Judge Beverly B. Martin (Photo: John Disney/ALM) Judge Beverly Martin, U.S. Court of Appeals for the Eleventh Circuit (Photo: John Disney/ALM)

Despite citing “compelling evidence” that the Georgia General Assembly racially gerrymandered two metro Atlanta legislative districts to assure Republican wins in 2016, a federal three-judge panel has refused to enjoin the new lines as unconstitutional.

Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit, who authored the majority opinion, said the process that led the Georgia General Assembly in 2015 to redraw two politically competitive state House districts to benefit Republican incumbents was “decidedly not” fair and effective representation of voters, most of whom are African-American.

The panel—which also included Judges Timothy Batten and William Duffey Jr. of the U.S. District Court for the Northern District of Georgia—refused to grant the injunction in its June 1 ruling because the case “turns on a credibility determination, where one side has taken an oath that race was not a factor in how the redistricting lines were drawn, and the other side is not in a position to swear that it was,” Martin wrote.

While the panel agreed an injunction wasn’t warranted, Martin’s majority opinion questioned the veracity of legislative staff who testified in pretrial depositions and the ultimate fairness of the redistricting process drew sharp criticism from Duffey in a separate concurring opinion.

Duffey’s blunt critique, in turn, prompted equally sharp rejoinders by the majority in what, at times, amounted to a bare-knuckle verbal brawl among the panelists.

Duffey criticized the majority for finding anything “compelling” about evidence presented on behalf of the Georgia chapter of the NAACP or disenfranchised residents of District 105 in Gwinnett County and District 111 in Henry County, who sued the State of Georgia and Secretary of State Brian Kemp last year.

Calling the NAACP’s case “weak” and “circumstantial,” Duffey said the facts presented by the plaintiffs did not support the other panelists’ “unnecessary and overreaching statement that the plaintiffs’ case is ‘compelling.’”

Duffey also took issue with what he described as “editorial-like statements made about this state’s redistricting and election processes.”

“The majority opinion, in some cases rather directly, and in other cases by innuendo, impugns the veracity of state employee witnesses who testified in depositions under oath,” he said. “It is in my view inappropriate, at this stage of the case and on the record here, to malign a witness by suggesting they have offered false testimony when they have not had the opportunity to testify in person at a hearing.”

Martin fired back. “When our review of the record revealed contradictions in the testimony presented to us, we have viewed it as our obligation to take those complexities into account,” she wrote.

Testimony by Gina Wright, executive director of the Georgia Legislative and Congressional Reapportionment Office and staff member Dan O’Connor, “are sometimes at odds with other evidence in the record,” Martin wrote.

“For that reason,” Martin added, “We reject [Duffey’s] veracity characterizations.”

“Ms. Wright and her colleagues openly undertook to help Republican incumbents,” Martin continued. “In doing so, the 2015 redistricting moved many black voters from districts where their votes would have made an impact into districts where they did not. Do voters know the people they elect can and do shed their own voters to improve their ability to be reelected?”

The suit was filed last year in federal court in Atlanta by nearly a dozen attorneys working with the national nonprofit Lawyers’ Committee for Civil Rights Under Law on behalf of the Georgia NAACP and voters in those districts.

William Custer, a partner at Bryan Cave in Atlanta and a Lawyers’ Committee member, said the plaintiffs are disappointed the preliminary injunction was denied.

“We are highly gratified that the majority of the panel found that there is compelling evidence that race predominated in the redrawing of Districts 105 and 111,” Custer said. “We thus remain confident in our legal position as the case progresses from here.”

A spokeswoman for Georgia Secretary of State Brian Kemp, the defendant, did not respond to requests for comment. Kemp is running for governor and faces a runoff for the Republican nomination. He broke out of the pack—and made national news—with a campaign ad featuring a shotgun and his daughter’s supposed suitor, and a second ad where he called himself “a politically incorrect conservative.” His opponent is Lt. Gov. Casey Cagle.

The state was dismissed as a defendant last year.

Georgia is not the only state to challenge suspected racial gerrymandering in federal court. In 2016, a three-judge panel in North Carolina ruled that 28 of the state’s legislative districts were unconstitutionally racially gerrymandered. That ruling has been stayed by the U.S. Supreme Court, pending an appeal.

Earlier this year, the U.S. Supreme Court agreed to hear a Texas racial gerrymandering case. The high court also is deliberating on a Wisconsin case challenging partisan gerrymandering as  unconstitutional.

The push to redraw the two Georgia House districts began shortly after Rep. Joyce Chandler, District 105’s white Republican incumbent from Grayson, won her 2014 race with only 52.8 percent of the vote, and Rep. Brian Strickland of McDonough, also a white Republican, won District 111 with 53.1 percent.

Fearing a demographic shift, the two legislators sought help from Wright’s staff and House Reapportionment Committee Chairman Randall Nix, R-LaGrange.

Using a software program called Maptitude—which can show party affiliation percentages within a district as well as race data on a block-by-block basis—the legislators and staffers began exploring options for redrawing their district maps, the opinion said.

Wright acknowledged when she was deposed that her objective “was to make these districts, if at all possibly anyway, better for these incumbents to get reelected,” the majority opinion said.

But, Martin wrote, “This record leaves no doubt that Ms. Wright, Mr. O’Connor, and all the other stakeholders involved, knew plenty about the racial demographics of Districts 105 and 111.”

Duffey disagreed. The majority opinion, he contended, “conjures up a group sitting in a room clicking on Maptitude to move black voters from one district to another with the intent to depress black voting strength.”

Martin rejoindered: “As for the group sitting in a room clicking on Maptitude, our opinion conjured this up only to the extent that we rely on the testimony of Representative Nix that it happened,” she said. “He plainly testified that interested parties did indeed sit together in a room and click through Maptitude in an attempt to draw safer Republican districts.”

Martin added that O’Connor sent an email the day after the House Reapportionment Committee approved a bill redrawing the boundaries. The email said the approved bill would reduce the number of black voters in Chandler’s district by two percentage points.

“This email supports an inference that those involved in the redistricting were keeping a close eye on race and considered a decrease in ‘the black percentage’ in District 105 to mean they’d accomplished their mission,” Martin wrote.

But to state a claim for racial gerrymandering, the plaintiffs must show race was the predominant factor motivating the legislature’s decision to redraw the two districts’ lines, Martin said.

The state contended the decision to redraw the lines constituted partisan, not racial, gerrymandering that shifted voters around because they were Democrats, not because they were black.

“Under current Supreme Court precedent, the state tells us this motive is perfectly acceptable,” Martin wrote. But if the state has “placed a significant number of voters within or without a district predominantly because of their race,” they have engaged in unconstitutional racial gerrymandering, even if the ultimate objective of those moves was partisan advantage.”

Martin acknowledged that the plaintiffs did bring a partisan gerrymandering claim, which the panel dismissed last year because the plaintiffs “did not present us with any judicially manageable method for measuring discriminatory effect.”

Read the decision: