United States District Court, N.D. Georgia, Atlanta Division
GEORGIA STATE CONFERENCE OF THE NAACP, as an organization; et al., Plaintiffs,
STATE OF GEORGIA; et al., Defendants.
MARTIN, Circuit Judge, and DUFFEY and BATTEN, District
OPINION AND ORDER
MARTIN, CIRCUIT JUDGE.
action, the Georgia State Conference of the NAACP and certain
black voters (“plaintiffs”) challenge the
2015 redistricting of Georgia House of Representatives
Districts 105 and 111. Plaintiffs say these Districts
resulted from unconstitutional gerrymandering based on the race
of voters. Doc. 1 ¶¶ 1-4, 20- 25. This Order
addresses plaintiffs' request that we enjoin the State
from holding elections in Districts 105 and 111, as defined
in Georgia Act No. 251, 2015 Ga. Laws 1413 (“H.B.
566”). Doc. 103. After careful review, and with the
benefit of oral argument, we deny plaintiffs' motion for
a preliminary injunction.
Georgia Constitution says that the electoral districts for
members of the Georgia House of Representatives “shall
be changed by the General Assembly as necessary after each
United States decennial census.” Ga. Const. art. III,
§ 2, ¶ 2. In keeping with our Constitution, the
Georgia General Assembly redrew state House of Representative
districts in 2011. Compl. ¶ 39 (Act No. 1EX). Then in
2012, the General Assembly modified the House district map
again. Id. ¶ 40 (Act No. 277). The 2011 and
2012 redistricting plans were precleared by the United States
Department of Justice, as required by the Voting Rights Act
of 1965. Id. ¶ 41. The 2015 plan at issue in
this case was adopted after the Supreme Court's decision
in Shelby County v. Holder, 570 U.S. 529, 133 S.Ct.
2612 (2013), and was not precleared. Compl. ¶ 42. This
lawsuit challenges the third redistricting done after the
2010 census, which was enacted into law in 2015, by way of
motion for preliminary injunction before us seeks to enjoin
only two House districts redrawn by H.B. 566: District 105
and District 111. District 105 is in Gwinnett County.
District 111 is in Henry County. These Districts were redrawn
in 2015, when the racial makeup of the area was changing.
State employees charged with reapportionment brought to light
the “changing demographics” in Henry and Gwinnett
Counties. Deposition of Gina H. Wright (“Wright
Dep.”), Doc. 112 at 23:25-25:6; Deposition of Dan
O'Connor (“O'Connor Dep.”), Doc. 111 at
220:2-221:24; Deposition of Randall O. Nix (“Nix
Dep.”), Doc. 124 at 178:12-181:24.
person interested in the “changing demographics”
was Dan O'Connor, who works in the Georgia Legislative
and Congressional Reapportionment Office. In August 2014, Mr.
O'Connor sent an email to Representative Chuck Efstration
of House District 104 noting that “white registration
in [Gwinnett County] between Jan 2000 and this month dropped
by about 3, 000 while black registration in Gwinnett has
quadrupled from 22, 443 in 2000 ¶ 96, 553 in the
latest count.” Doc. 103-3 at 1. In a February 2015
email to Speaker Pro Tem Jan Jones, Mr. O'Connor noted
that 2014 population data showed both District 105 and 111 to
be “at least 35% black in voter registration.”
Doc. 103-4 at 1. Mr. O'Connor continued,
“Generally, once a district gets in the 30-35% black
range, it becomes more of a target for Democrats.”
Id. This is because voting in Georgia is highly
racially polarized. Expert Report of Jowei Chen, Ph.D.
(“Chen Report”), Doc. 63-1 at 4. Districts with
large black populations are likely to vote Democratic.
See Doc. 103-17.
House Districts 105 and 111 were political battlegrounds
before the 2015 redistricting we consider here. In 2014,
Representative Joyce Chandler, a white Republican, won the
District 105 election with only 52.8% of the vote. Doc.
103-87 at 3. Representative Brian Strickland, also white and
Republican, won District 111 with only 53.1%. Doc. 103-37 at
6. This made Districts 105 and 111 two of only three House
Districts in Georgia's 2014 election where Republicans
won by a margin of ten points or less. Id. at 1. And
with the “changing demographics” in the counties
where these districts lie, there was good reason to think the
2016 elections would be even closer.
Representative Chandler and Representative Strickland went to
Gina Wright, who served as the Executive Director of the
Reapportionment Office, to enlist her help. Wright Dep. at
23:5-24; Deposition of R. Brian Strickland (“Strickland
Dep.”), Doc. 127 at 126:20-127:11. Ms. Wright's
office is located in the same office building that houses
Georgia's legislators, but Representative Chandler
visited Ms. Wright both at her home and her office. Wright
Dep. at 23:12-15; Nix Dep. at 58:25-60:1. Both
Representatives Chandler and Strickland also approached
Representative Randall Nix, chair of the House
Reapportionment Committee, to express their interest in
redrawing the lines of the districts where they had been
elected, to increase their likelihood of being reelected. Nix
Dep. at 139:16-141:18, 163:11-164:21.
Office staff worked with the Representatives to redraw their
districts. The Reapportionment Office uses computer software
known as Maptitude to develop redistricting plans.
Declaration of Gina H. Wright (“Wright Decl.”),
Doc. 137-1 ¶ 7. Maptitude shows the detailed effects of
any given redistricting option. For example, Maptitude can
display information about the performance of the Republican
or Democratic parties, based on the election results in any
given precinct. Id. ¶¶ 7-8. Indeed
Maptitude shows partisan data on a street-by-street basis
within a precinct, even though it only has partisan data for
the precinct as a whole. Thus, Maptitude's
street-by-street political data is nothing more than the
precinct-wide party-affiliation percentages assigned to
streets based on the number of people who live there.
Id. ¶ 9; Wright Dep. at 106:7-13. Maptitude can
also display data about the race of the people living in a
given area. But since the race data comes from the census (as
opposed to election results), it is more detailed, and
Maptitude can display precise information about people's
race down to the street or block-level in any precinct. Chen
Report at 32-33. Any Maptitude user can choose what data to
display, using “the pending changes box” as she
is working on a map. Wright Dep. at 105:10-16.
record, taken as a whole, shows the redrawing of Districts
105 and 111 was a group effort. Representative Nix described
one meeting in which Ms. Wright and all the potentially
affected legislators sat together and used Maptitude to
review options for redrawing the districts. Nix Dep. at
143:3-157:8. Representative Nix testified that as Ms. Wright
was “clicking around” different options for
redrawing the map, data about the race and political
affiliation of the voters in those districts were displayed
on the screen. Id. at 148:8-12, 150:8-12, 151:2-9.
He also said the meeting he attended was one of several held
by Reapportionment Office staff and interested members of the
House of Representatives to work through the redrawing of
Districts 105 and 111. Id. at 155:18-156:13. And
while Mr. O'Connor testified at his deposition that he
had no involvement in the 2015 redrawing of Districts 105 and
111, O'Connor Dep. at 134:13-20, 140:4-5, Representative
Nix said he talked to Mr. O'Connor “probably
daily” as the 2015 maps were coming
together. Nix Dep. at 92:4-12, 93:6-20. The record
supports a conclusion that any changes made to Districts 105
and 111 were vetted and approved by interested legislators
and Mr. O'Connor.
so, Ms. Wright says in her declaration that she “alone
worked on that portion of the HB 566 (2015) redistricting
plan that touched any part of Gwinnett and Henry County,
including HD 105 and HD 111.” Wright Decl. ¶ 5. In
her deposition, Ms. Wright discussed her general process for
mapping in reference to the 2011 redistricting process:
When I work on a plan, I use the pending changes box, which
is a feature in Maptitude that shows you how your numbers
change as you select that geography you're selecting. . .
. And you can set and move which fields you want to have in
that change box as you go. So for me I usually keep a
combination. I like to have the political data there as well
as other data, racial data, population data, all of those
Dep. at 105:10-16. In her declaration, though, Ms. Wright
says she did not keep race data open in her pending changes
box while redrawing Districts 105 and 111. Wright Decl.
¶ 10. Instead, Ms. Wright says she considered only
partisan and population data. Id. Ms. Wright says
she looked at race data only when she finished redrawing the
districts “to make sure that [she] did not do
significant harm in that respect as well.” Wright Dep.
30:6-8; see also Wright Decl. ¶ 22, 40.
end, the new versions of Districts 105 and 111 were drawn in
the legislative office building by some combination of
Reapportionment Office staff and legislators. While
Representative Nix made much of the fact that no changes were
made to districts unless all affected legislators agreed, Nix
Dep. at 79:19- 80:5, nothing in this record suggests the
affected communities had any input. Neither does the
legislative process suggest transparency or public
engagement. H.B. 566 was introduced to the House on March 5,
2015. Doc. 103-53 at 1. The bill itself contains no
maps-simply a list of precincts and numbers. See H.B.
566. Representative Nix described the bill best when he said,
“[i]f you look at the bill, there's not a whole lot
of detail that anybody can look at and get out of that”
without assistance from the Reapportionment Office. Nix Dep.
at 182:24-183:3. The House Reapportionment Committee voted to
approve the bill at the one and only hearing it ever held
about it on March 9. Doc. 103-63 at 1; Nix Dep. at 186:9-11.
This committee meeting was also the first time legislators,
other than those who had been involved in the redrawing
process, ever saw the maps. Nix Dep. at 183:12-20. Two days
later, the full House unanimously voted in favor of
redistricting Districts 105 and 111, when it passed H.B. 566.
Doc. 103-53 at 1.
O'Connor prepared a summary of H.B. 566 in which he
offered an explanation for the redrawing: “District
line changes can be made for a variety of reasons-as some
examples, eliminating a split precinct (a precinct divided
into multiple districts), reuniting a neighborhood or
community of interest, or addressing technical
concerns.” Doc. 103-64 at 2; see also
O'Connor Dep. at 133:7-134:12. But in his deposition, Mr.
O'Connor said he did not recall if any of those
justifications for redistricting were actually served by the
redrawing of Districts 105 and 111. Id. at
134:6-136:4. Similarly, Ms. Wright testified she worked to
adhere to traditional redistricting criteria like these in
redrawing Districts 105 and 111, including compliance with
state and federal law, improving contiguity and compactness,
and keeping counties, precincts, and communities of interest
together. Wright Dep. at 20:24-21:12. “Further
down” on the list of priorities, she said, “would
be incumbency.” Id. at 21:9-10. But in
redrawing Districts 105 and 111, Ms. Wright acknowledged her
“objective was to make these districts, if at all
possibly anyway, better for these incumbents to get
reelected.” Id. at 30:1-3.
true, as Ms. Wright testified, that there are ways in which
the new maps of Districts 105 and 111 maintained the
traditional principles of redistricting. But more often, the
new maps had a negative impact on these principles. For
example, the new maps created districts that were less
compact; deviated more from the ideal district size; split
more municipalities across district lines; and split more
districts across county lines. Chen Report at 3, 26-31. The
new maps kept the same number of split precincts in District
105 but more than doubled the number of split precincts in
District 111, which went from two to five. Id. at
29-30. And while Representative Nix characterized the changes
proposed in 2015 as “very minor, ” Nix Dep. at
62:8, the new versions of Districts 105 and 111 look quite
different from the old. An expert for the plaintiffs
calculated that nearly 15, 000 people were moved in or out of
District 105, and over 31, 000 people were moved in or out of
District 111. Expert Report of Dr. Gerald R. Webster
(“Webster Report”), Doc. 62-1 at 3. These numbers
are significant where the target population of a House
district is 53, 820 people. Id.
disputes the new maps gave Districts 105 and 111 more white
voters and fewer black voters. In total, the black share of
the voting age population in both districts decreased by just
over 2% as a result of the redistricting. Chen Report at 25.
This may not seem like much, but speaking in terms of
percentages distracts from the fact that the redistricting
likely changed the outcome of the 2016 election in both
Districts 105 and 111. Id. at 21-22. If the old maps
had been used, both districts would have become significantly
more diverse, and significantly more
Democratic. Id. at 10. Plaintiffs' expert
estimated that the percentage of black voter turnout in the
2016 District 105 election was more than four points lower
than it would have been had the old map been used.
Id. at 14. In District 111, the percentage of black
voter turnout was estimated to be almost three points lower
than it would have been under the old map. Id. at
15. But in any event, the redistricters were not trying to
change the demographic makeup of Districts 105 and 111
dramatically. Their express purpose was to change Districts
105 and 111 just enough to protect the incumbents there,
without endangering the incumbent Republican House members in
the neighboring districts.
that's exactly what they did. Under the new map,
Representatives Chandler and Strickland were both narrowly
reelected. Representative Chandler won in District 105 with
50.5% of the vote to 49.5% for her Democratic challenger.
Doc. 103-87 at 5. Representative Strickland won District 111
with 51.7% of the vote to 48.3% for his Democratic
challenger. Id. at 6. An expert for the plaintiffs
estimated that if the 2016 elections had been held using the
old maps, both Representatives Chandler and Strickland would
have lost. Chen Report at 21-22. Even Mr. O'Connor agreed
that both Representatives likely would have lost their seats
had their districts not been redrawn. O'Connor Dep. at
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 376
(2008). To warrant a preliminary injunction, a moving party
must establish: “(1) a substantial likelihood of
success on the merits of the underlying case, (2) the movant
will suffer irreparable harm in the absence of an injunction,
(3) the harm suffered by the movant in the absence of an
injunction would exceed the harm suffered by the opposing
party if the injunction issued, and (4) an injunction would
not disserve the public interest.” N. Am. Med.
Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217
(11th Cir. 2008) (quotation omitted).
party to this lawsuit disputes that redrawing Districts 105
and 111 made them more white and less black. But to state a
claim for racial gerrymandering, the plaintiffs must show
more than that. They must show “that race was the
predominant factor motivating the legislature's decision
to place a significant number of voters within or without a
particular district.” Bethune-Hill v. Va. State Bd.
of Elections, 580 U.S. ___, 137 S.Ct. 788, 794 (2017)
(quotation omitted). A plaintiff can make that showing
“either through circumstantial evidence of a
district's shape and demographics or more direct evidence
going to legislative purpose.” Miller v.
Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 2488 (1995).
particularly hard to do when the State offers a defense
rooted in partisan gerrymandering, as it did here. We did not
move these voters because they are black, the State tells us.
We moved them because they were Democrats. And under current
Supreme Court precedent, the State tells us this motive is
perfectly acceptable. But if the State has “placed a
significant number of voters within or without a district
predominantly because of their race, ” they have
engaged in unconstitutional racial gerrymandering, even if
the ultimate objective of those moves was partisan advantage.
Cooper v. Harris, 581 U.S. ___, 137 S.Ct. 1455, 1473
n.7 (2017) (quotation omitted and alteration adopted).
record documents that Ms. Wright had racial data available to
her for redrawing Districts 105 and 111. She testified that
race data was available on Maptitude down to the census-block
level. Wright Dep. at 25:4-26:8, 105:24-25. In contrast, data
about political affiliation was accurate only on a
precinct-wide basis. As we've described, this meant
Maptitude had much more granular data about race than about
political affiliation. Chen Report at 32-33. Also, Ms. Wright
testified her general practice was to keep open a box in
Maptitude that gave the racial data for any potential
district. Wright Dep. at 105:10-23. Representative Nix
corroborated this with his testimony that racial data was
visible on the Maptitude display at one of the group sessions
where Ms. Wright tried out various options for new district
boundaries. Nix Dep. at 150:8-12. And of course, Ms. Wright
admitted she “eventually” looked at race data
“to make sure that [she] did not do significant harm in
that respect as well.” Wright Dep. at 30:6-7. Also,
although Ms. Wright ultimately denied having racial data
visible while drawing the new lines for Districts 105 and
111, her testimony indicates that she knew where black
residents were located on the maps. After all, she saw the
location of black residents both when ...