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    IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA

    ATLANTA DIVISION

    JOSEPH LOWERY, BRENDA PACE, |LEOLA GORDON, LISA BARNES, |SHELIA GARVIN, PORTIA CODJOE, |JOYCE CARLISLE, & the GEORGIA |LEGISLATIVE BLACK CAUCUS, |INC., |

    |Plaintiffs, | Civil Action

    | File No.: 1:11-cv-00974-TCB|

    NATHAN DEAL, in his Official |Capacity as Governor of the |STATE OF GEORGIA, |

    |Defendant. |______________________________|

    REPLY BRIEF TO DEFENDANTS MOTION TO DISMISS

    COME NOW JOSEPH LOWERY, BRENDA PACE, PORTIA CODJOE, LEOLA

    GORDON, LISA BARNES, SHELIA GARVIN, JOYCE CARLISLE, (each

    individually, a Aggrieved Voter Plaintiff), and the GEORGIA

    LEGISLATIVE BLACK CAUCUS, INC., a Georgia corporation, and an

    association of black elected officials in the State of Georgia

    (the GLBC or the Aggrieved Legislator Plaintiffs;

    collectively, the GLBC and the Aggrieved Voter Plaintiffs are

    the Plaintiffs), by and through undersigned counsel, and

    hereby file this Reply Brief to the Motion to Dismiss filed by

    NATHAN DEAL, in his official capacity as Governor of the State

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    of Georgia, and thereby, the State of Georgia (the Defendant),

    and show the Court as follows:

    I. Standard of Review under Rule 12(b)(6)When considering a motion to dismiss, the Court must view

    the complaint in the light most favorable to the plaintiff. Hill

    v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Moreover, the

    judge must accept as true all of the factual allegations

    contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94

    (2007). This includes the actual complaint, the written

    instruments attached as exhibits, documents incorporated by

    reference to the complaint, and matters of which the court may

    take judicial notice. Tellabs Inc. v. Makor Issues & Rights,

    Ltd., 551 U.S. 308 (2007). Moreover, it must be noted that a

    Rule 12(b)(6) motion to dismiss "is viewed with disfavor and is

    rarely granted." Kaiser Aluminum & Chem. Sales v. Avondale

    Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459

    U.S. 1105 (1983)

    In order to defeat a Rule 12(b)(6) motion and satisfy the

    pleading requirements of Federal Rule of Civil Procedure 8, a

    complaint need only contain a short and plain statement showing

    an entitlement to relief, and the statement must give the

    defendant fair notice of what the plaintiff's claim is and the

    grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534

    https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bNRFY5mO4b2GtTZG%2bjORlnyPn7lhVLvXmf6FqowZYlztt2dgJliJCr4Hq5iLGnHZHqBmezPqq08%2birzXo08fCDzEbPZhWoWFraFvq96zbVeKlldcgOcQ8c5fWUOD5btE&ECF=534+U.S.+506%2c+512https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bNRFY5mO4b2GtTZG%2bjORlnyPn7lhVLvXmf6FqowZYlztt2dgJliJCr4Hq5iLGnHZHqBmezPqq08%2birzXo08fCDzEbPZhWoWFraFvq96zbVeKlldcgOcQ8c5fWUOD5btE&ECF=534+U.S.+506%2c+512
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    U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); FED. R. CIV.

    P. 8. See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553,

    127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (citations

    omitted); Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125

    S.Ct. 1627, 161 L.Ed.2d 577 (2005). A complaint will not be

    dismissed so long as it contains factual allegations sufficient

    "to raise a right to relief above the speculative level."

    Twombly at 555. See also Ashcroft v. Iqbal, 129 S. Ct. 1937,

    1949 (2009) (claim must have "facial plausibility"); Edwards v.

    Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

    II. The Plaintiffs Properly Pled Section 2, 14th Amendment, and15th Amendment Claims.

    Defendant alleges that the Plaintiffs have failed to state

    a claim upon which relief can be granted on their Section 2

    claim under the Voting Rights Act, 14th Amendment claim, and 15th

    Amendment claim. However, a review of the facts alleged in the

    Complaint and the case law reveal that the Defendants claims

    ring hollow, and that the Plaintiffs have made sufficient

    factual allegations to satisfy the pleading standard under

    Twombly.

    a.Elements of Section 2 ClaimSection 2 of the Voting Rights Act, prohibits any

    standard, practice, or procedure . . . which results in a

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    denial or abridgement of the right of any citizen of the United

    States to vote on account of race or color [or membership in a

    language minority group], 42 U.S.C. 1973(a) (1994)

    (incorporating id. 1973b(f)(2)), and provides a private cause

    of action for vote dilution.

    Vote dilution generally occurs when the majority and a

    racial or language minority consistently prefer different

    candidates, and a government entity manipulates voting districts

    to dilute the voting strength of a politically cohesive minority

    group. See Voinovich v. Quilter, 507 U.S. 146, 15354 (1993).

    Typically, this is accomplished by either by fragmenting the

    minority voters among several districts where a bloc-voting

    majority can routinely outvote them, or by packing them into one

    or a small number of districts to minimize their influence in

    the districts next door. Johnson v. De Grandy, 512 U.S. 997,

    1007 (1994). A claim of vote dilution is essentially a claim

    that members of a racial or language group do not have an equal

    opportunity to participate in the electoral process as their

    white or English speaking counterparts.

    The Supreme Court outlined the elements of a Section 2

    claim in Thornburg v. Gingles, 478 U.S. 30 (1986). In Gingles,

    the Supreme Court defined three conditions that a plaintiff

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    asserting a vote dilution claim under Section 2 must satisfy to

    make a valid claim:

    1.their minority group is sufficiently large andgeographically compact to constitute a majorityin a single-member district, and thus that thestate could have drawn an additional majority-minority district;

    2.the minority group is politically cohesive, inthe sense that its members vote in a similarfashion; and

    3.the white electorate votes as a bloc, thusenabling whites usually to defeat the minoritygroups preferred candidates at the polls. See

    Id. at 5051.

    Indeed, it must be highlighted at this juncture that

    allegations of discriminatory intent or purpose are not required

    to state a Section 2 claim. In fact, vote dilution can be

    caused by facially neutral actions, so long as, the action has

    the effect of diluting minority votes. See e.g., City of Mobile

    v. Bolden, 446 U.S. 55, 61-66, 100 S.Ct. 1490, 64 L.Ed.2d 47

    (1980).

    b.The factual allegations in the Complaint clearlyestablish all of the Ginglespreconditions.

    First, the requirement of a sufficiently large and

    geographically compact minority group basically asks whether a

    remedy is possible.1 Or, in the alternative, if the minority

    1 The reason that a minority group making such a challenge mustshow, as a threshold matter, that it is sufficiently large and

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    group is so small and dispersed, no single member district could

    be created to remedy its grievance. Sanchez v. Colorado, 97

    F.3d 1303, 1311 (10th Cir. 1996). The first Gingles

    precondition contains two interrelated elements. On the one

    hand, it requires that the minority group be sufficiently large

    . . . to constitute a majority in a single-member district.

    Gingles, 478 U.S. at 50. And on the other, it requires a

    geographically compact minority population. Id. Courts have

    been flexible in assessing the required showing to establish

    that the minority group at issue is geographically compact, but

    generally all agree that the minority population must be

    geographically compact enough to form a majority in a single-

    member district.2

    geographically compact to constitute a majority in a single-member district is this: unless minority voters possess thepotential to elect representatives in the absence of thechallenged structure or practice, they cannot claim to have beeninjured by that structure or practice. Gingles, 478 U.S. at 50n.17.2

    The first Ginglesprecondition does not require some aestheticideal of compactness, but simply that the minority population be

    sufficiently compact to constitute a majority in a single-memberdistrict. Clark v. Calhoun County, 21 F.3d 92, 95 (5th Cir.1994) (citation omitted); Sanchez v. Colorado, 97 F.3d 1303,1311 (10th Cir. 1996) (quoting Clark); Houston v. LafayetteCounty, 56 F.3d 606, 611 (5th Cir. 1995) (Compactness . . . isnot as narrow a standard as the district court construed it tobe.).

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    The second Ginglesprecondition requires that the minority

    group demonstrate that it is politically cohesive.3 As the Ninth

    Circuit observed, [t]he inquiry is essentially whether the

    minority group has expressed clear political preferences that

    are distinct from those of the majority. Gomez v. City of

    Watsonville, 863 F.2d 1407, 1415 (9th Cir. 1988).

    Lastly, the Gingles Court stated that racial bloc voting

    exists where there is a consistent relationship between the

    race of the voter and the way in which the voter votes, or to

    put it differently, where black voters and white voters vote

    differently. Gingles, 478 U.S. at 53 n.21 (quotation marks and

    citations omitted). This prong requires white bloc voting to

    enable the white majority to defeat minority-preferred

    candidates most of the time, thus impairing the minoritys

    ability to elect candidates of its choice. Id. at 5558;

    Sanchez, 97 F.3d at 1319.4

    3If the minority group is not politically cohesive, it cannotbe said that the selection of a multimember electoral structurethwarts distinctive minority group interests.

    Gingles, 478 U.S.at 51. Thus, evidence of political cohesiveness is shown byvoting preferences as demonstrated in actual elections toestablish racially polarized voting, because politicalcohesiveness is implicit in racially polarized voting. Sanchezv. Colorado, 97 F.3d 1303, 1312 (10th Cir. 1996); Gomez, 863F.2d at 141415.4 See also Jenkins v. Red Clay Consolidated School District Boardof Education, 4 F.3d 1103, 1123 (3d Cir. 1993) (The correct

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    In the Complaint, the Plaintiffs have made sufficient

    factual allegations to satisfy the Gingles prerequisites

    namely, that Fulton County and DeKalb County are majority

    minority jurisdictions (See Complaint at 14 and 21); that the

    county and municipal political subdivisions of Georgia are

    mutually exclusive in regards to home rule (See Complaint at

    33); that the MVDs are overwhelmingly majority-majority

    political subdivisions, but the counties from which the MVDs

    were carved from are majority-minority political subdivisions

    (See Complaint 14-22); that the minorities in Fulton and

    DeKalb Counties can, and have, worked together to consistently

    elect minority candidates (See Complaint 14-22); and that since

    the creation of the MVDs, the minorities in the MVDs have been

    unable to elect minority candidates to represent them at the

    same frequency that persisted at the county level prior to the

    creation of the MVDs (See Complaint 14-22). These factual

    allegations, taken as a whole, clearly establish that the

    question is not whether white voters demonstrate an unbending orunalterable hostility to whoever may be the minority groups

    representative of choice, but whether, as a practical matter,the usual result of the bloc voting that exists is the defeat ofthe minority-preferred candidate.) The inquiry is basicallywhether whites vote frequently enough as a bloc to enable themto defeat the minority candidate. Sanchez, 97 F.3d at 1313; Pagev. Bartels, 144 F. Supp. 2d 346, 362, 36465 (D.N.J. 2001)(third Gingles precondition is not satisfied where white blocvoting is insufficient to defeat minority candidates).

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    minority population in Fulton and DeKalb Counties is politically

    cohesive, that it is large and geographically compact enough to

    control a district (e.g., Fulton County), and that the whites in

    the MVDs vote as bloc to elect non-minority candidates.

    Moreover, the Court should take judicial notice of the fact that

    the voting population in Fulton and DeKalb Counties have been

    routinely identified as satisfying the Gingles requirements in

    prior cases in the Northern District of Georgia. See e.g.,

    Bodker v. Taylor v. Fulton County, 2002 WL 32587312.

    c. Under the totality of the circumstances framework,Plaintiffs clearly articulate a case for vote dilution.

    In addition to the three Gingles criteria, the Supreme

    Court also requires that the alleged denial or abridgment of the

    right to vote be shown based on the totality of circumstances.

    In Johnson v. De Grandy, the Supreme Court emphasized that the

    trial courts examination of relevant factors is not complete

    even if the three Ginglespreconditions are found to exist and

    that establishment of the three in combination does not

    necessarily and in all circumstances demonstrate vote dilution.

    See De Grandy, 512 U.S. at 1011. Rather, courts must also

    examine other evidence in the totality of circumstances,

    including the extent of the opportunities minority voters enjoy

    to participate in the political processes. Id. at 101112.

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    In the 1982 amendments to Section 2 of the VRA, Congress

    listed several relevant, but nonexclusive factors in a totality

    of the circumstances analysis of a vote dilution claim. Those

    factors include: (i) the extent of any history of official

    discrimination in the state or political subdivision that

    touched the right of the members of the minority group to

    register, to vote, or otherwise to participate in the democratic

    process; (ii) the extent to which voting in the elections of the

    state or political subdivision is racially polarized; (iii) the

    extent to which the state or political subdivision has used

    unusually large election districts, majority vote requirements,

    anti-single shot provisions, or other voting practices or

    procedures that may enhance the opportunity for discrimination

    against the minority group; (iv) whether members of the minority

    group have been denied access to any candidate slating process;

    (v) the extent to which members of the minority group in the

    state or political subdivision bear the effects of

    discrimination in such areas as education, employment and

    health, which hinder their ability to participate effectively in

    the political process; (vi) whether political campaigns have

    been characterized by overt or subtle racial appeals; (vii) the

    extent to which members of the minority group have been elected

    to public office in the jurisdiction; (viii) whether there is a

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    sufficient lack of responsiveness on the part of elected

    officials to the particularized needs of the members of the

    minority group; and (ix) whether the policy underlying the state

    or political subdivision's use of such voting qualification,

    prerequisite to voting, or standard, practice or procedure is

    tenuous. S. REP No. 417, 97th Cong., 2d Sess., at 28-29, (1982),

    reprinted in 1982 in U.S.C.C.A.N. 177, 206-07).

    A totality of the circumstances analysis does not require

    proof of any particular number of factors or that a majority of

    them point in a specific direction. See Gingles, 478 U.S. at 45.

    However, before completing a totality of the circumstances

    analysis, a district court must recognize that it is required to

    affect a flexible, fact-intensive inquiry predicated on "an

    intensely local appraisal of the design and impact of the

    contested electoral mechanisms" that incorporates a searching

    practical evaluation of the "past and present reality" . . . .

    [and a] "functional" view of political life.'" Magnolia Bar

    Ass'n, Inc. v. Lee, 994 F.2d 1143, 1147 (5th Cir. 1993), League

    of United Latin Am. Citizens v. Clements, 999 F.2d 831, 860 (5th

    Cir. 1993)("LULAC IV")(quoting S. REP. at 30, 1982 U.S.C.C.A.N.

    at 208).

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    In the case at bar, the Plaintiffs allege that the

    Defendant has engaged in certain coordinated and specific acts,

    e.g., the creation of the MVDs, which have diluted their right

    to vote. Specifically, the creation of the MVDs was

    accomplished in such a manner as to circumvent the ability of

    rightfully elected minority legislators to prevent the vote

    dilution of the Plaintiffs. The Defendant repealed or modified

    several long standing state laws which would have prevented the

    vote dilution of the Plaintiffs. The Defendant further

    prevented the predominantly minority residents of Fulton and

    DeKalb Counties from voting on the creation of the MVDs, by

    limiting the approval referendum to only the putative residents

    of the MVDs, who were mostly white. Lastly, the Defendant

    undertook all of these unusual actions without any clear and

    legitimate state purpose, other than an illicit one, i.e., to

    recreate Milton County, and separate the wealthy suburbs of

    north Fulton and DeKalb County from the more urban areas in

    central Fulton County. (See Complaint at 23-28). Given this

    political context, combined with the satisfaction of the Gingles

    prerequisites, the Plaintiffs have clearly stated a vote

    dilution claim under the totality of the circumstances

    framework for a Section 2 claim. See e.g., Bone shirt v.

    Hazeline,336 F. Supps 2D 976, 1024 (D. S.D. 2004), Affds 461

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    F.3D 1011 (8th Cir. 2006) (holding that the packing of Native

    Americans into single district and whites in others, violated

    Section 2 of the VRA).

    d.Plaintiffs State Proper Section 1983 Claims under the14thAmendments Equal Protection Clause and 15thAmendment.

    Section 1983 authorizes an injured person to assert a claim

    for relief against a person who, acting under color of state

    law, violates the claimants federally protected rights. The

    Supreme Court has identified two elements for a plaintiffs

    prima facie case in 1983 litigation -- the plaintiff must

    allege both (1) a deprivation of a federal right and (2) that

    the person who deprived the plaintiff of that right acted under

    color of state law. Here, the Plaintiffs alleged that they

    possess a federally guaranteed right to vote which is protected

    by both the 14th Amendments Equal Protection Clause and the 15th

    Amendment. See Brown v. Thompson, 462 U.S. 835 (1983).

    Moreover, the Plaintiffs further allege that they have been

    injured when this right to vote has been intentionally abridged,

    due to their race, by the State of Georgias creation of a

    several municipal voting districts.

    i.Vote Dilution Claims and The Interplay of Section2, the 14th Amendment, the 15th Amendment andIntent.

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    The law of redistricting and voting rights can be

    summarized in a multi-tiered of framework that has evolved and

    devolved, piecemeal over time. Initially, Congress intended the

    VRA to simplify and streamline the ability of, and the manner in

    which, minorities brought vote dilution claims, and specifically

    for smaller instances of vote dilution. Prior to the 1982

    amendment to the VRA, the statue and the case law interpreting

    it essentially tracked the constitutional guidelines previously

    created around the 14th and 15th Amendment. However, since its

    passage, the courts had complicated VRA claims by adding an

    increasingly stringent intent element to all but the most severe

    of vote dilution claims under the VRA. See City of Mobile v.

    Bolden 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980)

    However, due to the difficulty in proving intent generally,

    Congress rebuked the courts by amending the VRA in 1982 to

    explicitly remove the long standing constitutional requirement

    to prove overt intent in a vote dilution claim under the 14th and

    15th Amendments. The Supreme Court heeded Congress directive

    and created the totality of the circumstances test in Gingles.

    See generally, Gingles, supra., and its progeny.

    Nevertheless, despite the fact that the VRA and its

    constitutional counterparts parallel each other in numerous

    ways, there are significant differences in regards to the intent

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    element. For constitutional vote dilution claims, the importance

    of the intent element is a matter of degree. For de minimus

    vote dilution claims, the case law requires a showing of overt

    intent for any disputed population disparity less than 10%. At

    this level of deviation, the constitutional claims threshold

    inquiry remains unchanged from the years before the 1982

    amendment to the VRA. However, deviations of 10% or more state

    a prima facie case against the state, and at this point the

    factual burden at trial shifts to the state to prove a rational

    relationship between the change in the voting district and a

    legitimate state purpose. Whitcomb v. Chavis, 91 S.Ct 1958

    (1971); Kilgarlin v. AM, 87 S. CT. 820 (1967) Connor V. Finch

    97. S.CT.1828 (1977). Indeed, for even more extreme deviations

    in relative populations, typically those in the high teens and

    above, the courts tend to reject all proffered rationales by the

    state of a rational relation to a legitimate state interest, and

    the states case fails as a matter of law Mahan v. Howell, 410

    U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), Daly.

    ii. Plaintiffs adequately pled an equal protectionclaim and a 15th Amendment Vote Dilution Claim.

    With that brief side bar in regards to the intent element

    completed, the analysis of a constitutional vote dilution claim

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    and a VRA claim will generally mirror each other. According to

    San Antonio Independent School Dist. v. Rodriguez, [i]t has

    been established in recent years that the Equal Protection

    Clause confers the substantive right to participate on an equal

    basis with other qualified voters whenever the State has adopted

    an electoral process for determining who will represent any

    segment of the State's population. 411 U.S. 1, 59, n. 2, 93

    S.Ct. 1278, 1310, n. 2, 36 L.Ed.2d 16 (1973) (STEWART, J.,

    concurring) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.

    1362, 12 L.Ed.2d 506 (1964); Kramer v. Union School District,

    supra; Dunn v. Blumstein, supra ). The Supreme Court held that

    a plaintiff may state a claim for relief under the Equal

    Protection Clause by alleging that a state redistricting plan,

    while race neutral on its face, has no rational explanation save

    as a deliberate effort to separate voters into different

    districts on the basis of race, and that the separation lacks

    sufficient justification. See Shaw v. Reno, 509 U.S. 630, 642

    (1993) (Shaw I) at 649. For there to be an equal protection

    violation, race must not simply have been a motivation for the

    drawing of a majority-minority district, Bush v. Vera, 517 U.S.

    952, 959 (1996), but instead the predominant factor

    motivating the legislatures districting decision, Hunt v.

    Cromartie, 526 U.S. 541, 547 (1999) (Cromartie I).

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    However, given the general difficulty in proving intent as

    mentioned above, the Supreme Court further held that

    modifications in voting qualifications or prerequisites to

    voting or standard, practice or procedure that create a

    deviation greater than 10% in an electorates black and white

    voting populations, relative to the prior ratio of black voters

    to white voters, establishes aprima facie violation under both

    the 14th and 15th Amendments. See Brown v. Thomson, 462 U.S. 835

    (1983). In setting a 10% deviation as theprima facie standard,

    the Supreme Court created two (2) legal presumptions at the

    Constitutional level: (1) a deviation of more than 10%

    establishes vote dilution and violates the one-man, one-vote

    principle; and (2) a deviation of more than 10% between blacks

    and whites in a given jurisdiction establishes the prerequisite

    racial intent required by both the 14th and 15th Amendments for

    establishment of aprima facie case. Id. Indeed, in the Mahan

    case, the Supreme Court stated, albeit in dictum, that a maximum

    deviation of 16.4% may well approach tolerable limits. Mahan

    v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320

    (1973).

    In the case at bar, the Plaintiffs allege that blacks

    constitute a voting majority in Fulton County and DeKalb County.

    Due to the mutually exclusive power of municipalities and

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    counties, the States creation of the MVDs in the north Fulton

    and DeKalb area, and the creation of a MVD at the southern end

    of Fulton County, has geographically compressed or limited the

    impact of the minority vote, and thus access and control, to

    central Fulton County. Conversely, minorities that live in north

    or south have been both divided from the remainder of their

    cohesive voting block to wit, the minority voting population

    residing in the center of Fulton County.

    Indeed, using the respective counties from which the MVDs

    were carved as benchmarks, the Defendant, in an act of

    gerrymandering and redistricting, created mutually exclusive

    political subdivisions, e.g., the MVDs, which shifted local rule

    of the land areas covered by the MVDs from the county level to

    the MVDs, wherein the population deviation between whites and

    blacks exceeds FIFTY PERCENT(50%). Such deviations are

    unprecedented in the case law, and not only satisfy the pleading

    threshold for a vote dilution claim based on the 14thAmendments

    equal protection clause and the 15th Amendment,5 but actually

    5 The 15th Amendment and the Equal Protection Clause of the 14thAmendment are essentially congruent in the vote dilution contextsince under either, the claim can only be established by proofthat: (i) vote dilution exists and (ii) vote dilution results

    from a racially discriminatory purpose chargeable to the state.

    City of Mobile v. Bolden, 446 U.S. 55, 66-70, 100 S.Ct. 1490, 64L.Ed.2d 47 (1980).

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    exceed Rule 8 pleading requirements and state a claim of vote

    dilution as a mater of law, since the population deviations from

    the counties to the MVDs in this case greatly exceed the 10%

    threshold established in the case law. See Larios v. Cox, 300 F.

    Supp. 2d 1320 (N.D. Ga. 2004) (state legislative reapportionment

    plans, which deviated from population equality by a total of

    9.98%, had no legitimate state policy that justified such

    deviations, and thus violated one-person, one-vote principle);

    Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000) (population

    variation between districts of greater than 10% establishes

    prima facie case of vote dilution and state must justify

    variance by invoking other legitimate concerns); Montiel v.

    Davis, 215 F. Supp. 2d 1279 (S.D. Ala. 2002) (maximum deviation

    of greater than 10% automatically establishes a prima facie

    violation of the one-person, one-vote principle for purposes of

    equal protection claim; burden of proof shifts to the State to

    justify the deviations by showing a rational and legitimate

    state policy for the districts); Wyche v. Madison Parish Police

    Jury, 635 F.2d 1151 (5th Cir. 1981) (where parochial officials

    redrew court-ordered voting district lines by extending town

    boundaries to include low-income housing projects without court

    sanction or approval required under the VRA, and the result was

    to transfer 5% of the parish population, all Black, from a ward

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    where they would have a major effect to one where their

    electoral impact would be minor, when viewed against past

    discrimination against Black voters, warranted an inference of

    discriminatory purpose and the district court was obligated to

    take measures to assure the Constitutionality of the election

    process).

    iii. The States Creation of the MVDs is an act ofredistricting and subject to the 14th and 15

    Amendment.

    Lastly, the Defendant halfheartedly argues that the

    creation of the MVDs by the Defendant is not an act of

    redistricting, and is therefore not subject to judicial review

    under the 14th and 15th Amendments. However, there are numerous

    instances in the case law where the incorporation of a town,

    village or city was the source of vote dilution. Indeed, it is

    well established that the creation of a village, township or

    municipality, which are themselves at large voting districts

    that can be further subdivided into several single member

    districts can dilute or hinder block voting by minorities or

    otherwise minimize the vote of said block voting minorities in

    regard to local governance. Such effects, albeit if only local

    in nature, obviously create a cause of action under Section 2 of

    VRA, the equal protection clause of the 14th Amendment ,and the

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    15th Amendment. See LeBlanc-Sternberg v. Fletcher, 781 F. Supp.

    261(S.D.N.Y. 1991)(Defendants also argue that no vote dilution

    occurred because, until the Airmont incorporation, plaintiffs

    did not have any right to vote in Airmont elections. While this

    is true, we believe defendants have not properly stated the

    case. Prior to the incorporation, plaintiffs voted in the Ramapo

    elections and, in doing so, they would attempt to elect

    officials who would represent them on matters of local concern

    including zoning and taxation. Although plaintiffs still possess

    the right to vote, their right to "fair and effective

    representation", Reynolds v. Sims, 377 U.S. 533, 565-66, 84

    S.Ct. 1362, 1383-84, 12 L.Ed.2d 506 (1964), on matters of local

    concern has allegedly been abridged through the deliberate and

    discriminatory minimization of their votes' effectiveness.),

    and see also, Caserta v. Village of Dickinson, 491 F. Supp. 500

    (S.D. Tex. 1980).

    Indeed, redistricting takes many forms and may be

    accomplished by decennial legislative apportionment; by altering

    the boundaries of existing jurisdictions, such as cities e.g.,

    Gomillion v Lightfoot, or by annexation and deannexation, e.g.,

    Reno v. Bossier Parish School Board, 520 U.S. 471 (1997).

    Essentially, any action by the state that affects in how a voter

    may vote and who she votes for, is an act of redistricting and

    http://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2,11&as_vis=1http://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2,11&as_vis=1http://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2,11&as_vis=1http://scholar.google.com/scholar_case?case=3707795010433249200&hl=en&as_sdt=2,11&as_vis=1
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    subject to judicial review under Section 2 of the VRA, and the

    14th and 15th Amendments.

    III. The State is the Appropriate Defendant in a Section 2 or 1983Claim.

    Defendant also moves to dismiss the Complaint based upon

    the assertion that the Governor of Georgia is not the party of

    interest in this matter, because his office lacks the power to

    provide the relief sought by the Plaintiffs.

    a.The Governor is Not the Wrong Party.Defendant alleges that the Governor is not the proper party

    to this action because the Governors office lacks the power to

    affect any relief sought by the Plaintiffs. However, this

    assertion fails upon an evaluation of relief sought by the

    Plaintiffs, and the source of harm to the Plaintiffs.

    Plaintiffs seek to end a state action (i.e., the grant of

    municipal charters to the MVDs) which Plaintiffs contend

    constitutes and/or sustains an ongoing violation of federal law.

    Here, it is not the day to day operations or any action

    directly taken by the MVDs which causes the harm to the

    Plaintiffs, instead it is the actual existence of the MVDs which

    causes the harm to Plaintiffs.

    Specifically, the Plaintiffs seek declaratory relief, to

    wit, a declaration from this Court that the State of Georgias

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    issuance of charters to the Cities of Sandy Springs, Milton,

    Dunwoody, Chattahoochee Hills, and Johns Creek, and the

    consequent changes in the voting districts in DeKalb and Fulton

    counties, violated Section 2 of the Voting Rights Act, the equal

    protection clause of the 14th Amendment and the 15th Amendment by

    abridging the voting rights of Plaintiffs. Moreover, the

    Plaintiffs also request injunctive relief, to wit, the enjoining

    of the State of Georgia from further harming the Plaintiffs by

    consolidating certain of the MVDs into a county, namely Milton

    County. Plaintiffs also seek to compel the State of Georgia to

    withdraw the charters of the MVDs, as it is the very existence

    of the MVDs which alters the voting districts in Fulton and

    DeKalb Counties and harms the Plaintiffs, and thus, violates

    federal law.

    Indeed, given that the source of the alleged harm is the

    creation/reorganization of cities and counties, then the only

    party with the power to affect such changes is the State of

    Georgia. Municipalities and counties are creations of the State

    with limited powers,6 wherein only the State can create a

    6 See Dillon, John, Commentaries on the Law of MunicipalCorporations, 5th ed. (Boston: Little, Brown and Company),1911), pp. 448-50. See Jewel Teac Company v. City Council ofAugusta, 59 Ga. App. 260, 200 S.E. 503 (1938); Beazley v. DeKalbCounty, 210 Ga. 41, 77 S.E.2d 740 (1953); Weber v. City of

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    municipality, and generally, only the State can abolish a

    municipality.

    Furthermore, pursuant to the 11th Amendment, a state may not

    generally be sued in federal court unless it waives its

    sovereign immunity or its immunity is abrogated by an act of

    Congress under Section 5 of the Fourteenth Amendment. Kimel v.

    Florida Bd. of Regents, 528 U.S. 62 (2000); Seminole Tribe of

    Florida v. Florida, 517 U.S. 44, 55-57 (1996); Hans v.

    Louisiana, 134 U.S. 1 (1890). Under the doctrine enunciated in

    Ex Parte Young, 209 U.S. 123 and its progeny, however, a suit

    alleging a violation of the federal constitution against a state

    official in his official capacity for injunctive and declarative

    relief on a prospective basis is construed as a permissible suit

    against the state. Id. at 168; Frew ex rel. Frew v. Hawkins, 540

    U.S. 431, 437 (2004).

    Therefore, only the State of Georgia can affect the relief

    sought by the Plaintiffs, and thus the Governor, in his official

    capacity as the chief executive officer of the State of Georgia,

    and thereby the State of Georgia, is not only the proper party

    Atlanta, 140 Ga. App. 332, 231 S.E.2d 100 (1976); H.G. BrownFamily Ltd. Partnership v. City of Villa Rica, 278 Ga. 819, 607S.E.2d 883 (2005).

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    to this action, he is the only possible7 party to this action

    given the relief sought by the Plaintiffs.8

    IV. The Factually Intense, Affirmative Defense of Laches Is NotApplicable Under Rule 12(b)(6)

    Lastly, the Defendant argues that the Complaint should be

    dismissed due to laches on the part of the Plaintiffs. But

    before addressing the merits of this basis for dismissal, it

    must be noted that the strictures of a Rule 12(b)(6) motion to

    dismiss, wherein dismissal of the claim is based solely on the

    complainant's pleading, are not readily applicable to a

    determination of laches. Although a Rule 12(b)(6) motion may be

    grounded on an affirmative defense, the defense of laches

    usually requires factual development beyond the content of the

    7 Plaintiffs insist that the MVDs themselves are not requiredparties under Rule 19, because they lack the power to affecttheir own creation or abolishment. At best, the MVDs possessthe ability to intervene under Rule 24.8 The Defendant cites only one case -- Kentucky v. Graham, 473U.S. 159 (1985) -- in support of its contention that this mattershould be dismissed because the Governor is an improper partyand lacks the power to provide the relief sought by the

    Plaintiffs. However, the Kentucky case concerns the propriety,under the 11th Amendment, of awarding monetary damages toprivate plaintiffs when the plaintiffs prevailed on a 1983claim against state officials in their individual capacities.Given that Plaintiffs do not seek monetary relief, thePlaintiffs have interpreted this basis for dismissal, not as apoorly phrased 11th Amendment challenge to the Complaint, but asan failure to state a claim due to the named party not havingthe power to affect the desired relief.

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    complaint. The facts evidencing unreasonableness of the delay,

    lack of excuse, and material prejudice to the defendant, are

    seldom set forth in the complaint, and at this stage of the

    proceedings can not be decided against the complainant based

    solely on presumptions. To borrow words from the Eighth Circuit

    [s]o far as laches is concerned, it has been repeatedly held

    that mere lapse of time does not constitute laches. It is to be

    determined by consideration of justice, and that is dependent

    upon the circumstances of each particular case." Des Moines

    Terminal Co. v. Des Moines Union Ry. Co., 52 F.2d 616, 630 (8th

    Cir., 1931). Alternatively, to determine whether the

    Plaintiffs claims are barred by laches, this Court would have

    to know far more than what is currently disclosed in the

    Complaint.

    However, returning to the threshold inquiry for laches on a

    Rule 12(b)(6), laches requires proof of a lack of diligence by

    the party against whom the defense is asserted, and (2)

    prejudice to the party asserting the defense." Costello v.

    United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d

    551 (1961) (citations omitted). See also AmBrit, Inc. v. Kraft

    Inc., 812 F.2d 1531, 1545 (11th Cir.1986). Dismissal of a claim

    on the ground of laches requires that there be (1) unreasonable

    and unexcused delay in bringing the claim, and (2) material

    https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=Costello+v.+United+States%2c+365+U.S.+265%2c+282https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=Costello+v.+United+States%2c+365+U.S.+265%2c+282https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=81+S.Ct.+534%2c+543https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=5+L.Ed.2d+551+%281961%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=5+L.Ed.2d+551+%281961%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=AmBrit%2c+Inc.+v.+Kraft+Inc.%2c+812+F.2d+1531%2c+1545+%2811th+Cir.1986%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=AmBrit%2c+Inc.+v.+Kraft+Inc.%2c+812+F.2d+1531%2c+1545+%2811th+Cir.1986%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=AmBrit%2c+Inc.+v.+Kraft+Inc.%2c+812+F.2d+1531%2c+1545+%2811th+Cir.1986%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=AmBrit%2c+Inc.+v.+Kraft+Inc.%2c+812+F.2d+1531%2c+1545+%2811th+Cir.1986%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=5+L.Ed.2d+551+%281961%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=5+L.Ed.2d+551+%281961%29https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=81+S.Ct.+534%2c+543https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=Costello+v.+United+States%2c+365+U.S.+265%2c+282https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=nKQ3PX4RaZLWiffxWrU8E9xqf3ULTMh05Sgpk1PUHF6Hbnepb%2fOiat4n23%2bMWSpgPcz%2fWyHlsB61yrE84xS6PAIBV5moMZLWOTTbEyJk785AIDKgPkmXg8hKOQl8f3er&ECF=Costello+v.+United+States%2c+365+U.S.+265%2c+282
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    prejudice to the defendant as a result of the delay. A.C.

    Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020,

    1028, 22 USPQ2d 1321, 1324 (Fed.Cir.1992) (en banc ). Both of

    these factual premises must be met, predicate to the weighing of

    the facts of delay and prejudice to determine whether justice

    requires that the claim be barred. The mere passage of time does

    not constitute laches. When a limitation on the period for

    bringing suit has been set by statute, laches will generally not

    be invoked to shorten the statutory period. Cornetta v. United

    States, 851 F.2d 1372, 1377-78 (Fed.Cir.1988) (en banc).

    Lastly, the burden of proof is on the party that raises the

    affirmative defense.

    Returning to the facts as presented in the Complaint, the

    last of the MVDs was in fact created in 2008, as the culmination

    of a three year process by the Defendant to re-create Milton

    County, and to further abridge the voting rights of the

    Plaintiffs. See Complaint at 17, 44. However, aside from the

    fact that the alleged acts of malfeasance by the State occurred

    over the span of approximately three years (2005-2008), there is

    no other statement of fact enunciated in the Complaint to

    explain the time span between the final enactment of the last

    city charter for a MVD and the filing of the present lawsuit.

    There are no factual allegations as to what the Plaintiffs knew

    http://law.justia.com/cases/federal/appellate-courts/F2/960/1020/http://law.justia.com/cases/federal/appellate-courts/F2/851/1372/http://law.justia.com/cases/federal/appellate-courts/F2/851/1372/http://law.justia.com/cases/federal/appellate-courts/F2/960/1020/
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    or should have known, or when the effects of the creation of the

    MVDs upon the voting rights of the Plaintiffs would have first

    manifested. Accordingly, there can be no determination that the

    time between the creation of the last of the MVDs, assuming that

    that is even the proper marker, and the filing of the Complaint

    was unreasonable or inappropriate.

    Likewise, there is no evidence contained in the Complaint

    as to the effect of the lapse in time upon the Defendant e.g.,

    the death of important witnesses or the loss of necessary

    documents, and thus, there is no evidence to determine whether

    or not the State has been materially prejudiced.9 And while

    the Defendant makes allegations to the contrary in its Motion to

    Dismiss, such allegations cannot satisfy its factual burden of

    proof for a laches defense on a Rule 12(b)(6) motion to dismiss.

    9 Indeed, the Defendant misconstrues the focus of the prejudiceinquiry. As stated in the Motion to Dismiss, the Defendant

    tends to highlight alleged harms to the MVDs themselves, and notany factor relevant to the State of Georgia. Moreover, theDefendant makes no allegations as to how the State would beprejudiced by the passage of time in defending its decision tocreate the MVDs which is the focus of this litigation.Indeed, the expenditure of monies by third parties does notconstitute prejudice, if so, any ilicit act could be insulatedfrom judicial challenge by quickly investing resources intofurthering such action.

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    Conclusion

    Wherefore, for the reasons set forth above - namely that the

    Plaintiffs have properly pled all of their claims, that the

    State of Georgia, and thus, the Governor is the proper party in

    this litigation, and that a laches defense is not supported by

    the facts contained in the Complaint - the Plaintiffs

    respectfully request that the Defendants Motion to Dismiss be

    DENIED in its entirety.

    Respectfully submitted, this 15th day of July, 2011.

    6855 Jimmy Carter BoulevardBuilding 2100, Suite 2150Norcross, Georgia 30071Telephone: (770) 650-7200Facsimile: (678) 735-4512Email: [email protected] for the Plaintiffs

    HERNAN TAYLOR & LEE, LLC

    _______________________Jerome Lee

    Georgia Bar #: 443455

    mailto:[email protected]:[email protected]