Larios v. Perdue

• Decision Date: 29 August 2003
• Docket Number: No. CIV.A. 1:03-CV-693-C.,CIV.A. 1:03-CV-693-C.
• Citation: 306 F.Supp.2d 1190
• Parties: Sara LARIOS, et al., Plaintiffs, v. George E. "Sonny" PERDUE, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

306 F.Supp.2d 1190

Sara LARIOS, et al., Plaintiffs, v. George E. "Sonny" PERDUE, et al., Defendants.

No. CIV.A. 1:03-CV-693-C.

United States District Court, N.D. Georgia, Atlanta Division.

August 29, 2003.

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Frank B. Strickland, Anne Ware Lewis, Strickland Brockington Lewis, Stacy Grant Freeman, Arnall, Golden & Gregory, Atlanta, GA, E. M. Braden, phv, Amy M. Henson, phv, Baker & Hostetler, Washington, DC, for Plaintiffs.

Dennis Robert Dunn, Thurbert E. Baker, Office of State Attorney General, Mark Howard Cohen, Troutman Sanders, David F. Walbert, Parks, Chesin & Walbert, Atlanta, GA, for Defendants.

Before MARCUS, Circuit Judge, O'KELLEY and PANNELL, District Judges.

Memorandum Opinion and Order

BY THE COURT.

This cause has come before this three judge district court pursuant to the following motions: (1) Defendants Perdue, Coleman and Cox's Motion to Realign Defendant Eric Johnson as a Party Plaintiff; (2) Defendants Perdue, Coleman and Cox's Motion to Dismiss Complaint Against the Redistricting Plan for the Georgia State Senate or, in the Alternative, to Join a Party Pursuant to Fed.R.Civ.P. 12(b)(7); (3) Defendants Perdue, Coleman and Cox's Motion to Dismiss or Stay Consideration of Plaintiffs' Complaint Challenging Georgia's State Senate Redistricting Plan; and (4) Defendants Perdue, Coleman and Cox's Motion to Dismiss Plaintiffs' Claims Against the Redistricting Plans for Congress and the Georgia House of Representatives Pursuant to Fed.R.Civ.P. 12(b)(6).

After carefully considering these motions, plaintiffs' responses and defendants' replies, as well as the memoranda filed in response to our order dated July 3, 2003 and the contentions raised at oral argument, we grant defendants' motions to (1) realign defendant Eric Johnson as a party plaintiff; (2) stay consideration of plaintiffs' complaint challenging Georgia's 2002 State Senate Redistricting Plan; (3) dismiss plaintiffs' claim against the redistricting plans for Congress insofar as it is brought pursuant to 2 U.S.C. § 2c; and (4) dismiss plaintiffs' challenge to the combination of single- and multi-member districts in the 2001 House plan. By contrast, we deny defendants' Motion to Dismiss Complaint Against the Redistricting Plan for the Georgia State Senate or, in the Alternative, to Join a Party Pursuant to Fed.R.Civ.P. 12(b)(7). We also deny defendants' Motion to Dismiss Plaintiffs' Claims Against the Redistricting Plans for Congress and the Georgia House of Representatives Pursuant to Fed.R.Civ.P. 12(b)(6) insofar as it concerns plaintiffs' "one person one vote" challenges to these plans and their partisan gerrymandering claim.

In addition, we order defendants to answer plaintiffs' amended complaint within 10 days of the filing of this order. Further, we direct the parties to promptly notify this court of any ruling of the 3 judge panel of the United States District Court for the District of Columbia regarding the Voting Rights Act of 1965 ("VRA"), 42 U.S.C. § 1973c, preclearance issues in Georgia v. Ashcroft.

I. Factual and Procedural Background

A. The 2000 Census, the Redistricting Plans it Spurred and the Georgia v. Ashcroft Litigation

This case presents several challenges to Georgia's 2001 and 2002 legislative redistricting plans. More specifically, plaintiffs allege several constitutional and statutory shortcomings in Georgia's 2001 redistricting plan for Congress and the state House of Representatives, and its 2002 reapportionment plan for the state Senate. In order to understand the contours of these claims, it is necessary to briefly examine the events that led to the drafting of these plans.

As a result of the 2000 census, Georgia became entitled to two additional congressional seats, pursuant to 2 U.S.C. § 2a. Moreover, due to a population migration from the southern to the northern part of the state, by 2000 the number of people in the state House and Senate districts had become uneven. For both of these reasons, it was necessary for the Georgia General Assembly to devise a legislative reapportionment plan.

During August, 2001, the General Assembly met in special session to reapportion the Georgia State Senate and House of Representatives to equalize the population in each district, and it devised what we term the "2001 state Senate and House of Representatives (or House) plans." During a subsequent special legislative session, the General Assembly formulated a reapportionment plan for Georgia's congressional seats (the "2001 congressional plan"). Both of the state plans and the federal reapportionment scheme were signed into law by the Governor of Georgia on October 1, 2001.

Importantly, however, Georgia is a jurisdiction covered by section 5 of the VRA, 42 U.S.C. § 1973c, and as such it was necessary to preclear the 2001 plans under the VRA. To this end, on October 10, 2001, the State of Georgia filed a declaratory judgment action in the United States District Court for the District of Columbia. Although a 3 judge panel of the district court (the "D.C. panel") precleared the 2001 state House of Representatives and congressional plans, the panel refused to preclear the 2001 state Senate redistricting plan. See Georgia v. Ashcroft, 195 F.Supp.2d 25, 31 (D.D.C.2002), vacated by Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003). In response, the Georgia General Assembly enacted a new Senate redistricting plan (the "2002 Senate plan"), which the Governor signed into law on April 11, 2002. The D.C. panel promptly precleared this plan under the VRA. See Georgia v. Ashcroft, 204 F.Supp.2d 4, 15-16 (D.D.C.2002). The 2002 Senate plan only applies unless and until the 2001 Senate plan is precleared under the VRA. Specifically, the General Assembly has expressly provided that "[i]f ... the [2001] special session Senate redistricting plan may lawfully be implemented under the [VRA] ... then qualifying for the Georgia State Senate in 2002 or such future year and the ensuing elections shall be conducted according to the [2001] special session Senate redistricting plan; and this Act shall not apply to such qualifying or elections or otherwise be of further force or effect." Act No. 444, 2002 Ga. Laws 148, 149.

Indeed, following the D.C. panel's refusal to preclear the 2001 Senate plan, the State of Georgia appealed this portion of the panel's order to the United States Supreme Court. On June 26, 2003, the Court vacated the D.C. panel's decision, holding that its initial preclearance inquiry was overly narrow. See Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 2517, 156 L.Ed.2d 428 (2003). However, the Court reserved the initial application of the broader inquiry it outlined for the panel on remand. See id. Although the case now rests with the D.C. panel once again, that panel has issued an order requiring the defendants to show cause why judgment should not be entered on behalf of the State of Georgia. In this order, the panel extensively cites passages from the Supreme Court's opinion suggesting that Georgia's 2001 redistricting plan may well be consistent with the VRA.

B. Plaintiffs' Claims

Plaintiffs, who are Georgia Republicans, bring several claims against the 2001 congressional and state House plans and the 2002 state Senate plan. They name as defendants Republican Governor George E. "Sonny" Perdue; Terry Coleman, the Democratic Speaker of the Georgia House of Representatives; Eric B. Johnson, the Republican President Pro Tempore of the Georgia Senate; and Cathy Cox, Georgia's Democratic Secretary of State. In their amended complaint, plaintiffs advance four broad claims, sounding in: (1) a violation of their right to the equal protection of the laws based on (a) the underrepresentation of plaintiffs residing in overpopulated districts, (b) partisan gerrymandering, (c) the 2001 House plan's use of both single and multi-member districts and (d) the use of race as a predominant factor in the creation of the State Senate plan; (2) a violation of plaintiffs' First Amendment associational rights through the penalization of Republican voters solely because of their party affiliation and political beliefs; (3) a violation of U.S. Const. art. I, § 2 based on the drawing of congressional districts so as to maximize the political advantage of the Democratic party; and (4) a violation of 2 U.S.C. § 2c based on Georgia's failure to create congressional "districts" at all.

Defendants Perdue, Coleman and Cox have responded to plaintiffs' complaint by filing several motions, including those now at issue.

II. Discussion

A. Defendants Perdue, Coleman and Cox's Motion to Realign Defendant Eric Johnson as a Party Plaintiff

Defendants argue that Senator Johnson's interests, both as a Republican generally and as evidenced by the positions he has taken in this litigation specifically, are identical to those of plaintiffs and are in diametric conflict with those of his co-defendants. Accordingly, they move to realign him as a party plaintiff.

Although realignment questions typically arise in the diversity of citizenship context, the need to realign a party whose interests are not adverse to those of his opponent(s) exists regardless of the basis for federal jurisdiction. See, e.g., Development Fin. Corp. v. Alpha Hous., & Health Care, 54 F.3d 156, 159 (3d Cir.1995) ("[W]e must consider a fundamental principle of federal jurisdiction, a principle associated with, but not limited to, diversity jurisprudence. In determining the alignment of the parties for jurisdictional purposes, the courts have a `duty' to `look beyond the pleadings and arrange the parties according to their sides in the dispute.'" (quoting Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47 (1941))); Wade v. Mississippi Co-op. Extension Serv., 528 F.2d 508, 521-22 (5th Cir.1976) ("Although the correctness of a realignment of parties is an issue that normally arises only in the context of...