Federal district court in Georgia rules county’s at-large method of electing members of county commission and school board violates federal Voting Rights Act

Georgia State Conference of the NAACP v. Fayette Cnty. Bd. of Comm., No. 11-123 (N.D.Ga. May 21, 2013)

Abstract: A federal district court in Georgia concluded that the county’s at-large method of electing the county board of commissioners and the board of education violated § 2 of the Voting Rights Act (VRA) because the present voting scheme virtual insured that no African-American would be elected to either board.

Facts/Issues: In August 2011, the Georgia chapter of the NAACP filed suit in federal district court against Fayette County, including the Board of Commissioners (BOC) and the Board of Education (BOE), claiming that the county’s at-large method of electing members to the BOC and BOE dilute African-American voting strength, resulting in African-American voters being denied an equal opportunity to participate in the political process and elect representatives of their choice, in violation of VRA’s § 2.

The NAACP and BOE reached a settlement and sought a consent decree, opposed by the BOC on the ground that the remedy agreed to by the NAACP and BOE was not authorized by law.  The district court denied approval of the consent decree.  It agreed with the BOC that even if a § 2 violation was established (an issue that the court did not reach at that time), the court lacked the authority to impose the BOE plan as a remedy because that plan does not include a majority-minority district, i.e., a district with African-American voters constituting more than 50% of the voting age population.

The NAACP and BOC proceeded with pre-trial discovery and motions for summary judgment.  The BOE took no part in these matters, having conceded a violation of § 2.  The population of Fayette County is 71% white and 20% African-American.  The voting age population is approximately 74% white and 20% African-American.  The BOE and BOC are each comprised of five members who each serve four-year staggered terms.  The current system of electing both school board members and county commissioners is at-large voting.  For purposes of electing BOE and BOC members, the county is divided into five districts; each individual member must reside in the district from which he or she is elected.

In March 2012, a county resident sued Fayette County, claiming that following the 2010 census the districts in Fayette County are constitutionally malapportioned under the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983.  Following a quick settlement of the suit, the court approved a consent decree setting forth a new redistricting plan for Fayette County BOC elections (the Commissioners’ Plan).  Under the Commissioners’ Plan, District 5, with an African-American voting-age population of 44.75%, has the heaviest concentration of African-American voters.

In Georgia, only a small minority of districts continue to use at-large elections to elect school board members: of the 180 school districts in the state, Fayette County is one of twenty districts with completely at-large elections for all board members.  Despite politically cohesive voting by African-Americans in BOE elections, none of the five African-American candidates that have run for BOE seats has been elected.  African-American voters are also politically cohesive in BOC elections; however, no African-American candidate has ever been elected to that board either.

Under Thornburg v. Gingles, 478 U.S. 30 (1986), to establish a claim of actionable vote dilution under § 2 of the VRA, plaintiffs must establish three “necessary preconditions”: (1) the minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) the minority group must be “politically cohesive,” and (3) the majority must vote “sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.”

The NAACP, in its motion for summary judgment, relied on its Illustrative Plan to support its argument that they have satisfied the first Gingles precondition, i.e., the minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district.”  District 5, which has an African-American voting-age population of 44.57% under the Commissioners’ Plan, has a voting-age population of 50.22% African-Americans under the Illustrative Plan.

Fayette County argued the Illustrative Plan does not meet the first Gingles prong because it amounts to racial gerrymander.  It also contended that the NAACP has failed to establish the first prong because they have not shown that the African-American community in Fayette County is geographically compact.

The NAACP’s motion for summary judgment asserted it had met all three Gingles preconditions and had established that under the totality of the circumstances African-American residents have less opportunity than other members of the electorate to participate in the political process and elect members of their choice to the BOE and BOC.  Fayette County countered that while the NAACP established the second and third Gingles preconditions, it failed to satisfy the first Gingles prong.  The county also contended that the NAACP failed to satisfy the totality-of-the-circumstances test.

Ruling/Rationale: The district court granted the NAACP’s motion for summary judgment, holding that it had demonstrated vote dilution.

Addressing the question of whether the African-American population is sufficiently large to constitute a majority in a single-member district (the first prong), the court concluded that “50.22% is sufficient to show that the minority voting-age population is sufficiently large.”  It pointed out that case law established “that a bright-line 50% rule applies to this inquiry.”  As a result, it found that the 50.22% African-American voting-age population in District 5 of the Illustrative Plan was “sufficiently large to constitute a majority in a single-member district.”

Fayette County argued that the NAACP could not satisfy the first Gingles precondition because the predominant consideration in designing the Illustrative Plan was race, and therefore the plan violated the Equal Protection Clause.  The court pointed out that under such circumstances, the court would apply strict scrutiny to determine if the plan pursues a compelling state interest and is narrowly tailored to achieve that interest.  It stressed that the fact that race was a predominant factor is only the beginning of an equal protection inquiry, not the totality.

After reviewing U.S. Supreme Court precedent regarding equal protection claims, the district court found, contrary to the county’s assertion, that “it is possible that a district created to comply with § 2 that uses race as the predominant factor in drawing district lines may survive strict scrutiny.”  The court emphasized that the question under the first prong of Gingles in a § 2 case is whether the district was created “consistent with traditional districting principles,” which is different than whether traditional districting principles were “subordinated to racial objectives.”

The district court found also that the NAACP had shown that District 5 is geographically compact, as required under the first prong.  It pointed out that the evidence demonstrated that the district includes a community of interest and that residents “share common socioeconomic and political concerns.” The court noted that the NAACP had “offered more than bare assertions in support of their contention that the African-Americans in District 5 form a community of interest.”  It emphasized that even though race was taken into consideration when the plan was created, it was not done so at the expense of other redistricting principles.

The court stated: “In sum, because Plaintiffs have shown that the African-American voting-age population is sufficiently large and geographically compact to constitute a majority-minority district in Fayette County, they have met the first prong of Gingles.”

Fayette County had conceded that the NAACP met the second and third preconditions.  The court stated that “it is undisputed that Fayette County’s African-American population is politically cohesive and that its elections are characterized by racially polarized bloc voting.”

It then turned to whether the NAACP had met its “burden of showing that the ‘totality of the circumstances’ demonstrates vote dilution.”  The court noted that that the NAACP, to succeed in meeting its burden, was not required to “prove discriminatory intent in the design or maintenance of the challenged scheme, but must at least demonstrate discriminatory effect.”

The court stated that the two most important factors are the “extent to which minority group members have been elected to public office in the jurisdiction” and the “extent to which voting in the elections of the state or political subdivision is racially polarized.”  In both areas, the court felt that the NAACP had made a compelling case:

Here, it is undisputed that no African-American has ever been elected to the BOC or BOE and that voting in Fayette County is racially polarized in BOC and BOE elections.  Based on the heavy weight of those two factors along with the other factors identified above that weigh in Plaintiffs’ favor…the Court is satisfied that “under the totality of the circumstances, [African-Americans in Fayette County are] denied meaningful access to the political process on account of race or color.” (citation omitted).

One of the other factors material to the court’s decision was election practices in the county.  The court concluded that Fayette County’s “manner of conducting BOE elections enhances the opportunity for discrimination and contributes to the lack of African-Americans’ success in elections.”  It found that the use of staggered terms, numbered posts and residency requirements in BOC elections, when taken together, were devices that increase vote dilution.  It also found that the county’s majority-vote requirement added weight to a finding of vote dilution.  The court stated: “Because Fayette County employs multiple devices in its BOE and BOC elections that enhance the potential for vote dilution, this factor weighs heavily in favor of [the NAACP].”

Georgia State Conference of the NAACP v. Fayette Cnty. Bd. of Comm., No. 11-123 (N.D.Ga. May 21, 2013)

[Editor's Note: In April 2013, Legal Clips summarized an article in the Los Angeles Times reporting that MALDEF, a leading Latino legal civil rights organization, is suing the ABC Unified School District (ABCUSD) claiming the district is illegally diluting the voting clout of Latinos and barring them from elective office by using an at-large electoral system for school board races.  The suit alleges that no Latino has been elected to the seven-member board in ABCUSD since 1997, although the ethnic group makes up nearly one-fourth of adults of voting age.  The student population is 42% Latino, 26% Asian, 11% Filipino, 10% African American, 7% white, and 1% native Hawaiian or Pacific Islander.

In March 2013, Legal Clips summarized an article in Education Week reporting that a major provision of the Voting Rights Act of 1965 that affects hundreds of school districts, especially in the South, recently went before the U.S. Supreme Court.  The historic law requires states and other jurisdictions covered by Section 5 of the Act to obtain federal approval for any change in voting practices or procedures.  For school systems, the law covers periodic alterations to voting districts for school board members or changes in the makeup of a board, such as switching from at-large to single-member districts.  The 2006 renewal of the law by Congress extended for 25 years Section 5′s special treatment of states and jurisdictions with a history of voter discrimination.  The renewal was challenged by Shelby County, Alabama, which argues that the law is an infringement on state sovereignty.]

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