Johnson v. Miller

• Citation: 864 F. Supp. 1354
• Decision Date: 12 September 1994
• Docket Number: Civ. A. No. 194-008.
• Parties: Davida JOHNSON; Pam Burke; Henry Zittrouer; George Deloach; and George Seaton, Plaintiffs, v. Zell MILLER, et al., Defendants, and Lucious Abrams, Jr., et al., Intervenors-Defendants, and United States of America, Intervenor-Defendant.
• Court: U.S. District Court — Southern District of Georgia

864 F. Supp. 1354

Davida JOHNSON; Pam Burke; Henry Zittrouer; George Deloach; and George Seaton, Plaintiffs, v. Zell MILLER, et al., Defendants and Lucious Abrams, Jr., et al., Intervenors-Defendants and United States of America, Intervenor-Defendant.

Civ. A. No. 194-008.

United States District Court, S.D. Georgia, Augusta Division.

September 12, 1994.

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A. Rowland Dye, Dye, Tucker, Everitt, Wheale & Long, Augusta, GA, Larry H. Chesin, A. Lee Parks, Kirwan, Goger, Chesin & Parks, Atlanta, GA, for plaintiffs.

Dennis Robert Dunn, David Frank Walbert, Walbert & Herman, Atlanta, GA, for Zell Miller, Pierre Howard and Max Cleland.

Sam George Nicholson, Augusta, GA, Sewell R. Brumby, Office of Legislative Counsel, Atlanta, GA, for Thomas Murphy.

Laughlin McDonald, Neil Bradley, Mary Ellen Wyckoff, ACLU, Atlanta, GA, for Lucious Abrams, Jr., G.L. Avery, Rev., William Gary Chambers, Sr., Rita Valenti and Karen Watson.

Laughlin McDonald, Mary Ellen Wyckoff, ACLU, Atlanta, GA, for Judy Lammers.

Judybeth Greene, Loretta King, Daniel H. Claman, Dept. of Justice—Civ. Rights Div., Donna M. Murphy, Dept. of Justice, Civ. Rights Div., Voting Section, Washington, DC, for U.S.

Doug Teper, pro se.

A. Leon Higginbotham, Jr., New York City, for Congressional Black Caucus amici curiae.

Before EDMONDSON, Circuit Judge, EDENFIELD, Chief District Judge, and BOWEN, District Judge.

MEMORANDUM OPINION AND ORDER

PER CURIAM:

Plaintiffs challenge the constitutionality of Georgia's Eleventh Congressional District and seek an injunction against its further use in congressional elections. Because we find that the district violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, we grant Plaintiffs' request for injunctive relief and will impose a revised plan in keeping with this Memorandum and Order.

INTRODUCTION

In 1993, the Supreme Court recognized a citizen's right under the Equal Protection Clause to challenge a strangely shaped voting district as an impermissible racial gerrymander. See Shaw v. Reno, ___ U.S. ___, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). The way was thus cleared for constitutional claims against congressional voting districts in North Carolina, Louisiana, Texas, Florida, and now Georgia.

Southern states have proved fertile ground for Shaw claims, as many of their legislatures labor under the long shadow of the Voting Rights Act of 1965: By that law, certain states or political subdivisions are prohibited from enforcing "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" unless they (1) obtain a declaratory judgment from the District Court for the District of Columbia that such change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color," or (2) have submitted the proposed change to the Attorney General and the Attorney General has pre-cleared it. 42 U.S.C. §§ 1973b-c (1993). This procedure applies to redistricting plans, 28 C.F.R. § 51.13 (1993), and it is intended to police those regions of the United States that had, as of certain dates, maintained voting "tests or devices" serving to disenfranchise minority voters. 42 U.S.C. § 1973b. Many Southern states were so designated. See 28 C.F.R. § 51 (at Appendix) (listing, among other areas, Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, and sections of North Carolina and Florida).

Consequently, many southern states seek preclearance from the Department of Justice (hereinafter sometimes referred to as "DOJ") before enacting their proposed redistricting plans. Department regulations require DOJ to decide "whether the submitted change has the purpose or will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group"; if the change may be so described, DOJ will not preclear it. 28 C.F.R. § 51.52. In making its determination, DOJ is required to consider the following "important background information":

(1) The extent to which minorities have been denied an equal opportunity to participate meaningfully in the political process in the jurisdiction.

(2) The extent to which minorities have been denied an equal opportunity to influence elections and the decisionmaking of elected officials in the jurisdiction.

(3) The extent to which voting in the jurisdiction is racially polarized and political activities are racially segregated.

(4) The extent to which the voter registration and election participation of minority voters have been adversely affected by present or past discrimination.

Id. § 51.58. It must also consider the following factors specific to the redistricting process:

(a) The extent to which malapportioned districts deny or abridge the right to vote of minority citizens.

(b) The extent to which minority voting strength is reduced by the proposed redistricting.

(c) The extent to which minority concentrations are fragmented among different districts.

(d) The extent to which minorities are over-concentrated in one or more districts.

(e) The extent to which available alternative plans satisfying the jurisdiction's legitimate governmental interests were considered.

(f) The extent to which the plan departs from objective redistricting criteria set by the submitting jurisdiction, ignores other relevant factors such as compactness and contiguity, or displays a configuration that inexplicably disregards available natural or artificial boundaries.

(g) The extent to which the plan is inconsistent with the jurisdiction's stated redistricting standards.

Id. § 51.59.

This litany makes it fairly clear that, by instruction of the United States Congress, racial concerns are DOJ's overriding criterion for approving a redistricting plan.

Shaw v. Reno holds that if a plaintiff shows that racial concerns were the overriding criterion for drafting a redistricting plan, leading to the creation of dramatically irregular district boundaries, that plan is unconstitutional, unless it survives constitutionally strict scrutiny. See Shaw, ___ U.S. at ___-___, 113 S.Ct. at 2826-27.

And therein lies the problem.

I. FACTS

Pursuant to the results of the 1980 Decennial Census, the State of Georgia was entitled to ten seats in the United States House of Representatives. Due to population increases revealed by the 1990 Census, that number increased to eleven. This change required the reformatting of Georgia's congressional districts, a task begun by House and Senate reapportionment¹ committees during the 1991 session of the Georgia General Assembly. The task would prove far more onerous than anticipated.

In order to clarify the drafting process, on February 28, 1991 both the House and Senate adopted redistricting guidelines. See Joint Exh. 9, 10. Both versions required public hearings, allowed for submissions by "third parties" outside the Assembly, and provided a list of drafting criteria: single-member districts only, equality of population among districts, contiguous geography, avoiding dilution of minority voting strength, following precinct lines where possible, and compliance with sections 2 and 5 of the Voting Rights Act (hereinafter sometimes referred to as "VRA") 42 U.S.C. § 1973, et seq. Once these requirements were met, drafters could consider maintaining the integrity of political subdivisions, preserving the core of existing districts, and avoiding contests between incumbents.

While the House and Senate surely considered these criteria a realistic tool for drafting reasonable voting districts, and while many of their members were veterans of past redistricting wars, the legislators could not have known what the DOJ would require by way of compliance with sections 2 and 5 of the VRA.

A. The Preclearance Process

1. The Max-Black Plan

One of the "third party" redistricting proposals submitted to the legislature in 1991 would later earn the ominous moniker, "the max-black plan." That plan, created by Ms. Kathleen Wilde, then an attorney with the American Civil Liberties Union ("ACLU") and in her capacity as advocate for the Black Caucus of the Georgia General Assembly, provided for three "majority-minority" congressional districts² in Georgia: the Second, Fifth and Eleventh. Tr. IV, at 70-72, 93; Joint Exh. 4 (version of max-black plan proposed by Reps. Cynthia McKinney and Tyrone Brooks). In contrast, the then existing congressional plan had only one majority-minority district: the Fifth. Joint Exh. 15.

Ms. Wilde's drive to create three majority-minority districts came, predictably enough, from her clients, including Rep. Tyrone Brooks. Brooks made several illuminating statements during the redistricting debate on the floor of the Georgia House:

This plan the first redistricting proposal to be submitted to DOJ by the General Assembly does not come close to the criteria outlined by the Attorney General last summer, when he specifically told the states covered by the Act that wherever possible, you must draw majority black districts, wherever possible.

... Obviously, it's possible to draw three; those of us who have been working on the max plan for over a year have really not been concerned about anything other than maximizing our voting strength.

We've not been really concerned about territory; we've not been concerned about voter registration numbers, we've been concerned about population, and black voting age population. When you start playing games with lines and numbers on voter registration and—all of these other things that really don't matter, you are just simply wasting time.

Pltf.Exh. 132, at 40. Ms. Wilde claimed that her purpose "was to draw as many districts as possible consistent with equal opportunity for black citizens in Georgia." Tr. IV, at 71. That is, her plan attempted to secure proportional...