Smith v. Cobb County Bd. of Elections and Registr., CIV.A.1:02-CV-1093-JEC.
| Decision Date | 20 June 2002 |
| Docket Number | No. CIV.A.1:02-CV-1093-JEC.,CIV.A.1:02-CV-1093-JEC. |
| Parties | Earle SMITH, et al., Plaintiffs, v. COBB COUNTY BOARD OF ELECTIONS and Registrations, et al., Defendants. Andy Perry, et al., Plaintiffs, v. Cobb County Board Of Elections and Registrations, et al., Defendants, v. Mark A. Bell and David L. Wilkerson, Defendants-Intervenors. |
| Court | U.S. District Court — Northern District of Georgia |
D. Glenn Brock, Carlton LaTain Kell, Ernest Linwood Gunn IV, Brock, Clay, Calhoun, Wilson & Rogers, Marietta, GA, for Plaintiffs.
Gregg Earl Litchfield, Harbert Scott Gregory, Jr., Haynie, Litchfield & Crane, Marietta, GA, for Defendants.
The two above-captioned actions involve the reapportionment of electoral districts for the voters of Cobb County, Georgia. In each of these cases, the plaintiffs have asserted a claim based on an alleged violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, arising out of the failure of the Georgia General Assembly (hereinafter "the Legislature") to pass legislation re-drawing the electoral posts for the Cobb County Board of Education (hereinafter, "the Board") and the electoral districts for the Cobb County Commission (hereinafter, "the Commission"), respectively. The plaintiffs, who are individual Cobb County voters and members of the Board and the Commission, have filed these two related actions against the Cobb County Board of Elections and Registration to enjoin all future elections of the Board and Commission under the current electoral districts, except for the election of the Chairman of the Commission, which is an "at-large" position elected by all citizens of Cobb County.
In an Order issued May 31, 2002, the Court declared the current districts for both the Board and the Commission unconstitutional, enjoined defendants from conducting future elections under that plan, and presented its own interim remedial plan for the upcoming election. Because of time constraints, the Court did not issue a full order explaining its legal conclusions with respect to the remedial plan. Accordingly, this Order sets out the Court's legal conclusions concerning the issuance of the remedial plan previously provided to the parties.1
Cobb County, Georgia (the "County"), is one of 159 counties in Georgia and comprises a suburban area northwest of the city of Atlanta, including the municipalities of Smyrna, Marietta, Austell, Powder Springs, Kennesaw, and Acworth. For the purpose of electing five commissioners to serve on the County Commission, the County is divided geographically into four single-member electoral districts, with the fifth member of the Commission, the Chairman, elected on an at-large basis by all voters in the County. For the purpose of electing the seven members of the County School Board, the County is divided geographically into seven posts, excluding the City of Marietta, which maintains an independent school system separate from that of the County.
Following the 1990 Census, the geographical boundaries for the seven voting districts2 for the School Board and the four voting districts for the Commission were re-drawn, and at that time, the districts represented populations of roughly equal size, as reflected in the 1990 Census figures. The 1990 Census data revealed that the County had a total population of 447,745 and, at the time the districts were drawn in 1992, the population for the four Commission districts ranged from a low of 108,501 in District 1 to a high of 115,246 in District 2. Similarly, the population of the County had been distributed among the seven School Board posts on a roughly equal basis.
The 2000 Census, however, reflected a significant increase in the population of the County to a total of 607,751, and also reflected tremendous growth in the northwest part of the County, as compared with relatively stagnant growth in the east part, which is almost fully developed. It is undisputed that the current population figures for the County, as reflected in the 2000 Census, have resulted in gross disparities among the populations of the voting districts for both the Commission and the Board. (The 1992 plan for the Commission voting districts is attached hereto as Appendix A, and the 1992 plan for the School Board voting districts is attached hereto as Appendix F.) Under the current geographic boundaries for the four Commission districts, District One has a population of 191,889; District Two has 138,530; District Three has 130,053; and District Four has 147,279. (Plaintiffs' Hearing Brief in the Perry action [12] at 8.) (See Table 1, supra.) Under the current boundaries for the School Board posts, Post One has a population of 115,152; Post Two has 73,792; Post Three has 81,798; Post Four has 73,760; Post Five has 64,321; Post Six has 62,699; and Post Seven has 78,408.3 (Smith Compl., Ex. B.) (See Table 2.)
Table 1: Existing Commission Plan
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District Population
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1 191,889
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2 138,530
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3 130,053
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4 147,279
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Table 2: Existing School Board Plan
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Post Population
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1 115,152
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2 73,792
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3 81,798
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4 73,760
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5 64,321
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6 62,699
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7 78,408
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As a result of these population disparities among the districts, in early 2002, legislation was proposed in the Georgia General Assembly4 to create new boundaries for the voting districts for both the Board and the Commission that would better equalize the population distribution among the districts. Members of the Georgia House of Representatives from Cobb County, in consultation with members of the County Commission, introduced House Bill 1141 (HR 1141) to the House, which proposed to reapportion5 the population of the County among new Commission Districts. (Ehrhart Aff. at ¶ 8.) HR 1141 was signed by a majority of the members of the delegation from the County in both houses, indicating their approval of the bill. (Id. at ¶ 9.) HR 1141 was then passed by a vote of the House of Representatives. The House also passed similar legislation that would have created new boundaries for the School Board posts, which had also been approved by the local delegation from the County. The Perry plaintiffs' proposed plan for the County Commission districts, which mirrors the plan passed by the local delegation and the State House, is attached hereto as Appendix B. The Smith plaintiffs' proposed plan for the School Board districts, which was approved by the same bodies, is attached hereto as Appendix G.
Ordinarily, when "local legislation" has received the requisite number of signatures of representatives and senators whose districts lie within the locality that is affected by the legislation, the House and Senate pass the bill as a matter of local courtesy.6 See DeJulio v. Georgia, 290 F.3d 1291, 1292-94 (11th Cir.2002). As the Eleventh Circuit has recognized:
The underlying assumption of local courtesy is that the bill affects only a certain city or county, and, therefore, representatives and senators of other districts should defer to that local delegation's judgment. Local courtesy is a custom, however, and is not provided for in either the House or Senate rules. Should a member of the House or Senate choose to challenge local legislation on the floor, local courtesy is not enforced.
Although the proposed plans for the new voting districts were approved by the local delegation and passed by the House, the plans were never sent to the State Senate for its approval. Rather, as the Senate Reapportionment Committee refused to allow the plans out of committee to be voted on by the Senate, the State Senate was never in a position to review or approve these plans. Accordingly, the 2002 Session of the Georgia General Assembly expired with the proposed redistricting plans still languishing in a committee of the State Senate. No special session is scheduled for the Legislature to convene at any time before the next election, which is set to be held on August 20, 2002; indeed, the Legislature is not scheduled to reconvene until January, 2003. (Intervenors' Ex. 2; Ehrhart Aff. at ¶ 11.)
Thus, because the Legislature failed to approve the proposed new plans for the voting districts for the Cobb County Commission or School Board, the 1992 districts are still in effect for the voters of Cobb County. Furthermore, all the parties agree that neither the School Board nor the Commission has the legislative authority to act independently of the Georgia Legislature to create new voting districts. Accordingly, the School Board and the Commission are without any authority to change the boundaries of the existing districts before the upcoming election.
On April 23, 2002, Earle Smith, a resident of Cobb County and a voter...
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