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GORDON, LISA BARNES, SHELIA GARVIN, PORTIA CODJOE, JOYCE CARLISLE, & the GEORGIA LEGISLATIVE BLACK CAUCUS, INC., | | | | | | | Plaintiffs, | | | NATHAN DEAL, in his Official | Capacity as Governor of the | STATE OF GEORGIA, | | Defendant. | ______________________________|

Civil Action File No.: 1:11-cv-00974-TCB


individually, a Aggrieved Voter Plaintiff), and the GEORGIA LEGISLATIVE BLACK CAUCUS, INC., a Georgia corporation, and an association of black elected officials in the State of Georgia (the GLBC or the Aggrieved Legislator Plaintiffs;

collectively, the GLBC and the Aggrieved Voter Plaintiffs are the Plaintiffs), by and through undersigned counsel, and

hereby file this Reply Brief to the Motion to Dismiss filed by NATHAN DEAL, in his official capacity as Governor of the State

of Georgia, and thereby, the State of Georgia (the Defendant), and show the Court as follows: I. Standard of Review under Rule 12(b)(6) When considering a motion to dismiss, the Court must view the complaint in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Moreover, the judge must accept as true all of the factual allegations

contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This includes as the actual complaint, the written by






reference to the complaint, and matters of which the court may take judicial notice. Tellabs Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). Moreover, it must be noted that a Rule 12(b)(6) motion to dismiss "is viewed with disfavor and is rarely granted." Kaiser Aluminum & Chem. Sales v. Avondale

Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983) In order to defeat a Rule 12(b)(6) motion and satisfy the pleading requirements of Federal Rule of Civil Procedure 8, a complaint need only contain a short and plain statement showing an entitlement to relief, and the statement must give the

defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 2

U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); FED. R. CIV. P. 8. See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (citations

omitted); Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). A complaint will not be

dismissed so long as it contains factual allegations sufficient "to raise a right to relief above the speculative level."

Twombly at 555. See also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (claim must have "facial plausibility"); Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). II. The Plaintiffs Properly Pled Section 2, 14th Amendment, and 15th Amendment Claims. Defendant alleges that the Plaintiffs have failed to state a claim upon which relief can be granted on their Section 2 claim under the Voting Rights Act, 14th Amendment claim, and 15th Amendment claim. However, a review of the facts alleged in the

Complaint and the case law reveal that the Defendants claims ring hollow, and that to the Plaintiffs the have made sufficient under

factual Twombly.





a. Elements of Section 2 Claim Section standard, 2 of the or Voting procedure Rights . . . Act, which prohibits results any in a


denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or membership in a language minority group], 42 U.S.C. 1973(a) (1994)

(incorporating id. 1973b(f)(2)), and provides a private cause of action for vote dilution. Vote racial or dilution generally minority occurs when the majority and a





candidates, and a government entity manipulates voting districts to dilute the voting strength of a politically cohesive minority group. See Voinovich v. Quilter, 507 U.S. 146, 15354 (1993).

Typically, this is accomplished by either by fragmenting the minority voters among several districts where a bloc-voting

majority can routinely outvote them, or by packing them into one or a small number of districts to minimize their influence in the districts next door. 1007 (1994). Johnson v. De Grandy, 512 U.S. 997,

A claim of vote dilution is essentially a claim

that members of a racial or language group do not have an equal opportunity to participate in the electoral process as their white or English speaking counterparts. The Supreme Court outlined the elements of a Section 2 In Gingles, a plaintiff

claim in Thornburg v. Gingles, 478 U.S. 30 (1986). the Supreme Court defined three conditions that

asserting a vote dilution claim under Section 2 must satisfy to make a valid claim: 1. their minority group is sufficiently large and geographically compact to constitute a majority in a single-member district, and thus that the state could have drawn an additional majorityminority district; 2. the minority group is politically cohesive, in the sense that its members vote in a similar fashion; and 3. the white electorate votes as a bloc, thus enabling whites usually to defeat the minority groups preferred candidates at the polls. See Id. at 5051. Indeed, it must be highlighted at this juncture that

allegations of discriminatory intent or purpose are not required to state a Section 2 claim. In fact, vote dilution can be

caused by facially neutral actions, so long as, the action has the effect of diluting minority votes. See e.g., City of Mobile

v. Bolden, 446 U.S. 55, 61-66, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). b. The factual allegations in the Complaint clearly establish all of the Gingles preconditions. First, the requirement of a sufficiently large and

geographically compact minority group basically asks whether a remedy is possible.1 Or, in the alternative, if the minority

The reason that a minority group making such a challenge must show, as a threshold matter, that it is sufficiently large and 5

group is so small and dispersed, no single member district could be created to remedy its grievance. Sanchez v. Colorado, 97 F.3d 1303, 1311 (10th two Cir. 1996). The first On Gingles the one





hand, it requires that the minority group be sufficiently large . . . to constitute a majority in a single-member district. Gingles, 478 U.S. at 50. And on the other, it requires a

geographically compact minority population. Id.

Courts have

been flexible in assessing the required showing to establish that the minority group at issue is geographically compact, but generally all agree that the minority population must be

geographically compact enough to form a majority in a singlemember district.2

geographically compact to constitute a majority in a singlemember district is this: unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice. Gingles, 478 U.S. at 50 n.17. 2 The first Gingles precondition does not require some aesthetic ideal of compactness, but simply that the minority population be sufficiently compact to constitute a majority in a single-member district. Clark v. Calhoun County, 21 F.3d 92, 95 (5th Cir. 1994) (citation omitted); Sanchez v. Colorado, 97 F.3d 1303, 1311 (10th Cir. 1996) (quoting Clark); Houston v. Lafayette County, 56 F.3d 606, 611 (5th Cir. 1995) (Compactness . . . is not as narrow a standard as the district court construed it to be.). 6

The second Gingles precondition requires that the minority group demonstrate that it is politically cohesive.3 Circuit observed, [t]he inquiry is essentially As the Ninth whether the

minority group has expressed clear political preferences that are distinct from those of the majority. Gomez v. City of

Watsonville, 863 F.2d 1407, 1415 (9th Cir. 1988). Lastly, the Gingles Court stated that racial bloc voting exists where there is a consistent relationship between the race of the voter and the way in which the voter votes, or to put it differently, where black voters and white voters vote differently. Gingles, 478 U.S. at 53 n.21 (quotation marks and citations omitted). enable the white most of This prong requires white bloc voting to majority the time, to thus of its defeat minority-preferred the Id. minoritys at 5558;

candidates ability to

impairing choice.



Sanchez, 97 F.3d at 1319.4

If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Gingles, 478 U.S. at 51. Thus, evidence of political cohesiveness is shown by voting preferences as demonstrated in actual elections to establish racially polarized voting, because political cohesiveness is implicit in racially polarized voting. Sanchez v. Colorado, 97 F.3d 1303, 1312 (10th Cir. 1996); Gomez, 863 F.2d at 141415. 4 See also Jenkins v. Red Clay Consolidated School District Board of Education, 4 F.3d 1103, 1123 (3d Cir. 1993) (The correct 7

In factual namely,


Complaint, to


Plaintiffs the




allegations that Fulton

satisfy and


prerequisites are





minority jurisdictions (See Complaint at 14 and 21); that the county and municipal political subdivisions of Georgia are

mutually exclusive in regards to home rule (See Complaint at 33); that the MVDs are overwhelmingly majority-majority

political subdivisions, but the counties from which the MVDs were carved from are majority-minority political subdivisions (See Complaint 14-22); that the minorities in Fulton and

DeKalb Counties can, and have, worked together to consistently elect minority candidates (See Complaint 14-22); and that since the creation of the MVDs, the minorities in the MVDs have been unable to elect minority candidates to represent them at the same frequency that persisted at the county level prior to the creation of the MVDs (See Complaint allegations, taken as a whole, 14-22). These factual that the



question is not whether white voters demonstrate an unbending or unalterable hostility to whoever may be the minority groups representative of choice, but whether, as a practical matter, the usual result of the bloc voting that exists is the defeat of the minority-preferred candidate.) The inquiry is basically whether whites vote frequently enough as a bloc to enable them to defeat the minority candidate. Sanchez, 97 F.3d at 1313; Page v. Bartels, 144 F. Supp. 2d 346, 362, 36465 (D.N.J. 2001) (third Gingles precondition is not satisfied where white bloc voting is insufficient to defeat minority candidates). 8

minority population in Fulton and DeKalb Counties is politically cohesive, that it is large and geographically compact enough to control a district (e.g., Fulton County), and that the whites in the MVDs vote as bloc to elect non-minority candidates.

Moreover, the Court should take judicial notice of the fact that the voting population in Fulton and DeKalb Counties have been routinely identified as satisfying the Gingles requirements in prior cases in the Northern District of Georgia. Bodker v. Taylor v. Fulton County, 2002 WL 32587312. c. Under the totality of the circumstances framework, Plaintiffs clearly articulate a case for vote dilution. addition to the three Gingles criteria, the Supreme See e.g.,


Court also requires that the alleged denial or abridgment of the right to vote be shown based on the totality of circumstances. In Johnson v. De Grandy, the Supreme Court emphasized that the trial courts examination of relevant factors is not complete even if the three Gingles preconditions are found to exist and that establishment of the three in combination does not

necessarily and in all circumstances demonstrate vote dilution. See De Grandy, other 512 U.S. at in 1011. the Rather, totality courts of must also




including the extent of the opportunities minority voters enjoy to participate in the political processes. Id. at 101112. 9

In the 1982 amendments to Section 2 of the VRA, Congress listed several relevant, but nonexclusive factors in a totality of the circumstances analysis of a vote dilution claim. Those factors include: in (i) the of the extent or of any history of official that to

discrimination touched the

state the

political of the

subdivision minority




register, to vote, or otherwise to participate in the democratic process; (ii) the extent to which voting in the elections of the state or political subdivision is racially polarized; (iii) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or

procedures that may enhance the opportunity for discrimination against the minority group; (iv) whether members of the minority group have been denied access to any candidate slating process; (v) the extent to which members of the minority group in the state or political in such subdivision areas as bear the effects employment of and



health, which hinder their ability to participate effectively in the political process; (vi) whether political campaigns have

been characterized by overt or subtle racial appeals; (vii) the extent to which members of the minority group have been elected to public office in the jurisdiction; (viii) whether there is a 10










officials to the particularized needs of the members of the minority group; and (ix) whether the policy underlying the state or political subdivision's use of such voting qualification,

prerequisite to voting, or standard, practice or procedure is tenuous. S. REP No. 417, 97th Cong., 2d Sess., at 28-29, (1982), reprinted in 1982 in U.S.C.C.A.N. 177, 206-07). A totality of the circumstances analysis does not require proof of any particular number of factors or that a majority of them point in a specific direction. See Gingles, 478 U.S. at 45. However, before completing a totality of the circumstances

analysis, a district court must recognize that it is required to affect a flexible, local fact-intensive of the inquiry design predicated and impact on of "an the



contested electoral mechanisms" that incorporates a searching practical evaluation of the "past and present reality" . . . . [and a] "functional" view of political life.'" Magnolia Bar

Ass'n, Inc. v. Lee, 994 F.2d 1143, 1147 (5th Cir. 1993), League of United Latin Am. Citizens v. Clements, 999 F.2d 831, 860 (5th Cir. 1993)("LULAC IV")(quoting S. REP. at 30, 1982 U.S.C.C.A.N. at 208).












Defendant has engaged in certain coordinated and specific acts, e.g., the creation of the MVDs, which have diluted their right to vote. Specifically, the creation of the MVDs was

accomplished in such a manner as to circumvent the ability of rightfully elected minority legislators to prevent the vote

dilution of the Plaintiffs.

The Defendant repealed or modified

several long standing state laws which would have prevented the vote dilution the of the Plaintiffs. minority The Defendant of further and





DeKalb Counties from voting on the creation of the MVDs, by limiting the approval referendum to only the putative residents of the MVDs, who were mostly white. Lastly, the Defendant

undertook all of these unusual actions without any clear and legitimate state purpose, other than an illicit one, i.e., to recreate Milton County, and separate the wealthy suburbs of

north Fulton and DeKalb County from the more urban areas in central Fulton County. (See Complaint at 23-28). Given this

political context, combined with the satisfaction of the Gingles prerequisites, dilution framework claim for a the Plaintiffs the 2 have clearly of the stated a vote


totality claim. See

circumstances Bone shirt v.



Hazeline, 336 F. Supps 2D 976, 1024 (D. S.D. 2004), 12

Affds 461

F.3D 1011 (8th Cir. 2006) (holding that the packing of Native Americans into single district and whites in others, violated Section 2 of the VRA). d. Plaintiffs State Proper Section 1983 Claims under the 14th Amendments Equal Protection Clause and 15th Amendment. Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violates Court the has claimants identified in 1983 federally two protected for the a rights. The

Supreme prima

elements --

plaintiffs must





allege both (1) a deprivation of a federal right and (2) that the person who deprived the plaintiff of that right acted under color of state law. Here, the Plaintiffs alleged that they

possess a federally guaranteed right to vote which is protected by both the 14th Amendments Equal Protection Clause and the 15th Amendment. Moreover, See the Brown v. Thompson, further 462 U.S. 835 (1983). been






injured when this right to vote has been intentionally abridged, due to their race, by the State of Georgias creation of a several municipal voting districts. i. Vote Dilution Claims and The Interplay of Section 2, the 14th Amendment, the 15th Amendment and Intent.











summarized in a multi-tiered of framework that has evolved and devolved, piecemeal over time. Initially, Congress intended the

VRA to simplify and streamline the ability of, and the manner in which, minorities brought vote dilution claims, and specifically for smaller instances of vote dilution. Prior to the 1982

amendment to the VRA, the statue and the case law interpreting it essentially tracked the constitutional guidelines previously created around the 14th and 15th Amendment. However, since its

passage, the courts had complicated VRA claims by adding an increasingly stringent intent element to all but the most severe of vote dilution claims under the VRA. See City of Mobile v. Bolden 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980) However, due to the difficulty in proving intent generally, Congress rebuked the courts by amending the VRA in 1982 to

explicitly remove the long standing constitutional requirement to prove overt intent in a vote dilution claim under the 14th and 15th Amendments. The Supreme Court heeded Congress directive

and created the totality of the circumstances test in Gingles. See generally, Gingles, supra., and its progeny. Nevertheless, constitutional despite the fact that each the other VRA in and its




ways, there are significant differences in regards to the intent 14

element. For constitutional vote dilution claims, the importance of the intent element is a matter of degree. For de minimus

vote dilution claims, the case law requires a showing of overt intent for any disputed population disparity less than 10%. At this level of deviation, the constitutional claims threshold inquiry remains unchanged from the years before the 1982

amendment to the VRA.

However, deviations of 10% or more state

a prima facie case against the state, and at this point the factual burden at trial shifts to the state to prove a rational relationship between the change in the voting district and a legitimate state purpose. Whitcomb v. Chavis, 91 S.Ct 1958

(1971); Kilgarlin v. AM, 87 S. CT. 820 (1967) Connor V. Finch 97. S.CT.1828 (1977). Indeed, for even more extreme deviations

in relative populations, typically those in the high teens and above, the courts tend to reject all proffered rationales by the state of a rational relation to a legitimate state interest, and the states case fails as a matter of law Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), Daly. ii. Plaintiffs adequately pled an equal protection claim and a 15th Amendment Vote Dilution Claim. With that brief side bar in regards to the intent element completed, the analysis of a constitutional vote dilution claim


and a VRA claim will generally mirror each other. According to San Antonio Independent School Dist. v. Rodriguez, [i]t has been established in recent years that the Equal Protection

Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any

segment of the State's population. 411 U.S. 1, 59, n. 2, 93 S.Ct. 1278, 1310, n. 2, 36 L.Ed.2d 16 (1973) (STEWART, J.,

concurring) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Kramer v. Union School District, supra; Dunn v. Blumstein, supra ). a plaintiff may state a claim The Supreme Court held that for relief under the Equal

Protection Clause by alleging that a state redistricting plan, while race neutral on its face, has no rational explanation save as a deliberate effort to separate voters into different

districts on the basis of race, and that the separation lacks sufficient justification. See Shaw v. Reno, 509 U.S. 630, 642 (1993) (Shaw I) at 649. For there to be an equal protection

violation, race must not simply have been a motivation for the drawing of a majority-minority district, Bush v. Vera, 517 U.S. 952, 959 (1996), the but instead the predominant decision, factor Hunt v.




Cromartie, 526 U.S. 541, 547 (1999) (Cromartie I). 16

However, given the general difficulty in proving intent as mentioned above, in the voting Supreme Court further or held that to a

modifications voting or

qualifications or

prerequisites that create




deviation greater than 10% in an electorates black and white voting populations, relative to the prior ratio of black voters to white voters, establishes a prima facie violation under both the 14th and 15th Amendments. (1983). See Brown v. Thomson, 462 U.S. 835

In setting a 10% deviation as the prima facie standard,

the Supreme Court created two (2) legal presumptions at the Constitutional level: (1) a deviation of more than 10%

establishes vote dilution and violates the one-man, one-vote principle; and (2) a deviation of more than 10% between blacks and whites in a given jurisdiction establishes the prerequisite racial intent required by both the 14th and 15th Amendments for establishment of a prima facie case. Id. Indeed, in the Mahan

case, the Supreme Court stated, albeit in dictum, that a maximum deviation of 16.4% may well approach tolerable limits. Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). In the case at bar, the Plaintiffs allege that blacks

constitute a voting majority in Fulton County and DeKalb County. Due to the mutually exclusive 17 power of municipalities and

counties, the States creation of the MVDs in the north Fulton and DeKalb area, and the creation of a MVD at the southern end of Fulton County, has geographically compressed or limited the impact of the minority vote, and thus access and control, to central Fulton County. Conversely, minorities that live in north or south have been both divided from the remainder of their cohesive voting block to wit, the minority voting population residing in the center of Fulton County. Indeed, using the respective counties from which the MVDs were carved as benchmarks, the Defendant, created in an act of






political subdivisions, e.g., the MVDs, which shifted local rule of the land areas covered by the MVDs from the county level to the MVDs, wherein the population deviation between whites and blacks exceeds FIFTY PERCENT(50%). Such deviations are

unprecedented in the case law, and not only satisfy the pleading threshold for a vote dilution claim based on the 14th Amendments equal protection clause and the 15th Amendment,5 but actually

The 15th Amendment and the Equal Protection Clause of the 14th Amendment are essentially congruent in the vote dilution context since under either, the claim can only be established by proof that: (i) vote dilution exists and (ii) vote dilution results from a racially discriminatory purpose chargeable to the state. City of Mobile v. Bolden, 446 U.S. 55, 66-70, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). 18

exceed Rule 8 pleading requirements and state a claim of vote dilution as a mater of law, since the population deviations from the counties to the MVDs in this case greatly exceed the 10% threshold established in the case law. See Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) (state legislative reapportionment plans, which deviated from population equality by a total of 9.98%, had no legitimate state policy that justified such

deviations, and thus violated one-person, one-vote principle); Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000) (population variation prima between case districts of vote other of greater and than 10% establishes justify v.

facie by









Davis, 215 F. Supp. 2d 1279 (S.D. Ala. 2002) (maximum deviation of greater than 10% automatically establishes a prima facie

violation of the one-person, one-vote principle for purposes of equal protection claim; burden of proof shifts to the State to justify the deviations by showing a rational and legitimate

state policy for the districts); Wyche v. Madison Parish Police Jury, 635 F.2d 1151 (5th Cir. 1981) (where parochial officials redrew court-ordered voting district lines by extending town

boundaries to include low-income housing projects without court sanction or approval required under the VRA, and the result was to transfer 5% of the parish population, all Black, from a ward 19



would impact

have would

a be


effect when



where against

their past




discrimination against Black voters, warranted an inference of discriminatory purpose and the district court was obligated to take measures to assure the Constitutionality of the election process). iii. The States Creation of the MVDs is an act of redistricting and subject to the 14th and 15 Amendment. Lastly, creation of the the Defendant MVDs by halfheartedly Defendant argues is not that an act the of


redistricting, and is therefore not subject to judicial review under the 14th and 15th Amendments. However, there are numerous instances in the case law where the incorporation of a town, village or city was the source of vote dilution. Indeed, it is

well established that the creation of a village, township or municipality, that can be which are themselves at large voting districts member






districts can dilute or hinder block voting by minorities or otherwise minimize the vote of said block voting minorities in regard to local governance. Such effects, albeit if only local

in nature, obviously create a cause of action under Section 2 of VRA, the equal protection clause of the 14th Amendment ,and the


15th Amendment.

See LeBlanc-Sternberg v. Fletcher, 781 F. Supp.

261(S.D.N.Y. 1991)(Defendants also argue that no vote dilution occurred because, until the Airmont incorporation, plaintiffs did not have any right to vote in Airmont elections. While this is true, we believe defendants have not properly stated the case. Prior to the incorporation, plaintiffs voted in the Ramapo elections and, in doing so, they would attempt to elect

officials who would represent them on matters of local concern including zoning and taxation. Although plaintiffs still possess the right to vote, their v. right Sims, to 377 "fair U.S. and 533, effective 565-66, 84



S.Ct. 1362, 1383-84, 12 L.Ed.2d 506 (1964), on matters of local concern has allegedly been abridged through the deliberate and discriminatory minimization of their votes' effectiveness.),

and see also, Caserta v. Village of Dickinson, 491 F. Supp. 500 (S.D. Tex. 1980). Indeed, redistricting takes many forms and may be

accomplished by decennial legislative apportionment; by altering the boundaries of existing jurisdictions, such as cities e.g., Gomillion v Lightfoot, Reno v. Bossier or by annexation and deannexation, e.g., School Board, 520 U.S. 471 (1997).


Essentially, any action by the state that affects in how a voter may vote and who she votes for, is an act of redistricting and 21

subject to judicial review under Section 2 of the VRA, and the 14th and 15th Amendments. III. The State is the Appropriate Defendant in a Section 2 or 1983 Claim. Defendant also moves to dismiss the Complaint based upon the assertion that the Governor of Georgia is not the party of interest in this matter, because his office lacks the power to provide the relief sought by the Plaintiffs. a. The Governor is Not the Wrong Party. Defendant alleges that the Governor is not the proper party to this action because the Governors office lacks the power to affect any relief fails sought an by the Plaintiffs. of relief However, sought by this the




Plaintiffs, and the source of harm to the Plaintiffs. Plaintiffs seek to end a state action (i.e., the grant of municipal charters to the MVDs) which Plaintiffs contend

constitutes and/or sustains an ongoing violation of federal law. Here, it is not the day to day which operations causes the or any action to the







Plaintiffs, instead it is the actual existence of the MVDs which causes the harm to Plaintiffs. Specifically, the Plaintiffs seek declaratory relief, to wit, a declaration from this Court that the State of Georgias 22

issuance of charters to the Cities of Sandy Springs, Milton, Dunwoody, Chattahoochee Hills, and Johns Creek, and the

consequent changes in the voting districts in DeKalb and Fulton counties, violated Section 2 of the Voting Rights Act, the equal protection clause of the 14th Amendment and the 15th Amendment by abridging the voting rights of Plaintiffs. Moreover, the

Plaintiffs also request injunctive relief, to wit, the enjoining of the State of Georgia from further harming the Plaintiffs by consolidating certain of the MVDs into a county, namely Milton County. Plaintiffs also seek to compel the State of Georgia to withdraw the charters of the MVDs, as it is the very existence of the MVDs which alters the voting districts in Fulton and DeKalb Counties and harms the Plaintiffs, and thus, violates federal law. Indeed, given that the source of the alleged harm is the creation/reorganization of cities and counties, then the only party with the power to affect such changes is the State of Georgia. with Municipalities and counties are creations of the State powers,6 wherein only the State can create a


See Dillon, John, Commentaries on the Law of Municipal Corporations, 5th ed. (Boston: Little, Brown and Company), 1911), pp. 448-50. See Jewel Teac Company v. City Council of Augusta, 59 Ga. App. 260, 200 S.E. 503 (1938); Beazley v. DeKalb County, 210 Ga. 41, 77 S.E.2d 740 (1953); Weber v. City of 23

municipality, municipality.








Furthermore, pursuant to the 11th Amendment, a state may not generally be sued in federal court unless it waives its

sovereign immunity or its immunity is abrogated by an act of Congress under Section 5 of the Fourteenth Amendment. Kimel v.

Florida Bd. of Regents, 528 U.S. 62 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55-57 (1996); Hans v.

Louisiana, 134 U.S. 1 (1890).

Under the doctrine enunciated in

Ex Parte Young, 209 U.S. 123 and its progeny, however, a suit alleging a violation of the federal constitution against a state official in his official capacity for injunctive and declarative relief on a prospective basis is construed as a permissible suit against the state. Id. at 168; Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). Therefore, only the State of Georgia can affect the relief sought by the Plaintiffs, and thus the Governor, in his official capacity as the chief executive officer of the State of Georgia, and thereby the State of Georgia, is not only the proper party

Atlanta, 140 Ga. App. 332, 231 S.E.2d 100 (1976); H.G. Brown Family Ltd. Partnership v. City of Villa Rica, 278 Ga. 819, 607 S.E.2d 883 (2005). 24

to this action, he is the only possible7 party to this action given the relief sought by the Plaintiffs.8 IV. The Factually Intense, Affirmative Defense of Laches Is Not Applicable Under Rule 12(b)(6) Lastly, the Defendant argues that the Complaint should be dismissed due to laches on the part of the Plaintiffs. But

before addressing the merits of this basis for dismissal, it must be noted that the strictures of a Rule 12(b)(6) motion to dismiss, wherein dismissal of the claim is based solely on the complainant's pleading, are not readily applicable to a

determination of laches. grounded on an

Although a Rule 12(b)(6) motion may be defense, the defense of laches


usually requires factual development beyond the content of the

Plaintiffs insist that the MVDs themselves are not required parties under Rule 19, because they lack the power to affect their own creation or abolishment. At best, the MVDs possess the ability to intervene under Rule 24. 8 The Defendant cites only one case -- Kentucky v. Graham, 473 U.S. 159 (1985) -- in support of its contention that this matter should be dismissed because the Governor is an improper party and lacks the power to provide the relief sought by the Plaintiffs. However, the Kentucky case concerns the propriety, under the 11th Amendment, of awarding monetary damages to private plaintiffs when the plaintiffs prevailed on a 1983 claim against state officials in their individual capacities. Given that Plaintiffs do not seek monetary relief, the Plaintiffs have interpreted this basis for dismissal, not as a poorly phrased 11th Amendment challenge to the Complaint, but as an failure to state a claim due to the named party not having the power to affect the desired relief. 25

complaint. The facts evidencing unreasonableness of the delay, lack of excuse, and material prejudice to the defendant, are seldom set forth in the complaint, and at this stage of the proceedings can not be decided against the complainant based solely on presumptions. To borrow words from the Eighth Circuit

[s]o far as laches is concerned, it has been repeatedly held that mere lapse of time does not constitute laches. It is to be determined by consideration of justice, and that is dependent upon the circumstances of each particular case." Des Moines

Terminal Co. v. Des Moines Union Ry. Co., 52 F.2d 616, 630 (8th Cir., 1931). Alternatively, to determine whether the

Plaintiffs claims are barred by laches, this Court would have to know far more than what is currently disclosed in the

Complaint. However, returning to the threshold inquiry for laches on a Rule 12(b)(6), laches requires proof of a lack of diligence by the party against to the whom party the defense the is asserted, and (2) v.





United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961) (citations omitted). See also AmBrit, Inc. v. Kraft Inc., 812 F.2d 1531, 1545 (11th Cir.1986). Dismissal of a claim

on the ground of laches requires that there be (1) unreasonable and unexcused delay in bringing the claim, and (2) material 26











Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1028, 22 USPQ2d 1321, 1324 (Fed.Cir.1992) (en banc ). Both of these factual premises must be met, predicate to the weighing of the facts of delay and prejudice to determine whether justice requires that the claim be barred. The mere passage of time does not constitute laches. When a limitation on the period for

bringing suit has been set by statute, laches will generally not be invoked to shorten the statutory period. Cornetta v. United States, 851 F.2d 1372, 1377-78 (Fed.Cir.1988) (en banc).

Lastly, the burden of proof is on the party that raises the affirmative defense. Returning to the facts as presented in the Complaint, the last of the MVDs was in fact created in 2008, as the culmination of a three year process by the Defendant to re-create Milton County, and to further abridge the voting rights of the


See Complaint at 17, 44.

However, aside from the

fact that the alleged acts of malfeasance by the State occurred over the span of approximately three years (2005-2008), there is no other statement of fact enunciated in the Complaint to

explain the time span between the final enactment of the last city charter for a MVD and the filing of the present lawsuit. There are no factual allegations as to what the Plaintiffs knew 27

or should have known, or when the effects of the creation of the MVDs upon the voting rights of the Plaintiffs would have first manifested. Accordingly, there can be no determination that the

time between the creation of the last of the MVDs, assuming that that is even the proper marker, and the filing of the Complaint was unreasonable or inappropriate. Likewise, there is no evidence contained in the Complaint as to the effect of the lapse in time upon the Defendant e.g., the death of important witnesses or the loss of necessary

documents, and thus, there is no evidence to determine whether or not the State has been materially prejudiced.9 And while

the Defendant makes allegations to the contrary in its Motion to Dismiss, such allegations cannot satisfy its factual burden of proof for a laches defense on a Rule 12(b)(6) motion to dismiss.

Indeed, the Defendant misconstrues the focus of the prejudice inquiry. As stated in the Motion to Dismiss, the Defendant tends to highlight alleged harms to the MVDs themselves, and not any factor relevant to the State of Georgia. Moreover, the Defendant makes no allegations as to how the State would be prejudiced by the passage of time in defending its decision to create the MVDs which is the focus of this litigation. Indeed, the expenditure of monies by third parties does not constitute prejudice, if so, any ilicit act could be insulated from judicial challenge by quickly investing resources into furthering such action. 28

Conclusion Wherefore, for the reasons set forth above - namely that the Plaintiffs have properly pled all of their claims, that the State of Georgia, and thus, the Governor is the proper party in this litigation, and that a laches defense is not supported by the facts contained in the Complaint the Plaintiffs

respectfully request that the Defendants Motion to Dismiss be DENIED in its entirety.

Respectfully submitted, this 15th day of July, 2011. HERNAN TAYLOR & LEE, LLC _______________________ Jerome Lee Georgia Bar #: 443455

6855 Jimmy Carter Boulevard Building 2100, Suite 2150 Norcross, Georgia 30071 Telephone: (770) 650-7200 Facsimile: (678) 735-4512 Email: jerome@htlweb.com Attorneys for the Plaintiffs