The State of Georgia brought this declaratory judgment action under section 5 of the Voting Rights Act of 1965 (Act), 42 U.S.C. § 1973c, seeking a declaration that the Georgia legislature's creation of 62 elective superior court judgeships after November 1, 1964 "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. A bench trial was held on October 11-14, 1994, with closing argument presented on November 17, 1994.
On the evidence presented, the court holds that the State of Georgia is entitled to the declaration it seeks. In compliance with Rule 52 of the Federal Rules of Civil Procedure, the court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. The State of Georgia is divided into 46 judicial circuits, each of which is allocated a specific number of superior court judges who serve four-year terms. See Plaintiff's Exhibit 88, Ga. Code Ann. § 15-6-2, Ga. Const. art. 6, § 7, P 1.
2. Superior court judges are elected in non-partisan, designated-post primaries by circuit-wide majority vote followed by plurality vote general elections. See Ga. Code Ann. §§ 21-2-135, 21-2-284.1, 21-2-501.
The Georgia General Assembly established the designated-post and majority vote requirements in June 1964. See 1964 Ga. Laws No. 26 §§ 34-1002, 34-1541 (June 24, 1964) (now codified at Ga. Code Ann. § 21-2-501).
By a 1966 amendment to the Georgia constitution, general elections, which had previously been state-wide, were made circuit-wide to correspond to the primaries' scope. See 1966 Ga. Laws No. 47. This change was cleared by the United States Attorney General in 1968. See Brooks v. Georgia State Bd. of Elections, 775 F. Supp. 1470, 1478 n.11 (S.D. Ga. 1989).
3. Despite Georgia's popular election system, a majority of superior court judges in office since 1968--153 of 233--have initially come to their posts by gubernatorial appointment. Plaintiff's Exhibit 93 at 11. The Georgia Constitution provides that the governor fill any mid-term vacancy or new judicial position with his appointee who serves until next scheduled election. Ga. Const. art. 6, § 7, P 3. All Georgia governors in office since 1972 have appointed judges from a list provided by the Judicial Nominating Commission (Commission). The Commission, which of five gubernatorial appointees and five Georgia State Bar (Bar) ex officio members, has from the beginning followed substantially the same procedure: It (1) notifies bar members in a given jurisdiction of a court vacancy and the nomination deadline therefor, (2) accepts nominations for the vacancy from Bar members, (3) sends a letter to each nominee requesting that he complete an enclosed questionnaire and send it with other specific information to each Commission member by a set date, (4) investigates each candidate, discussing among themselves and with other Bar members each nominee's qualifications and obtaining information regarding any past disciplinary action, (5) meets to evaluate and compile, by secret ballot, a list of five nominees and (6) sends the Governor the list of nominees, along with the questionnaire each submitted and a report of the vote tally. A. Gus Cleveland, "The Judicial Nominating and Appointment Process in Georgia 1971-1990," 27 Ga. St. Bar J., Nov. 1990 at 54-59 (Exhibit A to Plaintiff's Direct Testimony of Cubbedge Snow, Jr.).
4. As of November 1, 1964, 61 superior court judgeships existed in the State of Georgia. See Plaintiff's Exhibit 1.
5. Since that time, 77 additional judgeships have been statutorily created, of which 62, including 14 that have never been filled,
have been denied clearance by the Attorney General. See Plaintiff's Exhibits 1, 3.
6. The 62 challenged; were created by 62 separate acts during the period March 1967 to April 1992. See Plaintiff's Exhibits 21-77, 78-82.
7. In 1973 the Georgia General Assembly directed the Georgia Supreme Court to create the Judicial Council, see Ga. Code Ann. § 15-5-20, and itself established the Administrative Office of the Courts (AOC) to act as the Judicial Council's staff, Ga. Code Ann. § 15-5-22.
8. Since the creation of these two bodies, the AOC has conducted extensive studies upon which the Judicial Council has relied in making recommendations to the Georgia General Assembly regarding the creation of new judgeships. See Plaintiff's Direct Testimony of Robert L. Doss at 5; Plaintiff's Exhibits 4-20.
9. Each superior court judgeship created since 1974 has been expressly recommended by the Judicial Council based on the AOC's detailed studies of population and caseload. See Plaintiff's Exhibits 4-20; see also Plaintiff's Direct Testimony of Robert L. Doss, Assistant Director of the AOC from 1973- 1975 and Director of the AOC from 1975 to the present, at 4-11 (explaining that race had "play[ed] no part whatever" in the AOC or Judicial Council's deliberations regarding new judgeships).
10. The record contains no affirmative evidence that any of the pre-Judicial Council judgeships was created for a racially discriminatory purpose and offers substantial credible evidence that those judgeships were added solely to compensate for increased caseload.
Director Doss testified that during his early research for the AOC he "learned that at least during the decade ending in 1973 recommendations to the General Assembly for additional superior court judgeships or judicial circuits were governed mainly by population considerations as they related to judicial workload," that recommendations for additional judgeships were made "by individual judges, by attorneys, or by other interested persons" to their local state legislators who then introduced appropriate legislation, and that "there was a traditional 'rule of thumb' generally followed during this time period under which new judgeships were typically proposed on the basis of approximately 50,000 persons per judge in the affected judicial circuit." Id. at 3-4.
Former Georgia state representative Wayne Snow, Jr., who served on the House Judiciary Committee from 1963 through 1983, described the pre-Judicial Council judgeship creation process in some detail:
Prior to the formation of the Judicial Council in 1973, legislators who sponsored bills to enact judgeships would appear before the Judiciary Committee. The committee required sponsors to be prepared to show and demonstrate a true need. At that time, we estimated that an additional judgeship would cost in excess of $ 100,000.00 of State funds annually and would balance the showing of need with the available funding. Legislators would present caseload information, population trends, and other evidence they had demonstrating need.