Case 1:21-cv-05339-SCJ Document 334 Filed 12/28/23 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

COAKLEY PENDERGRASS, et al., CIVIL ACTION FILE

Plaintiffs, No. 1:21-CV-05339-SCJ

v.

BRAD RAFFENSPERGER, in his official

Defendant.

ORDER

This action is before the Court to address Plaintiffs’ objections to SB 3EX,

the remedial congressional plan (“2023 Remedial Congressional Plan”). Doc. No.

[317]. 1 As explained below, the Court OVERRULES Plaintiffs’ objections and

APPROVES the 2023 Remedial Congressional Plan.

1All citations are to the electronic docket unless otherwise noted, and all page numbers
cited herein are those imprinted by the Court’s docketing software.
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I. BACKGROUND

Plaintiffs filed this suit alleging that Georgia’s congressional electoral plan

passed by the General Assembly (SB 2EX, henceforth the “2021 Enacted

Congressional Plan”) diluted the votes of Black Georgians in violation of Section

Two of the Voting Rights Act of 1965 (“Section 2”). This Court conducted a bench

trial on Plaintiffs’ claims as well as the claims from two related cases alleging

Section 2 violations in relation to Georgia’s 2021 enacted State House and Senate

electoral plans.2 Following the trial, this Court issued a consolidated Opinion and

Memorandum of Decision on October 26, 2023, containing its Findings of Fact

and Conclusions of Law. Doc. No. [286] (“October 26, 2023 Order”). Ultimately,

this Court concluded that the 2021 Enacted Congressional Plan violated Section

2 in the western part of metro Atlanta. To remedy the statutory violation, the

Court ordered the creation of one additional majority-Black congressional district

in the west-metro Atlanta area. Id. at 509. The Court also stated that “the State

2 See Alpha Phi Alpha v. Raffensperger, No. 1:21-cv-05337-SCJ and Grant v.

cannot remedy the Section 2 violations . . .by eliminating minority opportunity

districts elsewhere in the plans.” Id. at 509–10.

In accordance with Supreme Court precedent, this Court afforded the

General Assembly an opportunity to meet the requirements of Section 2 by

adopting substitute measures. Id. (citing Wise v. Lipscomb, 437 U.S. 535, 539–40

(1978)). During a special session beginning November 29, 2023, the General

Assembly passed the 2023 Remedial Congressional Plan. On December 8, 2023,

Governor Brian Kemp signed the bill into law. Doc. No. [312].

Plaintiffs objected to the 2023 Remedial Congressional Plan (Doc. No.

[317]), Defendant responded (Doc. No. [327]), and Plaintiffs replied (Doc. No.

[328]). This Court conducted a hearing on the objections and the response thereto

on December 20, 2023. Doc. No. [329]. With this background and the Parties’

arguments in mind, the Court resolves Plaintiffs’ objections to the 2023 Remedial

Congressional Plan as follows.

II. OBJECTIONS

Plaintiffs argue that the Georgia legislature not only violated the Court’s

Order but also generated a remedial plan that “independently” violates Section

2 by (1) moving voters from outside of the “explicitly defined vote dilution area

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encompassing 2021 Congressional Districts (“2021 CDs”) 3, 6, 11, 13, and 14” into

the new majority-Black congressional district (“CD”) 6 while failing to remedy

the vote dilution of 50,000 Black voters from the “vote dilution area” (Doc. No.

[317], 6-7) and (2) dismantling 2021 CD 7—a majority-minority district in

Gwinnett County—when there was no need to dismantle the district.

Plaintiffs contend that the 2023 Remedial Congressional District is a

reshuffling of Black voters rather than a remedy to the vote dilution identified by

the Court. Doc. No. [317], 3. To illustrate this argument, Plaintiffs point out that

25% of 2023 CD 6 draws from a majority-Black district outside of the areas at

issue here. Id. at 6–7. Plaintiffs further argue that the new plan breaks up 2021

CD 7, cutting the previous 57.81% minority citizen voting age population in this

district in half, resulting in the elimination of a “minority opportunity district”

despite the Court’s express instruction that the Georgia could not remedy the

Section 2 violation by eliminating “minority opportunity districts elsewhere in

the plan”. Id. (citing the October 26, 2023 Order at 509–10). The result, according

to Plaintiffs, is the creation of one Black-majority district at the expense of a

minority-opportunity district, “zero[ing] out the number of minority-

opportunity districts statewide.” Id. at 13.

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Finally, Plaintiffs claim that the dismantling of 2021 CD 7 independently

violates Section 2 because 2021 CD 7 met the factors required by Thornburg v.

Gingles, 478 U.S. 30 (1986), and thereby was protected by the Voting Rights Act.

Id. at 14. Plaintiffs go on to argue that the evidence they have submitted in

support of their objections to the 2021 Congressional Remedial Plan establishes

that the Gingles preconditions as well as the totality of the circumstances are

satisfied with respect to 2021 CD 7. Id. at 15–24.

In response, Defendant points out that the Court’s order required new

districts in specific regions, as opposed to specific districts. Doc. No. [327], 31–32.

Defendant recognizes that a Section 2 violation cannot be remedied by creating a

new majority-Black district “somewhere else in the state.” Id. at 32. Defendant

nevertheless emphasizes that this prohibition does not require remedial districts

precisely or only in the districts specified by the Court following the liability

phase of the proceedings. Id. at 32–33. Furthermore, Defendant asserts that the

remedial districts were placed in the geographic areas specified by the Court. Id.

at 36. Additionally, Defendant argues that the “minority opportunity district”

Plaintiffs complain of losing was a coalition district (i.e., districts where there are

of multiple racial minority groups who combine to elect the group’s candidate of

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choice) and are not required by Section 2. Id. at 60. Therefore, according to

Defendant, the State has complied with this Court’s order and the elimination of

2021 CD 7 does not violate Section 2, which completes this Court’s inquiry.

III. LEGAL STANDARD

The initial task before this Court is to determine whether the 2023 Remedial

Congressional Plan remedies the Section 2 violations identified in the October 26,

2023 Order through the creation of an additional congressional district in the area

identified by the Court in which Black voters have a demonstrable opportunity

to elect their candidate of choice. The Eleventh Circuit has instructed that the new

plan must “completely remed[y] the prior dilution of minority voting strength

and fully provide[] equal opportunity for minority citizens to participate and to

elect candidates of their choice.” United States v. Dallas Cnty. Comm’n, 850 F.2d

1433, 1437–38 (11th Cir. 1988) (quoting S.REP. No 97-417, at 31 (1982)); see also

Dillard v. Crenshaw Cnty., 831 F.2d 246, 252–53 (11th Cir. 1987) (“This Court

cannot authorize an element of an election proposal that will not with certitude

completely remedy the Section 2 violation.”). Nonetheless, a complete remedy

“does not mean that a § 2 plaintiff has the right to be placed in a majority-minority

district once a violation of the statute is shown.” Shaw v. Hunt, 517 U.S. 899, 917

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n.9 (1996). This is because the State retains broad discretion in drawing districts

to comply with the mandate of Section 2. Id. (citing Voinovich v. Quilter, 507 U.S.

146, 156–57 (1993); Growe v. Emison, 507 U.S. 25, 32–37 (1993)).

Next, the Court must determine whether the elimination of 2021 CD 7

violated this Court’s order, which stated, “[t]he State cannot remedy the Section 2

violations described herein by eliminating minority opportunity districts

elsewhere in the plans.” Doc. No. [286], 509–10. Similarly, the Court must

consider whether the elimination of 2021 CD 7 results in a plan that

independently violates Section 2.

IV. ANALYSIS

As an initial matter, the Court rejects the foundational assumption of

Plaintiffs’ arguments: that because the October 26, 2023 Order listed specific

congressional districts where it found that Plaintiffs had proven vote dilution—

referred to now by Plaintiffs as the “vote dilution area”—the State was confined

to making changes in those districts when creating the 2023 Remedial

Congressional Plan. First, Plaintiffs cite no relevant authority to support this

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view. 3 Second, and more importantly, the Court derived its delineation of

specific districts from the list of districts Plaintiffs challenged in the lawsuit. The

Court did not, and could not, confine the General Assembly to working only

within the enumerated districts to create the additional majority-Black district.

Cf. Shaw, 517 U.S. at 917 n.9 (“States retain broad discretion in drawing districts

to comply with the mandate of § 2.”). Rather, the Court set forth geographic

guidance by specifying an additional majority-Black district in west-metro

Atlanta. Doc. No. [286], 509.

It is certainly true that the State cannot remedy vote dilution by creating a

safe majority-Black district somewhere else in the State. See Shaw, 517 U.S. at 917.

In identifying the geographic area in which vote dilution was found, the Court

listed 2021 CDs 3, 6, 11, 13, and 14. Doc. No. [286], 514. Those districts are shown

below, circled in red:

3Plaintiffs cite Shaw v. Hunt, 517 U.S. 899, 917 (1996) in which the Supreme Court held,
“[i]f a § 2 violation is proved for particular areas . . . [t]he vote-dilution injuries suffered
by these persons are not remedied by creating a safe majority-[B]lack district
somewhere else in the state.” As discussed below, the geographic discrepancy in Shaw
was actually “somewhere else in the state,” which is not the situation in this case. Shaw,
517 U.S. at 917.
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In the 2023 Remedial Congressional Plan, the General Assembly drew an

additional majority-Black Congressional district, CD 6, “in western metro

Atlanta . . ., located in portions of Cobb, Douglas, and Fulton Counties.” Doc. No.

[327-1], 8. As can be seen from the 2023 Remedial Congressional Plan below, 2023

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CD 6 falls squarely within the geographic area of state specified by the Court’s

order:

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Thus, the instant case is not remotely akin to what the Shaw

Court described as “somewhere else in the state.” Shaw, 517 U.S. at 917.

Plaintiffs’ objections contain the overarching theme that the 2023 Remedial

Plans do not cure vote dilution for enough Black voters in the specified area.

However, it is certain that “the inevitably rough-hewn, approximate redistricting

remedy” will result in some members of the minority group residing outside of

the minority-controlled districts. McGhee v. Granville Cnty., 860 F.2d 110, 119

(4th Cir. 1988). Thus, Plaintiffs’ only remaining argument is that the location of

the additional majority-Black district proposed by Plaintiffs helps more Black

voters than the placement of CD 6 in the 2023 Remedial Congressional Plan. To

put it more starkly, Plaintiffs contend that their illustrative plan is a better

remedy than the State’s 2023 Remedial Congressional Plan. Because this Court

cannot intrude upon the domain of the General Assembly, however, it declines

Plaintiffs’ invitation to compare the 2023 Remedial Congressional Plan with a

plan preferred by Plaintiffs and crown the illustrative plan the winner. See Allen

v. Milligan, 599 U.S. 1, 21 (2023) (“The District Court . . . did not have to conduct

a beauty contest between plaintiffs’ maps and the State’s.”) (quoting Singleton v.

Merrill, 582 F. Supp. 3d 924, 1012 (N.D. Ala. 2022)).

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The next objection raised by Plaintiffs pertains to the elimination of 2021

CD 7, a majority-minority district located in east-metro Atlanta. Plaintiffs

presume that the Court’s instruction to the State to refrain from eliminating

“minority opportunity districts” encompassed 2021 CD 7. From its onset,

however, this case has been about Black voters – as necessitated by Plaintiffs’

Complaint. See generally Doc. Nos. [1] (Original Complaint); [120] (Amended

Complaint). The Court’s entire analysis of political cohesiveness, the second

Gingles precondition, has pertained to Black voters. Doc. No. [286], 203-205. This

Court has made no finding that Black voters in Georgia politically join with

another minority group or groups and that white voters vote as a bloc to defeat

the candidate of choice of that minority coalition. Therefore, the Court’s reference

to “minority opportunity districts” in the October 26, 2023 Order could not refer

to any potential coalition district. Thus, the dismantling of CD 7 in the 2023

Remedial Plans did not violate this Court’s order.

Finally, Plaintiffs contend that the 2023 Remedial Congressional Plan

independently violates Section 2 by eliminating CD 7. To prevail on a new Section

2 claim, Plaintiffs would have to satisfy the same standard they did with respect

to the 2021 Enacted Congressional Plan, i.e., demonstrate the existence of the

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three Gingles prerequisites (numerosity/compactness, political cohesiveness,

and white bloc voting) as well as show under the “totality of circumstances, that

the political process is not equally open to minority voters.” Milligan, 143 S. Ct.

at 1503 (quoting Gingles, 478 U.S. at 45–46). Notably, Plaintiffs offer evidence to

support this new claim for the first time in conjunction with their objections. Doc.

Nos. [317-2], [317-5]. There was no evidence introduced at trial regarding a

coalition of minority voters. In essence, Plaintiffs now seek to litigate a whole

new basis for a Section 2 violation involving a combination of three minority

groups at the remedial stage of their case—which up until now has involved only

Black voters. This is the type of challenge to a remedial districting plan that

demands development of significant new evidence and therefore is more

appropriately addressed in a separate proceeding. See Covington v. North

Carolina, 283 F. Supp. 3d 410, 427 (M.D.N.C.), aff’d in part, rev’d in part, 138 S.

Ct. 2548 (2018). Accordingly, the Court declines to decide the merits of Plaintiffs’

new Section 2 claim premised on a coalition of minority groups.4

4The Court will not opine on the legal and factual issues presented in Plaintiffs’ new
Section 2 claim: whether Section 2 protects coalition districts and if there is an
evidentiary basis for Plaintiffs’ Section 2 claim of a coalition district around the area of

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As the Court recognized in its October 26, 2023 Order, “redistricting and

reapportioning legislative bodies is a legislative task [which] the federal courts

should make every effort not to preempt.” Doc. No. [294], 509. Here, the

committee and floor debate transcripts make clear that the General Assembly

created the 2023 Remedial Congressional Plan in a manner that politically

protected the majority party (i.e., the Republican Party) as much as possible. Doc.

Nos. [327-6], Tr. 9:3–6; [327-9], Tr. 9:3–5. However, redistricting decisions by a

legislative body with an eye toward securing partisan advantage does not alone

violate Section 2. See Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484, 2501

(2019). In fact, the Supreme Court has expressly stated that federal judges have

no license to reallocate political power between the two major political parties,

2021 CD 7. The Court acknowledges that it cannot approve a remedial plan with a
known Section 2 violation. Cf. Dallas Cnty. Comm’n, 850 F.2d at 1437 (“It is clear that
any proposal to remedy a Section 2 violation must itself conform with Section 2.”
(quoting Dillard, 831 F.2d at 249)). However, based on the evidence in the record in this
case, the Court cannot say that a Section 2 violation exists in the 2023 Remedial
Congressional Plan. The Court makes clear that it is not indicating whether such claim
could be supported after full factual development and presentation of evidence post-
discovery. Rather, the Court finds that such new Section 2 claim is better suited for a
separate case, not as part of the remedial proceedings at issue in this Order. See
Covington, 283 F.Supp.3d at 427 (“[S]ome challenges to a remedial districting plan . . .
demand development of significant new evidence and therefore [are] more
appropriately addressed in a separate proceeding.”).
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given the lack of constitutional authority and the absence of legal standards to

direct such decisions. Id. at 2507; see also Seastrunk v. Burns, 772 F.2d 143, 151

(5th Cir. 1985) (“It is the legislature’s function to make decisions of basic political

policy. Thus, even where a legislative choice of policy is perceived to have been

unwise, or simply not the optimum choice, absent a choice that is either

unconstitutional or otherwise illegal under federal law, federal courts must defer

to that legislative judgment.”). Plaintiffs’ objections to the contrary are overruled.

V. CONCLUSION

The Court finds that the General Assembly fully complied with this

Court’s order requiring the creation of a majority-Black congressional district in

the region of the State where vote dilution was found. The Court further finds

that the elimination of 2021 CD 7 did not violate the October 26, 2023 Order.

Finally, the Court declines to adjudicate Plaintiffs’ new Section 2 claim based on

a coalition of minority voters. Hence, the Court OVERRULES Plaintiffs’

objections (Doc. No. [317]) and HEREBY APPROVES SB 3EX.

IT IS SO ORDERED this 28th day of December, 2023.

HONORABLE STEVE C. JONES

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