Ga. State Conference of the NAACP v. State

Decision Date25 August 2017
Docket Number1:17–cv–1427–TCB–WSD–BBM
Citation269 F.Supp.3d 1266
Parties GEORGIA STATE CONFERENCE OF the NAACP, as an organization; et al., Plaintiffs, v. STATE of Georgia; et al., Defendants.
CourtU.S. District Court — Northern District of Georgia

Bradley S. Phillips, Gregory D. Phillips, Pro Hac Vice, John F. Muller, Thomas P. Clancy Munger, Tolles & Olson, Los Angeles, CA, Jennifer Burch Dempsey, Julia Fenwick Ost, William Vance Custer, IV, Bryan Cave, LLP-ATL, Atlanta, GA, Ezra David Rosenberg, John Michael Powers, Jon M. Greenbaum, Julie Marie Houk, Washington, DC, for Plaintiffs.

Cristina Correia, Josiah Benjamin Heidt, Georgia Department of Law Office of the Attorney General, Atlanta, GA, for Defendants.

Before MARTIN, Circuit Judge, and DUFFEY and BATTEN, District Judges.

MEMORANDUM OPINION AND ORDER

MARTIN, Circuit JudgeGeorgia State Conference of the NAACP, Lavelle Lemon, Marlon Reid, Lauretha Celeste Sims, Patricia Smith, and Coley Tyson ("plaintiffs") bring this action alleging that Georgia's 2015 redistricting of Georgia House of Representatives Districts 105 and 111 resulted from racial and partisan gerrymandering that violates the Constitution and Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Doc. 1 ¶¶ 1–4, 20–25. The redistricting challenged here is embodied in Georgia Act No. 251, 2015 Ga. Laws 1413 ("H.B. 566"). Id. ¶ 1. These plaintiffs have sued the State of Georgia and Georgia Secretary of State Brian Kemp ("defendants"), seeking to enjoin H.B. 566. Id. ¶¶ 1, 26–27.

The plaintiffs' complaint sets forth three counts. Count One alleges that H.B. 566 was enacted with a discriminatory purpose, or an intent to dilute the vote, in violation of the Fourteenth Amendment (asserted under 42 U.S.C. § 1983 ) and Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Id. at 22. Count One is brought against both the State and Secretary Kemp. Id. Count Two alleges that H.B. 566 constitutes racial gerrymandering, which violates the Fourteenth and Fifteenth Amendments. Id. at 24. Count Two is asserted under § 1983 and against only Secretary Kemp. Id. Count Three alleges that H.B. 566 creates partisan gerrymandering in violation of the Fourteenth Amendment right to equal protection. Id. at 25. Count Three is also brought under § 1983, and it too is against only Secretary Kemp. Id.

The defendants have moved to dismiss Counts One and Three under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 20. They ask us to dismiss Count One against the State, because the Eleventh Amendment to the U.S. Constitution grants sovereign immunity to states. Doc. 20–1: 2. The defendants also move to dismiss Counts One and Three for failure to state a claim. Id. at 2.

After careful review, we find the State is not entitled to sovereign immunity against the Count One claim brought under Section 2 of the Voting Rights Act. The State is, however, entitled to sovereign immunity for the Count One claim brought under § 1983 (asserting a violation of the Fourteenth Amendment). We also hold that the plaintiffs failed to state a claim upon which relief may be granted for Counts One and Three. As a result, the defendants' partial motion to dismiss is granted without prejudice.

I. THE FACTS

We take the plaintiffs' factual allegations in the complaint as true, and construe them in the light most favorable to the plaintiffs. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). The facts we recount here have not therefore been subjected to the rigors of proof, but instead are taken from the plaintiffs' complaint.

The Georgia General Assembly makes up the legislative branch of Georgia government, and is composed of the Senate and the House of Representatives. See Ga. Const. Art. III § II. The House of Representatives is comprised of 180 members, each elected from a single district. Doc. 1 ¶ 28. Georgia legislative elections are partisan and require a candidate to get a majority of the vote. Id. ¶ 31. If no candidate receives a majority, then a runoff election is held between the two candidates who got the most votes. Id. Because non-white voters are a minority of Georgia's overall electorate, this system makes it more difficult for them to elect candidates of their choice. Id.

Plaintiffs allege a long history of discrimination against non-white voters in Georgia, especially as to African Americans. Id. ¶¶ 32–33. One way that this discrimination has been carried out, plaintiffs say, is through redistricting plans. Id. ¶ 34. Racial and partisan gerrymandering has caused the underrepresentation of minorities in the Georgia House of Representatives, both now and in the past. Id. ¶ 34–35. According to a 2015 survey, Georgia's voting age population is 62.8% white, 31.6% African–American, 4.4% Hispanic/Latino, and 2.6% Asian–American. Id. ¶ 35. In contrast, the make-up of the Georgia House is 72.8% white, 25.6% African–American, 1.1% Hispanic/Latino, and 0.6% Asian–American. Id. ¶ 36.

Race and party have long been highly correlated in Georgia. Id. ¶ 37. Of the 119 Republicans in the Georgia House, 99.2% of them are white, and none are African–American or Asian–American. Id. There is one Hispanic/Latino Republican in the House. Id. Of the 61 Democrats in the House, 75.4% of them are African–American and 21.3% are white. Id. There is one Asian–American Democrat and one Hispanic/Latino Democrat. Id.

Typically, redistricting plans are adopted every ten years so that the districts accord with new census data. Id. ¶¶ 29–30. For example, the Georgia General Assembly adopted a new plan after the 2010 census. Id. ¶¶ 38–40. This plan was finalized in February 2012 by Georgia Act No. 277 ("the 2012 plan"), and it was precleared by the United States Department of Justice. Id. ¶¶ 40–41.

Despite the 2012 plan, the Georgia General Assembly redrew districts again in May 2015, with H.B. 566 reflecting those changes.1 Id. ¶ 42. H.B. 566 revised 17 districts of the Georgia House of Representatives, including Districts 105 and 111. Id. ¶¶ 43, 60, 75. It was enacted largely along party lines and adopted outside of the normal legislative procedures. Id. ¶ 47–48. Some legislators criticized H.B. 566 as racial gerrymandering. Id. ¶ 45. Indeed, African–American legislators were excluded from the process of drawing and negotiating the redistricting in H.B. 566, and minority residents of Georgia were denied any opportunity for public comment on the measure. Id. ¶¶ 49–50. H.B. 566 redrew House districts along racial and party lines. Id. ¶¶ 2, 4, 5. For purposes of this Order, we accept the complaint's allegation that H.B. 566 redrew district lines to make certain districts safer for white Republican incumbents. Id. ¶¶ 7–8, 10–12.

H.B. 566 changed the racial make-up of Districts 105 and 111 in ways that reduced the ability of African–American and other minority voters to elect candidates of their choice. Id. ¶¶ 51–52. Under the 2012 plan, District 105's voting age population was 48.4% white, 32.4% African–American, 12.6% Hispanic/Latino, and 4.6% Asian–American. Id. ¶ 55. Under H.B. 566, the redrawn District 105 became 52.7% white, 30.4% African–American, 10.8% Hispanic/Latino, and 4.2% Asian–American. Id. ¶ 61. The changes to the racial make-up of the voting age population of District 105 are summarized here:

                2012 plan H.B. 566 Change
                White         17,712   48.4%   19,204   52.7%   +1,492   +4.3%
                African-American   11,841   32.4%   11,071   30.4%    -770    -2.0%
                Hispanic/Latino     4,612   12.6%    3,945   10.8%    -667    -1.8%
                     Other          2,415    6.6%    2,229    6.1%    -186    -0.5%
                     Total         36,580           36,449            -131
                

Id. at 17. The 2012 plan was in effect for the District 105 elections in 2012 and 2014. Id. ¶ 54. In both elections, Joyce Chandler, a white Republican, defeated Renita Hamilton, an African–American Democrat, by narrow margins: 554 votes in 2012 (2.7 percentage points) and 789 votes in 2014 (5.6 percentage points). Id. ¶¶ 56–58. The voting patterns in these elections were racially polarized. Id. ¶ 59. After H.B. 566 took effect for the District 105 election in 2016, Ms. Chandler defeated Donna McLeod, who is also an African–American Democrat, by just 222 votes (0.9 percentage points) in another racially divided election. Id. ¶¶ 63–66. Had the 2012 plan still been in effect, the plaintiffs allege Ms. McLeod would have likely defeated Ms. Chandler. Id. ¶ 67.

Under the 2012 plan, the voting age population of District 111 was 56.1% white, 33.2% African–American, 5.6% Hispanic/Latino, and 3.3% Asian–American. Id. ¶ 69. After H.B. 566 redrew District 111, it became 58.1% white, 31% African–American, 5.2% Hispanic/Latino, and 3.7% Asian–American. Id. ¶ 77. The changes to the racial make-up of the voting age population of District 111 are summarized here:

 2012 plan H.B. 566 Change
                White         21,638   56.1%   22,228   58.1%   +590   +2.0%
                African-American   12,798   33.2%   11,852   31.0%   -946   -2.2%
                     Other          4,109   10.7%    4,155   10.9%    +46   +0.2%
                     Total         38,545           38,235           -310
                

Id. at 20.2 The 2012 plan was in effect for the District 111 elections in 2012 and 2014. Id. ¶ 68. In the 2012 election, Brian Strickland, a white Republican, defeated Bill Blackmon, an African–American Democrat, by 1,477 votes (5.9 percentage points). Id. ¶¶ 70–71. In the 2014 election, Mr. Strickland defeated Jim Nichols, a white Democrat, by 1,124 votes (6.3 percentage points). Id. ¶¶ 72–73. Both elections were racially polarized. Id. ¶ 74. After H.B. 566 took effect for the District 111 election in 2016, Mr. Strickland defeated Darryl Payton, an African–American Democrat, by 946 votes (3.4 percentage points) in another racially polarized election. Id. ¶¶ 79–82. Had the 2012 plan still been in effect, the plaintiffs allege Mr. Payton may have defeated Mr. Strickland. Id. ¶ 83.

The plaintiffs' complaint also sets out that the Georgia General Assembly tried to enact another bill in 2017,...

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