Clark v. Putnam County, No. 01-10859.

• Decision Date: 10 June 2002
• Docket Number: No. 01-10859.
• Citation: 293 F.3d 1261
• Parties: Michael CLARK, John Harper, Alan Foster, William Darley, Plaintiffs-Appellants, v. PUTNAM COUNTY, Bill Moore, in his official capacity as Chairman of the Putnam County Board of Commissioners, Sandra Adams Prebost, in her official capacity as a member of the Putnam County Board of Commissioners, Jimmy Davis, in his official capacity as a member of the Putnam County Board of Commissioners, Robert Poole, in his official capacity as a member of the Putnam County Board of Commissioners, et al., Defendants-Appellees, The Georgia State Conference of NAACP Branches, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

293 F.3d 1261

Michael CLARK, John Harper, Alan Foster, William Darley, Plaintiffs-Appellants, v. PUTNAM COUNTY, Bill Moore, in his official capacity as Chairman of the Putnam County Board of Commissioners, Sandra Adams Prebost, in her official capacity as a member of the Putnam County Board of Commissioners, Jimmy Davis, in his official capacity as a member of the Putnam County Board of Commissioners, Robert Poole, in his official capacity as a member of the Putnam County Board of Commissioners, et al., Defendants-Appellees The Georgia State Conference of NAACP Branches, Intervenor-Defendant-Appellee.

No. 01-10859.

United States Court of Appeals, Eleventh Circuit.

June 10, 2002.

COPYRIGHT MATERIAL OMITTED

A. Lee Parks, Jr., Parks, Chesin & Miller, P.C., Atlanta, GA, for Plaintiffs-Appellants.

Maha S. Zaki, Southern Poverty Law Center, Montgomery, AL, for Defendants-Appellees.

Thomas F. Richardson, Chambless, Higdon & Carson, Macon, GA, Dorothy J. Adams, Francis N. Ford, Adams & Ford, LLP, Eatonton, GA, Neil Bradley, ACLU, Atlanta, GA, for Intervenor-Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before EDMONDSON, Chief Judge, and HILL and LAY^*, Circuit Judges.

HILL, Circuit Judge:

This action challenges the constitutionality of two electoral districts in Putnam County, Georgia. Appellants claim that these two districts were racially gerrymandered in violation of the Equal Protection Clause of the United States Constitution. After a bench trial, the district court granted judgment to Putnam County. This appeal followed.

I.

In 1981, the United States District Court for the Middle District of Georgia invalidated at-large elections in Putnam County, Georgia (the "County"), concluding that this electoral system had been created and maintained with the invidious discriminatory purpose of limiting black voters' meaningful participation in the electoral process in violation of their Fourteenth and Fifteenth Amendment rights under the United States Constitution. Bailey v. Vining, 514 F.Supp. 452, 463 (M.D.Ga.1981). The court ordered the creation of four electoral districts,¹ with Districts 1 and 2 to be remedial majority-minority districts.² District 1 was constructed to have a black voting age population of 73.47%; District 2 to have 54.84% black voters.³

Over the next decade, however, the black population of Putnam County declined from over 40%, to just under 34%.⁴ This was attributable in large part to a substantial influx of white residents, largely into District 4.⁵ The 1990 census revealed that, as a result of these population shifts, the County's four electoral districts had become seriously malapportioned. There was an overall deviation from equal district population of almost 75%.⁶ All concerned realized that the county's electoral districts would have to be reapportioned to satisfy the constitutional requirement of "one-person, one-vote." Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Hadley v. Junior College Dist., 397 U.S. 50, 56-57, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) (extending Reynolds to school board districts); Avery v. Midland County, 390 U.S. 474, 481-85, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) (county commissioner districts).⁷

The County hired Christopher Coates to assist it in the reapportionment process. He had represented the plaintiffs suing the County in Bailey v. Vining, which resulted in the court-ordered, remedial redistricting of 1981. Coates, along with the County, consulted with Linda Meggers of the Georgia Reapportionment Services Office in Atlanta, an office established by the legislature to provide technical assistance to local governments engaged in redistricting. It was Ms. Meggers who, at the direction of the County, actually produced the 1992 plan.

The plan was approved by a majority vote of the County's Board of Commissioners, and, pursuant to the Georgia Constitution, was presented to the legislature for its approval. Regrettably, the legislature followed a course not unfamiliar to those observing state action in matters of this sort. In short, the legislature walked away from the issue; defaulted its responsibility to deal with Georgia election matters; and failed to take any action on the 1992 reapportionment plan.⁸ The County, through Coates, took the plan to the district judge who, in Bailey v. Vining, had ordered the 1982 redistricting. The County asked the court to amend its 1981 judgment by adopting the 1992 plan.⁹ Although the Bailey case had long been closed, the district court agreed and ordered the implementation of the new plan on an "interim" basis, until the Georgia legislature could adopt a constitutionally satisfactory reapportionment plan. Once the plan was enacted, however, no further efforts for legislative approval were undertaken.¹⁰

The County did submit the plan to the Department of Justice (the "DOJ") for its approval. Section 5 of the Voting Rights Act prohibits the County from instituting any changes in its electoral laws until they have been "precleared" with the DOJ.¹¹ 42 U.S.C. § 1973c (1994). To obtain preclearance, a covered jurisdiction¹² must convince the DOJ that the electoral change was not adopted for the purpose of discriminating against protected minorities, nor will have that effect. The DOJ approved the plan, and the County implemented it.

After this court-ordered redistricting,¹³ both of the County's majority-minority districts were maintained and each had approximately 60% black voting age population, despite the significant decline in the overall black population of the county.¹⁴ Furthermore, over 90 % of the county's black population was assigned to these two districts. The County conducted its elections under this "interim" plan for ten years.¹⁵

In 1997, plaintiff-voters filed this action challenging the 1992 plan. Plaintiffs allege that the County unconstitutionally racially gerrymandered its electoral districts in 1992, by purposefully maximizing the black voter population in Districts 1 and 2.

The district court rejected this claim, holding that race did not predominate over traditional districting concerns in the construction of the 1992 reapportionment plan. Furthermore, the court held that, even if race did predominate in the construction of the 1992 plan, the challenged districts were narrowly tailored to meet the compelling state interest of remedying black vote dilution created by racial bloc voting. The court entered a judgment for the County.

"[I]ntentional discrimination is a finding of fact." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Accordingly, we review the district court's ultimate finding that race did not predominate in the reapportionment process for clear error. Easley v. Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). We must affirm the district court's finding unless we are "left with the definite and firm conviction that a mistake has been committed." Anderson, 470 U.S. at 573, 105 S.Ct. 1504. We review de novo the district court's conclusion of law that the 1992 plan serves a compelling state interest. NAACP v. Duval County Sch. Bd., 273 F.3d 960 (2001).

II.

The central mandate of the Equal Protection Clause of the United States Constitution is "racial neutrality in governmental decision making." Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). Racial classifications are antithetical to the Fourteenth Amendment, whose "central purpose" was "to eliminate racial discrimination emanating from official sources in the States." McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

The Equal Protection Clause also requires, however, that no race be denied the effective exercise of the right to vote. Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) ("[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot") (emphasis in original). Electoral schemes which cancel out or dilute the voting strength of racial groups are unconstitutional when they are adopted with a discriminatory purpose. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). In order to state a racial vote dilution claim under the Constitution, intent to racially discriminate must be shown. Mobile v. Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). In 1982, Congress amended the Voting Rights Act of 1965 to make unlawful any electoral practice which has even the unintentional effect of minority vote dilution. Amended § 2 provides:

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by [minorities] in that [they] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

42 U.S.C. § 1973(a, b) (1994).

Race, therefore, may be taken into consideration in avoiding and remedying unlawful vote dilution by devising voting districts which ensure that all voters have an equally effective opportunity to participate in the electoral process. Regester, 412 U.S. at 769, 93 S.Ct. 2332.

Race may not, however, be used as the primary tool in assigning voters to electoral districts. Shaw v. Reno, 509 U.S. 630, 642, 646, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). "Just as the State may not, absent extraordinary justification, segregate citizens on the basis of race in its public parks, ......