United States District Court, N.D. Georgia, Atlanta Division
GEORGIA STATE CONFERENCE OF THE NAACP, as an organization;, Plaintiffs,
STATE OF GEORGIA; et al., Defendants.
MARTIN, Circuit Judge, and DUFFEY and BATTEN, District
MEMORANDUM OPINION AND ORDER
MARTIN, CIRCUIT JUDGE
State Conference of the NAACP, Lavelle Lemon, Marlon Reid,
Lauretha Celeste Sims, Patricia Smith, and Coley Tyson
(“plaintiffs”) bring this action alleging that
Georgia's 2015 redistricting of Georgia House of
Representatives Districts 105 and 111 resulted from racial
and partisan gerrymandering that violates the Constitution
and Section 2 of the Voting Rights Act, 52 U.S.C. §
10301. Doc. 1 ¶¶ 1-4, 20-25. The redistricting
challenged here is embodied in Georgia Act No. 251, 2015 Ga.
Laws 1413 (“H.B. 566”). Id. ¶ 1.
plaintiffs have sued the State of Georgia and Georgia
Secretary of State Brian Kemp (“defendants”),
seeking to enjoin H.B. 566. Id. ¶¶ 1,
plaintiffs' complaint sets forth three counts. Count One
alleges that H.B. 566 was enacted with a discriminatory
purpose, or an intent to dilute the vote, in violation of the
Fourteenth Amendment (asserted under 42 U.S.C. § 1983)
and Section 2 of the Voting Rights Act, 52 U.S.C. §
10301. Id. at 22. Count One is brought against both
the State and Secretary Kemp. Id. Count Two alleges
that H.B. 566 constitutes racial gerrymandering, which
violates the Fourteenth and Fifteenth Amendments.
Id. at 24. Count Two is asserted under § 1983
and against only Secretary Kemp. Id. Count Three
alleges that H.B. 566 creates partisan gerrymandering in
violation of the Fourteenth Amendment right to equal
protection. Id. at 25. Count Three is also brought
under § 1983, and it too is against only Secretary Kemp.
defendants have moved to dismiss Counts One and Three under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc.
20. They ask us to dismiss Count One against the State,
because the Eleventh Amendment to the U.S. Constitution
grants sovereign immunity to states. Doc. 20-1: 2. The
defendants also move to dismiss Counts One and Three for
failure to state a claim. Id. at 2.
careful review, we find the State is not entitled to
sovereign immunity against the Count One claim brought under
Section 2 of the Voting Rights Act.
State is, however, entitled to sovereign immunity for the
Count One claim brought under § 1983 (asserting a
violation of the Fourteenth Amendment). We also hold that the
plaintiffs failed to state a claim upon which relief may be
granted for Counts One and Three. As a result, the
defendants' partial motion to dismiss is granted without
the plaintiffs' factual allegations in the complaint as
true, and construe them in the light most favorable to the
plaintiffs. Hill v. White, 321 F.3d 1334, 1335 (11th
Cir. 2003) (per curiam). The facts we recount here have not
therefore been subjected to the rigors of proof, but instead
are taken from the plaintiffs' complaint.
Georgia General Assembly makes up the legislative branch of
Georgia government, and is composed of the Senate and the
House of Representatives. See Ga. Const. Art. III
§ II. The House of Representatives is comprised of 180
members, each elected from a single district. Doc. 1 ¶
28. Georgia legislative elections are partisan and require a
candidate to get a majority of the vote. Id. ¶
31. If no candidate receives a majority, then a runoff
election is held between the two candidates who got the most
votes. Id. Because non-white voters are a minority
of Georgia's overall electorate, this system makes it
more difficult for them to elect candidates of their choice.
allege a long history of discrimination against non-white
voters in Georgia, especially as to African Americans.
Id. ¶¶ 32-33. One way that this
discrimination has been carried out, plaintiffs say, is
through redistricting plans. Id. ¶ 34. Racial
and partisan gerrymandering has caused the
underrepresentation of minorities in the Georgia House of
Representatives, both now and in the past. Id.
¶ 34-35. According to a 2015 survey, Georgia's
voting age population is 62.8% white, 31.6% African-American,
4.4% Hispanic/Latino, and 2.6% Asian-American. Id.
¶ 35. In contrast, the make-up of the Georgia House is
72.8% white, 25.6% African-American, 1.1% Hispanic/Latino,
and 0.6% Asian-American. Id. ¶ 36.
and party have long been highly correlated in Georgia.
Id. ¶ 37. Of the 119 Republicans in the Georgia
House, 99.2% of them are white, and none are African-American
or Asian-American. Id. There is one Hispanic/Latino
Republican in the House. Id. Of the 61 Democrats in
the House, 75.4% of them are African-American and 21.3% are
white. Id. There is one Asian-American Democrat and
one Hispanic/Latino Democrat. Id.
redistricting plans are adopted every ten years so that the
districts accord with new census data. Id.
¶¶ 29-30. For example, the Georgia General Assembly
adopted a new plan after the 2010 census. Id.
¶¶ 38-40. This plan was finalized in February 2012
by Georgia Act No. 277 (“the 2012 plan”), and it
was precleared by the United States Department of Justice.
Id. ¶¶ 40-41.
the 2012 plan, the Georgia General Assembly redrew districts
again in May 2015, with H.B. 566 reflecting those
Id. ¶ 42. H.B. 566 revised 17 districts of the
Georgia House of Representatives, including Districts 105 and
111. Id. ¶¶ 43, 60, 75. It was enacted
largely along party lines and adopted outside of the normal
legislative procedures. Id. ¶ 47-48. Some
legislators criticized H.B. 566 as racial gerrymandering.
Id. ¶ 45. Indeed, African-American legislators
were excluded from the process of drawing and negotiating the
redistricting in H.B. 566, and minority residents of Georgia
were denied any opportunity for public comment on the
measure. Id. ¶¶ 49-50. H.B. 566 redrew
House districts along racial and party lines. Id.
¶¶ 2, 4, 5. For purposes of this Order, we accept
the complaint's allegation that H.B. 566 redrew district
lines to make certain districts safer for white Republican
incumbents. Id. ¶¶ 7-8, 10-12.
566 changed the racial make-up of Districts 105 and 111 in
ways that reduced the ability of African-American and other
minority voters to elect candidates of their choice.
Id. ¶¶ 51-52. Under the 2012 plan,
District 105's voting age population was 48.4% white,
32.4% African-American, 12.6% Hispanic/Latino, and 4.6%
Asian-American. Id. ¶ 55. Under H.B. 566, the
redrawn District 105 became 52.7% white, 30.4%
African-American, 10.8% Hispanic/Latino, and 4.2%
Asian-American. Id. ¶ 61. The changes to the
racial make-up of the voting age population of District 105
are summarized here:
Id. at 17. The 2012 plan was in effect for the
District 105 elections in 2012 and 2014. Id. ¶
54. In both elections, Joyce Chandler, a white Republican,
defeated Renita Hamilton, an African-American Democrat, by
narrow margins: 554 votes in 2012 (2.7 percentage points) and
789 votes in 2014 (5.6 percentage points). Id.
¶¶ 56-58. The voting patterns in these elections
were racially polarized. Id. ¶ 59. After H.B.
566 took effect for the District 105 election in 2016, Ms.
Chandler defeated Donna McLeod, who is also an
African-American Democrat, by just 222 votes (0.9 percentage
points) in another racially divided election. Id.
¶¶ 63-66. Had the 2012 plan still been in effect,
the plaintiffs allege Ms. McLeod would have likely defeated
Ms. Chandler. Id. ¶ 67.
the 2012 plan, the voting age population of District 111 was
56.1% white, 33.2% African-American, 5.6% Hispanic/Latino,
and 3.3% Asian-American. Id. ¶ 69. After H.B.
566 redrew District 111, it became 58.1% white, 31%
African-American, 5.2% Hispanic/Latino, and 3.7%
Asian-American. Id. ¶ 77. The changes to the
racial make-up of the voting age population of District 111
are summarized here:
Id. at 20. The 2012 plan was in effect for the
District 111 elections in 2012 and 2014. Id. ¶
68. In the 2012 election, Brian Strickland, a white
Republican, defeated Bill Blackmon, an African-American
Democrat, by 1, 477 votes (5.9 percentage points).
Id. ¶¶ 70-71. In the 2014 election, Mr.
Strickland defeated Jim Nichols, a white Democrat, by 1, 124
votes (6.3 percentage points). Id. ¶¶ 72-
73. Both elections were racially polarized. Id.
¶ 74. After H.B. 566 took effect for the District 111
election in 2016, Mr. Strickland defeated Darryl Payton, an
African-American Democrat, by 946 votes (3.4 percentage
points) in another racially polarized election. Id.
¶¶ 79-82. Had the 2012 plan still been in effect,
the plaintiffs allege Mr. Payton may have defeated Mr.
Strickland. Id. ¶ 83.
plaintiffs' complaint also sets out that the Georgia
General Assembly tried to enact another bill in 2017, known
as H.B. 515, which would have decreased the African-American
population in District 111 even further. Id. ¶
53. H.B. 515 would have been yet another mid-census
redistricting plan. Id. It failed to pass, however,
largely due to backlash from African-American Democrats in
the Georgia legislature as well as negative media coverage.
Id. at 20, ¶ 53.
the plaintiffs is the Georgia State Conference of the NAACP,
which alleges that its members have been subjected to racial
and partisan gerrymandering. Id. ¶ 20. The
other plaintiffs are Ms. Lemon, Mr. Reid, Ms. Sims, Ms.
Smith, and Mr. Tyson, who are all registered Democratic
African-American voters residing in either District 105 or
111. Id. ¶¶ 21-25. The plaintiffs say that
because of H.B. 566, they did not have an equal opportunity
to elect the candidate of their choice in 2016, and that they
will continue to be so deprived in the 2018 or 2020
elections. Id. They also say they were injured by
the racial and partisan based redistricting in H.B. 566.
plaintiffs have sued the State of Georgia and Georgia
Secretary of State Brian Kemp, Georgia's chief election
officer, in his official capacity. Id. ¶¶
26-27. Count One claims intentional vote dilution, and is
brought under § 1983 (alleging a violation of the
Fourteenth Amendment) and Section 2 of the Voting Rights Act.
Id. at 22. Under this claim, the plaintiffs assert
there was no legitimate non-racial reason for H.B. 566's
redistricting and that it was done with the intent to dilute
minority voting strength. Id. ¶¶ 91-92.
They allege that minority voters were on the verge of
electing a Democrat, and H.B. 566 was enacted in order to
keep Districts 105 and 111 from being competitive for
Democrats. Id. ¶¶ 93-94.
Two is a racial gerrymandering claim brought under §
1983, alleging a violation of the Fourteenth and Fifteenth
Amendments. Id. at 24. It is brought against
Secretary Kemp. Id. For this claim, the plaintiffs
assert that race predominated H.B. 566's redistricting
for the purpose of minimizing minority voter participation
and influence in the Georgia House of Representatives.
Id. ¶ 96. The context of the recent elections
in these districts is evidence that racial considerations
were the controlling reason for H.B. 566's changes.
Id. ¶ 97.
Three is a partisan gerrymandering claim brought under §
1983, alleging a violation of the Fourteenth Amendment.
Id. at 25. For this claim, the plaintiffs assert
that H.B. 566's redistricting was intended to remove
Democratic voters from Districts 105 and 111 so as to ensure
electoral victory for the Republican incumbents. Id.
¶ 103. They say there was no legitimate reason for the
redistricting, and that race was used as a proxy for partisan
affiliation in order to redraw the lines and minimize
Democratic voting strength. Id. ¶¶
plaintiffs seek declaratory and injunctive relief.
Id. at 27-28. Among other things, they ask for a
declaration that H.B. 566 violates the U.S. Constitution and
Section 2; an injunction against defendants implementing H.B.
566; an order requiring Georgia to preclear voting changes; a
reasonable deadline for a new redistricting plan; and
attorney's fees. Id.
State has moved to dismiss Count One for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). Because the State asserts only a facial challenge
to subject matter jurisdiction, we accept the allegations in
the complaint as true. See Houston v. Marod Supermarkets,
Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013).
Specifically, the State says both the Fourteenth Amendment
claim (brought under 42 U.S.C. § 1983) and the Section 2
claim against the State are barred by the Eleventh Amendment.
Doc. 20-1: 2-8. The plaintiffs respond that their Section 2
claim is not barred on immunity grounds, and they are right.
Doc. 22: 3-7.
Eleventh Amendment deprives federal courts of jurisdiction to
decide suits that private individuals bring against
nonconsenting states. Bd. of Trs. Of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962 (2001).
However, Congress can do away with states' Eleventh
Amendment immunity through legislation. Id. In
determining whether Congress has abrogated the states'
sovereign immunity, we ask first, whether Congress has
“unequivocally expressed its intent to abrogate 
immunity”; and second, whether in doing so Congress
“acted pursuant to a valid exercise of power.”
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55,
116 S.Ct. 1114, 1123 (1996) (quotations omitted and
alteration adopted). Under the first inquiry, the intent to
abrogate must be “unmistakably clear in the language of
the statute.” Id. at 56, 116 S.Ct. at 1123
reading of the text of Section 2 of the Voting Rights Act, 52
U.S.C. § 10301, tells us it “unequivocally
expresse[s]” an intent to abrogate state sovereign
immunity. Id. at 55, 116 S.Ct. at 1123 (quotation
omitted). The statute specifically forbids “any
State or political subdivision” from
discriminating against voters “on account of race or
color.” 52 U.S.C. § 10301 (emphasis added). Our
reading comports with that of the Sixth Circuit, the only
federal court of appeals to have considered this issue. In
making its decision, the Sixth Circuit relied, as we do, on
the explicit textual reference to “State[s]” in
the statute. See Mixon v. Ohio, 193 F.3d 389, 398
(6th Cir. 1999).
State, on the other hand, points us to two district court
opinions to argue that Section 2 does not indicate a clear
intent to abrogate Eleventh Amendment immunity because it
provides only an implied (not express) right of action. Doc.
20-1: 7 (citing Greater Birmingham Ministries v.
Alabama, No. 2:15-CV-02193, 2017 WL 782776, at *10-13
(N.D. Ala. Mar. 1, 2017); Lewis v. Bentley, No.
2:16-CV-690-RDP, 2017 WL 432464, at *9-10 (N.D. Ala. Feb. 1,
2017)). This argument fails to persuade us. Among other
things, we reject the notion that “because Section 2 .
. . is silent as to whether it creates a private right of
action, it is also necessarily silent as to the parameters of
such a right.”Greater Birmingham Ministries,
2017 WL 782776 at *12. Even though the statute does not
explicitly provide a private right of action, it is clear
from the text that if the statute offers a right of
action to an individual, then that right must be one
that is enforceable against a “State or
political subdivision.” 52 U.S.C. § 10301
(emphasis added). Given that Section 2 contains an implied
private right of action, ...