Mr. Michael S. Green, Esq.
Mr. Patrick O. Dollar, Esq.
Grant & Green, LLC
P.O. Box 60
Royston, Georgia 30662
Mr. Cory O. Kirby, Esq.
Harben, Hartley & Hawkins
340 Jesse Jewell Parkway
Wells Fargo, Georgia 30501
Dear Messrs. Green, Dollar and Kirby:
This refers to the 2011 redistricting plan for Board of
Commissioners and for the Board of Education of Greene County, Georgia,
submitted to the Attorney General pursuant to Section 5 of the Voting Rights
Act of 1965, 42 U.S.C. 1973c. We received the response to our request for
additional information from the board of commissioners and the board of
education on February 13, 2012; additional information was received
through March 28, 2012.
We have carefully considered the information you have provided, as well as
census data, comments and information from other interested parties,
and other information, including the county’s previous submissions.
Under Section 5, the Attorney General must determine whether the submitting
authority has met its burden of showing that the proposed changes neither have
the purpose nor will have the effect of denying or abridging the right to
vote on account of race or color or membership in a language minority group.
United States, 411 U.S. 526 (1973); Procedures for the
Administration of Section 5 of the Voting Rights Act of 1965, 28 C.F.R.
51.52(c). For the reasons discussed below, I cannot conclude that either
board’s burden under Section 5 has been sustained as to the submitted changes.
Therefore, on behalf of the Attorney General, I must object to the
changes currently pending before the Department.
According to the 2010 Census, Greene County has a total population of 15,994,
of whom 6,135 (38.4%) are black, and a total voting age population of 12,697,
of whom 4,358 (34.3%) are black. Since 1990, the county’s total population has
grown, while its black population percentage has decreased. These changing
demographics underlie our analysis of the 2011 redistricting plan. Both the
board of commissioners and the board of education have five members, of whom
four are elected from single-member districts and one is elected at-large
countywide. Under the benchmark plan, black voters had the ability to elect
candidates of choice in two of the single-member districts, Districts 1 and 2.
Under the proposed plan, neither District 1, with a black voting age population of 39.6
percent, nor District 2, with a black voting age population of 45.1 percent,
are ability-to-elect districts for black voters. The county identifies proposed
District 3 as one in which black residents would have the ability to elect candidates of
choice. Our analysis has determined otherwise. Although the black percentage of the
electorate does increase in proposed District 3, the registered voter data for this
proposed district shows that white registered voters will continue to be a
majority in the district. In combination with the racially polarized voting
that exists in the district, the proposed district will not provide black voters
with the requisite ability to elect a candidate of choice. As such, there are
no ability-to-elect districts in the proposed plan.
The elimination of both ability-to-elect districts was unnecessary and avoidable.
Although there has been a decrease in the black share of the county’s population
over the past ten years, the ability to draw at least one black ability-to-elect
district still existed. In this regard, we note that a redistricting plan that
provided one ability-to-elect district out of four districts, and out of five
total seats, may not have constituted a prohibited effect under Section 5.
There may be circumstances in which the jurisdiction asserts that, because of
shifts in population or other significant changes since the last redistricting,
retrogression is unavoidable. In those circumstances, the submitting jurisdiction
seeking preclearance of such a plan bears the burden of demonstrating that a
less-retrogressive plan cannot reasonably be drawn.
Guidance Concerning Redistricting Under Section 5 of the Voting Act, 76 Fed.
Reg. 7470, 7472 (Feb. 9, 2011). Minority officials presented several such
alternative plans. Because some of these plans sought to maintain two
ability-to-elect districts, the plans contained districts that may
not have been as strong as those that existed in the benchmark plan. They did,
however, inform county officials that less retrogressive plans were possible.
The county, however, proceeded to endorse, and the legislature proceeded to adopt for
the county, a plan that eliminated both ability-to-elect districts, never
pausing to determine whether a plan with one ability-to-elect district was
acceptable, and voted along racial lines to adopt the proposed plan.
Based on the existence of less retrogressive alternative plans presented during
the redistricting process, it is clear that the county has failed to establish
the absence of a discriminatory effect, even in the context of the changed
demographics. There is sufficient credible evidence that precludes the county from
establishing, as it must under Section 5, that the redistricting plan to elect the
board of commissioners and board of education will not have a retrogressive
Under Section 5 of the Voting Rights Act, the submitting authority has the burden
of showing that a submitted change has neither a discriminatory purpose nor a
discriminatory effect. Georgia v. United States, 411 U.S. 526 (1973); 28
C.F.R. 51.52. In light of the considerations discussed above, I cannot conclude
that your burden has been sustained in this instance. Therefore, on behalf of
the Attorney General, I must object to the county’s 2011 redistricting plan for
the board of commissioners and the board of education for Greene County.
We note that under Section 5 you have the right to seek a declaratory judgment
from the United States District Court for the District of Columbia that the
proposed change neither has the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or membership in a
language minority group. 28 C.F.R. 51.44. In addition, you may request
that the Attorney General reconsider the objection. 28 C.F.R. 51.45.
However, until the objection is withdrawn or a judgment from the United
States District Court for the District of Columbia is obtained, the submitted
changes continue to be legally unenforceable. Clark v. Roemer,
500 U.S. 646 (1991); 28 C.F.R. 51.10. To enable us to meet our responsibility
to enforce the Voting Rights Act, please inform us of the action that Greene
County plans to take concerning this matter. If you have any questions, you
should contact Robert S. Berman (202/514-8690), a deputy chief in the Voting Section.
/ s /
Thomas E. Perez
Assistant Attorney General