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Georgia State Conference of Naacp v. State

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

August 25, 2017

GEORGIA STATE CONFERENCE OF THE NAACP, as an organization;, Plaintiffs,
v.
STATE OF GEORGIA; et al., Defendants.

          Before MARTIN, Circuit Judge, and DUFFEY and BATTEN, District Judges.

          MEMORANDUM OPINION AND ORDER

          MARTIN, CIRCUIT JUDGE

         Georgia 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.

         These plaintiffs have sued the State of Georgia and Georgia Secretary of State Brian Kemp (“defendants”), seeking to enjoin H.B. 566. Id. ¶¶ 1, 26-27.

         The 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. Id.

         The 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.

         After 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.

         The 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 prejudice.

         I. THE FACTS

         We take 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.

         The 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. Id.

         Plaintiffs 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.

         Race 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.

         Typically, 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.

         Despite the 2012 plan, the Georgia General Assembly redrew districts again in May 2015, with H.B. 566 reflecting those changes.[1] 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.

         H.B. 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:


2012 plan H.B. 566 Change
White 17,712 48.4% 19,204 52.7% ,492 .3%
African-American 11,841 32.4% 11,071 30.4% -770 -2.0%
Hispanic/Latino 4,612 12.6% 3,945 10.8% -667 -1.8%
Other 2,415 6.6% 2,229 6.1% -186 -0.5%
Total 36,580 36,449 -131

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.

         Under 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:


2012 plan H.B. 566 Change
White 21,638 56.1% 22,228 58.1% ๎Ÿ .0%
African-American 12,798 33.2% 11,852 31.0% -946 -2.2%
Other 4,109 10.7% 4,155 10.9% .2%
Total 38,545 38,235 -310

Id. at 20.[2] 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.

         The 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.

         Among 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. Id.

         The 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.

         Count 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.

         Count 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. ¶¶ 103-105.

         The 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.

         II. JURISDICTION

         The 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.

         The 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 (quotation omitted).

         Our 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).

         The 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.”[3]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.โ€ 52 U.S.C. ยง 10301 (emphasis added). Given that Section 2 contains an implied private right of action, ...


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