Johnson v. Miller

Citation922 F. Supp. 1556
Decision Date13 December 1995
Docket NumberNo. CV 194-008.,CV 194-008.
PartiesDavida JOHNSON; Pam Burke; Henry Zittrouer; George L. Deloach; and George Seaton, Plaintiffs, v. Zell MILLER, in his official capacity as Governor of the State of Georgia; et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)

COPYRIGHT MATERIAL OMITTED

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

Dennis Robert Dunn, Atlanta, GA, David Frank Walbert, Walbert & Mathis, Atlanta, GA, Sam George Nicholson, Augusta, GA, and Sewell R. Brumby, Office of Legislative Counsel, Atlanta, GA, for defendants.

Laughlin McDonald, Neil Bradley, Mary Ellen Wyckoff, ACLU, Atlanta, GA, Judybeth Greene, Loretta King, Daniel H. Clayman, Dept. of Justice — Civil Rights Div., and Donna M. Murphy, Dept. of Justice, Civil Rights Division, Voting Section, Washington, DC, for intervenor-defendants.

Doug Teper, Atlanta, GA, amicus pro se.

A. Leon Higginbotham, Jr., New York City, Frank B. Strickland, Anne Ware Lewis, Wilson, Strickland & Benson, Atlanta, GA, Richard Scott Thompson, McNatt, Greene & Thompson, Vidalia, GA, Dalton L. Oldham, Columbia, SC, for amici.

Gray Brumby, Atlanta, GA, amicus pro se.

Sanford D. Bishop, Jr., Member of Congress, Washington, DC, interested party pro se.

Jim Coonan, Atlanta, GA, interested party pro se.

Woodrow Lovett, Sardis, GA, interested party pro se.

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

ORDER

This Court's September 12, 1994, Order declared Georgia's Eleventh Congressional District unconstitutional. Johnson v. Miller, 864 F.Supp. 1354 (S.D.Ga.1994) ("Johnson I"). The Supreme Court affirmed our decision in Miller v. Johnson, ___ U.S. ___, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) ("Johnson II"). In accordance with the Supreme Court's affirmance, we held a hearing on August 22, 1995, to determine the best means of resolving the issue of remedy. Plaintiffs moved for leave to add residents of Georgia's Second Congressional District in a constitutional challenge thereto. The Court granted that motion, held a trial, and declared the Second District unconstitutional. Johnson v. Miller, 922 F.Supp. 1552 (S.D.Ga.1995) ("Johnson III").1

As to the remedy, we deferred to Georgia's legislature, allowing it an opportunity to draw a new congressional map in accordance with the Supreme Court's holding and this Court's prior findings. Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993). Time obviously was of the essence in light of the rapidly approaching 1996 Congressional elections and the more imminent 1996 congressional campaigns. However, the legislature notified the Court on September 13, 1995, that it was unable to redraw the map and had adjourned, effectively leaving the task to us. See "Notice of Def. Murphy with Respect to Legislative Adjournment." We are therefore forced to redraw Georgia's congressional districting plan.

I. Scope of Remedy

In fashioning a remedy in redistricting cases, courts are generally limited to correcting only those unconstitutional aspects of a state's plan. Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982). The rationale for such a "minimum change" remedy is the recognition that redistricting is an inherently political task for which federal courts are ill-suited. Id. at 41-42, 102 S.Ct. at 1521-22. A minimum change plan acts as a surrogate for the intent of the state's legislative body. See Id. at 43, 102 S.Ct. at 1522 (district court must reconcile Constitutional requirements with goals of state policy); White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1973) ("district court should ... honor state policies in the context of congressional reapportionment").

In Upham, the Texas legislature had passed a congressional districting plan and submitted it to the U.S. Department of Justice ("DOJ") for preclearance. While the plan was with the DOJ, a case was filed in district court challenging the plan's constitutionality under the Voting Rights Act ("VRA"). The U.S. Attorney General also objected to the plan, specifically objecting to two of the plan's twenty-seven districts. The three judge panel determined that the two districts were unconstitutional, and devised a plan of its own. The court's plan redrew the two objectionable districts and two adjoining districts. However, in doing so, the Court substituted its own judgment for the Texas legislature's and redrew districts in Dallas County in addition to the two objectionable south Texas districts. Reasoning that the legislatively-drawn districts would have failed retrogression analysis, the court redrew the Dallas County districts under the stricter standard applicable to courts. Thus, the court ignored the legislature's preferences.

Reversing, the Supreme Court held that the district court erred in redrawing the Dallas County districts absent an objection to those by the attorney general or a specific finding that they were unconstitutional. The Court stated that a "district court's modifications of a state plan should be limited to those necessary to cure any constitutional or statutory defect." Upham, 456 U.S. at 43, 102 S.Ct. at 1522. And, "`in fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor intrude upon state policy any more than necessary.'" Id. at 42, 102 S.Ct. at 1521 (quoting Weiser, 412 U.S. at 794-95, 93 S.Ct. at 2354-55). The Court had no objection to the district court's correction of the two objectionable districts or the two adjoining districts that were necessarily impacted as a result thereof.

At first glance it appears that, in remedying Georgia's constitutionally infirm congressional districting plan, we are faced with the same task as the Upham court, which would entail making only those changes necessary to bring the current plan into constitutional compliance. However, this Court's remedial task differs from that of the Upham court's because Georgia's current plan was not the product of Georgia's legislative will. Rather, the process producing Georgia's current plan was tainted by unconstitutional DOJ interference. See Johnson I, 864 F.Supp. at 1367-68. By virtue of its unconstitutional origin, Georgia's current congressional plan cannot form the basis for the remedy we now construct because it does not represent the goals of Georgia's historic policies nor the state legislature's true intent.

A. Department of Justice's Interference

Central to this Court's finding that the Second and Eleventh Districts are unconstitutional was the DOJ's level of involvement in the creation of the current plan. The DOJ used informants inside the legislature to keep tabs on the legislature's progress. Id. at 1367. It worked closely with the ACLU to help the ACLU achieve its objective of three majority-minority districts in Georgia. Id. at 1362-63 (finding, among other things, that the "DOJ was more accessible and amenable to the opinions of the ACLU than to those of the Attorney General of the State of Georgia"). The DOJ rejected Georgia's first two plans even though they clearly did not violate Section 5 of the Voting Rights Act. Johnson II, ___ U.S. at ___, 115 S.Ct. at 2491, 132 L.Ed.2d at 784. The DOJ basically used the preclearance process to force Georgia to adopt the ACLU redistricting plan and, in the process, subvert its own legislative preferences to those of the DOJ. The product of the process, the unconstitutional plan, more closely reflects the DOJ's and ACLU's intentions than the Georgia General Assembly's. Johnson I, 864 F.Supp. at 1367 (finding the precleared plan "bore all the signs of DOJ's involvement"). Using the current plan as a basis for the remedy would, in effect, validate the DOJ's constitutionally objectionable actions. Thus, we cannot use Georgia's current plan as a surrogate for the legislature's reapportionment policies and goals. See Johnson II, at ___, 115 S.Ct. at 2481, 132 L.Ed.2d at 782 ("Georgia's ... redistricting plan cannot be upheld unless it satisfies strict scrutiny," which the Court found it did not) (emphasis added); Johnson I, 864 F.Supp. at 1393 (finding "in sum, the current districting plan is not reasonably necessary to comply with Sections 2 or 5 of the VRA. Since no compelling state interest other than VRA compliance is evident, the plan fails strict scrutiny under the Fourteenth Amendment") (emphasis added).

Because the current plan does not represent the Georgia legislature's intent, we are not bound by Upham to make only minimal changes to the current plan in fashioning a remedy.2 Finally, since two of Georgia's districts are unconstitutional, are on opposite sides of the state, and contain all or parts of nearly a third of Georgia's counties, any remedy even minimally disruptive to the current plan would necessarily have resulted in drastic changes.3 Considering the objective that each congressional district should ideally contain 588,929 persons, it is a virtual impossibility to change less than we have.

B. Remedy

Because we are unable to use Georgia's current plan as the basis for a remedy, we were compelled to devise our own plan. The remedy we devised and now order into effect is attached to this order as Appendix A, with the verbal census block description attached as Appendix B. The plan contains one majority-minority district, has an overall population deviation of .35%, and an average deviation of .11%. The plan and how we devised it we further explain below.

II. Remedial Factors

Since the Court is not limited to Georgia's current unconstitutional plan, the Court's task is akin to those cases in which states had no plans. Thus, when devising the remedy, the Court was bound by the stricter guidelines applicable to court plans. These guidelines include the one person-one...

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