A panel of federal judges has ruled that Georgia can continue using current district lines pending the outcome of a lawsuit alleging racial gerrymandering in two state House districts.

The federal lawsuit says the Republican-led Legislature unconstitutionally drew the metro Atlanta districts in 2015 to increase the percentage of white voters and decrease the percentage of black voters.

The majority opinion issued last week by a three-judge panel calls the evidence raised in the lawsuit “compelling” but says it falls short of documenting intent to depress black voter strength. For that reason, the opinion says, it’s not appropriate to issue a preliminary injunction to keep the redrawn boundaries from being used while the lawsuit is pending.

The Georgia Constitution says electoral districts should be adjusted as needed following each census. Georgia lawmakers redrew the state House districts in 2011 and further modified them in 2012. Both of those plans were approved by the U.S. Department of Justice in accordance with the Voting Rights Act of 1965.

In 2014, two white Republicans, Joyce Chandler in Gwinnett County and Brian Strickland in Henry County, were narrowly re-elected over black Democratic challengers. Both approached the Georgia Legislative and Congressional Reapportionment Office and the chair of the House Reapportionment Committee, to discuss redrawing their districts to increase their chances of re-election, the opinion says.

The changes were approved by the General Assembly in 2015. Those changes were not pre-cleared with the Justice Department because a 2013 U.S. Supreme Court decision had lifted that requirement.

The lawsuit challenging the redistricting was filed in April 2017 on behalf of the Georgia Conference of the NAACP and individual residents.

A panel composed of 11th U.S. Circuit Court of Appeals Judge Beverly Martin and U.S. District judges Timothy Batten and William Duffey on June 1 declined to grant a preliminary injunction.

“Given the majority’s findings that our case was ‘compelling’ and that the General Assembly’s mid-decade redistricting was not ‘fair’ to African American voters in Districts 105 and 111, the court should have restored the district boundaries as we requested,” Lawyers’ Committee for Civil Rights Under Law Chief Counsel Jon Greenbaum wrote in an email Thursday.

The lawsuit was filed against Georgia Secretary of State Brian Kemp, whose office oversees elections. A spokeswoman for his office did not respond to an email Thursday seeking comment.

A claim of racial gerrymandering must show that race was the main factor behind the decision to move a significant number of voters into or out of a particular district, the opinion written by Martin says. But the state is claiming partisan motivation.

“We did not move these voters because they are black, the State tells us. We moved them because they were Democrats,” the opinion says. “And under current Supreme Court precedent, the State tells us this motive is perfectly acceptable.”

The panel had previously dismissed a partisan gerrymandering claim in the case because the plaintiffs did not provide “any judicially manageable method for measuring discriminatory effect.”

All of the state employees and officials involved in the redistricting have sworn under oath that race played no role in their decisions, Martin wrote.

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.

Those doing the redistricting were openly trying to help Republican incumbents and, in the process, “moved many black voters from districts where their votes would have made an impact into districts where they did not,” Martin wrote.

“Do voters know the people they elect can and do shed their own voters to improve their ability to be re-elected?” Martin wrote. Districts are supposed to provide fair and effective representation, she wrote, but that “is decidedly not what the voters removed from House Districts 105 and 111 got.”

Duffey wrote a concurring opinion in which he agreed only with the decision not to grant a preliminary injunction. He blasted the majority opinion, writing that it improperly speculates on what the facts of the case may ultimately show, makes “editorial-like statements” about the state’s redistricting and election processes and “impugns the veracity” of state witnesses who testified under oath.

 

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