Busbee v. Smith
| Decision Date | 21 September 1982 |
| Docket Number | Civ. A. 82-0665. |
| Citation | 549 F. Supp. 494 |
| Parties | George D. BUSBEE, et al., Plaintiffs, v. William French SMITH, et al., Defendants, William C. (Billy) Randall, Jr., et al., Intervenor-Defendants. |
| Court | U.S. District Court — District of Columbia |
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Michael J. Bowers, Atty. Gen., Carol Atha Cosgrove, Sr. Asst. Atty. Gen., Mark H. Cohen, Staff Asst. Atty. Gen., Atlanta, Ga., Joseph W. Dorn, Sp. Asst. Atty. Gen., Washington, D.C., for plaintiffs.
Mark A. Posner, Paul F. Hancock, Civil Rights Div., Attys., Voting Section, Dept. of Justice, Washington, D.C., for defendants.
Frank R. Parker, Barbara Y. Phillips, Washington, D.C., Laughlin McDonald, David Walbert, Atlanta, Ga., for intervenors-defendants.
Before EDWARDS, Circuit Judge, and ROBINSON and GREEN, District Judges.
This action was commenced by the State of Georgia pursuant to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. The State seeks a declaratory judgment from this Court that Act No. 5 of the 1981 Extraordinary Session of the Georgia General Assembly, which is the plan for reapportionment of the State's congressional districts, "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race." 42 U.S.C. § 1973c. Such a declaratory judgment is necessary for the State to implement its reapportionment plan, as the United States Attorney General refused preclearance of Act No. 5 upon his finding that the Fourth and Fifth Congressional districts created by the Georgia law violated the Voting Rights Act of 1965. See Id.1
Trial was held before this three judge court from June 28 through July 1, 1982.
1. Application of 1980 Census figures to the 1972 Georgia congressional apportionment plan demonstrated that the districts delineated in the 1972 plan did not satisfy the one-person, one-vote standard of the Fourteenth Amendment to the United States Constitution. (Stipulation of Facts ¶ 3.) New districts had to be drawn to satisfy the constitutional requirement.
2. On August 13, 1981, the Governor of Georgia, George Busbee, called a special session of the Georgia General Assembly starting August 24, 1981 to consider, inter alia, reapportionment of Georgia's state legislative districts and congressional districts. (Id. ¶ 19.)
3. On September 17, 1981, the Georgia General Assembly adopted Act No. 5, Extraordinary Session 1981, providing for the reapportionment of Georgia's ten congressional districts. (Id. ¶ 47.) Governor Busbee approved Act No. 5 on September 22, 1981 and it became state law.
4. For each district created by Act No. 5, the total population, black population and deviation from the ideal population of 546,426 (for purposes of the one-person, one-vote requirement) are as follows:
TABLE 1. Population of Districts Created by Act No. 5
TOTAL PERCENT BLACK PERCENT
DISTRICT POPULATION DEVIATION POPULATION BLACK
1 541,180 - .96 179,818 33.23
2 550,237 + .69 200,646 36.47
3 540,865 - 1.01 185,762 4.35
4 549,846 + .62 116,530 21.19
5 542,592 - .70 310,822 57.28
6 548,891 + .45 81,937 14.93
7 545,889 - .09 32,641 5.98
8 542,552 - .70 191,342 35.27
9 551,773 + .97 28,608 5.18
10 550,440 + .73 137,351 24.95
(Id. ¶ 45.)
5. The 1980 total population, black population and deviation from the ideal population of each district created by the 1972 appointment, which Act No. 5 replaced, are as follows:
TABLE 2. 1980 Population of 1972 Districts
TOTAL PERCENT BLACK PERCENT
DISTRICT POPULATION DEVIATION POPULATION BLACK
1 527,732 - 3.42 180,225 34.15
2 552,952 - 4.29 192,649 36.83
3 500,941 - 8.32 173,936 34.72
4 543,954 - .45 150,798 27.72
5 420,474 - 23.05 211,634 50.33
6 626,354 + 14.63 146,991 23.46
7 605,720 + 10.85 40,086 6.06
8 508,028 - 7.03 156,721 30.84
9 660,892 + 20.95 31,414 4.75
10 547,218 + .14 181,003 33.07
6. Based on 1980 Census figures, in the Fifth Congressional district, 48% of the white population is of voting age and 52% of the black population is of voting age. However, 54% of the registered voters are white and 46% are black. (Stipulation of Facts, ¶ 50.)
7. Geographically, Act No. 5 splits Fulton County, Georgia into three congressional districts: the Fourth, the Fifth and the Sixth. DeKalb County is split between the Fourth and Fifth Districts. The cities of Atlanta, Roswell and Alpharetta are split on a north-south axis between the Fourth and Fifth Congressional districts. (Joint Ex. 23.)
8. Demographically, Act No. 5 splits into separate congressional districts cohesive neighborhoods and communities in that part of metropolitan Atlanta which lies in south Fulton and DeKalb Counties. The black population in Fulton and DeKalb Counties is concentrated in one contiguous area stretching from southwest Fulton County to south Central DeKalb County. During the past decade, the black population has increased dramatically in south Fulton and unincorporated south DeKalb Counties. Virtually all census tracts in this area displayed an increase in black population of 100 percent or more from 1970 to 1980. (Grier Trial Testimony, 532-537; Defendants' Exhibits EEE, FFF, GGG and FFFF.) The black population has not increased similarly in north Fulton and DeKalb Counties. A racial boundary line, which tracks the Southern Railroad Line and North Avenue in Fulton County and the Georgia Railroad Line in DeKalb County, separates the races in both counties on an east-west axis. (Grier Trial Testimony, 535.)
9. The racial boundary line formed by the Southern and Georgia Railroads and North Avenue, separates, in general, persons residing in rental dwellings from those in owner-occupied houses, persons who are apartment dwellers from home owners, and persons having larger families from those with smaller families. (Defendants' Exhibits AAAA, BBBB, CCCC, and DDDD; Grier Trial Testimony, 540-547.) Most of the citizens in southern Fulton and DeKalb counties share common political and social concerns on account of their race, income, educational level, housing and household size. (Id.; Bond Trial Testimony, 561.)
10. Furthering the cohesion of black neighborhoods is the incidence of racially polarized voting which prevails in this area. (Young Deposition, 9, 31; Bullock Trial Testimony 255, 260, 263; Fulton Deposition, 43, 200-203, 228-228; Lowe Deposition, 83-84, 226, 228-229; Holmes Deposition 79-88; Sells Deposition, 8-14, 17; Plaintiffs' Exhibit 25.) Although Andrew Young won a seat as a United States Congressman in the Fifth District in 1972 when the black population was a lower percentage than under the State's proposed congressional plan, the evidence indicates that racial polarization has increased since that time. (Id.)
11. Although Act No. 5 split a cohesive black community in Districts 4 and 5, it placed cohesive white communities throughout the state of Georgia into single Congressional districts. For example, the so-called "mountain counties" of North Georgia, which were described as having peculiarly unified interests and concerns, were placed together in the Ninth District. (Miller Trial Testimony, 169A.)
12. The demographics of south Fulton and DeKalb Counties were well known to members of the Georgia General Assembly in 1981. They were aware that black citizens of the same socio-economic background lived in this area. (See Finding ¶ 43, infra.) The testimony of Dr. George Grier and the exhibits prepared by him, though relying on census information not available in 1981, confirmed that which was readily apparent to the Georgia legislators at the time of the reapportionment at issue.
13. Historically, discriminatory tactics were commonly utilized by whites against blacks in the south Fulton and DeKalb area. For example, literacy tests, the poll tax, the white primary and the county unit system were employed to destroy black voting strength. (Willingham Trial Testimony, 661-663.) See, e.g., Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (Georgia's county unit system found unconstitutional). In the 1970 reapportionment of the Atlanta area, the boundary line separating Districts Five and Six was drawn to fragment the concentration of black persons residing in the area. (Hamilton Trial Testimony, 133.) The line separating Districts Five and Six also was drawn to exclude from the Fifth District the residences of black persons who were clearly recognized as potential candidates for election in the Fifth District, and to include in the Fifth District the residences of white persons who were recognizable potential candidates. The residences of Andrew Young and Maynard Jackson (black persons recognized as potential candidates) were located approximately one block from the boundary of the...
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