved two different cases and two sets of plaintiffs, referred to in the written order as the Smith plaintiffs or the “Smith case” and the Perry plaintiffs or the “Perry case.” Id. at 1279, n. 1. The “Smith case” involved the School Board and the “Perry case” involved the Cobb County Commission. In the federal reporter and in subsequent citations to said opinion, the case is styled utilizing the Smith designation first; however, as recognized by both parties in the case sub judice, the Perry case is the one with precedential value for the present purposes. In an effort to avoid confusion, the Court will cite the case in the present opinion utilizing both case names as “Smith, Perry.”
According to the 2010 Census, the Board of Commissioners districts, as presently configured, contain approximately the following populations:
+----------------------+ ¦DISTRICT ¦POPULATION¦ +-----------+----------¦ ¦001 ¦196,029 ¦ +-----------+----------¦ ¦002 ¦162,396 ¦ +-----------+----------¦ ¦003 ¦155,256 ¦ +-----------+----------¦ ¦004 ¦174,463 ¦ +----------------------+
The four Cobb County Commission districts have not been reapportioned after the 2010 census. The population data for the Cobb County Commission districts from the 2010 Census shows a total population of 688,144 with a corresponding ideal population per district of 172,019 to avoid either diluting or increasing voting strength.
Id. at 1285 (“Apportionment plans are evaluated under the one-person, one-vote principle by determining the amount by which the population in each district deviates from the size of the ideal district, and by determining the overall deviation between the two districts with the greatest disparity in population. Accordingly, by using that number and dividing by four, an ‘ideal district size’ for the four Commission voting districts that would result in nearly perfect equality among the populations” is determined).
The population data summary for the Board of Commissioners districts as presently configured is in the record at Exhibit 2, Doc. No. 15–2. The evaluation of this population data, broken down by district, results in the following deviations from the ideal population per district as presently configured:
+---------------------------------------------------------------------------+ ¦DISTRICT¦POPULATION ¦IDEAL POPULATION ¦DEVIATION ¦DEVIATION PERCENTAGE ¦ +--------+------------+------------------+----------+-----------------------¦ ¦001 ¦196,029 ¦172,019 ¦24,010 ¦14.0% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦002 ¦162,396 ¦172,019 ¦–9,623 ¦–5.6% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦003 ¦155,256 ¦172,019 ¦–16,763 ¦–9.7% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦004 ¦174,463 ¦172,019 ¦2,444 ¦1.4% ¦ +---------------------------------------------------------------------------+
The overall population deviation is 23.70%. In addition, the voting strength of voters in District 1 is significantly diluted, while voters in District 3 have a disproportionately large voting strength. As a result, the existing Board of Commissioners districts are unconstitutionally malapportioned.
The Georgia General Assembly is the only legislative body with the duty and authority to reapportion the County Commission districts during a regular or special session. During the 2012 regular session of the Georgia General Assembly, several members of the Cobb delegation to the Georgia House of Representatives submitted House Bill 905 (“HB 905”) in an effort to redistrict the Cobb County Commission districts such that the malapportionment evident from the 2010 census data would be resolved. HB 905 passed out of the Georgia House of Representatives on February 21, 2012. HB 905 did not pass out of the Georgia Senate without amendment. A copy of HB 905 as passed by the Georgia House is found in the record at Exhibit 3, Doc. No. 15–3. The County Commission districts, as configured in HB 905 (the “HB 905 Plan”), are accurately represented by the map at Exhibit 4, Doc. No. 15–4. The configurations of the HB 905 Plan contain approximately the following populations:
Id. at 1281, 1286.
The population data for the HB 905 Plan from the 2010 Census shows a total population of 688,078 with a corresponding ideal population per district of 172,019 to avoid either diluting or increasing voting strength. The population data summary for the HB 905 Plan is in the record at Exhibit 5, Doc. No. 15–5. The evaluation of this population data broken down by district results in the following deviations from the ideal population per district as presently configured:
+---------------------------------------------------------------------------+ ¦DISTRICT¦POPULATION ¦IDEAL POPULATION ¦DEVIATION ¦DEVIATION PERCENTAGE ¦ +--------+------------+------------------+----------+-----------------------¦ ¦001 ¦172,200 ¦172,019 ¦181 ¦0.11% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦002 ¦172,582 ¦172,019 ¦563 ¦0.3% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦003 ¦171,425 ¦172,019 ¦–594 ¦–0.4% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦004 ¦171,871 ¦172,019 ¦–148 ¦–0.1% ¦ +---------------------------------------------------------------------------+
The overall population deviation is 0.67%.
Plaintiff Crumly has no objection to the HB 905 Plan. Plaintiff Crumly states that it contains minimal population deviations and “maintain[s] and preserve[s] existing communities of interest within each County Commission District, provides compact districts and provides clarity to citizens as to which County Commissioner represents their surrounding community.” Doc. No. 1, p. 11, ¶ 23. The Board of Commissioners argue that the HB 905 is problematic because it does not adequately take into account the differences between and among the districts. The Board notes that the House Bill 905 proposal “moves District 2 deeply into the former District 4, gutting the heart of District 4—the community of Mableton .... essentially destroy[ing] Mableton's sense of community and place[s] it in a district with residents of East Cobb, which is an entirely different community.” Doc. No. 14, p. 17.
In an April 27, 2012 conference call with the Court, counsel for the remaining defendants Board of Elections and Director Everly, stated that they have no position on any of the maps at issue.
On March 29, 2012, the Georgia Senate State and Local Governmental Operations Committee passed a substitute to HB 905 (the “Senate Compromise”). A copy of the Senate Compromise as passed by the Georgia Senate State and Local Government Operations Committee is found in the record at Exhibit 6, Doc. No. 15–6. The Senate Compromise did not pass out of the Georgia Senate without amendment. The County Commission districts, as configured in the Senate Compromise (the “Senate Compromise Plan”), are accurately represented by the map at Exhibit 6, Doc. No. 15–6. The configurations of the Senate Compromise Plan contain approximately the following populations:
+----------------------+ ¦DISTRICT ¦POPULATION¦ +-----------+----------¦ ¦001 ¦171,994 ¦ +-----------+----------¦ ¦002 ¦171,965 ¦ +-----------+----------¦ ¦003 ¦172,322 ¦ +-----------+----------¦ ¦004 ¦171,797 ¦ +----------------------+
The population data for the Senate Compromise Plan from the 2010 Census shows a total population of 688,078 with a corresponding ideal population per District of 172,019 to avoid either diluting or increasing voting strength. The population data summary for the Senate Compromise Plan is found in the record at Exhibit 7, Doc. No. 15–7. The evaluation of this population data broken down by district results in the following deviations from the ideal population per district as presently configured:
+---------------------------------------------------------------------------+ ¦DISTRICT¦POPULATION ¦IDEAL POPULATION ¦DEVIATION ¦DEVIATION PERCENTAGE ¦ +--------+------------+------------------+----------+-----------------------¦ ¦001 ¦172,200 ¦172,019 ¦181 ¦0.11% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦002 ¦171,440 ¦172,019 ¦–579 ¦–0.34% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦003 ¦172,754 ¦172,019 ¦735 ¦0.43% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦004 ¦171,684 ¦172,019 ¦–335 ¦–0.19% ¦ +---------------------------------------------------------------------------+
The overall population deviation is 0.31%.
Plaintiff Crumly has no objection to the Senate Compromise Plan. Plaintiff states that it has minimal population deviations and maintains and preserves existing communities of interest, provides compact districts and clarity to citizens and keeps more than 95 % of the census designated areas of Mableton together, consistent with sound reapportionment principles. Doc. No. 1, p. 13, ¶ 29. The Board of Commissioners state that the Senate Compromise Plan does not take the differences between and among the districts into account. Doc. No. 14, p. 17. The Board argues that the compromise plan restores a portion of the Mableton community cut by HB 905, but “still cuts deeply into the community” by lengthening District 1 “such that residents of Acworth in far northwest Cobb would be thrown into a district which includes Smyrna at the other end of the community” .... both “pleasant places to live, [but] ... but very different in terms of their housing patterns and neighborhood concerns.” Doc. No. 14, p. 17–18.
The Cobb County legislative delegation in the Georgia General Assembly has traditionally consulted with and sought input from the Board of Commissioners of Cobb County regarding the county's preferred district map. See Smith, Perry, 314 F.Supp.2d at 1280. To that end, once the 2010 census data became available, members of the Board of Commissioners began studying the data and preparing a new district map to present to the delegation for its consideration, aware that only the General Assembly had the legal authority to enact any map. This effort by the Board of Commissioners culminated in its official approval of a map for recommendation. That map and associated population data were approved by the Board of Commissioners at a regularly scheduled and noticed public meeting on February 28, 2012. The County Commission districts, as configured by the proposal of the Board of Commissioners (“BOC Plan”) are accurately represented by the map in the record at Exhibit 9, Doc. No. 15–9.
The BOC Plan districts contain approximately the following populations:
+----------------------+ ¦DISTRICT ¦POPULATION¦ +-----------+----------¦ ¦001 ¦172,200 ¦ +-----------+----------¦ ¦002 ¦171,440 ¦ +-----------+----------¦ ¦003 ¦172,754 ¦ +-----------+----------¦ ¦004 ¦171,684 ¦ +----------------------+
The population data for the BOC Plan districts from the 2010 Census shows a total population of 688,078 with a corresponding ideal population per district of 172,019 to avoid either diluting or increasing voting strength. The population data summary for the BOC Plan is found in the record at Exhibit 10, Doc. No. 15–10. The evaluation of this population data broken down by district results in the following deviations from the ideal population per district as presently configured:
+---------------------------------------------------------------------------+ ¦DISTRICT¦POPULATION ¦IDEAL POPULATION ¦DEVIATION ¦DEVIATION PERCENTAGE ¦ +--------+------------+------------------+----------+-----------------------¦ ¦001 ¦172,200 ¦172,019 ¦181 ¦0.11% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦002 ¦171,440 ¦172,019 ¦–579 ¦–0.34% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦003 ¦172,754 ¦172,019 ¦735 ¦0.43% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦004 ¦171,684 ¦172,019 ¦–335 ¦–0.19% ¦ +---------------------------------------------------------------------------+
The overall population deviation is 0.76%.
The Board of Commissioners has no objection to and prefers the BOC Plan. The Board states that the “BOC Plan takes all of the traditional districting principles into account and balances them as much as possible while still complying with the one-person, one-vote requirement and § 5 of the Voting Rights Act” keeping East Cobb, South Cobb, and Mableton in tact. Doc. No. 14, p. 18.
Plaintiff Crumly states that the BOC plan should not be granted consideration as an expression of State policy because the Board of Commissioners have no constitutional authority to adopt a redistricting plan. Doc. No. 28, p. 14.
In addition to the maps referenced above, there was also a map presented by Senators Doug Stoner and Steve Thompson under the label “Senate Bill 535” or “SB 53.” Said map and its corresponding population statistics are found in the record at Doc. No. 32. It appears that SB 535 was referred to the Senate State and Local Government Operations Committee on March 21, 2012, but never left this Committee for consideration by the full Senate or the House of Representatives. Doc. No. 33, p. 6, n. 7. Through her amicus brief, Ms. Famber–Powell proposed that the Court take guidance from this map. All plaintiffs oppose said request on various grounds (i.e., it is not an expression of State policy, that it has a high population deviation, and it fails to appreciate the core of District 2).
The evaluation of this population data broken down by district for SB 535 results in the following deviations from the ideal population per district as presently configured:
+---------------------------------------------------------------------------+ ¦DISTRICT¦POPULATION ¦IDEAL POPULATION ¦DEVIATION ¦DEVIATION PERCENTAGE ¦ +--------+------------+------------------+----------+-----------------------¦ ¦001 ¦172,217 ¦172,019 ¦198 ¦0.12% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦002 ¦171,435 ¦172,019 ¦–584 ¦–0.34% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦003 ¦170,740 ¦172,019 ¦–1,279 ¦–0.74% ¦ +--------+------------+------------------+----------+-----------------------¦ ¦004 ¦173,686 ¦172,019 ¦1,667 ¦0.97% ¦ +---------------------------------------------------------------------------+
The overall population deviation is 1.71%.
The 2012 regular session of the General Assembly has now ended. No reapportionment plan for the Cobb County Commission was adopted and no special session for the purpose of reapportioning these districts was called by the Governor.
Qualifying for elections for County Commission is scheduled to be held May 23 through 25, 2012; primary elections will be held on July 31, 2012 and absentee ballots must be mailed pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. § 1973ff, et seq., as amended forty-five (45) days prior to the primary elections or June 15, 2012. The Board of Elections has informed the Court that it is imperative for preparatory purposes to have a map in place by May 14, 2012.
Absent the relief sought herein, the Board of Elections will accept qualifications of candidates for these positions using the existing malapportioned district boundaries. Given the inaction by the Legislature, this Court must step in and create a constitutional reapportionment plan.
In consideration of the limited time period for ruling prior to the pending elections, the Court sua sponte issued an expedited briefing and hearing schedule. Doc. No. 4. The Court held an evidentiary hearing on May 7, 2012. During this hearing, the Court allowed the parties to present evidence and argument. The Court also presented the parties with a proposed map that it drafted with the assistance of its technical expert, Regina Harbin Wright, and consultant, Brian Knight of the Georgia Legislative and Congressional Reapportionment Office. All parties were permitted the opportunity to comment on said map. The Court's conclusions of law are as follows.
In order to ensure that all interested parties were aware of the litigation, on April 27, 2012, the Court required the Cobb County Board of Commissioners to provide public notice (through newspaper and its website) of the hearing date and the time period for intervening.
I. Declaratory Judgment
The Declaratory Judgment Act provides: “in a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such determination, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).
In this case, Plaintiff Crumly asks the Court to declare his rights as to the continued use of malapportioned districts to elect members of the Cobb County Commission and whether use of said malapportioned districts violate the Equal Protection clause of the Fourteenth Amendment to the United States Constitution, the Constitution of the State of Georgia, and 42 U.S.C. § 1983.
As noted above, the Court has permitted the realignment of the parties so that the Cobb County Board of Commissioners and each named commissioner are now party plaintiffs, instead of defendants. Due to the severe time restraints, the realigned plaintiffs have not filed a Complaint in this case. The Court will accordingly utilize the singular plaintiff designation when referring to the Complaint.
“It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote ....” through the Equal Protection Clause and other provisions of the United States Constitution. Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1. “The Equal Protection Clause [requires] that electoral districts be ‘of nearly equal population, so that each person's vote may be given equal weight in the election of representatives.’ ” Voinovich v. Quilter, 507 U.S. 146, 160–161, 113 S.Ct. 1149, 1159, 122 L.Ed.2d 500 (1993). This principle, also known as, “one person, one vote” is applicable to local redistricting plans. Bodker v. Taylor, No. 1:02–CV999, 2002 WL 32587312, at *6 (N.D.Ga. June 5, 2002) (citing Avery v. Midland Cnty., 390 U.S. 474, 480, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968)) (“[W]hen the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process.”).
It is a deprivation of voters' constitutional rights to elect commissioners from districts of substantially unequal population in that the “votes of some residents have greater weight than those of others; in both cases the equal protection of the laws has been denied.” Avery, 390 U.S. at 480–81, 88 S.Ct. 1114. In essence, “[t]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds, 377 U.S. at 555, 84 S.Ct. 1362. Accordingly, the United States Supreme Court has “held that a claim asserted under the Equal Protection Clause challenging the constitutionality of a State's apportionment of seats in its legislature, on the ground that the right to vote of certain citizens was effectively impaired since debased and diluted, in effect presented a justiciable controversy subject to adjudicationby federal courts.” Id. at 556, 84 S.Ct. 1362 (citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).
There is also a justiciable controversy under 42 U.S.C. § 1983, which provides for a civil action/equity suit for deprivation of civil rights and states in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
The Plaintiff's claims under the Georgia Constitution are considered dual constitutional claims in that under Georgia law, the equal protection clause of the Georgia Constitution, providing that “[n]o person shall be denied the equal protection of the laws” is considered identical to the equal protection clause of the Fourteenth Amendment. SeeGa. Const. art. 1, § 1, ¶ 2, cl. 2; DeJulio v. Georgia, 276 F.3d 1244, 1252 (11th Cir.2001) (citing Nodvin v. State Bar of Ga., 273 Ga. 559, 544 S.E.2d 142, 145 (2001) (“Because the protection provided in the Equal Protection Clause of the United States Constitution is coextensive with that provided in Art. 1, Sec. 1, Par. 2, of the Georgia Constitution of 1983, we apply them as one.”)). Accordingly, the determinations made herein are conclusive as to the state constitutional claims, as well. See Tarter v. James, 667 F.2d 964, 970 (11th Cir.1982) ( “Many of plaintiff's state constitutional challenges are based upon provisions which essentially mirror those upon which the federal constitutional claims are premised. The determinations made in ... this opinion are conclusive as to these state claims as well.”).
In light of the above findings of fact, joint stipulation of the parties , and applicable law, the Court concludes that Plaintiff is entitled to a declaratory judgment that, as a result of the data now available from the 2010 census, the Cobb County Commission districts are unconstitutionally malapportioned in that they violate the one person-one vote principle of the Equal Protection clauses of the United States and Georgia Constitutions. The Court specifically finds that the continued use of the existing malapportioned districts to elect members of the County Commission violates Plaintiff's constitutional rights under the Equal Protection clauses of the Fourteenth Amendment to the United States Constitution and of the Constitution of the State of Georgia—and also results in liability for which injunctive relief can be granted under 42 U.S.C. § 1983.
Doc. No. 15.
II. Injunctive relief
An injunction is available when a “legal right has been infringed by an injury for which there is no adequate legal remedy and which will result in irreparable injury if the injunction does not issue.” Alabama v. United States Army Corps of Eng'rs, 424 F.3d 1117, 1127 (11th Cir.2005)
In regard to the injunctive relief sought, the Court finds as follows. Leaving the existing Commission district lines in place with their imbalances in population deprives the Plaintiff and voters of Cobb County of the benefit of the one person, one vote principle of the Equal Protection Clause. Absent the injunctive relief sought, candidates for the Board of Commission seats for Districts 2 and 4 will qualify from unconstitutionally malapportioneddistricts, in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983. Plaintiff has no adequate remedy at law and no other way to guarantee his rights in connection with the upcoming candidate qualifying and election of Commission members, other than through the relief sought in this lawsuit. Plaintiff will suffer irreparable harm if candidate qualifying and the election are allowed to proceed under the current district boundary lines, and the injury will continue until the existing lines are declared to be unconstitutionally malapportioned and their use enjoined.
See Wright v. Dougherty Cnty., Ga., 358 F.3d 1352 (2004) (setting forth standard for standing in terms of harm to individuals who reside in under-represented districts).
Therefore, in light of the above-stated findings, Plaintiff is entitled to injunctive relief, barring the use of the existing districts for the 2012 election cycle and beyond, unless the districts are lawfully amended for use in elections following the 2012 cycle. The Cobb County Board of Elections is hereby ENJOINED from accepting qualifications and conducting elections under the existing malapportioned Commission district map.
III. Remedial relief
As for the remedial relief requested by Plaintiff, i.e., imposition of a plan by this Court, the Court finds as follows.
The Georgia General Assembly has the duty and responsibility to reapportion the County Commission districts during a regular or special session. Miller v. Johnson, 515 U.S. 900, 915, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995) ( “It is well settled that ‘reapportionment is primarily the duty and responsibility of the State.’ ”); Smith, Perry, 314 F.Supp.2d at 1286.
The 2012 session of the Georgia General Assembly has ended without the enactment of a map/plan that creates constitutionally proportional districts. It is undisputed that the Georgia Legislature will not be reconvening prior to the upcoming 2012 primary and general elections for the district commissioner members of the Cobb County Board of Commissioners.
“Federal courts are not allowed to intervene in state apportionment matters in the absence of a violation of federal law.” Id. The Court finds that unless it adopts a remedial plan, there will not be a constitutionally apportioned plan for use in the 2012 primary and general elections for the district commissioner members of the Cobb County Board of Commissioners, as the present plan based on the 2010 census no longer meets the requirements of the state and federal law. Because the existing districts are unconstitutional, in the absence of action by the General Assembly, this Court has the power and responsibility to intervene and remedy the constitutional violation through enactment of an interim redistricting plan pending later legislative action. See Larios v. Cox, 314 F.Supp.2d 1357, 1359–1360 (N.D.Ga.2004) (holding that “where a federal court has declared an existing apportionment scheme unconstitutional ... ‘it becomes the ‘unwelcome obligation’ ... of the federal court to devise and impose a reapportionment plan pending later legislative action.' ”).
After consideration of the specialized skill required in map drawing and reapportionment, as indicated above, the Court appointed the Georgia Legislative and Congressional Reapportionment Office (and its necessary staff, to wit: Regina Harbin Wright and Brian Knight), as the Court's technical advisor and consultant in this matter. Doc. No. 20.
In fashioning the remedial plan, the Court has been mindful of the Constitution and the important goals of minimizing population deviations among the districts, while still respecting traditional redistricting principles. The Court has also taken into account the provisions of the Voting Rights Act.
Prior to the May 7, 2012 evidentiary hearing in this case, the Court visited the Georgia Legislative and Reapportionment Office and prepared a draft map as its starting point. The Court did so based upon its understanding of the case law that the map had to be its own independently created map and that it would not be proper to adopt one of the parties' proposed maps without submitting said proposed map to the Department of Justice for the preclearance process. In preparing the draft map, the Court began with the existing map drawn by Judge Carnes in 2002. The Court followed the doctrine of minimum change and its understanding from expert, Regina Wright, that the people of Cobb County generally prefer to use geographic boundaries. The Court's main concern was equalization of the population, compliance with the Voting Rights Act, and clean lines—for example, Old Highway 41 was a highway feature which was utilized to shift the existing line between Districts 1 and 3. The Court took no political breakdowns into consideration and did not consider the addresses of the incumbents until after it was satisfied with its initial draft.
There is no dispute that in light of the May 14, 2012 deadline which the Board of Elections must have a map to begin their election preparation work, there is not enough time to submit a map for preclearance, as such process generally takes sixty days or more.
The “minimum change” doctrine “acknowledges that redistricting is fundamentally a legislative task, best handled by those elected representatives in whose hands the voters have placed their trust to handle such matters, rather than an unelected federal judge.” Bodker, 2002 WL 32587312, at *5.
After completion of the Court's draft, the Court presented the draft to the parties for comment at the May 7, 2012 evidentiary hearing. The Court has taken said comments into consideration in issuing its final map as will be discussed, infra. The Court has adopted the final version of its remedial map/plan attached to this order as Exhibit A and labeled “CobbCC–FEDCT–2012” (hereinafter “the Final Plan”). In this map, the Court has attempted to harmonize all of the one person, one vote principle, traditional redistricting principles, and the requirements of the Voting Rights Act as follows.
The Court's initial draft map and population statistics are found in the record at Doc. No. 43.
Additional attachments include: Exhibit B (population statistical sheet); Exhibit C (overlay of the existing boundary with the final plan); and Exhibit D (the legal description of the final plan).
A. Minimizing population deviations while respecting traditional districting principles
The most important goal in fashioning a remedial plan is to minimize the population deviations among the districts, while also respecting the traditional districting principles of compactness, contiguity, the preservation of the core of the existing districts, and the preservation of significant political and geographic subdivisions, whenever possible. See Abrams v. Johnson, 521 U.S. 74, 95, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (slight deviations in population equality in court-ordered plans are justified in furtherance of significant state policies or unique features.) Further, small differences in the populations of districts may be justified if doing so preserves cores of prior districts or avoids contests between incumbents. Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). Protecting incumbents from being drawn out of their existing districts such that they would have to run for election against other incumbents has traditionally been a priority in Georgia redistricting. Smith, Perry, 314 F.Supp.2d at 1307.
1. Population deviations
Court-ordered districts are held to higher standards of population equality than legislative ones. Chapman v. Meier, 420 U.S. 1, 26–27, 95 S.Ct. 751, 765, 42 L.Ed.2d 766 (1975). A court-ordered plan should “ ‘ordinarily achieve the goal of population equality with little more than de minimis variation’ ” in order to comport with the one-person, one vote principle of the Equal Protection clause. Id. “[A]bsolute population equality [is] the paramount objective.” Abrams, 521 U.S. at 98, 117 S.Ct. 1925;see also Wright v. City of Albany, 306 F.Supp.2d 1228, 1233 n. 8 (M.D.Ga.2003) (indicating that the court may not draw a remedial map “in the same politically freewheeling way that the legislative body could have, but must follow a highly restrictive course designed solely to meet the constitutional requirements and not to foster the political agenda of any party.”).
In devising and evaluating a remedial plan for compliance with the equal protection clause, “the usual measure is the percent deviation from the ideal population.” Bodker, 2002 WL 32587312, at *6. “The ideal district population is basically the average population per the number of districts. Deviation from the ideal population is calculated as the overall population deviation for the county, rather than taking a district by district view.” Id. The Court must articulate precisely the reasons for any variations from de minimis deviation from the ideal population number. Id. (citing Abrams, 521 U.S. at 98–99, 117 S.Ct. 1925;Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975)).
“[T]he Supreme Court has not established an absolute ‘cut-off’ for the maximum overall deviation that an apportionment plan may have before it violates” the Constitution. Smith, 314 F.Supp.2d at 1285. In a prior decision, the Supreme Court stated that its “decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified....” Brown v. Thomson, 462 U.S. 835, 842–843, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214 (1983). However, the Court notes that in a concurring opinion in the Cox v. Larios case (reviewing the State of Georgia's legislative reapportionment plans), Supreme Court Justice John Paul Stevens noted that the appellant had invited the Court to “weaken the one-person, one-vote standard by creating a safe harbor for population deviations of less than 10 percent, within which districting decisions could be made for any reason whatsoever.” 542 U.S. 947, 949, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004). Justice Stevens noted that “[t]he Court properly reject[ed] that invitation.” Id. In light of said opinion from Justice Stevens, the Court will not engage in a 10% and/or safe harbor analysis. See Karcher, 462 U.S. at 731, 103 S.Ct. 2653 (“ ‘The whole thrust of the ‘as nearly as practicable’ approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case.' Adopting any standard other than population equality, using the best census data available, would subtly erode the Constitution's ideal of equal representation.”) (citations omitted). Furthermore, even if the Court were to engage in such an analysis, the Court notes that the deviationsin the Court's Final Plan are de minimis and fall well below 10%.
In the Court's Final Plan, the population deviations are as follows:
+---------------------------------------------------------------------------+ ¦DISTRICT¦POPULATION ¦IDEAL POPULATION ¦DEVIATION ¦DEVIATION PERCENTAGE ¦ +---------------------------------------------------------------------------+
+-----------------------------------------------+ ¦001 ¦172,011¦172,019 ¦–8 ¦0.00% ¦ +-----+-------+-----------+------+--------------¦ ¦002 ¦172,060¦172,019 ¦41 ¦0.02% ¦ +-----+-------+-----------+------+--------------¦ ¦003 ¦171,930¦172,019 ¦–89 ¦–0.05% ¦ +-----+-------+-----------+------+--------------¦ ¦004 ¦172,077¦172,019 ¦58 ¦0.03% ¦ +-----------------------------------------------+
The overall population deviation is 0.09%.
The Court notes that in comparing the existing and other submitted plans, its overall population deviation of 0.09% is the lowest.
Existing = 1.51%; HB 905 = 0.67%; Senate Compromise = 0.31%; BOC = 0.76%; Amicus = 1.71%.
The Court finds that its Final Plan achieves the goal of population equality with little more than de minimis variation and comports with the one-person, one vote principle of the Equal Protection clause.
2. Traditional districting principles
As noted above, the traditional districting principles are compactness, contiguity, preservation of the core of the existing districts and community interests, preservation of significant political and geographic subdivisions, and incumbent considerations.
a. compactness
Compactness is an aesthetic factor in that there should be no strangely shaped or bizarre looking districts. The Court finds that its Final Plan respects the compactness principle.
Nathaniel Persily, When Judges Carve Democracies: A Primer on Court–Drawn Redistricting Plans, 73 Geo. Wash. L.Rev.. 1131, 1158 (2005).
b. continuity
Continuity involves being able to walk to each part of the district without having to go through another district. The Court finds that its Final Plan respects the continuity principle.
Id. at 1159.
c. preservation of the core of the existing districts and community interests
“People who share communities of interest logically belong within the same ... district.” Johnson v. Miller, 922 F.Supp. 1556, 1562–1563 (S.D.Ga.1995) (citing Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (discussing significance of communities of interest)).
The focus of the Board's arguments has been on preserving the core of existing districts and communities of interest in terms of how different parts of the community interact. Plaintiff Crumly and Ms. Famber–Powell's amicus curiae brief and arguments also focus heavily on this factor.
The Court will begin with the Board's arguments concerning the draft map prepared by the Court. The Board states that the cores of the districts “have existed for at least thirty years and in some instances over fifty years.” Doc. No. 14, p. 6. The Board's concerns focus on three areas currently located in District 1 under the existing district map. Those areas are: Town Center Community Improvement District (CID), McCollum Field (Cobb County's airport), and Kennesaw State University. Doc. No. 41, p. 2. The Board presented evidence through Chairman Lee and the present District 1 Commissioner, Helen C. Goreham, regarding the representative history of the areas at issue. Commissioner Goreham specifically testified that she has a history of working with all three of these areas through various commission projects and/or constituent issues that she has worked on in these areas. For example, at Kennesaw State University, she worked on a smarter traffic plan. At the airport, she was involved in starting the Airport Advisory Board and in the Town Center CID, she has become involved in their monthly meetings. When asked why another commissioner, specifically Commissioner Birrell (in District 3), could not represent the area, Commissioner Goreham testified that she saw no reason why Commissioner Birrell could not competently represent these individuals; however, in her opinion, “nothing beats experience in actually working with the public on issues.”
The Board further stated that, with this exception, it was “satisfied with virtually all aspects of the court's initial redistricting plan.” Doc. No. 41, p. 2.
After consideration, the Court agrees that these are core areas of existing District 1 such that they should remain in District 1. In addition, in following its overall governing principle of minimum change, the Court finds that moving these three areas out of District 1 would constitute a significant change and also would result in harm to the citizens of Cobb County in that the areas at issue, which are major industrial/financial areas, would lose the first-hand knowledge and historical working relationship that has been established with industry and the elected commissioner for the area. Accordingly, in reviewing its draft map and enacting its Final Plan, the Court has decided to retain the core of District 1, as well as lessen the significance of the change in District 1 by allowing the three areas at issue to remain in District 1 and shifting the boundary lines between District 1 and District 3 in the Acworth and Elizabeth areas. The Court does so based on the minimum change principle, equal population principle, and the evidence in the record indicating that “much of the City leadership [of Acworth] supports District 3 moving as far west as Cobb Parkway.” Doc. No. 29, p. 3.
The Court will next consider Plaintiff Crumly's arguments. In his comments to the Court's draft, Plaintiff Crumly stated that the integrity of and solidification of the East Cobb community interest will be sustained through allowing the precincts known as Timber Ridge 01 and Roswell 01 to move from District 3 to District 2. Doc. No. 42. Plaintiff Crumly states that this change is depicted in the BOC Plan, HB 905, and the Senate Compromise. Plaintiff Crumly indicates that the HB 905 and Senate Compromise are expressions of State policy. Plaintiff Crumly also indicates that such change is supported by the testimony of Commissioner Robert J. Ott, the current Cobb County Commissioner for District 2. However, the Court notes that Commissioner Ott's testimony focused on the deficiencies of Ms. Famber–Powell's amicus curiae plan. When asked by the Court in implied reference to the Court's draft plan, if there were other problems with the makeup of the district, Commissioner Ott replied “not really.”
After review, the Court is unable to follow Plaintiff Crumly's suggested change under equal population principles and the doctrine of minimum change. The current population of Roswell 01 is 3360 and Timber Ridge 01 is 3360. Together, the two precincts have a population of 6422. Moving those two precincts into District 2 would greatly askew the population for District 2 so as to make it overpopulated in violation of the one person, one vote principle. This, the Court cannot do in its effort to make the populations of each district as equal as possible.
Population figures were obtained from the Court's technical expert, Regina Harbin Wright.
The Court further notes that the precincts of Roswell 01 and Timber Ridge 01 were in District 3 under the existing map. While Plaintiff Crumly's argument is legitimate under the principle of giving consideration (not deference) to expressions of county and State policy, the Court finds that for purposes of its remedial plan authority, such a significant change of moving these two precincts would not be proper for this Court to enact in an effort to minimize significant changes for the voters of Cobb County, Georgia.
When faced with similar policy arguments in the Smith, Perry case, the Court concluded that it could not “adopt in toto—a proposed, but unenacted, plan by the commission;” because of Voting Rights Act considerations; however, the Court could consider the plan. 314 F.Supp.2d at 1291. Similarly, in the case sub judice, the Court will not give deference to either of the plans at issue (HB 905, Senate Compromise, or BOC Plan); however, the Court finds that it may consider said plans as expressions of governmental and county policy. Such consideration has been given in this case.
The Court will next consider Ms. Famber–Powell's amicus curiae arguments. Ms. Famber–Powell argues that the Court's draft splits the City of Marietta into three different commission districts. Therefore, she has proposed changes to the draft plan to this regard. Following Ms. Famber–Powell's suggestion, however, would cause the Court to ignore the doctrine of minimum change and the policy expression in the record that all four county commissioners represent some portion of the City of Marietta and that no special effort be taken to maintain Marietta in less than four districts. Doc. No. 29–1, p. 3, ¶ 5. In regard to the doctrine of minimum change, the Court notes that the City of Marietta was split into multiple districts in the existing map. The Court further notes that the present Commissioner for District 2, Robert Ott testified that Ms. Famber–Powell's proposal would “tear the heart out of the district.” The Court notes that it is difficult to maintain the primary goal of population equalization by placing Marietta in one district, as even counsel for Ms. Famber–Powell noted that, in her proposed map, all of Marietta is not located in the same district. In addition, the overall population deviation of 1.71% in Ms. Famber–Powell's proposed map was the largest of all of the proposed maps submitted. After review of the record, the Court finds Ms. Famber–Powell's arguments concerning the City of Marietta to be unpersuasive.
Counsel for Ms. Famber–Powell further stated that in regard to the line between Districts 2 and 4, the line used in her proposed map is the same line used by the Senate maps that have already been subject to preclearance. Counsel asked the Court to consider this instructive. The Court finds that this argument is related to Ms. Famber–Powell's City of Marietta arguments and, for the reasoning above, the Court declines to uphold said argument. Furthermore, the location of the Senate map lines is not determinative of the present commission district lines.
Ms. Famber–Powell further states that in District 3, the unincorporated area of East Cobb has, by design, a different land use plan than the rest of the city oriented parts of Cobb County in that it does not have the large commercial centers that you find in Marietta or Smyrna. Counsel for Ms. Famber–Powell states that it makes sense not to include unincorporated areas of Kennesaw and Marietta in District 3. No evidence was submitted in support of Ms. Famber–Powell's argument. The Board presented evidence, through the testimony of commissioner Ott, showing that the main difference between unincorporated and incorporated areas is that incorporated areas have a government of their own. The Court finds that there is insufficient evidence in the record to uphold Ms. Famber–Powell's arguments regarding District 3.
d. preservation of significant political and geographic subdivisions
The Court understands this factor to mean avoiding splits of cities or other municipalities. The Court recognizes that its map does split the cities/areas of Acworth, Kennesaw, Marietta, Roswell, and Smyrna. The Court finds that such splits were justified in light of its primary goal of population equalization and based upon the remaining traditional redistricting factors discussed above.
Id.
e. incumbent considerations
As stated above, protecting incumbents from being drawn out of their existing districts such that they would have to run for election against other incumbents has traditionally been a priority in Georgia redistricting. Smith, Perry, 314 F.Supp.2d at 1307. In the Court's plan, the incumbents have not been drawn out of their existing districts.
B. Voting Rights Act
“The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490, 123 S.Ct. 2498, 2517, 156 L.Ed.2d 428 (2003).
This court must comply with the racial-fairness mandates of Section Two of the Voting Rights Act, 42 U.S.C.A. § 1973, and the purpose-or-effect standards of § 5 of the Voting Rights Act, 42 U.S.C.A. § 1973c even though preclearance of a court plan is not required. See Abrams v. Johnson, 521 U.S. 74, 90, 96, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) ( “Section Five's preclearance mechanism does not apply to courts in creating remedial apportionment plans.”).
As accurately stated in the joint stipulation, a court must not act as a rubber stamp for a particular plan proposed by the parties; however, this does not mean that the court cannot consider the proposed legislative plan, just as it considers any other plans submitted to it. As long as the district court makes an independent, de novo decision as to the appropriate remedial plan, such that the plan is the court's own, its plan does not have to be precleared in accordance with the Voting Rights Act, even if it turns out to greatly resemble the proposed legislative plan. See Smith, Perry, 314 F.Supp.2d at 1295;Johnson v. Miller, 922 F.Supp. 1556, 1569 (S.D.Ga.1995) (noting that fact that court's remedial plan may have resembled proposed legislative plan did not mean that plan was not the court's own; the court necessarily had to rely on legislative plans to determine how the latter had maintained district cores and communities of interest).
“Section Two 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. In analyzing whether a particular apportionment plan complies with Section Two, 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, 123 S.Ct. 2498, 2510, 156 L.Ed.2d 428 (2003); see also Abrams, 521 U.S. 74 at 91, 117 S.Ct. 1925 (the “essence” of a § 2 vote dilution claim is that “a certain electoral law, practice, or structure ... cause[s] an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”).
Section Five of the Voting Rights Act “has a limited substantive goal: “ ‘to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’ ” Georgia v. Ashcroft, 539 U.S. at 477, 123 S.Ct. 2498. “[A] retrogression inquiry under § 5, ‘by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan.’ ” Id. at 478, 123 S.Ct. 2498. Here, the existing plan is the map drawn by the court in 2002.
The population and minority breakdown for the Court's final remedial plan in comparison to the benchmark 2002 plan is as follows:
+---------------------------------------------------------+ ¦DISTRICTS ¦2002 EXISTING¦2012 FINAL ¦DEVIATION ¦ +---------------+-------------+-------------+-------------¦ ¦ ¦BENCHMARK ¦REMEDIAL ¦ ¦ +---------------+-------------+-------------+-------------¦ ¦ ¦PLAN ¦PLAN ¦ ¦ +---------------------------------------------------------+
+----------------------------------------------------+ ¦DISTRICT 1 ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦13.22% ¦19.31% ¦+6.09% ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦12.41% ¦17.78% ¦+5.37% ¦ +-------------+------------+------------+------------¦ ¦VAP ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦ ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦DISTRICT 2 ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦21.04% ¦26.27% ¦+5.23% ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦19.32% ¦24.89% ¦+5.57% ¦ +-------------+------------+------------+------------¦ ¦VAP ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦ ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦DISTRICT 3 ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦8.29% ¦14.69% ¦+6.40% ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦7.59% ¦13.34% ¦+5.75% ¦ +-------------+------------+------------+------------¦ ¦VAP ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦ ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦DISTRICT 4 ¦ ¦ ¦ ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦32.25% ¦44.91% ¦+12.66% ¦ +-------------+------------+------------+------------¦ ¦% TOTAL BLACK¦31.34% ¦42.10% ¦+10.76% ¦ +-------------+------------+------------+------------¦ ¦VAP ¦ ¦ ¦ ¦ +----------------------------------------------------+
“VAP” means voting age population.
“VAP” means voting age population.
It is important to note that in preparing the minority breakdown, the Court has used the “total black” census figures. The Court recognizes that in her amicus curiae arguments, Ms. Famber–Powell asks the Court to add the Black and Hispanic voting age populations together in order to obtain an accurate representation of the total minority percentage. Doc. No. 24, p. 6. Plaintiffs objected anted the absence of binding precedent to this regard. The Court agrees as Ms. Famber–Powell's argument is not in accordance with historical application and authority under the Voting Rights Act. Doc. No. 24, p. 6. In fact, the most recent version of guidance from the Department of Justice's Civil Rights Division indicates that Hispanic voters are analyzed as a separate group for purposes of enforcement of the Voting Rights Act. See U.S. Dep't of Justice Guidance Concerning Redistricting & Retrogression Under Section 5 of the Voting Rights Act, 76 Fed.Reg. 7470 (Feb. 9, 2011) (“As in the past, the Department will analyze Latino voters as a separate group for purposes of enforcement of the Voting Rights Act.”)
Furthermore, to the extent that Ms. Famber–Powell's arguments concern minority representation in Cobb County, the Court notes that under its Final Plan, the Black voting age population increases are greater overall than under Ms. Famber–Powell's proposal.
In regard to the Section Two analysis, 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.
In regard to the Section Five analysis, applicable factors have been set forth by the United States Supreme Court in the Georgia v. Ashcroft case, cited above. Those factors are: (1) preserve current minority voting strength; (2) ensure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise; (3) look county-wide at the minority population, do not focus on individual districts; (4) comparative ability of minority group to elect a candidate of its choice; (5) extent to which a new plan changes the minority group's opportunity to participate in the political process; (6) whether the plan adds or subtracts influence districts in which minorities may not be able to elect a candidate of choice, but can play a substantial, if not decisive role in the electoral process; and (7) likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account. Id.
The parties' briefs indicated that there may some question and/or confusion as to the definition of retrogression. All plaintiffs indicated a belief at the evidentiary hearing that a reduction in black voting age population alone does not constitute retrogression under Section 5.
After considering these factors and the fact that the percentage of total black and percentage of total black voting age population increases from the benchmark figure in each district, as well it appearing from the evidence in the record that there is no recognized majority-minority district in County, the Court finds that there has been no retrogression in its remedial plan. See Doc. No. 29–1. The Court finds that its map conforms to the requirements of the Voting Rights Act in that the changes do not have the effect of denying or abridging the right to vote because of race or color. In addition, the court's map comports with the non-retrogression requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
C. Summary of the Court's plan
In summary, the Court has fashioned a remedy to Cobb County's existing unconstitutional districting plan. In arriving at this remedy in the attached Final Plan, the Court followed the constitutional mandate of one person, one vote, complied fully with § 2 and § 5 of the Voting Rights Act, and carefully adhered to Georgia's traditional principles of redistricting. “No plan of ... redistricting created by court or legislature will achieve perfection. There are too many practical, political, and altogether human features in the equation. [The Court] do[es] no harm with this plan, which cures the unconstitutionality of the former and can serve in ‘caretaker’ status until the [Georgia Legislature] convenes to change it.” Johnson v. Miller, 922 F.Supp. 1556, 1569 (S.D.Ga.1995).
The Court would also like to express its thanks to its court appointed expert, Regina Harbin Wright and consultant, Brian Knight for their invaluable expertise and knowledge in working with the Court to draw the interim map.
Conclusion
The Plaintiff's request for declaratory judgment is GRANTED. The existing maps employed by Cobb County to elect members of the Board of Commissioners are malapportioned and unconstitutional, violative of the Equal Protection clauses of the Fourteenth Amendment to the United States Constitution and the Constitution of the State of Georgia, resulting in liability for which injunctive relief can be granted under 42 U.S.C. § 1983.
The Plaintiff's request for injunctive relief is hereby GRANTED. Defendant Cobb County Board of Elections is hereby enjoined from qualifying candidates and conducting elections in accordance with the existing malapportioned districts.
The Plaintiff's request for remedial relief is hereby GRANTED. The redistricting plan for the Board of Commissioners of Cobb County drawn by the Court as set forth herein (and attached hereto as Exhibit A, entitled “CobbCC–FEDCT–2012”) is hereby established as the interim remedial plan to be utilized by the Cobb County Board of Elections in all future elections for district commissioners of Cobb County until such time as the General Assembly of Georgia enacts and the Department of Justice preclears local legislation which redistricts the Board of Commissioners of Cobb County.
Attorney's fees are not awarded under 42 U.S.C. § 1988. See Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) (holding that a pro se litigant who is also a lawyer may not be awarded attorney's fees under 42 U.S.C. § 1988).
The Cobb County Board of Commissioners shall bear the costs of this action.
The Clerk is hereby DIRECTED to enter judgment in accordance with the present order, and thereafter terminate this action
IT IS SO ORDERED.
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ORDER NUNC PRO TUNC AS TO FINAL ORDER
The Court hereby deletes the following sentence in its final order issued May 9, 2012 at Doc. No. 45, p. 31. “The current population of Roswell 01 is 3360 and Timber Ridge is 3360.” Said deleted sentence is hereby replaced with the following sentence: “The current population of Roswell 01 is 3062 and Timber Ridge is 3360.”
IT IS SO ORDERED.
+----------------------+ ¦DISTRICT ¦POPULATION¦ +-----------+----------¦ ¦001 ¦172,200 ¦ +-----------+----------¦ ¦002 ¦172,582 ¦ +-----------+----------¦ ¦003 ¦171,425 ¦ +-----------+----------¦ ¦004 ¦171,871 ¦ +----------------------+
+----------------------------------------------------------------+ ¦DISTRICTS ¦2002 EXISTING ¦2012 FINAL ¦Famber–Powell¦ +----------------+-----------------+---------------+-------------¦ ¦ ¦BENCHMARK PLAN ¦REMEDIAL PLAN ¦proposal ¦ +----------------------------------------------------------------+
+----------------------------------------------------------------------+ ¦DISTRICT 1 ¦ ¦ ¦ ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK ¦13.22% ¦19.31% ¦19.20% ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK VAP¦12.4% ¦17.78% ¦17.55% ¦ +-----------------+-------------------+-----------------+--------------¦ +-----------------+-------------------+-----------------+--------------¦ ¦DISTRICT 2 ¦ ¦ ¦ ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK ¦21.04% ¦26.27% ¦32.10% ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK VAP¦19.32% ¦24.89% ¦30.10% ¦ +-----------------+-------------------+-----------------+--------------¦ +-----------------+-------------------+-----------------+--------------¦ ¦DISTRICT 3 ¦ ¦ ¦ ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK ¦8.29 ¦14.69% ¦9.25% ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK VAP¦7.59 ¦13.34% ¦8.38% ¦ +-----------------+-------------------+-----------------+--------------¦ +-----------------+-------------------+-----------------+--------------¦ ¦DISTRICT 4 ¦ ¦ ¦ ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK ¦32.25 ¦44.91% ¦44.37% ¦ +-----------------+-------------------+-----------------+--------------¦ ¦% TOTAL BLACK VAP¦31.37 ¦42.10% ¦41.39% ¦ +----------------------------------------------------------------------+