Georgia State Conference of NAACP v. State

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

          OPINION AND ORDER

          MARTIN, CIRCUIT JUDGE.

         In this action, the Georgia State Conference of the NAACP and certain black voters^[1] (“plaintiffs”) challenge the 2015 redistricting of Georgia House of Representatives Districts 105 and 111. Plaintiffs say these Districts resulted from unconstitutional gerrymandering^[2] 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.

         I. BACKGROUND

         The 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 H.B. 566.

         The 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.

         One 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.

         Georgia 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.

         Both 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.

         Reapportionment 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.

         This 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.^[3] 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.

         Even 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 other things.

         Wright 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.

         In the 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.^[4] 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.

         Mr. 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.

         It is 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.

         No one 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.

         And 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 90:11-19.

         II. ANALYSIS

         A 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).

         No 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).

         This is 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).

         This 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 ...