L-R Beverly Martin, William Duffey and Timothy Batten
L-R Beverly Martin, William Duffey and Timothy Batten ()

A rare three-judge panel in Atlanta has dramatically narrowed a federal voting rights suit that accused the Georgia General Assembly of unconstitutional racial and partisan gerrymandering in order to keep two increasingly diverse state House districts safely in Republican hands.

The panel—Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit and U.S. District Judges William Duffey Jr. and Timothy Batten—on Aug. 25 granted the state’s motion to dismiss claims that the Republican-dominated state legislature’s 2015 decision to redraw two districts in Atlanta’s northern and southern exurbs was intended to discriminate against and dilute the minority vote in violation of the federal voting rights and civil rights laws. The panel also dismissed a second claim that the 2015 “out of cycle” redistricting also constituted political gerrymandering in violation of the 14th Amendment right to equal protection under the law.

The panel left intact a single claim that redrawing the lines in House District 105 in Gwinnett County and District 111 in Henry County constituted racial gerrymandering—a claim the state has not yet asked to dismiss.

The suit was filed 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 who claimed their votes had been unconstitutionally diluted by out-of-cycle and largely secret legislative redistricting in 2015.

The judges’ panel dismissed the voting and civil rights claims, even though Martin, who authored the opinion, said neither the state nor Kemp disputed the plaintiffs’ contention that the districts’ reconfiguration was done with an intent to racially discriminate. But, she added, intent was not enough. “The plaintiffs must also ultimately establish a discriminatory effect.” And that, she said, they failed to do.

Martin said the NAACP also successfully alleged that the redistricting was undertaken with an intent to discriminate against Democratic voters. But again, Martin said, the plaintiffs failed to give the judges an acceptable method or metric for “measuring the discriminatory effect of partisan gerrymandering,” even though she acknowledged that the U.S. Supreme Court “has never agreed on one.”

The panel dismissed the two claims without prejudice and left open the possibility that the NAACP may file an amended complaint if it wants. It also held that the state is not entitled to sovereign immunity when accused of running afoul of the federal Voting Rights Act.

The Legislature’s decision to redraw the two districts’ lines took place just three years after the General Assembly had redrawn district lines across the state based on the 2010 census and less than two years after the U.S. Supreme Court invalidated Section 4 of the Voting Rights Act that for nearly 50 years had required Georgia to preclear any changes involving state and local voting laws with the U.S. Justice Department.

The suit claimed that Republican legislators used racial demographics and analyses of past elections to reconfigure the districts to minimize Democratic and minority voting strength. Both districts, according to the suit, had Republican representatives, but Republican margins of victory were shrinking as the two counties became more racially and ethnically diverse.

The suit also claimed that House Bill 566, which codified the newly configured districts in 2015, was enacted outside of normal legislative procedures and without public review or comment. It also claimed that African-American legislators were excluded from the redrawing process and negotiations over the bill.

The NAACP and its counsel had asked the three-judge panel to declare H.B. 566 unconstitutional. The suit also sought an injunction that would bar Georgia Secretary of State Brian Kemp, who has announced he is running for governor in 2018, from implementing the new district lines. The suit also asked the judges to require that Georgia preclear any voting changes—a requirement abolished in 2013 by the U.S. Supreme Court.

“We are disappointed with the decision,” Lawyers’ Committee attorney Jon Greenbaum said Tuesday. “We are going forward on the racial gerrymandering claim and believe we will prevail,” he said. “One of the things that is very important from our point of view is that we get this case tried and have a decision on it so it affects the 2018 election cycle.”

Greenbaum also said several federal voting rights suits from Texas over what constitutes unconstitutional discriminatory intent and a partisan gerrymandering case from Wisconsin, Gill v. Whitford, that is now before the U.S. Supreme Court, also may have an impact on the pending Georgia case. The courts, he explained, “have been having a hard time” with the constitutionality of partisan gerrymandering. “We are hoping that what will happen is that the Supreme Court will come down with an opinion in that case [Whitford] that will make it more clear that we can bring our case using a partisan gerrymandering theory,” he said.

The Daily Report has contacted a spokeswoman for state Attorney General Chris Carr, whose office is defending the state and Kemp and is awaiting a reply.