case 1:03-cv-00693-cap document 85 filed 11/07/2003 page …...sara larios, et al, plaintiff v....

t

NO . 1 :3-cv-693-CAP

defendant

Pursuant to this Court's order dated April 14, 1987, opposing coun-

sel is hereby notified that within 20 days from the date said motion was

N O T I C E

To : Frank B . Strickland, Esq . Strickland Brockington Lewis Midtown Proscenium Center Suite 2000 1170 Peachtree Street, NE Atlanta, GA 30309

November 14, 2003

UNITED STATES DISTRICT COURT for the

NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Sara Larios, et al,

plaintiff

v .

George E . (Sonny) Perdue, et al,

CIVIL ACTION

NOTICE TO RESPOND TO SUMMARY JUDGMENT MOTION --------------------------------------------

On 11/7/03, Sara Larios, et al,

filed a motion for summary judgment in this Court, case document

number 85 .

Case 1:03-cv-00693-CAP Document 85 Filed 11/07/2003 of 91

Copies to counsel of record

i

served, filing of all materials, including any affidavits, depositions,

t � .,f � .-,- �..err.,- ; oc f ; l a and an~r nthPY YP1 alranY

materials to be considered in opposition to the motion for summary

judgment, is required . Federal Rules of Civil Procedure, Rule 56(c) ;

Moore v . State of Florida, 703 F .2d 516, 519 (11th Cir . 1983) .

Unless otherwise stated by the trial court, the Court will take

said motion for summary judgment under advisement immediately upon the

close of the aforesaid 20 day period . Id . at 519 . See also Donaldson

v . Clark, 786 F .2d 1570, 1575 (11th Cir . 1986) ; Griffith v . Wainwright,

772 F .2d 822, 825 (11th Cir . 1985) .

The entry of a summary judgment by the trial court is a final

judgment on the claim or claims decided . Finn v . Gunter, 722 F .2d 711,

713 (11th Cir . 1984) . Whenever the non-moving party bears the burden of

proof at trial on a dispositive issue and the party moving for summary

judgment has demonstrated the absence of any genuine issue of fact, the

nonmoving party must go beyond the pleadings and must designate, by af-

fidavit or other materials, " . . . specific facts showing that there is a

genuine issue for trial ." Federal Rules of Civil Procedure, Rule 56(e) ;

Celotex Corp . v . Catrett, 477 U .S . 317, 324 ; 106 S .Ct . 2548, 2552-53 ;

91 L .Ed .2d 265, 272-3 .

Luther D . Thomas, Clerk United States District Court Northern District of Georgia


NO . 1 :3-cv-693-CAP

defendant



N O T I C E

To : Anne Ware Lewis, Esq . Strickland Brockington Lewis Midtown Proscenium Center Suite 2000 1170 Peachtree Street, NE Atlanta, GA 30309

November 14, 2003



Sara Larios, et al,

plaintiff

v .


CIVIL ACTION




number 85 .



t


answers to ; nrorrr,rratr,r~ac _rVlm~=png nn f__1_a a_n_!'1_ ,a n1 nY__h_a_r -P1 Pva71Y








772 F .2d 822, 825 (11th Cir . 1985) .









Celotex Corp . v . Catrett, 477 U .S . 317, 324 ; 106 S .Ct . 2548, [552-53 ;

91 L .Ed .2d 265, 272-3 .



f

NO . 1 :3-cv-693-CAP

defendant



N O T I C E

To : Dennis Robert Dunn, Esq . Office of State Attorney General 40 Capitol Square, S .W . Atlanta . GA 30334-1300

November 14, 2003



Sara Larios, et al,

plaintiff

v .


CIVIL ACTION




number 85 .



E


admissions on f_-1_e and any other relevant answers to ii i.cYivyc'ai.ory ..8,







v . Clark, 786 r .2d 1570, 1575 (11th Cir . 1986) ; Griffith v . Wainwright,

772 F .2d 822, 825 (11th Cir . 1985) .










91 L .Ed .2d 265, 272-3 .



N0 . 1 :3-cv-693-CAP

defendant



N O T I C E

To : Thurbert E . Baker, Esq . Office of State Attorney General 40 Capitol Square, S .W . Atlanta, GA 30334-1300

November 14, 2003



Sara Larios, et al,

plaintiff

v .

George E . (Sonny) Perdue, et ai,

CIVIL ACTION




number 85 .



f


��,~y~ to _~rA==nnarn_ria8, adm; .eginng can file and anv other relevant




Unless otherwise stated by the trial court, the Court wild take




772 F .2d 822, 825 (11th Cir . 1985) .

The entry- of a summary judgment by the trial court is a final









91 L .Ed .2d 265, 272-3 .



t

NO . 1 :3-cv-o'93-CAP

defendant



N O T I C E

To : David F . Walbert, Esq . Parks Chesin & Walbert 26th Floor 75 Fourteenth Street, N .E . Atlanta, GA 30309

November 14, 2003



Sara Larios, et al,

plaintiff

v .


CIVIL ACTION


On 11/7/U3, Sara Larios, et al,


number 85 .



l


answers to interrogatories, admissions on file and any other relevant








772 F .2d 822, 825 (11th Cir . 1985) .










91 L .Ed .2d 265, 272-3 .



l

NO . 1 :3-cv-693-CAP

defendant



N O T I C E

To : Mark Howard Cohen, Esq . Troutman Sanders Bank of America Plaza Suite 5200 600 Peachtree Street, N .E . Atlanta, GA 30308-1216

November 14, 2003



Sara Larios, et al,

plaintiff

v .


CIVIL ACTION




number 85 .




answers to interrogatories, admissions on file and any other relevant








772 F .2d 822, 825 (11th Cir . 1985) .










91 L .Ed .2d 265, 272-3 .



t

NO . 1 :3-cv-693-CAP

defendant


sel is hereby notified that within 20 days from the elate said motion was

N O T I C E

To : Amy M . Henson, Esq. Baker & Hostetler Suite 1100 1050 Connecticut Avenue, N .W . Washington, DC 20036

November 14, 2003



Sara Larios, et al,

plaintiff

v .


CIVIL ACTION




number 85 .



l


angwarg to ;nr_Prrngatories ; admissinnG on file and any other relevant








772 F .2d 822, 825 (11th Cir . 1985) .










91 L .Ed .2d 265 . 272-3 .



NO . 1 :3-cv-693-CAP

defendant


sel is hereby notified that within 2u days Lrom the date said motion was

N O T I C E

To : E . M . Braden, Esq . Baker & Hostetler Suite 1100 1050 Connecticut Avenue, N .W . Washington, DC 20036

November 14, 2003



Sara Larios, et al,

plaintiff

v .


CIVIL ACTION




number 85 .



l


answers to ---- - --------- , ?rim_GG=nnG nn file and any other relevant

materials to he considered in opposition to the motion for summary







772 F .2d 822, 825 (11th Cir . 1985) .



713 (11th Cir . I984) . Whenever the non-moving party bears the burden of







91 L .Ed .2d 265, 272-3 .



ORl II~At 'a --~T TLIF TJTT~,L~1LL

U,lA'1LJ L1JTlvivi vvvD~i '-"'`'-i'11J;^ WUJ

FOR THE NORTHERN DISTRICT OF GEORGIA~~ ~ ATLANTA DIVISION

: ; rlc . ..

THREE JUDGE COURT

DEFENDANT

SARA LARIOS, et al . and ERIC B . JOHNSON,

PLAINTIFFS,

v .

CATHY COX, in her official capacities as Secretary of State of Georgia and Chair of the State Election Board,

CIVIL ACTION FILE NO . 1 :03-CV-693 (CAP)

PLAINTIFFS' JOINT MOTION FOR SUMMARY JUDGMENT

COME NOW PLAINTIFFS SARA LARIOS et. al and ERIC JOHNSON,

and, pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56 .1, jointly

move this Court for summary judgment on their claim that population deviations in

Georgia's current redistricting plans for the state Senate, House of Representatives

and Congressional districts violate the Equal Protection Clause and Article I, § 2 of

the United States Constitution in that the districts deny Plaintiffs the right to one

person, one vote . The material facts regarding this claim are not in dispute and the

law, as set forth in Plaintiffs' Joint Memorandum, requires judgment in Plaintiffs'

favor .


2

7. ill support ~l v pTnint

l uK.il lrivuvuI I iauuluo auu~u ua~u ev ..u

numerous exhibits and depositions and the Affidavit of Bryan Tyson .

WHEREFORE, Plaintiffs respectfully request that their Joint Motion for

Summary Judgment be granted and that the current redistricting plans for

Georgia's Senate, House of Representatives and Congressional districts be

declared unconstitutional and their use enjoined.

Local Rule 7 .1 .D Certification:

By signature below, counsel certifies that the foregoing was prepared in

Times New Roman, 14-point font in compliance with Local Rule 5 .1 B.

Respectfully submitted this ,/ date of November, 2003 .

40~~ - Frank B. Strickland Georgia Bar No. 687700 Anne W. Lewis Georgia Bar No. 737490

STRICKLP.ND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2000 1170 Peachtree Street NE Atlanta, GA 30309 Telephone (678) 347-2200 Facsimile (678) 347-2210


3

i

AttnmP~rc fnr T gins Plaintiffs . . . . .. . . . .~ .. . .. . .J ... . .. .. . . ., . . . . . . .�

Stacy . Freeman Georgia Bar No . 275391

MCKENNA LONG BL ALDRIDGE LLP

303 Peachtree Street, N.E . Suite 5300 Atlanta, GA 30308 Telephone (404) 527-4397 Facsimile (404) 527-4198

E. Mark Braden Amy M . Henson

BAKER BC HOSTETLER LLP Suite 1100 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone : (202) 861-1504 Facsimile: (202) 861-7039

Attorneys for Plaintiff Eric B . Johnson


TNT TiIF T1TTiTGII C'TATFC TITCTAi(`T ('l1TTAT l l " 1 11 L V 1 .1 l L L U 1 l " 1 L U I ." l 1 u V 1 v V V l \ 1

FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

THREE JUDGE COURT

DEFENDANT

4

SARA LARIOS, et al . and ERIC B. JOHNSON,

PLAINTIFFS,

v .


CIVIL ACTION FILE NO. 1 :03-CV-693 (CAP)

CERTIFICATE OF SERVICE

This is to certify that I have this day served or caused to be served a copy of the within and foregoing PLAINTIFFS' JOINT MOTION FOR SUMMARY JUDGMENT by hand delivery, properly addressed to counsel for Plaintiffs and Defendants as follows :

Dennis R. Dunn Deputy Attorney General Georgia Department of Law 132 State Judicial Building 40 Capitol Square, S.W . Atlanta, GA 30334-1300


5

Mark H. Cohen Special Assistant Attorney General Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216

David F. Walbert Special Assistant Attorney General Parks, Chesin and Walbert, P.C . 26'' Floor, 75 Fourteenth Street Atlanta, GA 30309

This lday of November, 2003 .

~~)Am e W. Lewis

STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2000 1170 Peachtree Street, NE Atlanta, Georgia 30309 Telephone : 678347 .2200 Facsimile : 678. 347.2210


`- R CI rn

vniGIN~~, ~~ 0 '~7~

1Ti TT-IG' T TXT7TL'Tl CT A TL,'C T1TC`TDT!'T !'!1T TDT


THREE JUDGE COURT

DEFENDANT

(Count I) .

UV

SARA LARIOS, et al . and ERIC B. JOHNSON,

PLAINTIFFS,

v.



PLAINTIFFS' JOINT MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

COME NOW PLAINTIFFS, and file this brief in support of their Motion for

Summary Judgment, showing the Court as follows :

INTRODUCTION

While Plaintiffs' amended complaint seeks relief on four grounds, Plaintiffs

seek summary judgment on only one: that the redistricting plans for Georgia's state

Senate, state House of Representatives and Congressional districts violate the

constitutional principle of one person one vote, guaranteed by the Equal Protection

~iausc ui iiic Fourteenth Amendment and by Article i, § L of the Constitution


2

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Tl.,. : ..F . . .l.etl,o.. ,. , .~ Fl. .. !_o..~ . .: . . ~0.7 : ..r..; ..t;� .. .,1 . . .,~ ., oFF. ..;o..r lllli IJJllli UL WIIIiLlIVI Vl IIVI Llll VVV1Sl41VU1JLI I~11 I 1r, P14I1J 4111 VI 1I N1.1 I L

enough gerrymanders to be deemed unconstitutional under the Supreme Court's

Davis v . Bandemer analysis involves significant questions of fact, making the

claim inappropriate for summary judgment . The cliche that a picture is worth a

thousand words is certainly validated in this case-the maps of any of Georgia's

redistricting plans could be used in a textbook to illustrate gerrymandering . Unless

the term gerrymandering is to be rendered without meaning, these plans are the

archetypical gerrymanders . Georgia's redistricting plans are not unconstitutional

under the Supreme Court's one person one vote jurisprudence because they are

partisan gerrymanders, but because they debase and dilute Plaintiffs' and many

other Georgia citizens' votes with unjustified unequally populated districts .

Gerrymandering is simply the explanation to why the population deviations exist.

With respect to the state legislative plans, the population deviations are

arbitrary in the sense that they are unsupported by state policy, but they are not

capricious . No level of political science training is necessary to understand the

purpose and effect of these unequal districts. The numbers themselves testify to a

clear pattern underlining the legislative population deviations . Republican-leaning

l~1cfY1l`}C aTP rtPnPTa~~V nvPrnnti� ~nfa~ 9n~ PPmnrrnfir_~POninrt ~tcMnkc orn nnnnrn~~~r u~vuavw u~~ ~.~~~v~u~~~ V " ~rl1JV~lU141~r4 4l " ~l LWl1VY16L41V1rUllll~b 41J1.L1VW 4111 blillNU~~~'

Political Dictionary, William Safire, p.255 (Random House 1978).


3

inglernnnitlatPri This i~ n~" u random nnn�rrannn l~.,f F� 11 .~ In 1 .."0.7 a VV 4V111 VYVU~~V.Lt'li~ VUL 4 VI11H1411'' N41liliIuwu $IIu

skillfully executed effort to maximize the likely number of Democratic members in

Georgia's legislature. Although a legitimate purpose of the Democratic Party of

Georgia may be maximization of Democratic political performance, it is not a

legitimate state interest supporting debasing one group of citizen's votes versus

another. Not a single traditional state redistricting principle is furthered by the

population inequality in the current plans, as is readily apparent from even a

cursory review of the maps .

Residents in the overpopulated districts-Republicans, Democrats and

Independents-are intentionally discriminated against in the legislative plans . The

plans discriminate against citizens living in fast-growing areas of Georgia because

these areas correspond with those that are likely to elect Republican legislative

members. The plans discriminate against those citizens living in the suburban

areas of the state because these areas correspond to the areas that are most likely to

elect Republican legislative members. The plans discriminate against citizens

living in Northern Georgia because this area corresponds to an area likely to elect

Republican legislative members.

The plans are designed to discriminate iici -ana nnnnlatinn ;nPrn~o..l ;f,~ to o-- r ..Y~ .... ., .. .. ..,y ..

perceived 10% safe harbor population range) to further the interests of the Georgia


4

Tlnmnrrotir Part,, p^v~:iia .̂c is lnrr ; ":+.,~~o :.. 1+ . .I .+ ..h: .~ .. .. a v .~ ., . . "~..~ ... ., . 3. .~~ . o .o .~.Suau~aw 11L i~.uaouwui~g~ vuL pal uOau raii~ u~i.S iiv~

provide the State a legitimate basis on which it may use population deviations to

discriminate against the voting rights of some of its citizens . Plaintiffs are

therefore entitled to summary judgment declaring the legislative plans in violation

of the Equal Protection Clause of the Fourteenth Amendment .

With respect to the Congressional Plan, the undisputed facts show that

Georgia's congressional districts are not equal in population, that the inequality

was avoidable and intentional, and that no legitimate state interest supports the

avoidable inequality . Therefore, Plaintiffs are entitled to summary judgment that

the plan violates Article I, §2 of the Constitution .

Simply put, politics never trumps the Constitutional principle of one person

one vote, as recognized by Justice Stevens in Karcher v. Daggett:

The Equal Protection Clause requires every State to govern impartially. When a State adopts rules governing its election machinery or defining electoral boundaries, those rules must serve the interests of the entire community. If they serve no purpose other than to favor one segment--whether racial, ethnic, religious, economic, or political-- that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community, they violate the constitutional guarantee of equal protection .

462 i_i .S . 775, 749 (1_9R11 (CtPyPnS, i,, CopC,l;ITl ;;si (c%tati- ~ m.:«eui.


5

Rl_T_MM_ARY jUDGMENT STANDARDS

As provided in Fed. R. Civ. Pro. 56, summary judgment is appropriate when

there is no genuine issue of material fact and the movant is entitled to judgment as

a matter of law. In determining whether there is a genuine issue of material fact,

the record is viewed in the light most favorable to the non-moving party . See

Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986) ; Odum v. Celotex

Corp . , 764 F.2d 1486 (11th Cir. 1985) . However, the non-moving party may not

rely upon mere allegations . Rather its response must, with affidavits or other

verified evidence, set forth specific facts showing that there is a genuine issue for

trial. See Celotex Cord. v. Catrett, 477 U.S . 317, 323 (1986) ; Fed. R. Civ. P. 56(e).

Further, "[s]ummary judgment procedure is properly regarded not as a disfavored

procedural shortcut, but rather as an integral part of the Federal Rules as a whole,

which are designed to secure the just, speedy and inexpensive determination of

every action." Celotex, 477 U.S . at 327 (citations omitted) .

ARGUMENT AND CITATION OF AUTHORITIES

I . Redistricting Plans For The State House And Senate Are Unconstitutional Because Population Deviations In Those Plans Are Not The Result Of Adherence To Rational State Policy, But Of An Erroneous Legal Position

The legislative redistricting plans for the Georgia State House and the


6

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r .*;o Cr~ro Qe. . v? l . 1, .. . .o . :,. . . ,1,. . . : ..a :, . .. .. Q. .. . ' t A. .,. .._ r ..__ . plan ..r~~iSw ~BCaa a1ur~ population ucviau~1i~ Mat ii"vnI uivbc W any plan

passed in any state since the 2000 census. The plans have total population deviation

ranges of 9.98% and average deviation ranges of 3.47% and 3.78%, respectively .

These extreme deviations from population ideal were based on an erroneous

conclusion that a 10% safe harbor existed. As the Court has noted, it was

Defendant's position on the motion to dismiss that "any plan with a maximum

population deviation that is less than 10% is completely immune from a ̀ one person

one vote' challenge ." 8/29/03 Order at 25 . Discovery has now demonstrated that

Defendant has followed this "10% safe harbor" interpretation of the law since the

very beginning of the redistricting process, fully relying on it in drafting

intentionally discriminatory state legislative plans . As the Court has already

determined, that interpretation was incorrect .

The State mistakenly concluded it did not need any legitimate state interest to

justify a deviation from population equality as long as the deviation was no more

than +5% . The deviation cannot now be justified by alleged adherence to a rational

All references herein will be to the Senate Plan passed in 2002, the plan that has received Section 5 preclearance and is currently in effect. Should the United States District Court for the District of Columbia preclear the Senate Plan passed in 2001, however, the same principles apply and that plan should also be ruled unconstitutional CPP Fvnart R~nnH nf(`lorb L7 n~.~ T n !«R D

l .1- 1 - 1 VIU\ L. Lli11J11/~ J .L, ` LW/7V111\Vl./UlL

attached as Pl . Ex . 1, at 2001 Senate Plan Sec . ; Deposition of Senator Robert Brown, Oct. 29, 2003 (`Brown Dep.") at 97 .


7

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state iuMMM uiDwvcicu WHY w iuiiuNguL.

A. Supreme Court Precedent Holds That Legislative Districts Must Be As Nearly Equal As Practicable -- Every Deviation From Population Equality Must Advance A Rational State Policy

The Supreme Court has interpreted the Equal Protection Clause to require

states to "make an honest and good faith effort to construct districts, in both houses

of its legislature, as nearly of equal population as is practicable." Reynolds v.

Sims, 377 U.S . 533, 577 (1964) . In analyzing whether a state has met this

requirement, the Court examines the extent to which districts in the plan deviate

from the "ideal district" - a district containing the number of people that is

obtained by dividing the number of persons in the state by the number of distracts

in the plan. The Court considers deviation both in terms of the average deviation

of all districts in the plan (the average of the percentage variances of the districts in

the plan from the ideal district) and in terms of the total range of deviation in a plan

(the sum of the absolute percentage of deviations of the largest and smallest

districts from the ideal district) .3 White v . Re e~ ster, 412 U.S. 755, 764 (1973);

Gaffney v. Cummins, 412 U.S . 735, 750-51 (1973); Prosser v. Elections Bd . , 793

For further definition see Redistricting Law 2000, National Conference of State Legislatures (1999), p.20-23 .


8

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98-100 (1997) (considering both average deviation and total deviation in Georgia's

Congressional plan) ; White v. Weiser, 412 U.S. 783, 785 (1973) (considering both

average deviation and total deviation in Congressional plan) ; Dunnell v . Austin ,

344 F. Supp . 210, 214 (E.D. Mich. 1972) (same) .

In considering average deviation, courts have held that plans with lower

average deviation come closer to the goal of population equality than plans with

higher average deviations, i .e ., plans with lower average deviation are "more

equal" than plans with higher average deviations. Fletcher v. Golder, 959 F.2d

106, 109 (8th Cir. 1992). Although the Supreme Court upheld a legislative plan

with an average deviation of 1 .82% in White v. Re e~ ster , the Court warned that

plans with larger deviations are "very likely . . . not [] tolerable without

justification based on legitimate considerations incident to the effectuation of a

rational state policy." 412 U.S . at 764 (internal citation and quotation omitted) .

Likewise, in considering the total deviation range, courts have held that

plans with significant deviation must be justified by the effectuation of a rational

state policy . As the Court recognized in its August 29, 2003 Order, a plan with

tnta_1 tiPyia_tinn ranoa of 1(l01- nr mnrp ;g nnmo fnpjp Q/70/!12 . . . ..b.. Y. . . . .w ui . yr a.ii w

Order at 25-27 ; Brown v. Thomson, 462 U.S . 835, 843 (1983) . A plan with total


9

ui.'riuiivi~ iu:~~^i uiauii iv ~~~ i$ ui$v uCiCviiSiituilv~i$i 1i iiii. ui,i 1S iiJijuSii~-.u

by rational and legitimate state policies but instead is tainted by arbitrariness or

discrimination . 8/29/03 Order at 25-27 ; Daly v. Hunt, 93 Fad 1212, 1220 (4th Cir.

1996) (quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). See also Brown,

462 U.S . at 843 (holding that "the ultimate inquiry . . . is whether the legislature's

plan `may reasonably be said to advance [a] rational state policy"').

In Abrams v . Johnson, the Supreme Court recognized a number of state

policies particular to Georgia that may justify slight deviations from strict

population equality . 521 U.S . 74, 99-100. The Court noted "Georgia's strong

historical preference for not splitting counties outside the Atlanta area and for not

splitting precincts" and Georgia's interest in "maintaining core districts and

communities of interest ." Id . (internal citations and quotations omitted) .

According to the Court, Georgia's "small counties represent communities of

interest to a much greater degree than is common." Id. at 100. In addition to

maintaining political subdivisions, maintaining the cores of existing districts, and

protecting communities of interest, the Supreme Court also consistently recognizes

providing for "compact" districts, drawing districts of "contiguous territory" and

"rl[(1tQC(lllo 1_Tl_Cl_Il_l_lhPTlYc" aC 17 '_1 ljltinna�1 ri ictrirti»b fa,ptnm flint ctK~Pe m w)7 r~n~+,ua°.i .

See, e .g., Remolds , 377 U.S . at 578-79 (compactness, contiguity, and preservation


10

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(1993) (compactness, contiguity, and preservation of political subdivisions); Miller

v. Johnson, 515 U.S . 900, 916 (1995) (compactness, contiguity, preservation of

political subdivisions, and preservation of communities of interest); Bush v. Vera,

517 U.S . 952, 959-60, 963-64 (1996) (contiguity, compactness, preservation of

political subdivision, and incumbent protection).

As discussed below, Defendant does not assert that the large deviations in

the legislative plans are the result of these traditional and rational state policies .

Rather, Defendant admits that the deviations can be attributed to the State's

assertion that such deviations fell within a "safe harbor." Accordingly, the

legislative plans must be deemed unconstitutional and summary judgment entered

for Plaintiffs on their claims that the plans violate their right to equal protection .

B . The State Made No Attempt To Draw Districts As Nearly Equal As Practicable Because It Misunderstood The Law

In devising state legislative plans with unconstitutionally high population

deviations, the State completely ignored the Supreme Court's mandate that states

"make an honest and good faith effort to construct districts . . . as nearly of equal

population as is practicable." Remolds, 377 U.S . at 577 . Legislators and plan

drafters instead constructed districts with only the goal of keeping the total range


11

of nnniiIatinn rjPyiatinn in YhP T1Wne ,wnrlar 1004 rya to thair mu~~~nraar~~wnrljnn fhnt Y Y ........, .. Y . ~ .. ..b

any legislative plan with total range of population deviation less than +5% was

immune from Constitutional attack . The drafters and legislators consequently did

not consider the average deviations of the plans, or whether state interests were

required to support an deviation from population equality .

Defendant concedes that drawing districts with population as nearly equal as

practicable was not a goal followed in the redistricting of the state legislature .

Defendant admits in response to interrogatories that the plans were the product of

"the goal of keeping deviations within the ±5% standard," rather than the goal of

population equality . Defendant's Response to Plaintiffs' First Interrogatories

("De£ Res. 1 st Inter."), attached as Pl . Ex . 2, at 10, 12, 15 . See also Deposition of

John G. Kirincich,° Oct. 24, 2003 ("Kirincich Dep.") at 32:18-25 (when checking

to ensure that population requirements were met, he simply checked whether plan

was in the +5% range) . "Legislators were generally of the view that, if deviations

were held within ±5%, those deviations satisfied the legal requirements." Def.

Mr. Kirincich was the Executive Director of the Georgia Democratic Party and one of the principal drafters of the Senate Plan .


12

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i$i iiiiP,i. ui Q_O 1 i 1 Z~ Tl.°.Y~~:i:v:: ~~J~.°. Siu::ivn 5 npf. Q ?n)()()q ~uCt .Q. .̂t .̂ ̂ .

Dep.") at 63 :11-16 ; Transcript of 8/6/01 meeting of Senate Reapportionment

Committee ("Senate Committee Meeting") attached as Pl . Ex. 3, at 7:5-17

(Chairman Golden directing that the Senate Plan was constitutional because it was

within ±5% total deviation) . See also Deposition of Linda Meggers,b Oct. 7, 2002

("Meggers Dep.") at 109:16-110:2 (testifying that the legislative plans were

constructed with the understanding that a total "population range of less than 10

percent was a safe harbor in an Equal Protection, one person one vote claim") ;

Defendant's Amended Initial Disclosures, attached as Pl. Ex. 4 at 2 ("During the

reapportionment process, it was the understanding of the State and legislators, and

continues to be Defendant's understanding, that population deviations within a

total of +10% satisfy the constitutional requirement for these plans.").

As Defendant acknowledges, legislators and plan drawers held this notion of

a "safe harbor," which is contrary to Supreme Court precedent. Def. Res . 1 st Inter.

P1 . Ex . 2 at 9, 11, 13 . See also Transcript of the 4/11/01 meeting of House

Reapportionment Committee ("House Committee Meeting"), attached as Pl. Ex . 5,

Mr. Stanton is the Assistant Director of Reapportionment in the State Legislative Reapportionment Office and, along with Mr . Kirincich, a drafter of the o___ ._

Plan . JGIIQS enate

Ms. Meggers is the Director of the Legislative Reapportionment Office and one of the primary drafters of the House Plan.


13

at ?'7a-Q'7, (Committee advised that laniclativP AdiSfi;~~ ~~ ~"~f;nnc chn� lA fell

within 10% range) ; 4/12/01 Senate Committee Meeting, Pl . Ex. 6, at 60:6-67 :9

(same); Transcript of 7/20/O1 Senate Reapportionment Hearing ("Senate

Hearing"), attached as Pl . Ex. 7, at 127:18-129:10 (Senate informed that ± 5%

deviations in legislative plans are per se constitutional) . Legislators and line

drawers were not aware that deviations from equal population had to be supported

by legitimate state interests, Kirincich Dep . at 34 :11-35 :4; Transcript of

Deposition of Regina Shelton,' Oct. 9, 2003 ("Shelton Dep.") at 15 :21-16 :10,

17:11-16, nor were they advised that the Supreme Court has rejected "fixed

numerical standards," such as a safe harbor deviation range, for judging the

constitutionality of population variances among voting districts . See Roman v .

Sincock, 377 U.S. 695, 710 (1964) ; Kirkpatrick v . Preisler , 394 U.S . 526, 530-31

(1969) .

The House and Senate Reapportionment Committees therefore included the

±5% safe harbor standard in their 2001-02 Redistricting Guidelines . 2001-02

Guidelines, Ex . 1 to Meggers Dep ., attached here as PI. Ex . 8, at 3 ; De£ Res . 1 S'

Ms . Shelton is a map drawer in the Legislative Reapportionment Office . While she believed state legislative plans could deviate from population equality by +5% without 3i1V 1llSY1fICaYlpil~ -be understood that local rPrlictrirt;na piano . .. ..- ----- -~--- - .,~. ., . . . ., . . ..b . .~ .~ could vary by ±4% "if they have a reason that's justifiable as to why they drew it that way." Shelton Dep., at 15 :23-35 ; 16 :1-7 .


14

n 1 ,-, .._r.]_~ _7,.__ .v _ . __ r.,.,] .1. ,. LcoI a ~ * :, .... ... . . .,.e s7, lillCi . 3L 7~ 1 1 ~ 1 J . Drafting Plans Llldl JdLIJ1~cu L11c -J /o uEviauvi1 I ailsV, inuiei

than equality, then became a goal of those drawing the plans. Meggers Dep. at

93 :2-94:12, 109:16-110 :2 ; id . at 235:23-236:4 ("[Plus or minus 5 percent

deviation] was a guideline adopted by the committee, so it becomes de facto that

that's what the legislators use when they began working on their districts.") ;

Deposition of Douglas M. Moore,8 Oct. 24, 2003 ("Moore Dep.") at 107:7-11 ;

Stanton Dep. at 41 :18-42:10, 79:13-80:3.

The goal of districts with population as nearly equal as practicable quickly

became subordinate to the goal of increasing Democratic legislative power once

the plan drafters believed they were entitled to draft any plan, so long as it did not

exceed 10% total range of deviation . When asked why the goal of redistricting had

not been zero deviation, Ms. Meggers explained:

I think the attorneys at some time in the past probably - not probably, said that the plus or minus 5 percent overall 10 was the allowable range . Once you give that as an allowable range to legislators as they're drawing their plan, they're going to - that becomes the de facto limitation, so they don't push for zero .

Meggers Dep. at 167:15-22 . The fact that the State began from the wrong starting

point - with a goal of drawing districts within a particular population deviation

range, rather l.o.-twal,.�,il OFi

.. 1 1 t: ., .. 1 .. U l,u Yi�lnrccuio nrnn ~~~.viacufih,~u~anvaauifinn~ vi~iini Yv(~uiauv~~ iaun~u f ~~i~. uu~ .

Mr. Moore was the Communications Director of the Georgia Democratic Party and one of the principal drafters of the plans.


15

coo o--la.. '1-r7 it c .,f c-77 J=li l\1iy11V111J, J / I V.U. Ct~ J / l .

In addition, however, Defendant completely ignored the Supreme Court

requirement that average deviation in plans be modest. Meggers Dep. at 91 :22-

92 :7 . There is absolutely no indication in the record that any legislator or plan

drafter even ever considered the average deviations in the plans. See,e .Q. , 9/4/02

Senate Hearing, Pl . Ex. 9, at 5:4-18 (average deviations in House Plan not

calculated). This failure resulted in plans with more than double the acceptable

average deviation recognized by the Supreme Court in White.

C . The Legislative Plans Contain Significant Deviations Which Are Arbitrary And Discriminatory, And Not The Result Of Adherence To A Leeitimate State Interest

The State's flawed understanding of Supreme Court precedent, coupled with

the goal of increasing Democratic legislative power, resulted in the drawing of

plans with excessive population deviations designed to be discriminatory . The

population deviations are arbitrary because they are not supported by rational state

interests.


Number of seats with deviations greater than +4

90 (50.00%)--an increase from 51 (28.33%) in the previous plan

56 (66.07%)--an increase from 23 (41 .07%) in the previous plan

16

r

1 Q'C 'fjjnnf n ' r; . .c Exist in The Plans, Rnth in Tvnnc (~f 1 . ~J~llll/V(llll LVYICLI.NIW J "

Total Deviation And Average Deviation

The significant deviations in the legislative plans, which are explained in

detail in the Plaintiffs' experts' reports9 and stipulated to by Defendant,1° are

summarized in the following table:

Total deviation range between largest and smallest district

Maximum relative deviation

Minimum relative deviation

Average deviation of a!! districts from ideal

9.98%

+4.99%

-4.99%

3.78%

9 .98%

+4.99%

-4.99%

3.47%

Number of districts with 31--more than doubling 60--nearly doubling deviations greater than from 12 in the previous from 31 in the previous +4.5% plan plan

See Bensen Report, Pl. Ex . 1, at 2002 Senate Sec., House Sec. ; Expert Report of Ronald Keith caddie, Ph.D. ("caddie Report"), attached as Pl . Ex. 10, at q

° See Response to Plaintiff's Second Request For Admissions to Defendant Cathy Cox ("Resp . 2d Req. Adm."), Pl . Ex . 11, at Resps . 92-95, & 120.


17

The deviation percentages in the two plans, both in terms of total deviation

and average deviation, are among the very highest deviation percentages of any

legislative plans passed in any state this redistricting cycle. Bensen Report, Pl . Ex .

1, at 2002 Senate Sec. p.6-7, House Sec. p.6-7 . The total deviation ranges of

9.98% are far cries from the reapportionment goal of districts with populations "as

nearly equal as practicable." Moreover, the average deviations are nearly double

the average deviation recognized as acceptable by the Supreme Court in White v.

Re eg ster . 412 U.S . at 764 (average deviation of all House districts was only

1 .82%). Significantly, the majority of the districts that deviate from population

ideal do so by more than ±4%, the number of these so-called "outlying" districts

has increased dramatically from the previous plans, actually doubling at the

furthest end of the extreme of over +4.5% . Gaddie Report, Pl. Ex . 11, at 9 .

2. Deviations Indicate That The Plans Are Tainted By Arbitrariness And Discrimination

The fact that the average deviations in the plans are high demonstrates that

equal voting power was not a goal in drawing the plans . Rather, the plan drawers

selected characteristics of persons on which to base treatment on a categorical,

rather than an individual, basis - making the plans arbitrary and discriminatory.

Bensen Report, Pl . Ex . 1, at 2002 Senate Sec. p.4 & n.6, House Sec. p .4 & n.6 .


18

~I PCP 111AllC do not conform to the pattern (bell c~~rlre~ t}~~t ~~io~ulv vv r-~---~ Y ' ~ I " YY

goal was equality with exceptions made to respond to legitimate state interests. If

one person one vote had been Defendant's principal goal in drafting the plans, only

a handful of districts would fall outside a cluster of districts near 0% deviation . Id .

at 2002 Senate Sec . p.3, House Sec. p3 . Instead, 67% of the districts in the Senate

Plan and 50% of the seats in the House Plan fall at the extremes of +4% deviation

from ideal. Id . When the total deviations in the plans are plotted on a graph, the

result is what has been called the "valley of discrimination ." Id . citing Plaintiffs'

Demonstrative Exhibits, Aug . 26, 2003 Hearing ("PDX"), Tabs 13 & 33, attached

as Pl . Ex. 12 . Under the plans, "many districts, and hence many persons, have a

large inequality in the weight of their vote ." Id. at 2002 Senate Sec. p .4, House

Sec . p .4 . The conclusion to be drawn from these plans "is that there is an unequal

weighting of the votes of the citizens of Georgia that is systemic in the entire

apportionment scheme ." Id. at 2002 Senate Sec. p .2 ., House Sec . p.2 .

The high average deviation, i .e ., the large percentage of districts near ±5%,

was not random . The line drawers distinguished residents on the basis of political

party, geographic region, and growth patterns to achieve a partisan goal; but in

relation to legitimate state interests ; they are distinguished ,_'n_ a_ tnta_lly arhitranr


19

r-_i_ :,._ I I Ta , ~nn^f O � .�,te Coo,. G 1 A A.�,~o Cow id Fir example the LaJ11lU1L Id. QL LVVL U1~114L1i ~. ~.J~ lT, 11VYJl~ vliv. P.5, i Y~~.~ .

most Republican-leaning districts are overwhelmingly overpopulated in the plans

and the most Democratic-leaning districts are overwhelmingly underpopulated in

the plans. 12 Id . at 2002 Senate Sec . p.5 & tabs 7-8, House Sec . p.5 & tabs 7-8. The

result of this deviation pattern is that the vote of an elector in an overpopulated

district carries significantly less weight than the vote of an elector in an

underpopulated district . Id . at 2002 Senate Sec. p.4-5, House Sec. p.4 ; Meggers

Dep . at 234:6-285 :4 ; Gaddie Report, Pl . Ex . 10, at 11 . Given that the announced

primary goal of the redistricting process was to increase Democratic legislative

power, it is not accidental that Republican voters' ballots are, to a large degree,

debased in electoral effect when compared to Democratic voter ballots." This

The intent to discriminate can be further inferred from the fact that the Senate Plan (as well as the Congressional Plan) was drafted by the Executive Director of the Georgia Democratic Party, John Kirincich. Meggers Dep. at 174:9-176:11 ; Stanton Dep. at 29:22-30 :2 . 12 Of the ten most overpopulated Senate districts, all ten voted for Bush in the 2000 presidential election and all ten were won by Republicans in the 2002 legislative elections. Bensen Report, Pl . Ex. 1, at 2002 Senate Sec. p .5 . Of the nine most overpopulated House districts (consisting of ten seats), all nine voted for Bush in the 2000 presidential election and all nine of the ten seats were won by Republicans in the 2002 legislative elections. Id . at House Sec. p.5 .

13 The degree of disparity in electoral vote weight is quite large . For the State House Plan, the weight of the vote of an elector in the most underpopulated district has 2.99 times the weight of the vote of an elector in the most overpopulated


20

c ;*,nla oamrmanAPrina terhnirniP alnnr hnildc a hias inter the mane that nrnvidec

Democratic-leaning electorates control over nearly two more Senate seats and four

more House seats than Republican-leaning electorates without reference to other

gerrymandering techniques . Bensen Report, Pl . Ex . 1, at 2002 Senate Sec . p .4,

House Sec . p.4 .

This bias is designed to - and will - increase over the decade . The drafters

of the plans intentionally overpopulated the fastest growing legislative distracts of

the state, such as those located in northern Georgia, which are Republican-

leaning . 14 Id . at 2002 Senate Sec. p.5, House Sec . p .5 ; Gaddie Report, PI. Ex . 10,

at 11 . The votes of electors in these fast-growth areas, whether they be

Republicans, Independents or Democrats, will be increasingly diluted throughout

the decade. Bensen Report, Pl . Ex. 1, at 2002 Senate Sec . p.5, House Sec . p.5 ;

Gaddie Report, Pl. Ex. 1, at 7 . This increased vote dilution is a designed and

district . For either of the State Senate Plans, the weight of the vote of an elector in the most underpopulated district is 2.60 times that of an elector in the most overpopulated district . Even in the Congressional Plan, the vote weight of an elector in the most underpopulated district is 1 .61 times that of an elector in the most overpopulated district . Bensen Report, Pl . Ex. l, at General Sec. p.6 .

'4 The 57 counties in the state that experienced the highest growth rates had a Republican performance index 9.8% higher than the state average. Bensen Report, 111 T_ . 1 a ~lA/~~l

Senate C~ C T7 _ Sec .

! Conversely, 7ai CA cuuniies A. ri . cx . i, 3i ~vvc Sec. _ ~.~, House p.~, the ~v that

experienced the lowest growth rate (including population losses) had a Republican performance index 9.8% lower than the state average . Id .


21

a _a rr, .,.t Fft,o 1 ., . . . . rl, ..t f1 ;o .. ' rl.o forma of the nn~ nprgnn nnP yntP 111LGr1UGU GllGl~l. Vi ~i~~. 1./1({/1J L/14L 11/W I/1 L~lli lYYV

concept . It is the exact opposite of a rational and legitimate state policy seeking

equality of representation . It is a policy intended to exacerbate inequality .

The maps and their statistics speak effectively for themselves . These

legislative districts had population reapportioned to them in a discriminatory and

arbitrary manner. In the words of Mr. Bensen:

The most obvious conclusion that can be made from the results of [the line-drawers] efforts is that the plan discriminates against Republican voters in favor of Democrat voters, discriminates against Republican members in favor of Democrat members, discriminates against persons living in the northern region of the state in favor of those living in the southern region of the state, and discriminates against persons living in areas of the state with the most growth over the recent decade in favor of persons living in areas of the state with slow growth.

Bensen Report, Pl . Ex. 1, at 2002 Senate Sec. p.6, House Sec. P.6 . See also

Gaddie Report, Pl . Ex. 1, at 11 ("The application of these principles indicates

arbitrariness in the district-drawing process, especially as to the treatment of North

Georgia versus South Georgia and suburban Republican versus core urban and

rural Democratic areas.") .'S

'S The extent of the inequality in the legislative plans is further evident in a r~yj~ ~y of th,P iictrih>>tinn of yntPr nnnnlafinn in the rt_rir_tc - a_ 1_noiral nnP i. .,r _. . .. . . ., . . . . . ., a_--- person/one vote analysis . See Burns v. Richardson , 384 U.S . 73, 91, 93 (1966) (recognizing that voter population figures may appropriately be used as a measure of Equal Protection based equality). When voting age population, that is, the


22

f

i- r'iuiivTiS M8 NTvi i"i'a8 D~°.uuii +Of Compliance With Legitimate

State Interests

None of the deviations in the plans were the result of an attempt to

accommodate legitimate state interests. Because legislators and drafters were

working under the assumption that a ±5% total deviation range was a safe harbor,

they neither attempted nor had any incentive to ensure that deviations from

absolute equality were necessitated by adherence to state interests . It is undisputed

that plans with lower population deviations were introduced, and that plans with

total range of deviation of less than +I% are easily and quickly drawn given

today's technology . Meggers Dep. at 120:22-12124 ; 123:18-124:3 ; 251 :5-252 :8 .

But not a single legislator or plan drawer has asserted that deviations from equality

number of persons in a district who are 18 years old or older, is used to measure deviation in the Georgia plans, the range between the largest and smallest Senate district jumps to 25 .30% and the range between the largest and smallest House district jumps to 37 .15%. Bensen Report, Pl . Ex. 1, at 2002 Senate Sec . p .8, House Sec . p .8 . An even more astounding gap arises when the population of persons actually registered to vote is used as the measurement of deviation: the range between the largest and smallest Senate district is 49.15% and the range between the largest and smallest House district is a shocking 74.87%. Id . When apportionment is based on traditional redistricting factors pursuant to the rational legitimate interests of a state, total population deviation and eligible voter deviation usually track one another relatively closely. See Garza v . County of Los Angeles, 918 F.2d 763, 781 (9th Cir. 1990) ; Chen v. City of Houston, 206 F.2d 502, 525 (5th Cir. 2000). When redistricting is based on impermissible discriminatory grounds, however, the diiierence between the two measures can be greatly exacerbated, as is the situation in Georgia. Certainly, one person's vote is not equal to another person's vote in these Georgia plans.


23

were necessary to satisfy a particular state interest or interests. Apparently because

they were told that deviations under 10% were per se constitutional, legislators and

drafters concluded they had no reason to premise deviations on legitimate state

interests. 1 6

Defendant and the plan drawers have consistently and repeatedly asserted

that only three goals were followed in drafting the legislative plans: (1) complying

with the fictitious "10% safe harbor" population deviation range, (2) advancing the

political power of Democrats, and (3) complying with the Voting Rights Act.

Response to Plaintiff's First Request for Admissions to Defendant Cathy Cox

("Resp . 1st Req. Adm."), attached as Pl . Ex. 13, at Resp. 16; Resp . 2d Req . Adm.,

Pl . Ex. 11, at Resps. 22, 41, 42, 112 ; Meggers Dep . at 226:1-11, 238:3-12; Geor¢ia

v . Ashcroft, Proposed Post-Trial Findings of Fact and Conclusions of Law on

Behalf of the State of Georgia ("Georgia's Proposed Post-Trial Findings"),

attached as Pl . Ex. 14, at T 82. None of these goals is a legitimate state interest .

16 Redistricting Guidelines proposed by Republican members of the Senate and House Reapportionment Committees would have required adherence to traditional redistricting factors, but these guidelines were never adopted by the Committees. Georgia v. Ashcroft, Plaintiffs' Response to Defendant Intervenors' Proposed Findings of Fact anti Conclusions of Law ("Georgia's Response to D-I's Proposed Findings"), attached as Pl. Ex. 15, at #7 ; Meggers Dep . at 161 :1-23 ; Resp . 2d Req . Adm., Pl . Ex. 11, at Resp. 21 . These Guidelines are attached as Pl . Ex. 16 . See Resp. 2d Req. Adm., Pl . Ex. 11, at Resp. 19 (authenticating Guidelines) .


24

l

Drawing districts within a 10% total deviation range is not a legitimate state

interest . As discussed above, the Equal Protection Clause requires an attempt to

draw legislative districts as nearly equal as practicable . Therefore, Defendant's

goal of drawing districts within a 10% total deviation range and ignoring average

deviation was unconstitutional and cannot be a legitimate state interest." Rather,

population deviation at this extreme level must be for the accommodation of

legitimate state interests. Accordingly, the Court must examine Defendant's other

two expressed goals to determine first whether they are legitimate state interests

and, if they are, whether they could have been accomplished without the resulting

substantial deviations in the legislative plans .

Increasing Democratic political performance is not a legitimate state interest .

Defendant has conceded that the primary goal in drawing Georgia's legislative

lines was to increase the number of seats held by Democrats in the State House and

Senate . Georgia's Proposed Post-Trial Findings, Pl . Ex. 14, X98; Georgia v.

Ashcroft, Plaintiff State of Georgia's Response to the United States' Proposed

Findings of Fact and Conclusions of Law ("Georgia's Response to U.S . Proposed

Findings"), attached as Pi. Ex . 17, 'j~j+2-43, 4?; ::eggers ~?~Y . a! ? &5 :2n_1_ Rfi~4;

17 In any event, while drawing districts within a particular deviation range may be a goal of reapportionment, it cannot be said to be a state interest .


25

226:1-11 ; 238:3-12 ; Stanton llep . 3t 89:24-9/2 : 105, y3 :i-12. ii S~yappears that the

plans' drafters concluded that this goal could not be achieved without the use of

population discrimination . Even when the deviations reached +4 .5%, drafters

freely increased the deviations to improve Democratic political performance

without consideration of whether other state interests were served . Stanton Dep. at

106:19-24 . The methods used by Defendant to discriminate in the line-drawing

process and achieve the goal of increasing Democratic political performance are

discussed infra, at pages 18-21 .

Increasing Democratic political performance is not a rational state policy.

Naked partisan gain cannot be used as a justification for deviations from equality .

Indeed, the one person one vote principle of population equality is to be a

limitation on partisan and regional discrimination by those controlling the political

process . Gray v . Sanders, 372 U.S . 368, 379, 380 (1963) ; Karcher v. Daggett, 462

U.S . 725, 739 (1983) . While partisan politics are indisputably a part of the

redistricting process, and while increasing Democratic power may be a legitimate

goal of the Democratic Party, increasing the number of seats held by Democrats

cannot be a legitimate goal of the State of Georgia in redistricting .' 8

18 Even if advancing the power of Democrats is a legitimate state interest, it should not be allowed to become the predominant factor in redistricting, to the exclusion of other legitimate state interests.


26

Deviations from equality were not necessary to cuitikly with the Voting

Rights Act . Compliance with the Voting Rights Act ("VRA") did not lead to the

deviations in the plans and therefore cannot be a rational state policy justifying the

deviations . First, the drafters of the plans consistently testified that they did not

consider race (and thus, could not have considered compliance with the VRA) in

drawing the plans . Kirincich Dep . at 90:3-91 :16, 169:8-170:12, 196:19-197:19

(testifying that race was not considered in redistricting in any way); Moore Dep . at

49 :11-20, 50:22-52 :3, 108:18-109:14 (did not consider race in drawing the plans

and was not given directive about how to comply with the VRA in drawing the

plans). See also , Kirincich Dep. at 62 :20-21 :6 (did not discuss plans' VRA

compliance in advocating plans to the Chairman of the House Reapportionment

Committee) ; Stanton Dep . at 53 :10-13 (compliance with VRA was not discussed in

meeting with political leaders on how to draw House Plan). Second, plans could

easily be drawn and, in fact, were introduced in committee, that both complied

with the VRA (by increasing the number of majority-minority districts) and had

smaller deviations than those in the current legislative plans. Stanton Dep. at

109:11-110:21 (testifying that a Senate plan that satisfies the VRA and has only a

1% total population deviation could De urewii in 4 hours ; a House plan ;hit


27

f

satisfies the VRA and has only a 1% total population deviation could "b~°. v+aVm ?n

one day); Deposition of Senator Eric Johnson ("Johnson Dep."), at 62 :14-25;

Deposition of Representative Lynn Westmoreland ("Westmoreland Dep."), at

6825-70:18 ; Kirincich Dep, at 174:23-175 :1 ; 7/10/01 House Committee Meeting,

Pl . Ex. 18, at 50 :9-24, 75 :3-11 (Republican Senators introducing plans within

+2 .5% deviation). Compliance with the VRA is not the reason or a justification for

the deviations from population equality in these plans .

Other traditional state redistricting factors were not followed in drawing the

plans . As discussed above, a number of other traditional redistricting criteria are

typically recognized by the Supreme Court as justifying some deviation by states

from exact population equality among districts : compactness, contiguity,

preservation of political subdivisions, protection of incumbents, protection of

communities of interest, and maintaining the cores of existing districts.19 See

19 These traditional redistricting factors have arisen out of public policy considerations and "recognition that representative democracy cannot be achieved merely by assuring population equality across districts." Prosser, 793 F. Supp . at 863 . The benefits of compactness, contiguity, maintaining communities of interest, preserving political subdivisions, and protecting incumbents were discussed in detail by the district court in Prosser:

To be an effective representative, a legislator must represent a district that has a reasonable homogeneity ur_ .., .a,, ' xricP i t~ccu~ an a u mroYO~~.rc .,, � . . nth . P �n. . . .� _ the policies he supports will not represent the preferences of most of the constituents . There is some although of course not a complete correlation between geographical propinquity and community of


28

discussion Supra 3T 3b-j% . LIeICIIUGIII does not claim , iivWeYe., ...̂ 112:'e attPmtniPd

to adhere to the factors in drawing the plans; but, rather, to have ignored them for

partisan gain. Interestingly, Defendant claim lack of an understanding of the

meaning of "traditional principles of redistricting," despite the Supreme Court's

repeated and clear jurisprudence in this area . Resp . 2d Req . Adm., attached as Pl .

Ex. 11, at Resp . 20 . Moreover, the testimony of Defendant's witnesses, as well as

the deviation statistics themselves, demonstrate that none of these criteria were

factors that resulted in the population deviations in the legislative plans . As

Professor Gaddie noted, "the maps became worse on all dimensions of traditional

redistricting principles . ,20 Gaddie Report, Pl . Ex. 10, at 11 .

interests and therefore compactness and contiguity are desirable features in a redistricting plan. Compactness and contiguity also reduce travel time and costs, and therefore make it easier for candidates for the legislature to campaign for office and once elected to maintain close and continuing contact wit the people they represent. . . . If compactness and contiguity are proxies for homogeneity of political interests, so is making district boundaries follow (so far as possible) rather than cross the boundaries of the other political subdivision in the state .

Id .

Z° For a discussion on the non-compactness of the plans, see Gaddie Report, Pl . Ex . 10, at 12-14 (legislative districts became noticeably less compact than previous plans) ; Bensen Report, r� + . Ex . 1, at General �_ �_� t r��, . � �r~ Sec . rr . .,2 (districts have ~ ~,vi~u~.~ . .~~ S .., .. ._ .� some of the "lowest levels of compactness in the nation") ; Meggers Dep. at 42 :18-43 :4, 44 :15-22 ; 46:21-47:11 (compactness measures never considered); Moore Dep. at 30 :10-13 (did not use the Maptitude check for compactness) ; Kirincich


29

Dep. at 76 :1-3, 216:1-5 (same) ; Stanton Dep. at 24:10-20 (same), 106:25-107 :5 (same), 50:25-51 :2 (did not discuss compactness with legislators), 93 :21-24, 99:22-25 .

For a discussion of the non-contiguity of the plans, see Gaddie Report, Pl . Ex . 10, at 15 ; Benson Report, Pl . Ex. 1, at General Comments Sec. p.3-5 ; Meggers Dep . at 48 :15-23 ; 52:20-23 ; 164 :5-6 ; 164:21-24 .

For a discussion of how the House Plan fails to keep political subdivisions intact, see Meggers Dep. at 55 :21-56 :3, 61 :21-62 :3, 62 :13-23 (testifying that plan drafters made no specific effort to preserve political subdivisions) 58 :16-20 (testifying that there are "a lot more" split counties in the 2001 House plan than in the House plans of the 1990s, 1980s, and 1970s); Bensen Report, Pl . Ex . 1, at General Comments Sec . p .3, citing PDX at tabs 17, 37, & 52 ("[T]he preservation of political subdivisions, notably counties and cities, appears to have been substantially disregarded in numerous instances by the line-drawers .") ; Gaddie Report, Pl . Ex . 10, at 17-19 (discussing significant increases in number of split counties and cities, and noting that splits were not required to meet equal population standards) ; Kirincich Dep. at 216:10-16, 231 :24-232 :7 (splitting counties or precincts was not an important consideration in drawing the plans) .

For a discussion of how the Senate Plan fails to keep political subdivisions intact, see Resp. 2d Req. Adm., Pl . Ex. 11, at Resps. 73-74, 97, 99; Meggers Dep . at 64:4-17 (testifying that the 2001 Senate plan had more subdivision splits than the Senate plans of the 1980s and 1970s), 120:14-21 (attempting to preserve political subdivision lines clearly did not result in the population deviations) ; Stanton Dep . at 93 :25-94:3, 99 :8-17; Gaddie Report, Pl. Ex. 10, at 18-19 (over half of all counties in the state are split by the Senate districts) ; PDX tab 17, cited in Bensen Report, Pl . Ex. 1, at General Comments Sec . p.3 ; Resp. 1st Req. Adm., Pl . Ex. 13, at Resp. 24.

For a discussion of the fact that protecting all incumbents was not a criteria followed by Defendant in redistricting, see Meggers Dep . at 73 :17-75 :4 ; 281 :15- 281 :15-

_.r_ti_ 1 .� r1,o ,.rP*,r that ;t }benefited Democratic - --

22 ~dUIILLLIJI~ filial ii was only 8 gvu. w ~.a .. ~ .. . .. . ., officials) ; id . at 63 :18-65 :12 ; 68:24-69:4 ; 702-10 (conceding that the Legislative Redistricting Office did not have a database of the addresses of all incumbents); Moore Dep . at 32:21-33 :2 (only Democratic incumbents protected) ; Kirincich Dep .


30

E

The reapportionment process followed by Dc cndant clasciy para:'.e.s the

reapportionment process at issue in Hulme v. Madison County, 188 F . Supp. 2d

1041 (S .D . Ill . 2001) (total population deviation of 93% unconstitutional). In

Hulme, the Chairman of the Legislative Committee sought to "construct a map

with a population deviation within the ̀ target' of less than 10%, regardless of the

practicality of reaching a lower percentage of population deviation ." Id. at 1051 .

The Chairman's goal was to disadvantage Republicans, and to reach that end he

proposed a plan that divided townships and pitted two Republican incumbents

against each other. Id . The court found that, had politics not been considered, "the

state of technology readily available" would have allowed a plan to be drawn with

much lower population deviations . Id . The court held that politics was not a state

at 203 :9-204 :1 (same); Stanton Dep, at 50 :19-24 (incumbent protection not discussed at meeting with legislators) . Of the six pairings in the 56 districts of the Senate Plan, ten Republican incumbents were paired while only two Democrat incumbents were paired . Bensen Report, Pl . Ex. 1, at 2002 Senate Sec . p.6 . Of the 21 pairings in the 147 districts of the House Plan, 37 Republican incumbents (roughly half of all Republicans in the House) were paired while only nine Democrat incumbents were paired . Id . at House Sec. p.6 ; Gaddie Report, Pl . Ex . 10, at 26 .

For a discussion of the plans' failure to maintain the cores of existing districts, see Gaddie Report, Pl. Ex . 10, at 23-24 (discussing the partisan differences in retention of core districts' ), iCirineich Dip . at :39:5- :? .

For a discussion of the plans' failure to consider communities of interest, see Moore Dep. at 32 :8-20 .


31

c

policy that could justify the deviations, and noted 'that iai the "L~fe:.d3. .̂.s [~:~; not

offer M state (governmental) policy to justify the plan's population disparity," but

rather, "rested upon their contention that a plan with a population deviation of less

than 10% is presumptively valid and requires no justification ." Id . at 1052

(emphasis in original) . The court declared the plan unconstitutional, finding that

the reapportionment process "demonstrate[d] a complete disregard for the

Constitutional mandate that a legislative body make an honest and good faith effort

to construct districts as nearly of equal population as practicable ." Id . at 1051-52

(citing Reynolds, 377 U.S . at 577; internal quotations omitted) .

As in Hulme, the drafters of the Georgia legislative plans constructed plans

with the goal of keeping total population deviations within their target of less than

10%, regardless of the practicality of reaching lower deviations. There are no state

policies that justify the plans' excessive deviations . Rather, the deviations arose

from a desire to disadvantage Republicans, even at the expense of traditional state

interests such as compact districts that do not split political subdivisions .

Accordingly, the legislative plans are not the result of a good faith effort to

construct districts of equal population and, therefore, must be declared

unconstitutional .


32

c c

11 . Population Deviation in 'the Reapporti onment Plan For Congress Vin.l.ntecs

The One Person One Vote Principle--Defendant Cannot Prove That Population Deviation Was Unavoidable Despite A Good-Faith Effort To Achieve Mathematical Equality

Article 1, §2 of the United States Constitution mandates that members of

Congress be chosen with equal representation for equal numbers of people . In

Wesberry v. Sanders, 376 U.S . 1, 7-8 (1964), the Supreme Court interpreted this

constitutional provision to mean that states must ensure that "as nearly as

practicable one man's vote in a congressional election is worth as much as

another's." The following year, the Supreme Court instructed that to meet the "as

nearly equal as practicable" test a state must "make a good-faith effort to achieve

precise mathematical equality." Kiftatrick v. Preisler , 394 U.S . 526, 530-31

(1969) (emphasis added) . "Unless population variances among congressional

districts are shown to have resulted, despite such effort, the State must justify each

variance, no matter how small ." Id. (emphasis added) . Subsequently, in Karcher,

the Supreme Court addressed the degree of precision necessary and once again

concluded:

As between two standards--equality or something-less-than equality--only the former reflects the aspirations of Art . I, § 2 . To accept the legitimacy of unjustified, though small population deviations in this case would mean to reject the basic premise of Kirk atrick and Wesberry . We decline appellants' invitation to go that far.

462 U.S . at 732.


33

E

In summary, there is no question that exact mathematical equality is required

in the construction of Congressional districts by state legislatures. In assessing a

Congressional Plan, the only inquiries are (1) whether such equality was achieved,

(2) if not, whether the failure to achieve the same was avoidable and (3) if the

inequality was avoidable, whether it is supported by a consistently applied

legitimate state policy . Plaintiffs bear the burden on the first two issues ; Defendant

bears the burden of proving the third. Id . at 730-31 ; Kirkpatrick, 394 U.S . at 531

(1969) ; Vieth v . Pennsylvania, 195 F. Supp . 2d 672, 675 (M.D . Pa. 2002) .

The undisputed facts show that Georgia's Congressional districts are not

equal, that inequality was avoidable, and that no consistently applied legitimate

state policy supports the avoidable inequality. Therefore, Plaintiffs are entitled to

summary judgment that the Plan violates Article I, Section 2 of the Constitution,

A. The State Failed To Achieve Precise Mathematical Equality In The Congressional Districts

The evidence is undisputed that the overall deviation in the Congressional

Plan is 72 persons . Amended Complaint, T 50; Answer, X50. Therefore, the State

failed to achieve precise mathematical equality in the Congressional districts .

In all pleadings filed to date, Defendant's position has been that the 72

person deviation is "de minimis" and "trivial," and therefore, this Court should


34

find that the Congressional Plan complies with Article i, §2 . Answer, 4,1148 ;

Defendant's Brief in Support of Motion to Dismiss, at 10. That argument,

however, was squarely rejected by the Supreme Court in Karcher, when the Court

concluded that "there are no de minimis population variations, which could

practicably be avoided, but which nonetheless meet the standard of Art . I, § 2

without justification." 462 U.S . at 734 . The Court explained that replacing the

precise equality standard with a "de minimis" standard would encourage legislators

to aim for a plan with a de minimis deviation ,Z1 rather than strict equality, and

would inject a "high degree of arbitrariness into the process of reviewing

apportionment plans." Id. at 731-32.

The "de minimis" exception Defendant asks this Court to make simply does

not exist. Absent a showing that the population deviation was unavoidable or

avoidable but supported by a legitimate state interest, the 72 person deviation in

the Congressional Plan is a fatal flaw.

21 In the case at hand, the Supreme Court's prediction is borne out. The Chairman of the Senate Subcommittee on Reapportionment, Senator Brown, stated his belief that any deviation within one percent was acceptable . Brown Dep . at 132:17-25, 18 :19-19 :5 .


35

Population Deviation in The C uiigrcssional Plan ̀.'as J:.u~s~,uteu!y Avoidable

In addition to establishing that the districts are not precisely equal, Plaintiffs'

must also prove that the deviations were avoidable. Id . at 730-31 ; Kirkpatrick, 394

U.S . at 531 ; Vieth, 195 F . Supp . 2d at 675 . The facts are undisputed that Georgia's

Congressional plan could have been drawn with precise equality .

First and foremost, a Congressional Plan was drawn with a deviation

between the districts of zero or one person, establishing conclusively that the

population deviation in the current Congressional Plan could have been avoided.

Ex. 21 .

In addition, Demographers also testified that a 0 or 1 deviation is easily

accomplished . Mr, Stanton, who drew some Congressional plans for the Senate

conferees, testified that Senator Brown told him to work at 0-1 person deviation

and that he believes he drew such a plan. Stanton Dep., at 42:11-20; 78 :25 - 79 :7.

Ms. Meggers, the Director of the Reapportionment Office who drew Congressional

plans for the House Democrats, testified unequivocally that she could draw a

Congressional plan with a deviation of plus or minus one person . Meggers Dep., at

122-123 . John Kirincich, who also drew Congressional plans during the Georgia

reapportionment process, confirmed that a Congressional Plan could be drawn at a

deviation of plus or minus one person. Kirincich Dep., at 217:1-5 .


36

f

Congressional Dl .... rfnin hr could hw~iP hPPn The /L person deviation in ire ~vug~~ssior~a~ Plan -e. «...., ..

avoided. A Congressional plan with a population deviation of zero or one person

was drawn, and every demographer involved in the process had the ability to draw

one. Because the deviation found in the Plan was entirely avoidable, the burden

shifts to Defendant to prove that the deviation is justified by a consistently applied

legitimate state policy .

C. No Legitimate State Interest Justifies The Avoidable Population Deviation In The Congressional Plan

As Plaintiffs have established that the districts are not equal and the

inequality could have been avoided (and easily so), the burden shifts to Defendant

to prove that a legitimate state interest justified the avoidable deviation. The

State's admitted objective in drawing the Congressional Plan was partisan gain; in

advancing that goal, the State threw every possible legitimate state interest to the

wind. Therefore, the State is left without any justification on which to rely for the

deviation .

In Karcher, the Supreme Court explained that population variances might be

justified by considerations such as "making districts compact, respecting municipal

boundaries, preserving the cores of prior districts, and avoiding contests between

incumbent Representatives." 462 U.S. at 740-41 . The most recent case on

Georgia's Congressional redistricting, Johnson v. Miller, provides an excellent


37

f

roadmaP for this Court in determining which ui t1lG 1~CQICIIGI 1V11ji ~.laiivP~S i:'u h;

be important in Georgia. 922 F . Supp . 1556, 1561 (S .D . Ga . 1995), aff d sub nom.

Abrams v. Johnson, 521 U.S . 74 (1997) . In Johnson, the district court drew a

remedial congressional plan. Because its plan was not precisely equal in

population, the court provided justifications for the population deviation. The

court explained that the deviation resulted from its attempt to apply "Georgia's

Traditional Districting Factors" in the congressional context, including the

maintenance of political subdivisions, particularly counties, id . at 1564-65,

preservation of district cores, id . at 1565, and protection of incumbents, id . at 1566 .

The population deviation in Georgia's current Congressional Plan clearly

cannot be justified on any of these grounds. First, the Plan does not attempt to

keep counties whole. An astounding 34 counties are split, an increase over past

plans . Gaddie Report, Pl. Ex. 10, at 20-21 . The Johnson Court observed that,

outside metro Atlanta, counties have traditionally been maintained as whole, but in

the Congressional Plan, almost half the counties split are non-metro counties .

Amended Complaint, Ex . A . Therefore, unlike in Johnson, the deviation is

certainly not justified by an effort to keep non-metro counties whole .22 The

Z` Plaintiffs predict that Defendant will argue that there is nothing magic about keeping counties whole. However, the district court in Johnson concluded that keeping non-metro counties whole (1) honored a traditional Georgia redistricting


38

population deviation m Georgia's current Congressional Flan cannot be justified

because of an effort to preserve precinct boundaries . Although preserving precinct

boundaries could ease election administration, it does not justify these deviations

because the State did not preserve precinct boundaries when drafting the

Congressional lines.

Additionally, there was no effort to maintain district cores in the current

Congressional Plan, except to maintain the cores of the incumbent Democratic

Representatives' Districts, Districts 2, 4 and 5 . Gaddie Report, Pl . Ex . 10, at 23-

24 . Similarly, the only incumbents protected were Democratic incumbents . Id . at

24; Meggers Dep., at 281 :25-282:5 ; Moore Dep., at 3221-33 :2. While

preservation of district cores and incumbency protection may be legitimate

considerations justifying minor population deviations in a Congressional Plan, that

is true only "[a]s long as the criteria are nondiscriminatory." Karcher, 462 U.S. at

740-41(emphasis added) . Because the State discriminated against Republicans to

the extent that it preserved core districts and protected incumbents, those criteria

do not provide a legitimate state interest permitting the deviation.

criteria, (2) allowed the maintenance of communities of interest, by uniting residents of the same county similarly affected by decisions of Representatives and therefore ought to be in the same Curigj-cssional district a:~u ~3; utilized Georgia's unusually large number of counties as "ample building blocks for acceptable voting districts without chopping any of those blocks in half." 922 F . Supp. at 1561-63 .


39

In devising a Congressional redistricting plan with wan overrall population

deviation of 72 persons, the State clearly failed to achieve precise mathematical

equality . The evidence is undisputed that the inequality could have been avoided.

Defendant cannot prove that a legitimate state interest supports the deviation

because the undisputed evidence is that no such interest exists . Therefore,

Plaintiffs are entitled to summary judgment declaring that the Congressional Plan

violates Article I, §2 of the Constitution .

CONCLUSION

For the reasons stated above, the Court should find the Georgia House,

Senate, and Congressional Plans unconstitutional and enter summary judgment for

Plaintiffs on Count I of the amended complaint.

Respectfully submitted this (--date of November, 2003 .

Local Rule 7 I .D . Certification

By signature below, counsel certifies that the foregoing was prepared in

Times New Roman, 14-point font in compliance with Local Rule 5 .1 B .

Frank B . Strickland Georgia Bar No. 687700 Anne W. Lewis Georgia Bar No. 737490


MCICErrNn LONG & ALDRIDGE LLP 303 Peachtree Street, N .E. Suite 5300 Atlanta, GA 30308 Telephone (404) 527-4397 Facsimile (404) 527-4198

E. Mark Braden Amy M. Henson

BAKER & HOSTETLER LLP Suite I 100 1050 Connecticut Avenue, N.W. Washington, D.C . 20036 Telephone : (202) 861-1504 rawir-li~c . k~~v~~ w.-~v.�

40

STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium Suite 2000 1170 Peachtree Street NE Atlanta, GA 30309 Telephone (678) 347-2200 Facsimile (678) 347-2210

Attorneys for Larios Plaintiffs

Stacy . Freeman Georgia Bar No. 275391

Attorneys for Plaintiff Eric B. Johnson


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THREE JUDGE COURT

DEFENDANT

41

SARA LARIOS, et al . and ERIC JOHNSON

PLAINTIFFS,

v .




This is to certify that I have this day served or caused to be served a copy of the within and foregoing PLAINTIFFS' JOINT MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT by hand delivery as follows :


Mark H. Cohen Special Assistant Attorney General Trniitman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E . Atlanta, GA 30308-2216


42

David F. Walbert Special Assistant Attorney General Parks, Chesin and Walbert, P.C . 26`h Floor, 75 Fourteenth Street Atlanta, GA 30309

This I ~ day of November, 2003 .

~A4 Anne W. Lewis


03 -C~`~.~

O,R,lrAIAL. r'f-V Lrw~TV np ~, ~-~-r_~ U,,

1

STATE OF GEORGIA

AFFIDAVIT OF BRYAN P. TYSON

Personally appeared before me, the undersigned officer duly

authorized to administer oaths, BRYAN P. TYSON, who, upon being duly

sworn, deposes and states as follows :

1 .

I am over the age of eighteen, and have personal knowledge of the

facts stated herein and know them to be true .

2.

In 2001, I was employed by the Republican Caucus of the Georgia

House of Representatives .

3 .

In that capacity, I served as a demographer on all the House plans

introduced by Republican members into committee during the Special

Session, the first of which ran from August 1-17, 2001 and the second from

August 22-September 28, 2001 .


2

4 .

During the first special session . the C;eoreia General Assemhlv lJ l - ~ - V - J

enacted House Bill IEXI (identified as "CMTESUB"), which provided for

the reapportionment of the Georgia State House, but that plan was never

signed by the Governor . A new House plan was drawn in the second special

session.

FURTHER AFFIANT SAYETH NOT.

,u,~.. do BR A~ OS~N

Sworn to and subscribed before me this day of November, 2003 .

Notary Public

f1:~ ~.J~:f'~IUJG :I V p:11 ~i h ~P

. ._II i.._1' UI a V JU


IYUV n 7 9nm ~j~ uW

iIA -X-' '

IN THE UNITED STATES DISTRICT C FOR THE NORTHERN DISTRICT OF GI

ATLANTA DIVISION

SARA LARIOS, et al . and § ERIC JOHNSON §

PLAINTIFFS, §

v . §

CATHY COX, in her official capacities § as Secretary of State of Georgia and § Chair of the State Election Board, §

DEFENDANT. §

THREE JUDGE COURT

CONST . 1983, ART. III, § 2, ~ 2 .


PLAINTIFFS' JOINT STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED

COME NOW SARA LARIOS ET. AL AND ERIC JOHNSON, Plaintiffs in

the above-styled case, and, pursuant to Local Rule 56 .1, hereby provide their Joint

Statement Of Material Facts as to Which There is No Genuine Issue to be Tried,

showing the Court the following :

A . CHRONOLOGY OF GEORGIA'S 2001-2002 REDISTRICTING PROCESS

1 .

The Georgia Constitution requires the state Senate and State House of

Representatives to be reapportioned as necessary after each decennial census . GA.


2

z . On March 22, 2000 [sic - 2001 ], the results for Georgia of the 2000

Decennial Census became generally available from the Census Bureau . PI . Ex.

14, State of Georgia's Proposed Findings of Fact and Conclusions of Law filed in

Georgia v. Ashcroft, Civil Action File No. 01-2111, United States District Court

for the District of Columbia, (hereafter "P1 . Ex. 14"), X70.

3 .

The 2000 decennial census results showed a statewide total population of

8,186,453 people, a substantial growth in population that led to the addition of two

new congressional seats as well as creating population disparities in House and

Senate districts which had to be corrected. PI . Ex. 19, State of Georgia's Proposed

Findings of Fact and Conclusions of Law in Support of Revised Georgia Senate

Redistricting Plan, filed in Georgia v. Ashcroft, Civil Action File No. 01-2111,

United States District Court for the District of Columbia, (hereafter "P1 . Ex . 19"),

111 .

4 .

Therefore, on June 21, 2001, then-Governor Roy Barnes issued a

proclamation calling the General Assembly into special session for purposes of


3

reapportioning the State Senate and -House of Representatives ("the first special

session"), with Congress to be in a separate session ("the second special session").

P1 . Ex. 14, X74.

5 .

Before the redistricting special sessions began, the House and Senate

Reapportionment Committees held joint hearings around the state as follows:

April 17 - Watkinsville; April 18 - Atlanta; April 25 - Augusta ; April 30 - Perry;

May 10 - Brunswick; May 15 - Valdosta; May 23 - Dahlonega. P1 . Ex . 14, X71 .

6.

Also prior to the commencement of the redistricting special sessions, the

Senate Reapportionment Committee ("the Senate Committee") met on April 12,

June 28 and July 12, 2003, PL. EX. 14, X73, and the House Legislative and

Congressional Reapportionment Committee ("the House Committee") met on

April 11, June 29, July 10, July 20, July 24, July 26, and July 31, 2003 . P1 . Ex . 14,

X73 .

7 .

During these pre-special session meetings, the House and Senate

Reapportionment committees adopted guidelines, which were largely procedural,

rather than substantive, in nature . P1 . Ex . 8 .


4

8 .

Redistricting Guidelines proposed by Republican members of the Senate and

House Reapportionment Committees were substantive and would have required

adherence to traditional redistricting factors, but the guidelines were never adopted

by the Committees . Georgia v. Ashcroft , Plaintiffs' Response to Defendant

Intervenors' Proposed Findings of Fact and Conclusions of Law ("Georgia's

Response to D-I's Proposed Findings"), attached as Pl. Ex. 15, at T 7 ; Meggers

Dep. at 161 :1-23 ; Resp. 2d Req. Adm., Pl . Ex . 11, at Resp . 21 . These Guidelines

are attached as Pl . Ex. 16 . See Resp . 2d Req. Adm., Pl . Ex . 11, at Resp. 19

(authenticating Guidelines) .

9 .

The first special session of the General Assembly began on August 1 and

ended on August 17, 2001 . P1 . Ex . 14, X75 .

10 .

During the first special session, the Senate Committee met only three times :

August 1, August 6, and August 9, 2003 . P1 . Ex . 14, 173 .

11 .

The House Committee also only met three times during the first special

session: August 13, August 14, and August 16, 2003 . PI . Ex. 14, X73 .


5

l

1 2 .

During the first special session, the Georgia General Assembly enacted

Senate Bill IEXI (identified as "SENPLAN2U"), which provided for the

reapportionment of the Georgia State Senate . P1 . Ex . 14, 1412, PI . Ex . 19, X12 .

13 .

Then-Governor Barnes signed Senate Bill IEXI into law on August 24,

2001, as Act No. 1 EX6 . P1 . Ex . 14, X414.

14.

During the first special session, the Georgia General Assembly also enacted

House Bill 1 EX 1 (identified as "CMTESUB"), which provided for the

reapportionment of the Georgia State House. Tyson Affidavit, T 4 .

15 .

The second special session began on August 22, 2001 and ended on

September 28, 2001 . Tyson Affidavit, T 3 .

16 .

During the six week long second special session, the Senate Committee met

OIIlV five times : August 27; August __ 28 RPntPmhPr d, September 7 ~� .i ~o,.to...l.o.- O~ ~""Y ~ "."""Y~wuv~a and uvrllVlllVVl

13, 2001 . P1 . Ex . 14, X73 .


6

The House Committee also only met five times during the second special

session : August 22, August 28, August 29, September 4 and September 10, 2003 .

P1 . Ex . 14, X73 .

18 .

During its second special session, the Georgia General Assembly enacted

House Bill 14EX2 (identified as "HSEPLN2"), which provided for the

reapportionment of the Georgia House of Representatives . PI . Ex. 14, ~147 .'

19 .

Then-Governor Barnes signed H.B . 14EX2 into law on October 1, 2001, as

Act No . 2EX23 . P1 . Ex. 14, X149 .

20 .

Exhibit C to the Amended Complaint truly and accurately depicts Georgia's

current House districts . PI . Ex . 11, T 107.

21 .

During its second special session, the Georgia General Assembly enacted

Senate Bill lEX2 (identified as "Plan : HCONFI2"), which provided for the

' HSEPLN 2 replaced the original House plan ("CMTESUB") passed by the General Assembly in the first redistricting session . Tyson Af£, T 4.


7

rPannnrfin, manf nFl7n.,r. . : . .~ .. 1 ,] : ..~ : c_ ._ . PI . E x . 14 w

, 11 L ; Amended rr~- """n~""" ~ ~ " ~~v.g.a o iSicSSiviiai districts .

Complaint, T 46; Answer, 146 .

22.

Exhibit A to the Amended Complaint truly and accurately depicts Georgia's

current Congressional districts . P1 . Ex . 11, ~ 135 .

23 .

Then-Governor Barnes signed Senate Bill lEX2 into law on October 1,

2001, as Act No . 2EX 11 . P1 . Ex. 14, ~ 115 .

24 .

On October 10, 2001, the State of Georgia filed a complaint for declaratory

judgment in the District Court for the District of Columbia under Section 5 of the

Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c ("Section 5"), seeking

a declaration that the first Senate redistricting plan, as well as the State House and

Congressional Plans enacted during the 2001 special sessions, did not have the

purpose or would not have the effect of denying or abridging the right to vote on

account of race or color. PI . Ex . 19, 114.


8

On April 5, 2002, the District Court for the District of Columbia concluded

that the Congressional redistricting plan and the State House redistricting plan

satisfied the requirements of Section 5, but the State had failed to prove that the

first Senate redistricting plan satisfied the requirements of Section 5 . P1 . Ex . 19,

118 .

26 .

The State asked the D.C. District Court to retain jurisdiction and allow the

State to submit a revised Senate redistricting plan that satisfied the requirements of

Section 5 ; the Court allowed the State to submit such a revised Senate plan within

20 days . P1 . Ex . 19,T 21 .

27 .

The revised Senate plan, HB 1667 (identified as : "Sen02P 1 AP") was

enacted by the General Assembly and signed into law as Act No. 444 by the then-

Governor on April 1 l, 2002 . P1 . Ex . 19, % 23-28.

28.

Exhibit L to ,.he Complain! and Amended Complaint truly and accurately

depicts Georgia's current Senate districts. P1 . Ex. 11,T, 29 .


9

2 9 .

On June 3, 2002, the District Court for the District of Columbia concluded

the second Senate plan satisfied the requirements of Section 5 . Georgia v.

Ashcroft, 195 F. Supp.2d 25 (D.D .C. 2002).

B . FOCUS OF GEORGIA'S 2001-2002 REDISTRICTING PROCESS : PARTISAN ADVANTAGE AT ALL COST

30.

As opposed to prior redistrictings, there were significant differences in the

2001-2002 Georgia redistricting process, Pl . Ex. 14, X77-

31 .

By 2001, the mapmaking process itself had become much more

technologically sophisticated . Deposition of Linda Meggers ("Meggers Dep."), at

32 :1-33 :1 .

32.

The computer-oriented nature of the process made data -- and political data

in particular -- much more available and more sophisticated . P1 . Ex . 14, X77 .

33

The combination of technology and data available in 2001 allowed for

sophisticated analysis of the political performance of prospective districts, so that


10

i

districts could vv drawn and then in-aned-latelly analyzed politically. Pi. Ex. 14,

34 .

In addition to the advancement in technology, the 2001 redistricting process

differed from that in prior years because Georgia had evolved from being a one-

party (Democratic Party) state, to being a two-party, very competitive state . P1 .

Ex. 14, ~ 80.

35 .

Reapportionment in 2001 was therefore "different from many of the

previous redistrictings . . . in that this was the first really partisan redistricting

process that Georgia ha[d] gone through." Pl . Ex. 14, ~ 79.

36 .

As Georgia began the redistricting process, the Democratic Party held a

majority of the 56-member Senate, but by a margin of only 8 votes (32-24). P1 . Ex.

14, T 80 .

37.

The Georgia House of Representatives had a slightly greater margin, but not

much ; 1P terms of Democrat versus T?om,l,l'r~., Dl 1 A ~r on


I1

38 .

Democrats knew that to maintain the majority in each chamber over the

decade, they would have to strengthen those majorities . P1 . Ex. 14, T 82.

39 .

Therefore, the primary goal in drawing Georgia's legislative lines was to

increase the number of seats held by Democrats in the State House and Senate.

PL. EX. 14, ~ 98; Georgia v . Ashcroft , Plaintiff State of Georgia's Response to the

United States' Proposed Findings of Fact and Conclusions of Law ("Georgia's

Response to U.S . Proposed Findings"), attached as Pl . Ex. 17,1M42-43, 47;

Meggers Dep. at 185:20-186:4 ; 226:1-11 ; 238:3-12 ; Stanton Dep. at 8924-92 :16,

93 :7-12.

40 .

In pursuit of that goal, Democratic Representatives and Senators relied on

political performance projections, which indicate the likely percentage of votes that

Democrats and Republicans will receive in future elections in proposed districts,

based on an assessment of past election results in the same precincts encompassing

ili~ viuiiivw iiiiu=1 . a$iu~.i0.iiViL iii . LA. LYE wJ177 .


12

E

41 .

Legislators and plan drawers believed there was a "safe harbor," of ± 5%

when drawing legislative districts . Def. Res. 1st Inter. , Pl . Ex. 2 at 9, 11, 13 . See

also Transcript of the 4/11/01 meeting of House Reapportionment Committee

("House Committee Meeting"), attached as Pl . Ex. 5, at 7:24-8 :7 ; 4/12/01 Senate

Committee Meeting, Pl . Ex . 6, at 60:6-67 :9 ; Transcript of 7/20/01 Senate

Reapportionment Hearing ("Senate Hearing"), attached as Pl. Ex . 7, at 127 :18-

129:10 .

42 .

Therefore, drafting plans that satisfied the ±5% deviation range, rather than

equality, then became a goal of those drawing the plans. Meggers Dep. at 93 :2-

94:12, 109:16-110:2 ; id . at 235 :23-236:4 ("[Plus or minus 5 percent deviation] was

a guideline adopted by the committee, so it becomes de facto that that's what the

legislators use when they began working on their districts."); id ., 167:15-22 ("Once

you give that as an allowable range to legislators as they're drawing their plan,

they're going to - that becomes the de facto limitation, so they don't push for


13

eve . Tle . . ..~1Vf

Tl .. . . .~1 .. .. l~ R T .f . . . .. .. z !1_~ 1 A ~tnn~ loo m n~ Z~.iv . J~ L~.SllIV11 of Douglas 1~'1 . 1V1UU1G~ VI.L GYM LVW l 1VIUUIC LCp. ~ $T IV I .

11 ; Stanton Dep . at 41 :18-42:10, 79 :13-80:3 .

43 .

Legislators and line drawers were not aware that deviations from equal

population had to be supported by legitimate state interests, Kirincich Dep. at

34:11-35 :4 ; Transcript of Deposition of Regina Shelton,3 Oct . 9, 2003 ("Shelton

Dep.") at 15 :21-16 :10, 17 :11-16 .

44 .

Thus, even when the population deviations reached ±4 .5%, drafters freely

increased them to improve Democratic political performance, without

consideration of whether other state interests were served. Stanton Dep . at 106:19-

24 .

Mr. Moore was the Communications Director of the Georgia Democratic Party and one of the principal drafters of the plans .

Ms . Shelton is a map drawer in the Legislative Reapportionment Office . While she believed state legislative plans could deviate from population equality ~j' ±5°u'v~'iii i~iii CU-Iy,JUSLI11cat-on, she understood that local redistricting plans

could vary by ±4% "if they have a reason that's justifiable as to why they drew it that way." Shelton Dep., at 15 :23-35 ; 16 :1-7 .


14

C. POPULATION DEVIATIONS WITHIN THE PLANS

45 .

Based upon a total population of 8,186,453 people and the existence of 56

members of the Georgia Senate, the ideal size of a State Senate district for one-

person, one vote purposes under the 2000 census is 146,187 people. PI . Ex. 14, T

407; Amended Complaint, T 63 ; Answer, X63 .

46.

The first Senate plan has a total population deviation range of 9.98% and

average deviation range of 3.98% . Bensen Report, Pl . Ex. 1 at 2001 Senate Plan

sec., page 2 .

47 .

The second Senate plan has a total population deviation range of 9.98% and

average deviation of 3.78%. Amended Complaint, T 63 ; Answer, X63 (total

deviation); Exhibit B, attached to Complaint and Amended Complaint, ~ 62;

Answer, X62 (average deviation).


15

i

TA .

Based upon a total population of 8,186,453 people and the existence of 180

members of the Georgia House of Representatives, the ideal size of a State House

district for one-person, one vote purposes is 45,480 people . P1 . Ex. 14, X142 .

49 .

The House plan has a total population deviation range of 9.98% and average

deviation of 3 .47% . Exhibit C, attached to Complaint (total and average

deviation).

50 .

67% of the districts in the Senate Plan and 50% of the seats in the House

Plan fall at the extremes of +4% deviation from ideal . Bensen Report, Pl . Ex . 1, at

2002 Senate Sec . p3, House Sec . p .3 .

51 .

When voting age population, that is, the number of persons in a district who

are 18 years old or older, is used to measure deviation in the House and Senate

plans, the range between the largest and smallest Senate district jumps to 25.30%

and the range between the largest and smallest House district jumps to 37.15%.

n~_,.__ n,._,.... m r. . . i . ~nn~ n,._ .. .,. o,. .. _ 0 1r_ ...._ a,._ _ o ucii~cii ncYvii, II . nn . i, ai cvvc ociia~c occ . Y.o, n~u~c oc~. Y.o .


16

52.

When the population of persons actually registered to vote is used as the

measurement of deviation, the range between the largest and smallest Senate

district is 49 .15% and the range between the largest and smallest House district is a

shocking 74.87%. Bensen Report, Pl. Ex. 1, at 2002 Senate Sec. p.8, House Sec .

p.8 .

53 .

The most Republican-leaning districts are overpopulated in the plans and the

most Democratic-leaning districts are underpopulated in the plans.' Bensen

Report, Pl . Ex . 1, at 2002 Senate Sec . p .5 & tabs 7-8, House Sec. p .5 & tabs 7-8 .

54.

The drafters of the plans intentionally overpopulated the fastest growing

legislative districts of the state, such as those located in northern Georgia, which

Of the ten most overpopulated Senate districts, all ten voted for Bush in the 2000 presidential election and all ten were won by Republicans in the 2002 legislative elections . Bensen Report, Pl . Ex . 1, at 2002 Senate Sec . p.5 . Of the nine most overpopulated House districts (consisting of ten seats), all nine voted for Bush in the 2000 presidential election and all nine of the ten seats were won by Republicans in the 2002 legislative elections . Id . at House Sec . p.5 .


17

.°.i~°. RP.Yubiicui'-i~iils .5 UuciljGll nG~.lUll, I~1 . L~,A . 1 ~ GVVL JCIldle Sec . p.5, House

Sec . p .5 ; Gaddie Report, Pl. Ex. 10, at 11 .

55

The result of this deviation pattern is that the vote of an elector in an

overpopulated district carries significantly less weight than the vote of an elector in

an underpopulated district . Bensen Report, Pl . Ex. 1, at 2002 Senate Sec . p.4-5,

House Sec. p .4 ; Meggers Dep. at 284:6-285 :4; Gaddie Report, Pl . Ex . 10, at 11 .

56.

The votes of electors in these fast-growth areas, whether they be

Republicans, Independents or Democrats, will be increasingly diluted throughout

the decade . Bensen Report, Pl . Ex. 1, at 2002 Senate Sec. p .5, House Sec. p.5;

Gaddie Report, Pl . Ex . 1, at 7.

57 .

Plans with lower population deviations were introduced, and that plans with

total range of deviation of less than ±1% are easily and quickly drawn given

today's technology . Meggers Dep. at 12022-12124; 123:18-1243 ; 251 :5-252 :8;

The 57 counties in the state that experienced the highest growth rates had a Republican performance index 9.8% higher than the state average. Bensen Report, Pi. Ex . i, at 2002 Senate Sec. p.5, House Sec. p.5 . Conversely, the 50 counties that experienced the lowest growth rate (including population losses) had a Republican performance index 9.8% lower than the state average . Id .


18

Pa_~a .,_ n_.. at 1 V7 .

a tnn .1 111 -

t 1t1V .L 1 lG JGI1dlG ~.11QI1 111Q1 n .~lt /_ [~___~_ .1_. ~L_~

S UL . 1J _C. 11 C LI__J ~LIG

_ ~m A ._J 1___ J LQIIlV11 LGN

_ ..l_ . _ V ittl 411U ii as UIIIy Q

1% total population deviation could be drawn in 4 hours; a similar House plan

could be drawn in one day) ; Deposition of Senator Eric Johnson ("Johnson Dep."),

at 62:14-25 (alternative plans); Deposition of Representative Lynn Westmoreland

("Westmoreland Dep."), at 68 :25-70 :18(alternative plans); Kirincich Dep . at

174:23-175 :1 ; 7/10/01 House Committee Meeting, Pl . Ex . 18, at 50:9-24, 75 :3-11

(alternative plans within +2.5% deviation) : Pl . Ex. 20 (alternative plans) .

58 .

Based upon a total population of 8,186,453 people and the assignment of 13

seats in the United State House of Representatives for the State of Georgia, the

ideal size of a congressional district for one person, one vote purposes is 629,727

people . P1 . Ex . 14, X110.

59.

A Congressional plan alternative at a deviation of 0 or 1 person was

introduced to the Joint Conference Committee which drew the Congressional Plan.

P1 . Ex. 21 .

60.

7i78 .~°,Suivi~ai Yiaii, iivVv~.`v~.i, ii a5 8 ii~iai }vYiiiaiivii A--+- -- ~4r

72 people . Amended Complaint, T 50; Answer, T 50.


19

D. LACK OF A LEGITIMATE STATE INTEREST TO JUSTIFY THE POPULATION DEVIATIONS WITHIN GEORGIA'S STATE LEGISLATIVE AND CONGRESSIONAL PLANS.

61 .

Defendant and the plan drawers have consistently and repeatedly asserted

that only three goals were followed in drafting the legislative plans : (1) complying

with a fictitious "10% safe harbor" population deviation range, (2) advancing the

political power of Democrats, and (3) complying with the Voting Rights Act.

Response to Plaintiff's First Request for Admissions to Defendant Cathy Cox

("Resp. 1 st Req. Adm."), attached as Pl . Ex . 13, at Resp . 16 ; Resp . 2d Req. Adm.,

Pl . Ex . 11, at Resps. 22, 41, 42, 112; Meggers Dep. at 226:1-11, 2383-12 ; Pl . Ex.

14, X82 .

62 .

Compliance with the Voting Rights Act ("VRA") did not lead to the

deviations in the plans, as the drafters of the plans consistently testified that they

did not consider race (and thus, could not have considered compliance with the

VRA) in drawing the plans. Kirincich Dep. at 90 :3-91 :16, 169:8-170:12, 196:19-

q~] : ]4 (tPCtif~nrlrt that ,"=e ~~ ",as not onside -A in r-A.S

Dep. at 49:11-20, 50 :22-52 :3, 108:18-109:14 (did not consider race in drawing the


20

p 'ai-is an' was not given 1 . rectiveal-outhowt coniplywi` th - 1 T A '- -3-- .:- -I U I U1 I U 1 11 LO IL11 UIC; V IXIA III UICLWIlig

the plans) . See also , Kirincich Dep. at 62:20-21 :6 (did not discuss plans' VRA

compliance in advocating plans to the Chairman of the House Reapportionment

Committee) ; Stanton Dep. at 53 :10-13 (compliance with VRA was not discussed in

meeting with political leaders on how to draw House Plan).

63 .

Second, VRA compliance did not require the deviations in the plans because

plans could easily be drawn and, in fact, were introduced in committee, that both

complied with the VRA (by increasing the number of majority-minority districts)

and had smaller deviations than those in the current legislative plans. Stanton

Dep., pp. 109:11-110:21 (testifying that a Senate plan that satisfies the VRA and

has only a 1 % total range of population deviation could be drawn in 4 hours; a

House plan that satisfies the VRA and has only a 1% total population deviation

could be drawn in one day) ; Deposition of Senator Eric Johnson ("Johnson Dep."),

p . 62 :14-25 ; Deposition of Representative Lynn Westmoreland, ("Westmoreland

Dep."), p . 68 :25-70:18 ; Kirincich Dep. at 174:23-175 :1 ; 7/10/01 House Committee

Meeting, Pl . Ex . 18, at 50 :9-24, 75 :3-11 (Republican Senators introducing plans

u u~~Tij; iii . iX . ~v k aiiciiiaii'vc ~i plans YiiuiiCcu ~'y' iciciiuaiii iii

Response to Plaintiffs' Request for Production of Documents) .


21

Furthermore, achieving compact districts was not a consideration in the

Georgia redistricting plans. Gaddie Report, Pl. Ex. 10, at 12-14 (legislative

districts became noticeably less compact than previous plans); Bensen Report, PI .

Ex . 1, at General Comments Sec. p3 (districts have some of the "lowest levels of

compactness in the nation") ; Meggers Dep . at 42 :18-43 :4, 44 :15-22 ; 46:21-47 :11

(compactness measures never considered); Moore Dep . at 30 :10-13 (did not use

the Maptitude check for compactness); Kirincich Dep. at 76 :1-3, 216:1-5 (same) ;

Stanton Dep. at 24:10-20 (same), 106:25-107:5 (same), 50 :25-51 :2 (did not discuss

compactness with legislators), 93 :21-24, 99 :22-25 .

65 .

There also was no genuine attempt to make the districts contiguous . Gaddie

Report, Pl . Ex . 10, at 15 ; Bensen Report, Pl . Ex. 1, at General Comments Sec. p.3-

5 ; Meggers Dep. at 48 :15-23 ; 52 :20-23 ; 164:5-6 ; 16421-24.

66.

Additionally, no attempt was made to preserve political subdivisions . Re:

House Plan : Meggers Dep. at 55 :21-563, 61 :21-623, 62 :13-23 , 58 :16-20 ; Bensen

RPnnrt Pl Fv 1 a~ r<.,o.~l !'.�� ,.,o.,r~ C'o . . '2 ' . : . . . . ur~v ~ . . .t .. 11 7 ~ ~^i o_ cam . . . . ., . . ~ .+ v~.i«,iua ~.viiuin.iaw ~~.~, . Y .~, Cluus 1 LA 4l lQW / J / ~ IX. -) /-,

Gaddie Report, Pl . Ex . 10, at 17-19; Kirincich Dep. at 216:10-16, 23124-232:7.


22

E

p " Q p~- +- In " D 7a De .. A A.~.. nl C. . t It .,

~ n . . . . .. .. 71 1n n7 nn. w r_ __ i~~ . ~iiiuL!1"11 . a~i.~Y . cu i~bli . A~illl ., 1 L LA . l QL 1~W1JJ . / 7 / ~ 77~ 1V1G~~~15

Dep. at 64:4-17 ; Stanton Dep. at 93 :25-943, 99:8-17 ; Gaddie Report, Pl. Ex . 10, at

18-19; PDX tab 17, cited in Bensen Report, Pl . Ex. 12, at General Comments Sec .

p.3 ; Resp. 1 st Req. Adm., Pl . 13, at Resp. 24.

67.

Nondiscriminatory protection of all incumbents also was not a criteria

followed by the State in redistricting . Meggers Dep. at 73 :17-75 :4 ; 281 :15-282:22

(admitting that it was only a goal to the extent that it benefited Democratic

officials) ; id . at 63 :18-65 :12 ; 68 :24-69:4 ; 70 :2-10 (conceding that the Legislative

Redistricting Office did not have a database of the addresses of all incumbents);

Moore Dep . at 32 :21-332 (only Democratic incumbents protected) ; Kirincich Dep.

at 203:9-204:1 (same); Stanton Dep. at 50 :19-24 (incumbent protection not

discussed at meeting with legislators) .

68 .

Of the six pairings in the 56 districts of the Senate Plan, ten Republican

incumbents were paired while only two Democrat incumbents were paired .

Bensen Report, Pl . Ex. 1, at 2002 Senate Sec . p.6 .


23

f f

49.

Of the 21 pairings in the 147 districts of the House Plan, 37 Republican

incumbents (roughly half of all Republicans in the House) were paired while only

nine Democrat incumbents were paired. Id . at House Sec . p .6; Gaddie Report, PI .

Ex . 10, at 26.

70.

Additionally, the plans failed to maintain the cores of existing districts .

Gaddie Report, PI. Ex. 10, at 23-24 ; Kirincich Dep . at 139:5-13 .

71 .

Finally, the plans failed to consider communities of interest . Moore Dep . at

32 :8-20 .

This I day of November, 2003

Respectfully submitted,

Frank B. Strickland Georgia Bar No. 687600 Anne W. Lewis Georgia Bar No. 737490


E . Mark Braden Amy M. Henson

Attorneys for Plaintiff Eric B. Johnson

24

cTUtrr_cr ,errs nunrunrrTn,,.,r LEWIS TTP Midtown Proscenium Suite 2000 1170 Peachtree Street, NE Atlanta, Georgia 30309 Telephone : 678347 .2200 Facsimile: 678. 347.2210

MCKENNA LONG 8t ALDRTDGE LLP Suite 5300 303 Peachtree Street NE Atlanta, Georgia 30308 Telephone : 404.527 .4397 Facsimile : 404.527.4198

BAKER Bt HOSTETLER LLP Suite 1100 1050 Connecticut Avenue, N.W . Washington, D.C . 20036 Telephone: 202.861 .1504 Facsimile: 202.861 .7039

Attorneys for Larios Plaintiffs

7~~ D Stacy . Freeman Georgia Bar No . 275391


iiX~ iii E V ~`i11 LL J 1 C11 liJ LIJ 1 RlL 1 l.V V n 1


THREE JUDGE COURT

DEFENDANT

25

SARA LARIOS, et al . and ERIC JOHNSON

PLAINTIFFS,

v .


CIVIL ACTION FILE NO . 1 :03-CV-693 (CAP)


This is to certify that I have this day served or caused to be served a copy of the within and foregoing PLAINTIFFS' JOINT STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED by hand delivery as follows:


Mark H. Cohen Special Assistant Attorney General Troutman Sanders LLP JLVV LWLl~ Vl A~IR.I~VQ P1QGQ

600 Peachtree Street, N.E. Atlanta, GA 30308-2216


26

Dan I r jd F, \xlqa l lb e~

Special Assistant Attorney General Parks, Chesin and Walbert, P.C . 26t' Floor, 75 Fourteenth Street Atlanta, GA 30309

This qf-cPay of NoveT4er, 2003 .

W. Lewis
