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 and Senior District Judge Oberdorfer join. Concurring
opinion filed by Senior District Judge Oberdorfer.
The opinion of the court was delivered by: Sullivan, Judge
On April 5, 2002, the court declined judicial preclearance to Georgia
Act No. lEX6, a plan for redistricting of the Georgia State Senate.
However, at the request of the State of Georgia, this court maintained
jurisdiction of the case and permitted the State to file a new
reapportionment plan for the Senate districts. The State now asks this
court to enter a declaratory judgment pursuant to Section 5 of the Voting
Rights Act that a revised Senate redistricting plan, Georgia Act No.
444, 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" or membership
in a language minority group. 42 U.S.C. § 1973c.
On April 5, 2002, this court issued an Opinion and Order ("Opinion")
granting the State of Georgia a declaratory judgment under Section 5 of
the Voting Rights Act, 42 U.S.C. § 1973c, with respect to the
Congressional and State House redistricting plans enacted during the 2001
special session of the Georgia General Assembly. See Civil Action No.
01-2111, April 5, 2002 Op. & Order. That same Opinion denied the State's
motion for declaratory judgment under Section 5 with respect to the State
Senate redistricting plan enacted during the 2001 special session, Act
No. 1EX6 ("2001 plan")
On April 8, 2002, the State of Georgia requested that this court amend
its judgment of April 5, 2002 for the purpose of retaining jurisdiction
to consider a revised Senate Redistricting Plan. The United States filed
a statement of non-opposition to the State's motion. The
defendant-intervenors filed a response to the motion arguing that
retention of jurisdiction would be improper and that plaintiff was
required to file a new lawsuit in this court, if it intended to seek
judicial preclearance. On April 9, 2002, in recognition of the fact that
the qualifying period for candidates for the Georgia State Senate is
scheduled to be held from June 19 to June 21, the court modified its
judgment and retained jurisdiction to permit plaintiff to submit a
revised plan for the redistricting of the Georgia State Senate within
On April 15, 2002, the defendant-intervenors filed a motion for
clarification of the order amending judgment, essentially asking the
court to confirm that the burden of proof remained on the State to
demonstrate that the revised plan did not violate Section 5.
At the April 18, 2002 status hearing, the court also inquired of the
parties whether there was a need to have the plaintiff file a new
complaint, or to have the parties file motions for summary judgment.
Relying on Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),*fn1 the
parties argued that no procedural impediments barred the court from
resolving the merits of the case on the basis of the plan and the
responses to the plan.
The plaintiff and defendant-intervenors both argue that the evidentiary
record developed during the court's review of the 2001 Senate
redistricting plan supports their positions. However, the parties'
initial briefs failed to point to record evidence to support their
positions. The cursory nature of the parties' briefs prompted the court to
require the parties to file proposed findings of fact and conclusions of
law explicitly identifying the evidence upon which the parties relied.
In a conference call on May 17, 2002,*fn2 at the suggestion of the
court, the parties agreed that, in the event that the court concluded
that the evidence raised a genuine issue of material fact, thus
precluding the granting of summary judgment, the court could resolve the
case as a stipulated trial on the record. See also Benoit v. McKenzie,
Civ. Action No. 84-2657, 1988 WL 4238 (D.D.C. Jan. 5, 1988)
The court treats the plaintiff's submission of the revised Senate
redistricting plan as a new complaint for declaratory judgment. Retention
of jurisdiction was appropriate and in the interests of justice insofar
as a new complaint would have come to this three-judge court as related
to the court's previous review of the State's Congressional and State
Senate and House redistricting plans. As discussed below, the court
construes the case as a stipulated trial on the entire record after
finding that genuine issues of material fact preclude entry of summary
The court's April 5, 2002 opinion contains a lengthy discussion of the
demographics of the State of Georgia. Therefore, in this section, the
court focuses its attention on the differences between the 2001 Senate
redistricting plan and the revised 2002 plan.
The April 5, 2002 opinion scrutinized the redistricting proposed for
thirteen benchmark Senate Districts with majority African American
populations and Senate District 34, which would have become a majority
African American district under the 2001 plan. With the exception of
Senate Districts 2, 12 and 26, the demographics of these districts are
the same under the 2001 plan and under the revised 2002 plan.
The following chart summarizes the percentages of Black population
("BPOP"),*fn3 Black voting age population ("BVAP") and Black registered
voters ("BREG") in Senate Districts 2, 12 and 26 under the benchmark plan
("BM"), the 2001 plan ("2001") rejected by the court and the 2002 plan
("2002") submitted for review.
BM 2001 2002 BM 2001 2002 BM 2001 2002
2 65.46 55.60 59.47 60.58 50.31 54.50 62.38 48.50 55.80
12 59.88 54.01 58.66 55.43 50.66 55.04 52.48 47.76 51.58
26 67.24 55.36 60.32 62.51 50.80 55.45 62.93 48.68 54.70
See Pl.'s Proposed Findings of Fact & Conclusions of Law ("PPFF")
at ¶ 28.
The benchmark plan has thirteen districts with majority African
American populations. These same thirteen districts have populations in
which the majority of registered voters are African American. Twelve
benchmark districts have majorities of BVAP ranging from 54.73% to
88.91%, and benchmark Senate District 44 has a BVAP of 49.62%.
The 2002 plan proposes thirteen districts with majority African
American populations. Eleven proposed districts would have majorities of
African American registered voters. Proposed Senate Districts 22 and 34
would have populations where registered voters were respectively 49.44%
and 49.50% African American. Under the 2002 plan, according to Georgia's
calculation of BVAP, thirteen districts would have majority BVAPs,
ranging from 50.54% to 64.14%.
The BVAP of Senate District 34, the newly created majority-minority
district, falls slightly below 50% to 49.53% when BVAP is calculated
according to the United States' methodology. See U.S. Ex. 110; April 5,
2002 Op. & Order at 65. Consequently, pursuant to the United States'