573 F.3d 1143 (11th Cir. 2009), 08-10546, Cook v. Randolph County, Georgia
|Citation:||573 F.3d 1143|
|Opinion Judge:||CARNES, Circuit Judge:|
|Party Name:||Henry COOK, Plaintiff-Appellant, v. RANDOLPH COUNTY, GEORGIA, Randolph County Department of Registration and Elections, Voter Registration Division, Honorable Linda Jackson, Individually, and in her official capacity as Superintendent of Elections for Randolph County, Georgia, Winona Johnson, Individually and in her official capacity as Deputy Regi|
|Attorney:||Maurice Luther King, Jr., The Law Office of Maurice Luther King, P.C., Albany, GA, for Cook. Mary Mendel Katz, Chambless, Higdon, Richardson, Katz & Griggs, LLP, Macon, GA, for Defendants-Appellees.|
|Judge Panel:||Before TJOFLAT and CARNES, Circuit Judges, and HOOD,[*] District Judge.|
|Case Date:||July 07, 2009|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
Appeal from the United States District Court for the Middle District of Georgia.
As Justice Holmes once remarked, " pretty much all law consists in forbidding men to do some things that they want to do." Adkins v. Children's Hospital, 261 U.S. 525, 568, 43 S.Ct. 394, 405, 67 L.Ed. 785 (1923) (Holmes, J., dissenting). In this case the Randolph County Board of Registrars wanted to change the voting registration of Henry Cook, a member of the county's board of education, which also would have changed the district from which he could run for office. The law that prevented the board from doing that is § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, enforced by an injunction that was obtained in a lawsuit filed by some of Cook's constituents; that injunction required preclearance and the Department of Justice refused to grant it. This appeal is not about the preclearance requirement. Instead, it involves Cook's separate lawsuit and his insistence that even though the Board of Registrars' attempt did not succeed, he is still entitled to an injunction against and monetary relief from the members of the Board and the County.
Henry Cook is an African American man who has served on the Randolph County Board of Education as a representative of District 5 ever since 1993. He continues to serve on that Board (and as its chairman). District 5 is a predominantly African-American voting district, and Cook has been outspoken about funding for that district's schools. District 4 is predominantly white. Each school district is represented on the board of education by someone who lives within that district; there are no at-large representatives.
After the 2000 census, the Randolph County election maps were redrawn and approved by the legislature. In 2002 a redistricting plan was submitted to the Department of Justice for preclearance approval as required by § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. On the map showing the proposed districts, the line between Districts 4 and 5 runs right through Cook's 8-acre property. Most of his land is in District 5, but his house is in District 4. During the preclearance process, a dispute arose about where Cook would be considered to reside for voting purposes, and the County assured the Department of Justice that Cook would still be considered to reside in District 5. That representation induced the Department's September 30, 2002 decision to grant preclearance to the redistricting map, which was expressly conditioned on Cook's voting district not being changed. Cook thereafter received a " new" voter registration card showing that he was still a registered voter in District 5, just as he had been before.
On October 11, 2002, however, Lee Norris Jordan challenged whether Cook could run for reelection to the Board of Education's District 5 seat, asserting that he did not actually reside in that district. Jordan, who is also African American, was running against Cook for that district's seat on the Board of Education. The county election superintendent was Linda Jackson, but she recused herself from deciding the matter because during the preclearance process she had assured the Department of Justice that Cook would remain in District 5. Because of that recusal, Superior Court Judge Gary McCorvey was appointed to serve as election superintendent to decide the challenge. As acting election superintendent, Judge McCorvey held a hearing on the matter on October 22, 2002. Six days later he issued a decision concluding that " the residence of Henry L. Cook is within the boundaries of such ‘ new’ district five as contemplated by the Laws and Constitutions of both the State of Georgia and
the United States of America." In November of 2002 Cook was reelected to the Board of Education from District 5. Because Jordan waited until after the election to appeal the acting election superintendent's decision, the Superior Court of Randolph County dismissed his appeal as moot, and the Supreme Court of Georgia affirmed that dismissal. Jordan v. Cook, 277 Ga. 155, 587 S.E.2d 52 (2003).
Even though the relevant facts and law had not changed, on January 30, 2006 the three members of the Randolph County Board of Registrars (defendants Carol Ray, Winona Johnson, and Lorraine Curry), all of whom are white, held a specially called meeting and voted unanimously to change Cook's voter registration from District 5 to 4. The minutes of their meeting state that it " was publicized twenty-four (24) hours in advance via the courthouse bulletin board and the local legal organ, The Southern Tribune." Cook says that he was not given any prior notice. In regard to the reason for the change, the minutes state:
Our decision was based on the following facts: (1) first and foremost it is our duty as voter registrars to establish the correct precinct and district of eligible registered voters. (2) No city taxes are paid on the land owned by Henry L. Cook at Rt. 1 Box 220 Howell Mill Road, indicating he is not in the city limits which would be district five (5). He accepts homestead exemption and purchases car tags at the above mentioned address. He has been billed for county taxes, that were due no later than December 20, 2005, and as of today (January 30, 2006) they have not been paid. (3) All neighbors around him are in district four (4).
(capitalization altered). The minutes also note that Georgia Code § 21-2-226(b) gives the Board of Registrars the duty " to determine and place any eligible registered voter in the proper" district.
In February 2006, Cook received notice that his voting district had been changed. The deadline for qualifying to run for the Board of Education was April 28, 2006. Because of the Board of Registrars' action, Superintendent of Elections Jackson would not provisionally qualify Cook to run from District 5.
On April 17, 2006, two related lawsuits were filed. Cook filed one in the Superior Court of Randolph County, Georgia. In addition to the three members of the Board or Registrars, it named as defendants: Randolph County; the Randolph County Department of Registration and Elections, Voter Registration Division; and Linda Jackson, the superintendent of elections. All of the individual defendants were sued in both their individual and official capacities. The original complaint in that lawsuit claimed that the defendants had conspired to remove Cook from his district because of racial animosity and also that he was not given notice or an opportunity to be heard. It sought " to compel defendants to place [Cook] back into his correct district from which he was removed by Defendants' illegal conduct." The complaint requested an injunction ordering the defendants to place him back in District 5 and restraining any other candidates from registering to run for the District 5 seat on the Board of Education until Cook was reassigned to that district. It also sought monetary damages, attorney's fees, and costs.
On the same day that Cook filed his lawsuit in state court, some of his constituents filed another one in federal district court against the same individual defendants, as well as some others, seeking injunctive relief under § 5 of the Voting
Rights Act. See Jenkins v. Ray, No. 4:06-CV-43, 2006 WL 1582426 (M.D.Ga. June 5, 2006) (" the Jenkins lawsuit" ). Cook was not a party to that lawsuit. The Jenkins plaintiffs asked the court to enjoin the defendants from removing Cook from District 5 without preclearance from the Department of Justice. They also requested attorney's fees under 42 U.S.C. § § 1988 and 1973e. The Jenkins plaintiffs prevailed. On June 5, 2006, the district court issued an injunction barring " further use of the changes at issue absent preclearance [from the Department of Justice] under Section 5 [of the Voting Rights Act]." Id. at *3.
The Department of Justice denied preclearance in a letter dated September 12, 2006. It concluded that the County had failed to meet its burden of showing that the proposed change (the reassignment of Cook from District 5 to 4) did not have a discriminatory purpose. In reaching that conclusion, the letter noted that " the County [had] formally determined-and advised this Department-that Mr. Cook was an eligible voter and candidate for office in District 5" during the Department's review of the proposed redistricting following the 2000 census. Concerning the reassignment of Cook to District 4 in 2006, the letter stated:
This sequence of events is procedurally and substantively unusual. The Board [of Registrars] resurrected the issue of Mr. Cook's residency after it had been settled for three years, without any intervening change in fact or law, and without notifying Mr. Cook...
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