vra reply final
TRANSCRIPT
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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
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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
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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]