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GEORGIA v. ASHCROFT

April 5, 2002

THE STATE OF GEORGIA, PLAINTIFF,
V.
JOHN ASHCROFT, ET AL., DEFENDANTS.



Before: Edwards, Circuit Judge, Sullivan, District Judge, and Oberdorfer, Senior District Judge. Opinion for the court filed by District Judge Sullivan, in which Circuit Judge Edwards joins, and in which Senior District Judge Oberdorfer joins in Parts III.C.2. and III.C.3. Concurring opinion filed by Circuit Judge Edwards, in which District Judge Sullivan joins. Opinion concurring in part and dissenting in part filed by Senior District Judge Oberdorfer.

The opinion of the court was delivered by: Emmett G. Sullivan, United States District Judge

This is an action for declaratory judgment commenced by the State of Georgia under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1994) ("Section 5"). The State seeks a declaratory judgment that the redistricting plans passed by the Georgia General Assembly for the United States Congressional seats and the State Senate and House seats do not "have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or membership in a language minority group. 42 U.S.C. § 1973c.

The Voting Rights Act imposes weighty obligations on jurisdictions with a history of racial discrimination in their electoral processes.*fn1 Congress enacted the Act with the "firm intent [] to rid the country of racial discrimination in voting" by a "complex scheme of stringent remedies." South Carolina v. Katzsnbach, 383 U.S. 301, 315, 86 S.Ct. 803, 812 (1966). The Georgia General Assembly is well aware of its statutory and constitutional responsibilities, as the State has spent much of the last decade defending its legislative reapportionment plans against claims of racial gerrymandering, brought pursuant to Section 2 of the Voting Rights Act and the United States Constitution. See, e.g., Abrams v. Johnson, 521 U.S. 74, 117 S. Ct. 1925 (1997) (affirming court-ordered Congressional redistricting plan); Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475 (1995) (holding that Congressional redistricting plan violated equal protection clause)

The State's obligations under Section 5, however, differ significantly from those under Section 2 of the Voting Rights Act*fn2. Section 5 requires specific jurisdictions to comply with "preclearance" procedures before implementing any new "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting."*fn3 42 U.S.C. § 1973c. Two avenues for preclearance are provided by the Act. Id. The covered jurisdiction may seek a declaratory judgment from a three-judge District Court for the District of Columbia that the new practice does not have the purpose or effect of denying or abridging the right to vote on account of race or color. Id. In the alternative, the jurisdiction may submit its proposed procedures to the Attorney General for approval; the procedures are deemed approved if, after 60 days following the filing of a completed submission, the Attorney General has not raised any objections to the proposed procedures. Id.

The Supreme Court has characterized Section 5 as "an unusual, and in some aspects a severe, procedure for insuring that states would not discriminate on the basis of race in the enforcement of their voting laws." Allen v. State Board of Elections, 393 U.S. 544, 556, 89 S.Ct. 817 (1969). Section 5 was intended to provide an efficient and rapid mechanism for preclearing changes in voting procedures, while expressly providing that such preclearance in no way affects the ability of individuals to challenge that plan on other grounds. Id. at 549, 556.

Section 5 prohibits States from diminishing the opportunities of African American voters to exercise their electoral power. Beer v. United States, 425 U.S. 130, 141, 96 S. Ct. 1357, 1364 (1976). Georgia has demonstrated that African American voters increasingly have been able to make their voices heard at the ballot. The record indicates, however, that there are areas within the State where racially polarized voting persists. In these areas, white voters consistently vote against the preferred candidates of African Americans in local and district elections, so the strength of African American votes rests in substantial part on the sheer numbers of African American voters in a district. Where there is evidence of racially polarized voting, a redistricting plan that reduces African American votes in a district with no offsetting gains elsewhere raises the specter of impermissible retrogression. In this situation, the State is hard-pressed to demonstrate that there has been no "backsliding" in African American voting strength. Reno v. Bossier Parris School Bd., 528 U.S. 320, 335, 120 S.Ct. 866 ("Bossier II"). And such a failure is fatal in a Section 5 case, because the burden is on the State to show that the redistricting plan will not adversely affect the opportunities of African American voters to effectively exercise their electoral franchise. Beer, 425 U.S. at 141.

After carefully reviewing the evidence in the record before us, we hereby grant a declaratory judgment that the United States Congressional redistricting plan, Act No. 2EX11, and the State House redistricting plan, Act No. 2EX23, satisfy the requirements of Section 5. We hold, however, that the State of Georgia has not met its burden of proof under Section 5 with regard to the State Senate redistricting plan. The State has not demonstrated by a preponderance of the evidence that the State Senate redistricting plan 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. Accordingly, the State's request for a declaratory judgment that the State Senate plan meets the requirements of Section 5 is denied.

I. Procedural History and Preliminary Matters

In this case, the State has foregone the option of applying to the Attorney General for preclearance of its redistricting plans, and has filed suit in this court. Section 5 essentially freezes the existing districting plans in Georgia unless and until a declaratory judgment is obtained from this court that the proposed reapportionment plans are without discriminatory purpose or effect. Reno v. Bossier Parris School Bd., 520 U.S. 471, 477, 117 S. Ct. 1491 (1997) ("Bossier I"). The State of Georgia filed suit on October 10, 2001, requesting that the court enter a declaratory judgment that the Congressional, State House and State Senate plans do not have a discriminatory purpose or effect. Georgia's general primary is scheduled for July 16, 2002, and the State has recently received preclearance to allow candidates for Congress and the state legislature to qualify for the primary from June 10 to June 21, 2002. See Defs.' Opp'n to Mot. for Expedited Trial at 6 (discussing November 26, 2001 preclearance of Georgia Act 2EX 10 (2001)). In light of the "extraordinary" remedy mandated by the Voting Rights Act, the court has acted with all possible speed to expeditiously resolve this matter. Allen, 393 U.S. at 563.

The court's scheduling order set a demanding briefing schedule, while permitting the parties to engage in extensive discovery up until the commencement of the trial. See Order, Civ. Action No. 01-2111. Dec. 20, 2001. Indeed, with the consent of the parties, commencement of the trial was deferred for three days to enable the parties to complete discovery.

At the time of the initial scheduling conference, the United States had not yet identified its position with respect to each of the submitted plans. Upon consideration of a motion by the State of Georgia, a response thereto and oral argument at the scheduling conference, the court required the United States to identify its legal position by no later than December 31, 2001.

Two motions to intervene were filed early in the proceedings, one by four African American citizens of Georgia, Patrick Jones, Roielle Tyra, Della Steele and Georgia Benton ("Jones"), and one by Michael King, an African American lawyer and resident of Senate District 44. Both motions were denied without prejudice following the court's order that the United States identify its legal position. Order, Civil Action No. 01-2111, Dec. 20, 2001; Order, Civil Action No. 01-2111, Dec. 21, 2001. The court invited the movants to file amicus curiae briefs, but held that, without clarification of the United States' legal position, it could not determine if the existing parties adequately represented the interests of the putative intervenors. See Fed. R. Civ. P. 24(a).

On December 31, 2001, the United States identified its position with respect to the proposed redistricting plans. On January 4, 2002, Jones filed a renewed motion to intervene. After receiving a response and reply to this motion, on January 10, 2002, the court granted Jones' motion to intervene and required the intervenors to comply with the Court's initial scheduling and pretrial order. See Order, Civil Action No. 01-2111, Jan. 10, 2002 (granting intervention as to State House and State Senate plans); Order, Civil Action No. 01-2111, Jan. 30, 2002 (granting intervention as to Congressional redistricting plans). As discussed below, Mr. King renewed his motion to intervene in an untimely fashion, and was denied leave to intervene.

With the consent of the parties, Judge Sullivan presided over the four-day trial.*fn4 Following the conclusion of the trial, the parties submitted proposed findings of fact and conclusions of law, and post-trial memoranda of law. Closing arguments were heard by the three-judge panel on February 26, 2002.

There are several preliminary matters that the court must address before focusing on the three reapportionment plans. Pending before the court are: (1) a motion for leave to file an amicus curiae brief submitted by the American Civil Liberties Union ("ACLU"); (2) plaintiff's motion to strike the Jones intervenors for lack of standing; (3) Mr. King's motion to stay proceedings and motion for reconsideration of his motion to intervene; and (4) defendants' and intervenors' motions to exclude portions of plaintiff's expert testimony.

A. ACLU's Motion for Leave to Participate as Amicus Curiae

The ACLU has moved the court for leave to participate as amicus curiae in this case in support of defendants' position that the Senate Plan is retrogressive. The court is of the opinion that the limitations on amicus filings outlined by the Seventh Circuit in National Organization for Women v. Scheidler, 223 F.3d 615 (7th Cir. 2000), are applicable here. The ACLU has presented no unique information or perspective that can assist the court in this matter, and seeks only to make additional legal arguments on behalf of the United States, a more than adequately represented party. Accordingly, the court denies the ACLU's motion for leave to file an amicus curiae brief.

B. Standing of Jones Intervenors

The State of Georgia has challenged intervenors' standing to contest the reapportionment plans. In the context of a Section 2 challenge, the Supreme Court has stated that "[w]here a plaintiff resides in a racially gerrymandered district, . . . the plaintiff has been denied equal treatment because of the legislature's reliance on racial criteria, and therefore has standing to challenge the legislature's action." United States v. Hays, 515 U.S. 737, 744-45, 115 S.Ct. 2431 (1995).

The State argues that two of the four individual intervenors reside in a benchmark Senate District disputed by the parties, but would be removed from this District under the Senate redistricting plan. Nevertheless, whether intervenors reside in the proposed or benchmark districts at issue in this matter does not affect their standing for purposes of challenging the redistricting plans as retrogressive. The plans are statewide and the drawing of one district's boundaries necessarily affects neighboring districts. Furthermore, the removal of intervenors from a majority-minority district is sufficient to provide intervenors with standing to challenge the proposed district.

The State also raises concerns that intervenors' interests in the litigation may diverge from the statements of counsel. Two of the intervenors appeared to testify at their depositions that they would prefer to reside in a majority-white, Republican district. This conflicts with their counsel's representations that intervenors are harmed by a decrease in overall minority voting strength caused by reductions of minority population in the districts. However, we are reluctant to strike intervenors solely on the basis of this alleged contradiction. Intervenors' sworn declarations clearly allege an injury caused by diminution of minority voting strength. Deposition testimony may cast doubt on the extent of that injury, but it does not eliminate intervenors' standing.

C. King Motion for Reconsideration of Motion to Intervene

Pending before the court are two motions filed by putative intervener, Michael B. King. King is an African American attorney and registered voter who resides in Georgia Senate District 44. King is proceeding pro se and first sought to intervene on December 19, 2001.*fn5 On December 21, 2001, King's motion was denied without prejudice because the United States had not yet identified its position with respect to the redistricting plans in question and the court was unable to determine whether King's interests would be adequately represented by the existing parties. See Fed. R. Civ. P. 24(a). However, King was granted permission to file an amicus curiae brief by no later than January 14, 2002.*fn6 Chambers manually faxed King a copy of the court's December 21, 2001 order.*fn7

An initial scheduling and pretrial order in this matter was issued on December 20, 2001. This order set forth a series of deadlines designed to expedite trial proceedings. In particular, the order required defendants to identify their position with respect to the redistricting plans by no later than December 31, 2001. Chambers manually faxed a copy of the initial scheduling and pretrial order to King, in light of the expedited nature of the proceedings, King's failure to subscribe to the automated faxing program of the Clerk's office and his representation to chambers' staff that he had not viewed the filings in this case.

On January 15, 2002, King filed a renewed motion to intervene. On January 16, 2002, this court issued a scheduling order directing the parties to file any and all responses to King's motion by no later than January 17, 2002 at noon, and ordering that any and all replies be filed by no later than January 18, 2002 at noon. Also on January 16, 2002, chambers contacted the parties in this matter and attempted to contact King in order to inform them of the contents of the court's order. Counsel for the parties indicated that they had not received a copy of King's renewed motion to intervene. King's telephone answering system was full on January 16 and on the following two days. In light of these circumstances, chambers faxed a copy of the scheduling order to King on January 16, 2002, and faxed a copy of King's renewed motion to plaintiff's counsel for distribution to all parties.*fn8

On the evening of January 18, 2002, King contacted chambers and stated that he had received the facsimile copy of the January 16, 2002 order. He noted that the deadline for his submission had passed and indicated that he had just received the order. At no future date did King file any reply to the parties' responses to his motion to intervene.

As is evident from our initial scheduling and pretrial order, this matter was scheduled to proceed to trial on February 1, 2002. Pretrial statements, expert reports and direct testimony were all filed by January 18, 2002, and the pretrial conference was scheduled for January 25, 2002. On January 23, 2002, the court issued an order rescheduling the pretrial conference from 10:00 a.m. to 12:00 p.m. on January 25, 2002, and faxed King a copy of this order. King did not appear at the pretrial conference, nor did he communicate in any way with chambers concerning the expedited schedule for this matter. On January 30, 2002, this court denied King's motion to intervene without prejudice. This denial was based on King's "failure to appear at the January 25, 2002 pretrial conference, of which he had notice, his consistent failure to communicate with Chambers and with counsel for the parties in this matter, and the expedited nature of these proceedings." Order, Civil Action No. 01-2111, Jan. 30, 2002.

King sought to intervene as a matter of right pursuant to Fed. R. Civ. P. 24(a). However, any application for intervention must be timely. See National Ass'n for Advancement of Colored People v. New York, 413 U.S. 345, 93 S.Ct. 2591 (1973) ("NAACP"). In NAACP, the Supreme Court discussed the legal standard for considering the timeliness of a motion to intervene in an action for declaratory judgment brought pursuant to Section 4(a) of the Voting Rights Act. 413 U.S. at 365-66. The Court held that the three-judge court properly exercised its discretion in determining from all of the circumstances that a motion to intervene was untimely. Id. ("Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances."). King "failed to protect [his] interest in a timely fashion" by repeatedly failing to communicate with the court, to keep apprized of the case and to comply with local filing requirements. Id. at 367. King knew or should have known that the proceedings were subject to expedited review.

King's legal interest has not been adversely affected by the Court's denial of his motion to intervene. Id. at 368 (considering ability of movant to take future action to protect interests). This court's denial of King's motion to intervene in no way forecloses his ability to challenge Georgia's senate reapportionment plan. We have consistently stressed the expedited nature of our review of this matter. In denying King's renewed motion to intervene, the court was mindful of the fact that King's failure to act in a timely matter had "the potential for seriously disrupting the State's electoral process." Id. at 369 (discussing Section 4 proceedings).

On February 7, 2002, King filed a motion to stay proceedings in this court, a motion for reconsideration of his motion to intervene, and a notice of appeal to the Supreme Court. The motion for a stay referred to a "January 4, 2002 hearing," which King moved to stay pending the court's consideration of his motion for reconsideration and his appeal. No hearing was scheduled in this matter on January 4, 2002. The court commenced trial in this case on February 4, 2002 and it is possible that King intended to request a stay of the trial. Nevertheless, the motion was filed on February 7, 2002, the last day of the four-day trial.

Plaintiff argues that, upon receipt of the notice of appeal, this court lost jurisdiction to consider King's motions. We agree. The Supreme Court has provided clear direction as to how to proceed when a defendant simultaneously files a notice of appeal with the appellate court and a motion for reconsideration with the district court. "The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the [appellate court] and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400 (1982); accord United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997). While it is clear to the court that King's renewed motion to intervene and motion to stay are as untimely as his previous motion, King's notice of appeal divested this court of jurisdiction to consider King's motions.

D. Motion to Exclude Dr. Epstein's Testimony

The United States and intervenors seek to exclude the testimony of the State's expert, Dr. David Epstein, regarding his analysis of white crossover voting in the benchmark Senate Districts, see U.S. Ex. 122, and his conclusion that it was proper to assess voting trends on a statewide, rather than a regional basis. Although the testimony was provided at the eleventh hour to the United States, the United States was able to cross-examine Epstein with respect to his analysis. The cross-examination of Epstein effectively highlighted problems with Epstein's conclusion that there was no statistically significant variation in the degree of white crossover. Furthermore, the court offered the United States an opportunity to re-open cross-examination in order to permit the United States' expert to assist counsel in the cross-examination. The United States declined this opportunity. The court finds that the introduction of Epstein's calculations of white crossover voting are not unduly prejudicial. Epstein relies on the table in question only for the limited conclusion that a statewide probit analysis was proper; neither he nor the State suggests that the table is reliable evidence of white crossover voting in the Senate Districts.

Intervenors urge this court to strike Epstein's testimony on the oasis that it is not competent expert testimony. They argue that Epstein's probit analysis does not represent reliable or relevant evidence. However, Epstein testified that probit analysis is a standard statistical methodology. The court finds that Epstein's report is reliable and relevant evidence.

II. Findings of Fact

At first glance, the evidentiary record in this matter appears extensive. Yet, considering that the State has chosen to present three statewide reapportionment plans to the court, the record in fact is rather slim. The State of Georgia, the United States and intervenors have all contributed to the evidentiary record before the court. The State introduced statistical data on the existing and proposed districts, including political performance, total population and voting age populations, as well as break-downs of that data by race. The State relied on the testimony of two expert witnesses, State legislators, United States Representative John Lewis from Georgia, and the director of the redistricting office in Georgia, Linda Meggers. In response, the United States presented the court with a greater amount of and more detailed evidence, including voter registration data, precinct-level information, data and maps demonstrating exactly how district lines would be redrawn by the proposed plans, and testimony of numerous social leaders and local elected officials from the contested districts. The United States also provided the only expert report that considered the prevalence of racially polarized voting. But the United States' evidence was extremely limited in scope — focusing only on three contested districts in the State Senate plan. That evidence was not designed to permit the court to assess the overall impact of each of the three plans. Finally, while intervenors challenged all three plans, they present little evidence other than proposed alternative plans and an expert report critiquing the State's expert report.

A. Reapportionment and Elections in Georgia: Background

The Georgia General Assembly has plenary authority under the Constitution and laws of the State of Georgia to enact, subject to the approval or veto of the Governor, legislation to reapportion the State Senate and House of Representatives, as well as of Georgia's designated number of seats in the U.S. House of Representatives. Ga. Const., Art. III, § II, ¶ II; O.C.G.A. §§ 21-2-3, 21-2-4, 28-2-1; 28-2-2. In fact, Georgia's State Constitution mandates that the General Assembly reapportion the Senate and the House of Representatives as necessary after each United States decennial census. Georgia Const., Art. III, § II, ¶ 2. The State Constitution further provides that the districts shall be composed of contiguous territory. Id.

The current United States Congressional districts are the result of a court-drawn remedial map, which was put in place after a legislative impasse and a court decision that two Congressional districts were unconstitutionally based on race in the effort to increase their minority population percentages. Abrams v. Johnson, 521 U.S. 74 (1997). This court-drawn remedial map is the benchmark plan*fn9 for this court's consideration of plaintiff's complaint for declaratory judgment. Pl.'s Proposed Findings of Fact & Conclusions of Law ("PPFF") ¶ 53.

The current State House and State Senate plans were put in places as a result of a mediated plan, which was adopted by the Georgia General Assembly in 1997. Johnson v. Miller, 929 F. Supp. at 1561-67; PPFF ¶ 68. Pursuant to a settlement agreement in a section 5 lawsuit, both of the current plans were submitted to the Department of Justice and were precleared on April 29, 1997. See DOJ File No. 95-3656 (granted as reconsideration of original 1995 submission); PPFF ¶ 68. Since the adoption of the Senate plan in 1997, it has been amended with minor changes three times and those amendments were precleared by the U.S. Department of Justice on April 23, 1998 (DOJ File No. 98-98-0759 and 98-0912), September 20, 1999 (DOJ File No. 1999-0989) and August 28, 2000 (DOJ File No. 2000-2682). Id. ¶ 69. Since the adoption of the House plan in 1997, it has been amended once. Id. That change was precleared by the U.S. Department of Justice on April 23, 1998 (DOJ File No. 98-0759 and 98-0912). Id. The 1997 plans, as amended, constitute the benchmark plans for the State House and State Senate redistricting plans submitted to the court for consideration.

In Georgia, a candidate seeking nomination to a state or federal office in a regular partisan primary must receive a majority of the votes cast in the primary or in the primary run-off election. O.C.G.A. § 21-2-501(a); PPFF ¶ 18. A candidate is elected to office in a regular general election upon receipt of a 45% plurality vote. O.C.G.A. §§ 21-2-501(g), 21-2-2 (22); Id. ¶ 19. Tn the event no candidate receives such a plurality, a runoff election is then held 21 days later. Id.

B. Georgia Demographics

The 1990 census showed that the total population of the State of Georgia was 6,478,216 persons. PPFF ¶ 21. The 1990 census also showed that 1,746,565 persons in Georgia, or 26.96%, identified themselves as black.*fn10 Id. ¶ 22. 1,737,165 persons, or 26.82% identified themselves as non-Hispanic and black only. Id. The 1990 census reflected that black voting age population ("BVAP") was 1,168,142, or 24.58% of the total voting age population ("VAP") in the state. Id. ¶¶ 25, 26. The total VAP of non-Hispanic individuals identifying themselves as black only was 24.46% of the total VAP. Id. ¶ 26.

The 2000 decennial census shows that the total population of the State of Georgia has increased by 1,708,237 individuals since 1990, and is now 8,186,453. PPFF ¶ 27. There are 6,017,219 people in Georgia who are of voting age. Id. ¶ 31.

The 2000 census allowed individuals for the first time to identify themselves as more than one race. As a result of this change, the parties dispute the proper calculation of the African American population of Georgia. In the 2001 special redistricting session, the State of Georgia defined "black" as including non-Hispanic and Hispanic black persons of a single race, and "black combo" as all persons who identified themselves as black in combination with any other racial or ethnic category on the 2000 census form. U.S. Ex. 702, 18:13-24. Consequently, for purposes of this matter, Georgia has counted its black population as including all black multi-racial Hispanic and non-Hispanic responses. In contrast, the Department of Justice, in accordance with a Guidance issued by the Department in January, 2001, has counted as black those non-Hispanic individuals who identify as black only, or as black and white, but not individuals who identified as black and another minority race. See Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, 66 Fed. Reg. 5,411 (Jan. 18, 2001).*fn11

Total Population

The 2000 census showed that 2,349,542 residents of Georgia identified themselves as black only, representing 28.7% of the total state population. PPFF ¶ 27. The total non-Hispanic population identifying themselves as black only represents 28.5% of the total state population. Id. 0.22% of the total population identified themselves as black and white only, and 0.21% of the total population identified themselves as non-Hispanic and black and white only. Id.

The total population of Georgia identifying as black and only one other racial category was 0.47% of the total population; and 0.20% of the population identified as black and one other non-white racial category. Id. ¶ 29. An additional 0.07% of the total population identified as black and more than one other racial category. Id. ¶ 30.

Total Voting Age Population

The total voting age population ("VAP") of Georgia identifying themselves as black only was 1,602,985 people, or 26.64% of the total VAP. Id. ¶ 32. The voting age population of non-Hispanic individuals identifying themselves as black only is 26.52% of the total VAP. U.S. Proposed Findings of Fact & Conclusions of Law ("USPFF") ¶ 124.*fn12 The VAP identifying as black and white represents 0.08% of the VAP; the total non-Hispanic black and white VAP is 0.07% of the total. PPFF ¶ 34. Those identifying themselves as black and one other racial category constitute 0.28% of the VAP, id. ¶ 35, while those identifying themselves as non-Hispanic black and one other racial category comprise 0.25% of the VAP. Id. Those identifying themselves as black and more than one other racial category represent 0.05% of the VAP. Id. ¶ 36.

Registered voters may identify their race when they register to vote. However, unlike the 2000 census, voters are not permitted to identify as more than one race. At the time of the November 1992 general election there were 3,177,061 people registered to vote in Georgia; of these, 698,305 people, or 21.97%, identified themselves as black. Id. ¶ 37. In November 1994. 3,003,527 people were registered to vote in Georgia, 21.92% of whom identified as black. Id. ¶ 38. In November 1996, 24.38% of persons registered to vote identified themselves as black, id. ¶ 39, and, in November 1998, 24.73% of persons registered to vote identified as black. Id. ¶ 40. At the time of the November 2000 general election, 3,856,676 persons registered to vote in Georgia, of which 980,587, or 25.42%, identified themselves as black. Id. ¶ 41.

C. The 2001 Reapportionment Process

During the 2001-02 session of the General Assembly, there were 180 seats in the Georgia House of Representatives and 56 seats in the Georgia Senate. During the 2001-02 session of the Georgia General Assembly, 34 of the 180 Representatives and 11 of the 56 Senators were African American. All of the African American Representatives and Senators are Democrats. Eric Johnson dep. at 17:13-16; Lynn Westmoreland dep. at 17:18-24.

On March 22, 2000, the results of the 2000 decennial census for Georgia became generally available from the Census Bureau, prompting the General Assembly to act. PPFF ¶ 70. The Senate formed a committee to address the issues of reapportionment.*fn13 During the 2001-02 session, the chairman, vice-chairman and secretary of the Senate Reapportionment Committee were Senators Tim Golden, Robert Brown and Hugh Gillis respectively. Id. at ¶ 6. During the 2001-02 session of the General Assembly, that Committee had 24 members, six of whom were African American. Id. at ¶ 7. Those six were Vice-Chairman Robert Brown of the 26th district, Senator Ed Harbison of the 15th, Senator David Scott of the 36th, Senator Nadine Thomas of the 10th, Senator Regina Thomas of the 2nd and Majority Leader Charles Walker of the 22nd. Id.

The House of Representatives also formed a committee to address the issues of reapportionment. The chairman, vice-chairman and secretary of the House Legislative and Congressional Reapportionment Committee were Representatives Tommy Smith, Jay Shaw and Carl Von Epps, respectively. Id. ¶ 8. During the 2001-02 session of the General Assembly, the House Reapportionment Committee has 29 members, six of whom were African American. Id. ¶ 9. Those six were Carl Von Epps of the 131st district, the Secretary of the Reapportionment Committee and Chairman of the Legislative Black Caucus, David Lucas of the 124th, Lester Jackson of the 148th, Arnold Ragas of the 64th, Kasim Reed of the 52nd, and LaNett Stanley-Turner of the 50th. Id.

Prior to the 2001 special sessions to consider reapportionment issues, the House and Senate Reapportionment Committees held joint hearings as follows: April 17 — Watkinsville; April 18 — Atlanta; April 25 — Augusta; April 30 — Perry; May 10 — Brunswick; May 15 — Valdosta; May 23 — Dahlonega. Id. ¶ 71.*fn14

Also prior to the 2001 special session, the House and Senate Reapportionment Committees adopted guidelines providing for public access to committee hearings and meetings, public access to redistricting data and materials and general guidelines for the presentation and introduction of plans to the committees. Id. ¶ 72.

The Senate Reapportionment Committee met formally on April 12, June 28, July 12, August 1, August 6, August 9, August 27, August 28, September 4, September 7 and September 13, 2001. Id. ¶ 73. Transcripts or records of those proceedings were provided to the Department of Justice as a part of this litigation. Id. The House Legislative and Congressional Reapportionment Committee met on April 11, June 29, July 10, July 20, July 24, July 26, July 31, August 13, August 14, August 16, August 22, August 28, August 29, September 4 and September 10. Id. Transcripts or records of those proceedings were provided to the Department of Justice. Id.

On June 21, 2001, Governor Roy Barnes issued a proclamation calling the General Assembly into special session for purposes of reapportioning the State Senate and House of Representatives.*fn15 Id. ¶ 74. This first special session of the General Assembly began on August 1 and ended on August 17, 2001. Id.

Linda Meggers has worked with Georgia's Legislative Redistricting Office since 1971. Id. ¶ 76. She worked full-time with the office since 1973, and has served as the Director since 1978. Id. She is intimately familiar with the demographics, changing demographics, and political geography of the entire state. Pl. Ex. 22 at 10-16. Meggers provided direct testimony, and she was twice deposed by the United States.

Ms. Meggers gave an overview of the 2001 reapportionment process, testifying that there were significant differences in this redistricting process compared with past years. Id. The data and technology available in 2001 allowed for sophisticated analysis of the political performance of prospective districts:

Political geography is exactly what we are talking about here, new Senate districts, congressional districts, House districts; that's political geography. So we could draw a proposed House district, House piece of geography, and have the census data, and immediately analyze it politically. If that district had existed in 1996 or 1998, this is how it would have voted in these particular elections, where we had the data.

Id. at 9. Data was available to assess whether districts tended to vote for Democrats or Republicans in past elections. Id. Ms. Meggers testified that, in contrast to past elections, political performance data was used extensively in the 2000 redistricting process. Id. at 17.

The State Senate redistricting plan before this court was approved by the Georgia Senate on August 10, 2001, and by the Georgia House of Representatives on August 17, 2001. The State House redistricting plan was passed by the Georgia House of Representatives on August 29, 2001 and by the Georgia Senate on September 6, 2001. The Congressional redistricting plan was passed by both houses of the Georgia General Assembly on September 28, 2001. No Republicans in either the House or Senate voted for any of these reapportionment plans. (Eric Johnson dep. at 27). All of the African American legislators in the Georgia General Assembly are Democrats, PPFF ¶ 5. With the exception of one African American Representative and one African American Senator who voted against the State House and State Senate redistricting plans, African American legislators voted for the redistricting plans.

Ms. Meggers testified that the goal of the Democratic leadership in the Senate and House was two-fold:

To maintain the number of minority districts that we presently had, but at the same time maintain and increase the number of Democratic seats that they had in the House and the Senate. They knew that they couldn't just maintain what they had, they actually needed to strengthen those majorities if they were to maintain a majority over the decade. When I say Democratic leadership, you need to understand that the Black Caucus members and the Black Caucus leadership were very involved in that. They are very much a part of the leadership when we talk about this. So, they wanted to maintain those districts, but not waste, is the — I guess the term I heard often, waste their votes.

Pl. Ex. 22 at 20-21. One of the reasons given by African American senators for aligning their interests with those of the Democratic Party was that, should the Democratic Party cease to be in the majority in the State House and State Senate, all existing African American chairs of committees would be lost. C. Walker dep. at 94. Senator Robert Brown, an African American from Senate District 26, was Vice Chairman of the Senate Reapportionment Committee overall, and was the chairperson of the subcommittee that did the Senate Plan itself. Pl. Ex. 20 at 23. According to Senator Brown, there are 11 African Americans in the state Senate, and 7 to 8 of that number currently could chair committees. Id. at 18-24. The majority leader of the Senate is an African American, and the chairman of the rules committee, Senator Brown, is also African American. Id.

D. United States Congressional Redistricting

After each decennial census, the United States House of Representatives is reapportioned to reflect population changes in the states. After the 1990 census, the State of Georgia was assigned 11 seats pursuant to that reapportionment. PPFF ¶ 101; Pl. Exs. 8A, 8C. The State of Georgia then had the responsibility to redistrict to reflect those 11 seats. As discussed above, that redistricting was subject to litigation that resulted in a court-ordered redistricting plan. Abrams v. Johnson, 521 U.S. at 82-85. The court-ordered plan that resulted from that litigation is the benchmark plan before this court. PPFF ¶ 102.

Following the 2000 census, Georgia was apportioned 13 seats in the United States House of Representatives. Id. ¶ 109. A Conference Committee of the Georgia House of Representatives and Senate produced the Congressional redistricting plan submitted to this court for preclearance. Pl. Ex. 20 at 28 (Brown test.). The Conference Committee had six members, three from the Senate and three from the House of Representatives. of these six, two Senators and one Representative are African American. Id. at 27.

1. The Benchmark Plan

According to the 2000 census results, the percentages of black population ("BPOP"), black voting age population ("BVAP"), and black registration ("BREG") for each of Georgia's existing Congressional districts under the benchmark plan are as follows:

%BPOP %BVAP(Ga.)*fn16 %BREG District 1 31.65 28.97 26.23 District 2 40.85 37.38 35.68 District 3 31.27 28.62 26.69 District 4 50.60 46.24 49.13 District 5 63.57 58.85 60.31 District 6 11.39 10.80 9.23 District 7 18.66 16.88 15.99 District 8 32.66 30.28 27.65 District 9 3.40 3.12 2.53 District 10 39.00 36.12 33.72 District 11 15.01 13.64 12.1

Pl. Exs. 8D, 8E. In the current Congressional plan, there are two districts with over 50% total black population, the Fourth and Fifth Districts, but only one district, the Fifth District, with over 50% BVAP and black voter registration. Id. However, the Fourth District, has over 45% BVAP and black voter registration. Id.

Notwithstanding the fact that the Fifth Congressional District is the only existing majority African American district in terms of voting age population and registered voters, the State of Georgia is currently represented by three African American Congresspersons: Sanford Bishop (Second District), Cynthia McKinney (Fourth District) and John Lewis (Fifth District). Pl. Ex. 21 at 2; Tr. 2/4/02, p.m. at 59-61.

Congressman John Lewis currently represents Georgia's Fifth Congressional District in the United States House of Representatives. Pl. Ex. 21 at 2:5-6. Congressman Lewis has been one of this country's leading civil rights advocates for the past 50 years, and his actions, along with those of Dr. Martin Luther King, Jr., were instrumental in achieving passage of the Voting Rights Act of 1965. Id. at 3, 12.

Cynthia McKinney, the current African American Congresswoman for the Fourth Congressional District, was first elected in 1994 in the Eleventh Congresisional District when the BVAP of that district was 60%. Tr., 2/4/02, p.m. at 61. Based upon the remedial map drawn by the three-judge court, see Abrams v. Johnson, 521 U.S. at 83-85, Ms. McKinney ran for election in the Fourth Congressional District, and was successful in 1996, 1998, and 2000 when the BVAP of the district was 33%, 39% and 45%, respectively. Pl. Ex. 25, App.; PPFF ¶ 107.

Sanford Bishop, the current African American Congressman for the Second Congressional District, was first elected in a district in which the total BVAP was 52%. Tr., 2/4/02, p.m. at 59-60. Following the redrawing of those district lines by the federal court in 1996, Congressman Bishop won reelection in the Second District when the total BVAP was between 35% and 37%. Pl. Ex. 25, App. In the course of his political career, Congressman Bishop has won reelection to Congress on three separate occasions in a rural majority-white district. PPFF ¶ 108.

By virtue of the reapportionment mandated by the 2000 census results, the State of Georgia's representation in the United States House of Representatives was increased to 13 seats. Id. ¶ 109. Based upon a total statewide 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 purposes of adherence to the principle of one person, one vote is 629,727 people. Id. ¶ 110.

Based upon the population statistics reported in the 2000 census, all of Georgia's existing 11 congressional districts have populations larger than the ideal district size of 629,727, and are thus out of apportionment. The percentages by which the current districts exceed the ideal district size are as follows:

District 1: 9.92% District 2: 3.28% District 3: 24.13% District 4: 18.33% District 5: 2.82% District 6: 49.51% District 7: 19.44% District 8: 5.25% District 9: 29.32% District 10: 5.16% District 11: 32.82%

Id. ¶ 111.

2. The Proposed Plan

During its second special session, the Georgia General Assembly enacted Senate Bill 1EX2, which set forth the reapportionment plan for Georgia's 13 new congressional districts. See Pl. Ex. 9A; PPFF ¶ 112. Senate Bill 1EX2 was adopted by the Georgia State Senate on September 28, 2001, by a vote of 30 to 23. Id. ¶ 114. No member of the Senate Legislative Black Caucus voted against the plan. Id. The bill was adopted by the Georgia House of Representatives on the same day, by a vote of 99 to 59. Id. ¶ 113. No member of the House Legislative Black Caucus voted against the plan. Id. The Governor of Georgia signed Senate Bill 1EX2 into law on October 1, 2001, as Act No. 2EX11. Id. ¶ 115.

Under the proposed Congressional redistricting plan, the total population ("TPOP") and voting age population ("TVAP") of each district is as follows:

TPOP TVAP District 1 629,761 456,300 District 2 629,735 455,164 District 3 629,748 464,632 District 4 629,690 472,785 District 5 629,727 492,438 District 6 629,725 455,805 District 7 629,706 444,493 District 8 629,700 457,971 District 9 629,762 467,232 District 10 629,702 463,958 District 11 629,698 465,459 District 12 629,735 470,201 District 13 629,732 450,756

Id. ¶ 116.

Under the proposed Georgia Congressional plan, the percentages of black population ("BPOP"), BVAP, and black registration ("BREG") for each of the proposed Congressional districts are as follows:

%BPOP %BVAP(Ga.)*fn17 %BREG District 1 23.21 21.04 18.62 District 2 45.22 41.45 39.99 District 3 40.32 37.55 34.97 District 4 54.69 50.02 51.16 District 5 56.92 52.04 53.36 District 6 7.36 6.87 6.27 District 7 7.43 6.81 6.02 District 8 12.95 12.07 10.37 District 9 14.07 12.99 11.16 District 10 3.65 3.36 2.89 District 11 29.10 26.36 26.14 District 12 43.19 39.00 39.10 District 13 41.97 38.22 41.57

Pl. Exs. 9C, 9D.

Under the proposed Congressional redistricting plan, there are still two Congressional districts, the Fourth and Fifth, with majority black populations, but the number of Congressional districts with over 50% BVAP (Ga.) and black voter registration has increased from one, the Fifth, to two, the Fourth and Fifth. Id. However, as intervenors emphasize, according to the United States' calculations of BVAP, there is one district with a majority BVAP — the Fifth District — in both the benchmark and proposed Congressional plans. See Br. of Amicus Curiae/Defendant-Intervenors, Jan. 14, 2002, at 26.

The proposed plan would also create additional districts with significant African American populations: (1) the proposed Second Congressional District has a BVAP in excess of 40% and a black voter registration of nearly 40%; (2) the proposed Thirteenth Congressional District has black voter registration of over 40%; and (3) the Third and Twelfth Congressional Districts have black populations of over 40% and significant BVAP and black voter registrations. Pl. Exs. 9C, 9D. Several African American candidates have announced their intentions to run for the new 12th and 13th Congressional districts. Tate dep. at 107:11-18.

The State presented an analysis of the statewide election returns in four elections between an African American candidate and a white candidate held between 1998 and 2000. This analysis predicted that the voters of the proposed Fifth Congressional District would have supported African American candidates by an estimated 68.97% in a Democratic primary, and by 70.83%-75.65% in the general elections. Pl. Exs. 9D, 10B.

The State did not introduce expert testimony interpreting the significance of these percentages. Furthermore, the court heard no expert testimony regarding the existence of racially polarized voting patterns in any of the benchmark or proposed Congressional Districts;, or on the impact of such patterns on the ability of minority candidates to win election. Intervenor-defendant Patrick L. Jones testified that he "believes" that it is "difficult, if not impossible" for minority candidates of choice to be elected in districts of less than 55% BVAP, and that it will be difficult to elect a candidate of choice in the Fifth Congressional District. Int. Ex. 27.

Intervenors have submitted alternative plans, some of which would increase BVAPs in majority-minority districts. See Int. Exs. 20-22. However, the three alternative plans submitted by intervenors create at most two Congressional districts with BVAP majorities. None of the alternative plans place Republican incumbents in the same district.

E. State House Redistricting

The Georgia Constitution mandates that the Georgia House of Representatives consist of not fewer than 180 members apportioned among districts of the State of Georgia. Ga. Const., Art. III, § II, ¶ I (b); O.C.G.A. § 28-2-1; PPFF ¶ 135. Members of the Georgia House of Representatives are elected for two-year terms and serve until the time of the convening of the next General Assembly. Ga. Const., Art. III, § II, ¶ V(a); PPFF ¶ 136. Members of the Georgia House of Representatives are elected at the same time as the Governor. Ga. Const., Art. V, § I, ¶ II; PPFF ¶ 137.

1. The Benchmark Plan

The benchmark plan for the Georgia House of Representatives contains 180 single-member districts. PPFF ¶ 140; Pl. Exs. 11A, 11C. 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. Pl Ex. 12C at 8; PPFF ¶ 142.

According to the 2000 census population statistics, there are 40 districts in the benchmark plan in which the total non-Hispanic black population is over 50%.*fn18 Id. ¶ 143. In addition, there are 37 districts in the benchmark plan in which the total BVAP is over 50%.*fn19 Id. ¶ 144. This is true whether BVAP is calculated according to the Attorney General's Guidance or by Georgia's methodology. Finally, under the benchmark plan, there are 38 districts in which the total black voter registration is over 50%.*fn20 Pl. Ex. 11E.

Georgia's House districts have traditionally been drawn with a deviation of plus or minus five percent from the ideal district size. PPFF ¶ 146. According to the 2000 census results, only two of the existing House districts with a total black population, total BVAP, or black voter registration over 50%, fall within that traditional deviation requirement. Id.; Pl. Exs. 11D, 11E. All but five of the 37 majority BVAP districts were between -7.23% and -31.92% in deviation from the ideal district size, indicating they were significantly underpopulated. Id.

2. The Proposed Plan

In its first special session, the Georgia General Assembly passed a redistricting plan for the State House that was not signed by the Governor. James dep. at 89: 4-12; Int. Ex. 31 at 3-4 (Westmoreland Decl.). After the passage of the first House plan, Senator Vincent Fort, who is African American, called for a meeting of the Georgia Legislative Black Caucus ("GLBC"). In an August 24, 2001 letter addressed to Representative Carl Von Epps, Chairman of the Caucus, Senator Fort stated:

We are concerned that the GLBC has not been involved in the redistricting process almost at all. This has resulted, among other things, in a legislative plan passing that has diluted majority-minority districts in both the House and the Senate.

Int. Ex. 17. This letter contained the signatures of six members of the GLBC. Id.; U.S. Ex. 722, 51:23-52:16. Senator Fort either called or spoke to each member of the GLBC whose signature appears upon the letter, and each consented to signing the letter. Id. at 55:22-56:10; USPFF at ¶ 64.

During its second special session, the Georgia General Assembly enacted House Bill 14EX2, which provided for the reapportionment of the Georgia House of Representatives. See Pl. Ex. 12A (identifying plan as "HSEPLN2"); PPFF ¶ 147. House Bill 14EX2 was adopted by the Georgia House of Representatives on August 29, 2001, by a vote of 100 to 72. Id. ¶ 148. The Senate passed the bill on September 6, 2001, by a vote of 29 to 22. Id. Representative Dorothy Pelote and Senator Regina Thomas, both of the Savannah area, were the only African American legislators who voted against the plan. Id. The Governor signed H.B. 14EX2 into law on October 1, 2001, as Act No. 2EX23. Id. ¶ 149.

This proposed House plan contains 180 members allocated to 147 districts. Pl. Ex. 12C; PPFF ¶ 150. 124 districts contain one member, 15 districts contain two members, six districts contain three members, and two districts contain four members. Id.

The proposed House plan contains 42 districts in which the total black population is over 50%. Pl. Ex. 12C.*fn21 The proposed House plan contains 39 seats in districts in which the total BVAP, pursuant to the State's interpretation of the census data, is over 50%.*fn22 Pl. Ex. 12C. When BVAP is calculated pursuant to the Attorney General's Guidance, the redistricting plan contains 38 House seats in which the BVAP is over 50%. U.S. Resp. to PPFF ¶ 152. The proposed House plan contains 39 districts in which black voter registration is over 50%.*fn23 Pl. Ex. 12D.

Comparing the proposed plan to the benchmark plan, there are two additional districts with black populations of over 50%, and one additional district with black voter registration over 50%. Pl. Exs. 12C, 12D. Either one or two additional seats are created in districts with majority BVAPs, depending on whether the United States or Georgia's method of calculating BVAP is used. Id.; U.S. Resp. to PPFF ¶ 152.

3. The Challenged Districts

Intervenors challenge the drawing of seven House districts, 51, 95, 97, 100, 113, 124, and 125, as well as the creation of multi-member districts. See Renewed Mot. to Intervene, Jan. 4, 2002. The alternative House reapportionment plans submitted by intervenors, and drawn by Republican House leader Lynn Westmoreland, place certain Democratic incumbents in the same districts to run against one another. See, e.g., Int. Ex. 31 at 36:19-37:18, 38:17-39:11, 44:4-25, 46:12-16; 48:11-16; 50:1-51:16, 53:2-54:18, 58:15-19, 59:5-60:2. None of Westmoreland's proposed alternative plans drew districts in which Republican incumbents were drawn within the same district. Id. at 43:3-8; 48:17-21; 51:17-23; 54:19-22; 62:17-22.

Intervenor Roielle Tyra objects to the loss of one majority-minority House district and resulting single district where two minority members are "pitted against each other." Int. Ex. 26. However, when reviewed as a whole, the proposed House plan creates four new opportunities for African Americans to elect candidates of their choice in open seats in House Districts 48, 59, and 61, and a new opportunity in House District 60. Pl. Exs. 12B, 12D.

a. Proposed House District 51

Proposed House District 51 is a single-member district located wholly within Fulton County, Georgia. Pl. Exs. 12B, 13A. The proposed district embraces territory formerly included in benchmark House District 56, which is also wholly within Fulton County. Pl. Ex. 11B.

In light of the 2000 census results, the ideal size for one of the 180 House seats is 45,480 persons. Thus, the benchmark House District 56 is 4,169 persons, or 9.17%, short of the ideal district size. Pl. Exs. 11D, 13B. Black voter registration levels, as compared to overall voter registration, have declined in benchnmark House District 56 over the past three election cycles, from 58.91% in 1996, to 58.74% in 1998, and finally to 55.86% in 2000. Pl. Exs. 11E, 13B.

Voters within benchmark House District 56 tend to vote for Democratic Party candidates, as demonstrated by an overall Democratic performance score of 86.92%, as well as the Democratic performance numbers for the individual election years of 1996 (80.25%), 1998 (82.14%) and 2000 (81.50%).*fn24 Pl. Exs. 11E, 13B.

In addition, 60.9% of the voters within the benchmark House District 56 voted for Michael Thurmond, an African American, over his white opponent. in the 1998 Democratic Party primary runoff election for the open State Labor Commissioner seat. 88.43% of voters in benchmark House District 56 voted for Thurmond in his genera] election victory over a white Republican opponent. Pl. Exs. 11E, 13B. Additionally, voters within the benchmark House District 56 demonstrated electoral support for other African American Democratic candidates running for statewide office, voting in 1998 for Thurbert Baker for Attorney General at a rate of 82.21% and, in 2000, for David Burgess, a candidate for the Public Service Commission, at a rate of 79.23%. Pl. Exs. 11E, 13B.

The precincts included in the proposed House District 51 have supported Democratic candidates. According to past election results, the precincts that comprise proposed House District 51 have an overall Democratic performance score of 86.38%. Pl. Ex. 12D. Using 1996 election results, plaintiff has projected Democratic performance numbers of 80.38%, using 1998 election results, 81.82%, and using 2000 election results, 80.89%. Pl. Exs. 12d 13B. Voters within the proposed district also supported Michael Thurmond in the 1998 primary runoff at a rate of 61.18%, and at 87.97% in his general election contest. Id. Additionally, 81.55% of these voters supported Thurbert Baker, and 78.67% voted for David Burgess. Id.

Proposed House District 51 retains benchmark District 56's status as a district with a majority of total black population and BVAP, as shown below.

TPOP*fn25 BPOP TVAP*fn26 BVAP(Ga.) Benchmark H.D. 56 41,311 24.801 32,393 17,724 (60.03%) (54.72%)
Proposed H.D. 51 43,675 25,162 34,793 18,118 (57.61%) (52.07%)

Pl. Exs. 12C, 13B. Moreover, proposed District 51 retains a majority black voter registration level of 52.68%. Pl. Exs. 12d 13B. Proposed House District 51 retains this status while making up benchmark District 56's significant population shortage from the current ideal district size of 45,480. Proposed District 51 is only 1,805 persons, or 3.97%, short of the ideal district size. Pl. Exs. 12C, 13B.

b. Proposed House District 95

Proposed House District 95 is a single-member district that includes all of Hancock, Glascock, Taliaferro and Warren Counties, and parts of Baldwin, McDuffie and Putnam Counties, Georgia. Pl. Exs. 12A, 14A. The proposed district includes territory currently within benchmark House District 120, which encompasses all of Taliaferro, Warren, Glascock and Hancock Counties and parts of McDuffie and Baldwin Counties. Pl. Ex. 11A.

The benchmark House District 120 is 7,056 people, or 15.51%, short of the ideal district size. Pl. Exs. 11D, 14B. Black voter registration numbers have remained relatively steady over the past three election cycles in the benchmark House District 120, with 52.14% black voter registration in 1996, 52.90% in 1998, and 52.07% in 2000. Pl. Exs. 11E, 14B.

Voters within benchmark House District 120 tend to vote for Democratic Party candidates as demonstrated by an overall Democratic Performance score of 62.80%, as well as the Democratic performance numbers for the individual election years of 1996 (61.37%), 1998 (66.77%) and 2000 (57.06%). Pl. Exs. 11E, 14B. Specifically, 77.32% of the voters within House District 120 voted for Thurmond in the 1998 Democratic Party primary runoff election. In addition, 72.74% of the voters in House District 120 voted for Thurmond in his general election victory. Pl. Exs. 11E, 14B. Voters within House District 120 have also supported other African American Democratic candidates running for statewide office. In 1998 Thurbert Baker received 64.49% of the district's votes in his race for Attorney General and, in 2000, David Burgess garnered 72.17% of the vote for Public Service Commissioner. Pl. Exs. 11E, 14B.

Benchmark House District 120 is currently held by Representative Sistie Hudson, a white Democrat. Int. Ex. 31 at 4. In 1996, Representative Hudson faced a primary challenge from an African American opponent, Frederick Favors. Id. at 4-5. Representative Hudson received 51.3% of the vote, while Ms. Favors received 48.7%. Id.

Plaintiff has calculated an overall Democratic performance score of 56.61% for proposed House District 95. In addition, the State projects Democratic performance numbers of 53.04% using 1996 election results, 62.65% using 1998 results, and 51.97% using 2000 results. Pl. Ex. 14B. In looking at the past political performance of the territory contained within proposed House District 95, voters within the proposed district also supported Michael Thurmond at a rate of 75.01% in the 1998 primary runoff, and 67.36% in his general election contest. Additionally, these voters supported Thurbert Baker at a rate of 59.78% and David Burgess at 66.57%. Pl. Exs. 12d 14B.

The demographics of benchmark District 120 and Proposed House District 95 are shown below:

TPOP BPOP TVAP BVAP(Ga.) Benchmark H.D. 120 38,424 21,604 28,359 15,007 (56.23%) (52.92%)
Proposed H.D. 95 44,590 21,632 33,210 14,979 (48.51%) (45.10%)

Pl. Exs. 11D, 12C, 14B. Additionally, 44.06% of registered voters in the proposed District 95 are African American. Pl. Exs. 12d 14B.

This district also makes up benchmark District 120's population shortage from the current ideal district size of 45,480. Proposed District 95 is only 890 persons, or 1.96%, short of the ideal district size. Pl. Exs. 12C, 14B.

c. Proposed House District 97

Proposed House District 97 is a single-member district located wholly within Richmond County, Georgia. Pl. Exs. 12A, 15A. House District 97 embraces territory included within benchmark House District 117, which is also wholly contained within Richmond County. Pl. Ex. 11A.

The benchmark House District 117 is 10,918 people, or 24.01%, short of the meal district size. Pl. Exs. 11D, 15B. Black voter registration levels have increased in the existing House District 117 over the past three election cycles, from 71.80% in 1996, to 75.32% in 1998, and finally to 75.59% in 2000. Pl. Exs. 11E, 15B.

Voters within the benchmark House District 117 tend to vote heavily for candidates of the Democratic Party, demonstrated by an overall Democratic Performance score of 79.13%, as well as the Democratic performance numbers for the individual election years of 1996 (76.11%), 1998 (77.73%) and 2000 (79.93%). Pl. Exs. 11E, 15B. Specifically, 73.73% of the voters within existing House District 117 voted for Michael Thurmond in the 1998 Democratic Party primary runoff election, and 85.27% voted for him in the general election. Pl. Exs. 11E, 15B. Additionally, voters within benchmark House District 117 demonstrated electoral support for other African American Democratic candidates running for statewide office by voting at a rate of 83.09% for Thurbert Baker in 1998, and at 85.47% for David Burgess. Pl. Exs. 11E, 15B.

Proposed District 97 retains much of the overall Democratic performance of benchmark District 117. Plaintiff has calculated an overall Democratic performance score of 63.59% for this proposed District, and projected Democratic performance numbers of 60.47% using 1996 election results, 64.37% using 1998 results and 63.08% using 2000 election results. Pl. Ex. 15B. In looking at the past political performance of the territory contained within proposed House District 97, 72.92% of the voters in the proposed district supported Michael Thurmond in the 1998 primary runoff and 70.03% supported him in the general election. Additionally, 67.74% of these voters supported Thurbert Baker and 71.11% supported David Burgess. Pl. Exs. 12d 15B.

The proposed House District 97 also retains District 117's status as a district in which African American voters comprise a majority of both the total and voting age populations. The following table compares the demographics of the benchmark District 117 and proposed House District 97, using the 2000 census figures:

TPOP BPOP TVAP BVAP(Ga.) Benchmark H.D. 117 34,562 26,945 23,822 17,637 (77.96%) (74.04%)
Proposed H.D. 97 43,531 25,235 31,919 16,994 (57.97%) (53.24%)

Pl. Exs. 11D, 12C, 15B. Additionally, proposed District 97 retains District 117's majority black voter registration at a level of 54.53%. Pl. Exs. No 12d 15B.

Proposed District 97 is only 1,949 persons, or 4.29%, short of the ideal district size. Pl. Exs. 12C, 15B.

d. Proposed House District 100

Proposed House District 100 is a single-member district that contains all of Burke County and part of Richmond County, Georgia. Pl. Exs. 12A, 16A. The proposed district 100 embraces territory included within benchmark House District 116, which also contains all of Burke County and part of Richmond County, Georgia. Pl. Ex. 11A.

Based on the population statistics from the 2000 census, the benchmark House District 116 is 6,161 persons, or 13.55%, short of the ideal district size. Pl. Exs. 11D, 16B. Levels of black voter registration have increased in the existing House District 116 over the past three election cycles, from 52.75% of total voter registration in 1996, to 54.59% in 1998, and to 54.29% in 2000. Pl. Exs. 11E, 16B.

Voters within benchmark House District 116 tend to vote heavily for Democratic Party candidates, as demonstrated by an overall Democratic performance score of 62.13%, and the Democratic performance rates for the individual election years of 1996 (60.72%), 1998 (62.88%) and 2000 (59.83%). Pl. Exs. 11E, 16B. Specifically, 74.88% of the voters in benchmark House District 116 voted for Michael Thurmond in his 1998 Democratic Party primary runoff election, and 69.96% supported him in the general election. Pl. Exs. 11E, 16B. Furthermore, voters in benchmark House District 116 have supported other African American candidates running for statewide office, voting at a rate of 69.05% for Thurbert Baker in 1998, and 74.72% for David Burgess in 2000. Pl. Exs. 11E, 16B. Proposed House District 100 retains much of the overall Democratic performance of benchmark district 116, with a projected overall Democratic performance score of 62.56%, and projected Democratic performance rates of 61.13% using 1996 election results, 63.53% using 1998 results, and 60.14% for the 2000 election results. Pl. Ex. 16B. In looking at the past political performance of the territory contained within proposed House District 100, 74.98% of voters supported Michael Thurmond in the 1998 primary runoff, and 70.37% supported him in his general election contest. Pl. Ex. 12 D. Additionally, 69.48% of these voters supported Thurbert Baker and 74.68% supported David Burgess. Pl. Exs. 12d 16B.

Like benchmark District 116, proposed House District 100 has a majority African American population and voting age population. The following table compares the demographics of the benchmark District 116 and proposed House District 100, using the 2000 census figures:

TPOP BPOP TVAP BVAP(Ga.) Benchmark H.D. 116 39,319 22,342 26.409 13,947 (56.82%) (52.81%)
Proposed H.D. 100 44,193 24,226 30,755 15,394 (54.82%) (50.05%)

Pl. Exs. 11D, 12C, 16B. Additionally, proposed House District 100 has a majority black voter registration level of 54.67%. Pl. Exs. 12d 16B.

Proposed House District 100 is only 1,287 persons, or 2.83%, short of the ideal district size. Pl. Exs. 12C, 16B.

e. Proposed House District 113

Proposed House District 113 is a single-member district located wholly within Muscogee County, Georgia. Pl. Exs. 12A, 17A. The proposed district embraces territory included within benchmark House District 134, which is also wholly contained within Muscogee County. Pl. Ex. 11A.

Based on the population statistics from the 2000 census, the benchmark House District 134 is 14,518 persons, or 31.92%, short of the ideal district size. Pl. Exs. 11D, 17B. Black voter registration levels have increased in the existing House District 134 over the past three election cycles, from 72.87% of total voter registration in 1996, to 74.26% in 1998, and finally to 76.34% in 2000. Pl. Exs. 11E, 17B.

Voters within the benchmark House District 134 tended to vote heavily for Democratic Party candidates, as demonstrated by an overall Democratic Performance score of 84.72%, and the Democratic performance rates for the individual election years of 1996 (68.06%), 1998 (87.93%) and 2000 (84.58%). Pl. Exs. 11E, 17B. Specifically, 71.70% of the voters in the benchmark House District 134 voted for Michael Thurmond in the 1998 Democratic Party primary runoff election, and 90.11% of voters cast their ballots for him in the general election. Pl. Exs. 11E, 17B. Additionally, voters within the benchmark House District 134 demonstrated significant electoral support for other African American Democratic candidates running for statewide office. In 1998, 91.03% of voters supported Thurbert Baker and, in 2000, 88.90% voted for David Burgess. Pl. Exs. 11E, 17B.

Based on the past political performance of the territory contained in proposed House District 113, 69.38% of voters within the proposed district supported Michael Thurmond in the 1998 primary runoff and 77.38% supported him in his general election contest. Additionally, 79.45% of these voters supported Thurbert Baker, and 78.56% supported David Burgess. Pl. Exs. 12d 17B.

Like benchmark District 134, proposed District 113 has a majority of African American population and voting age population. The following table compares the demographics of the benchmark District 134 and proposed House District 113, using the 2000 census figures:

TPOP BPOP TVAP BVAP(Ga.) Benchmark H.D. 134 30,962 21,905 20,471 14,042 (70.75%) (68.59%)
Proposed H.D. 113 43,806 25,843 31,305 16,985 (58.99%) (54.26%)

Pl. Exs. 11D, 12C, 17B. Additionally, proposed House District 113 has a majority black voter registration at a level of 61.88%. Pl. Exs. 12d 17B.

Proposed House District 113 is only 1,674 persons, or 3.68%, short of the ideal district size. Pl. Exs. 12C, 17B.

Under the proposed plan, two incumbent minority legislators, Representatives Carolyn Hugley and Maretta Taylor, are drawn into the proposed District 113. See Int. Ex. 31 at 8 (Westmoreland Decl.). Intervenors introduced testimony that these are the only two incumbent Democrats included in any one proposed district in any of the three plans before this court. Id. An open seat was created in proposed House District 109, a majority-white district adjacent to proposed district 113. Id.

f. Proposed House District 124

Proposed House District 124 is a two-member district located wholly within Chatham County, Georgia. Pl. Ex. 12A. Proposed District 124 embraces territory included in benchmark House Districts 148 and 149, which were also wholly contained within Chatham County. Pl. Ex. 11A.

According to population statistics from the 2000 census, benchmark House District 148 was short 10,343 persons, or 22.74%, and benchmark District 149 was 12,815 persons, or 28.18%, short of the ideal district size. Pl. Exs. 11D, 18B. Black voter registration levels have increased in the benchmark House District 148 over the past three election cycles, from 64.19% in 1996, to 65.37% in 1998, and finally to 68.12% in 2000. Pl. Exs. 11E, 15B. Black voter registration levels have decreased in benchmark House District 149 over the past three election cycles, from 70.80% of total voter registration in 1996, to 70.46% in 1998, and finally to 67.96% in 2000. Pl. Exs. 11E, 18B.

Voters from benchmark House District 149 also tend to support Democratic Party candidates, as demonstrated by an overall Democratic performance score of 81.20%, and Democratic performance numbers for individual election years of 1996 (77.61%), 1998 (81.89%) and 2000 (78.35%). Pl. Exs. 11E, 18B. 89.39% of the voters it benchmark House District 149 voted for Michael Thurmond in the primary runoff, and 88.84% supported him in the general election. Pl. Ex. 18B. In 1998, 89.34% of voters in benchmark District 149 voted for Thurbert Baker, and, in 2000, 85.90% voted for David Burgess. Pl. Exs. 11E, 18B.

Proposed House District 124 has an overall Democratic performance score of 67.67%, and projected Democratic performance numbers of 63.16% using 1996 election results, 69.79%, using 1998 results, and 66.46% for the 2000 election results. Pl. Ex. 18B. In looking at the past political performance of the territory contained within proposed House District 124, 81.50% of voters within the proposed district supported Michael Thurmond in the 1998 primary runoff and 75.83% supported him in his general election contest. 76.11% of these voters supported Thurbert Baker and 75.39% supported David Burgess. Pl. Exs. 12d 18B.

As in benchmark Districts 148 and 149, in proposed District 124 African American voters make up a majority of both the total and voting age populations. The following table compares the demographics of the benchmark House Districts 148 and 149 with proposed House District 124, using the 2000 census figures:

TPOP BPOP TVAP BVAP(Ga.) Benchmark H.D. 148 35,137 25,708 24,449 16,619 (73.17%) (67.97%)
Benchmark H.D. 149 32,665 22,502 24,642 15,520 (68.89%) (62.98%)
Proposed 124 86,779 51,600 64,295 34,811 (59.46%) (54.14%)

Pl. Exs. 11D, 12C, 18B. Additionally, proposed District 124 has a majority black voter registration level of 55.21%. Pl. Exs. 12d 18B.

The ideal district size for proposed District 124 is 90,960, twice the ideal district size of a single-member district. Thus, proposed District 124 is 2,091 persons, or 4.60%, short of the ideal district size. Pl. Exs. 12C, 18B.

g. Proposed House District 125

Proposed House District 125 is a single-member district located wholly within Chatham, Georgia. Pl. Exs. 12A, 19A. House District 125 embraces territory included within benchmark House District 151, which is also wholly within Chatham County. Pl. Ex. 11A.

Based on population statistics from the 2000 census, the benchmark House District 151 is 11,450 persons, or 25.18%, short of the ideal district size. Pl. Exs. 11D, 19B. Black voter registration levels have increased in benchmark House District 151 over the past three election cycles, from 46.18% in 1996 to 47.93% in 1998, and to 48.40% in 2000. Pl. Exs. 11E, 19B.

Voters in benchmark House District 151 tend to vote for Democratic Party candidates, as demonstrated by an overall Democratic performance score of 64.31%, and the Democratic performance numbers for the individual election years of 1996 (61.47%), 1998 (67.19%) and 2000 (61.39%). Pl. Exs. 11E, 19B. Specifically, 75.40% of voters in benchmark House District 151 voted for Michael Thurmond in the 1998 Democratic Party primary runoff election, and 71.67% of voters supported him the general election. Pl Exs. 11E, 19B. Voters in benchmark House District 151 have demonstrated electoral support for other African American Democratic candidates running for statewide office: in 1998, 72.36% voted for Thurbert Baker and, in 2000, 72.78% voted for David Burgess. Pl. Exs. 11E, 19B.

Proposed House District 125 has an overall Democratic performance score of 59.40%, and specific projected Democratic performance levels of 56.64% using 1996 election results, 62.75% using 1998 results, and 56.56% using 2000 election results. Pl. Ex. 19B. 70.77% of voters in the proposed district supported Michael Thurmond in the 1998 primary runoff, and 67.13% supported him in his general election contest. Additionally, 67.84% of these voters supported Thurbert Baker, and 68.40% supported David Burgess. Pl. Exs. 12d 19B.

While Proposed House District 125 has a majority black population, it does not have a majority BVAP. The following table compares the demographics of the benchmark House District 151 and proposed House District 125, using the 2000 census figures:

TPOP BPOP TVAP BVAP(Ga.) Benchmark H.D. 151 34,030 19,199 26,014 13,550 (56.42%) (52.09%)
Proposed H.D. 125 44,644 22,473 33,869 15,398 ...

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