Johnson v. Mortham

• Decision Date: 20 November 1995
• Docket Number: No. TCA 94-40025-MMP.,TCA 94-40025-MMP.
• Citation: 915 F. Supp. 1529
• Parties: Andrew E. JOHNSON, et al., Plaintiffs, v. Sandra MORTHAM, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

915 F. Supp. 1529

Andrew E. JOHNSON, et al., Plaintiffs, v. Sandra MORTHAM, etc., et al., Defendants.

No. TCA 94-40025-MMP.

United States District Court, N.D. Florida, Tallahassee Division.

November 20, 1995.

COPYRIGHT MATERIAL OMITTED

Gerald J. Sullivan, Jr., Sullivan & Boyd, Jacksonville, FL, for plaintiffs Andrew E. Johnson, Thomas S. Bloodworth, Charles Henry Bloodworth, III, Bill Boyer, Frances G. Brown, Robert T. Conner, Harold F. Davis, Arthur Wilson Devoe, Robert Ellison, George Erdel, Paul Farley, Sue Hall, Hugh Milton Hays, Hugh Milton Hays, Sr., Carson Thomas Howes, Jr., Ron Jackson, Carolyn Janice Johnson, Coranell H. Johnson, Susan M. Lamb, Jim Lewis, Pat Mathis, Cynthia McKinney, Daniel McKinney, Jim Neill, Tommy Praeter, Charles Romero, Vicki T. Romero, Dana Wine.

George L. Waas, Attorney General's Office, Department of Legal Affairs, Tallahassee, FL, Brenda Wright, Pro Hac Vice, Jackqueline A. Berrien, Pro Hac Vice, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Gerald B. Curington, General Counsel, House of Representatives, Tallahassee, FL, for defendant Jim Smith, in His Official Capacity as Secretary of the State of Florida.

Stephen N. Zack, Pro Hac Vice, Miami, FL, Brenda Wright, Pro Hac Vice, Jackqueline A. Berrien, Pro Hac Vice, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Gerald B. Curington, General Counsel, House of Representatives, Tallahassee, FL, for Pat Thomas, in His Official Capacity as President of the Florida Senate.

Richard A. Hixson, Richard A. Hixson, P.A., Tallahassee, FL, Thomas R. Tedcastle, Florida House of Representatives, Tallahassee, FL, Stephen N. Zack, Pro Hac Vice, Miami, FL, Brenda Wright, Pro Hac Vice, Jackqueline A. Berrien, Pro Hac Vice, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Gerald B. Curington, B. Elaine New, General Counsel, House of Representatives, Tallahassee, FL, for defendant Bolley L. Johnson, in His Official Capacity as Speaker of Florida House of Representatives.

George L. Waas, Attorney General's Office, Department of Legal Affairs, Tallahassee, FL, for defendant Sandra Mortham, Florida Secretary of State.

Brenda Wright, Pro Hac Vice, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for intervenors-defendants Frank Cummings, Bishop, Samuel L. Green, Sr., Reverend, Leonard O'Neal, Glynell Presley, Mary Lawson Brown.

Rodney G. Gregory, Rodney G. Gregory, P.A., Jacksonville, FL, J. Gerald Hebert, Pro Hac Vice, J. Gerald Hebert, P.A., Alexandria, VA, for intervenor-defendant Corrine Brown, Congresswoman.

Charles G. Burr, Charles G. Burr, P.A., Tampa, FL, for intervenor-defendant Florida State Conference of NAACP Branches.

Before HATCHETT, Circuit Judge, PAUL, Chief District Judge, and VINSON, District Judge.

ORDER

PAUL, Chief District Judge.

On October 19, 1995, the three-judge panel heard oral arguments on the following pending motions:

(1) Cummings movants' Motion to Intervene (doc. 11)—to which Plaintiffs had responded (docs. 19 & 74);

(2) Brown movants' Motion to Intervene (doc. 20)—Plaintiffs had filed a response (doc. 34)—to which Brown movants had replied (doc. 52), and affirmed (doc. 67);

(3) NAACP's Motion to Intervene (doc. 31);

(4) Plaintiffs' Motion to Strike Brown movants' Motion to Dismiss (doc. 75);

(5) Brown movants' Motion to Dismiss (doc. 68);

(6) Defendant Smith's Motion for Summary Judgment (doc. 5)—to which Plaintiffs had responded (doc. 8);

(7) Plaintiffs' Motion for Summary Judgment (doc. 26)—to which Defendants had responded (doc. 29);

(8) Plaintiffs' Supplemental Motion for Summary Judgment (doc. 64)—Defendants had filed responses (docs. 66 & 79)—to which Plaintiffs had replied (doc. 73); and

(9) Plaintiffs' Second Motion for Preliminary Injunction (doc. 77)—to which Defendants had responded (doc. 84).

All parties and proposed party-intervenors were represented at the hearing.

BACKGROUND:

This case has its genesis in the congressional redistricting that came in the aftermath of the 1990 federal decennial census. Florida's population had increased by over three million persons between 1980 and 1990, entitling Florida to four additional members in the United States House of Representatives. As a result, Florida's congressional delegation increased from nineteen representatives to twenty-three.

On the opening day of the 1992 Florida legislative session, Miguel DeGrandy, a member of the Florida House of Representatives, joined other voters in filing a suit in the District Court for the Northern District of Florida that challenged the constitutionality of Florida's congressional and state legislative districts. See DeGrandy v. Wetherell, 794 F.Supp. 1076, 1080 (N.D.Fla.1992). The plaintiffs alleged that in light of Florida's history of discrimination against minorities and the lack of electoral success of minorities, the districts violated the Equal Protection Clause of the Fourteenth Amendment, and the Voting Rights Act of 1965. A three-judge panel, comprised of Circuit Judges Joseph Hatchett and District Judges William Stafford and Roger Vinson, was appointed to hear the plaintiffs' case. Mindful of the fast-approaching candidate qualification deadline and upcoming fall elections, the DeGrandy plaintiffs urged the panel to reapportion and redistrict the state in light of the results of the 1990 census. Id. at 1079-80.

The Florida Legislature ended its regular session without adopting either a redistricting or reapportionment plan¹. In April, 1992, Governor Lawton Chiles called a special redistricting and reapportionment session of the Legislature pursuant to Article III, § 16, of the Florida Constitution. During the session, the Legislature adopted Senate Joint Resolution 2-G, a reapportionment plan for state legislative districts. However, the Legislature was unable to agree on a congressional redistricting plan. Id. at 1080.

At the same time, the DeGrandy case progressed and was consolidated with a similar lawsuit filed by the Florida State Conference of the NAACP Branches and several African-American voters. A number of persons and organizations were also granted leave to intervene or act as amicus curiae. The panel appointed the Honorable C. Clyde Atkins, Senior United States District Judge for the Southern District of Florida, to serve as Special Master. The panel charged Senior Judge Atkins with the task of considering and evaluating redistricting and reapportionment plans for Florida. However, the panel stayed proceedings related to state reapportionment after the Supreme Court of Florida validated the Senate reapportionment plan. Id. at 1080-81.

The parties stipulated that Florida's existing congressional district lines were malapportioned. On April 30, 1992, the three judge panel found that the existing congressional districting plan was unconstitutional because it violated Article I, § 2 of the Constitution, the Equal Protection Clause of the Fourteenth Amendment, the one-person, one-vote principle, and the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Id. at 1081, 1090.

On May 29, 1992, the three-judge panel adopted a congressional redistricting plan submitted to it upon the report and recommendation of Special Master Atkins. Id. at 1090. Judge Atkins recommended the panel adopt Plan 308, developed by Independent Expert Professor M. David Gelfand from key portions of other redistricting plans. Id. at 1087-88. Plan 308 created, among other things, two African-American majority districts (Districts 3 and 17), plus one influence African-American district (District 23)². Id. at 1088. The panel adopted Plan 308 after noting that the state of Florida did not have a method of redistricting other than legislative passage of a congressional districting plan. Id. at 1090. The panel therefore designated Plan 308 as the "1992 Florida Redistricting Plan," and ordered the state of Florida "to conduct the 1992 congressional elections and congressional elections thereafter in districts as shown by Plan 308." Id. (emphasis added). In accordance with the DeGrandy panel's mandate, the Florida Legislature later repealed the existing congressional districting plan. See 1993 Fla.Laws ch. 93-271, repealing Fla.Stat. §§ 8.001, 8.01, 8.011, 8.03, 8.061 (1982).

District Three, one of the two African-American majority districts created under the 1992 Florida Redistricting Plan, is an odd-shaped district³. On January 18, 1994, Plaintiffs filed suit pursuant to 28 U.S.C. § 1343, alleging that District Three violated their rights to equal protection under the Fourteenth Amendment (doc. 2). Plaintiffs include Andrew Johnson, an unsuccessful 1992 candidate for the District Three congressional seat, non-black residents of the District Three who have allegedly been relegated to minority voting status, and nonblack residents of other Florida congressional districts which were purportedly created with the intent to separate voters by race. Defendants include Secretary of State Sandra Mortham⁴, the leadership of the Florida legislature⁵, and the United States, which was permitted to intervene as a party defendant (doc. 45).

Plaintiffs have not alleged that District Three violates the Voting Rights Act, nor have they claimed that the District represents an unconstitutional dilution of white voting strength. Rather, the crux of Plaintiffs' legal claims is that District Three is nothing more than a racial gerrymander because it unconstitutionally segregates voters on the basis of race in violation of the Equal Protection Clause, and that it is not narrowly tailored to further a compelling governmental interest. Plaintiffs may raise such a claim under the authority of Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).

On July 18, 1994, oral argument was heard on all pending motions (see July 18, 1994 Hr'g Tr., doc. 55). At the time, these motions included Defendant Smith's motion to dismiss or alternative motion for summary...