||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||October 15, 2002|
Wayne Jernigan, Esq.
P.O. Box 422
Buena Vista, Georgia 31803
Phillip L. Hartley, Esq.
Cory O. Kirby, Esq.
Harben & Hartley
340 Jesse Jewell Parkway
Gainesville, Georgia 30503
Dear Messrs. Jernigan, Hartley & Kirby:
This refers to Act No. 435 (2002), which provides the
redistricting plan for the Marion County School District in
Marion County, Georgia, submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c.
We received your response to our July 1, 2002, request for
additional information on August 16, 2002; supplemental
information was received through October 1, 2002.
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
school district's previous submissions. As discussed further
below, I cannot conclude that the school district's burden under
Section 5 has been sustained in this instance. Therefore, on
behalf of the Attorney General, I must object to the school
district's 2002 redistricting plan.
The school district is governed by a five-member board.
Voters elect five school board members to four-year, staggered
terms from single-member districts. This method of electing the
board of education was adopted in 1986 and received Section 5
preclearance that year. The districting plan adopted at that
time serves as the benchmark to evaluate whether the 2002 plan
withstands scrutiny under Section 5.
According to the 2000 Census, the Marion County School
District, coterminous with Marion County, Georgia, has a total
population of 7,144, of whom 2,425 (33.9%) are black persons.
The voting age population is 5,119, of whom 1,617 (31.6%) are
black persons. As of September 9, 2002, there were 3,863 active
registered voters, of whom 1,302 (33.7%) were black. The 2000
Census indicates that there are three districts under the
benchmark plan, Districts 1, 4, and 5, in which black persons are
a majority of the voting age population: District 1 has a black
voting age population of 60.1 percent, District 4 has a black
voting age population of 57.7 percent, and District 5 has a black
voting age population of 55.1 percent. During the past decade,
black voters have demonstrated the ability to elect candidates of
choice in Districts 1 and 4.
In contrast, the proposed 2002 redistricting plan contains
only two districts in which black persons are a majority of the
voting age population. District 1 retains a significant black
population percentage, District 4 drops to a bare black majority
of both the total (52.1%) and the voting age (50.7%) populations,
and District 5 is no longer a majority black district as the
black voting age population percentage decreases to 36.0 percent.
Our statistical analysis implies that elections in Marion
County are marked by a pattern of racially polarized voting, in
which white and black voters do not usually provide significant
support to candidates supported by the other community. Within
in the context of such electoral behavior, the significant
reduction in black voting strength in District 4 would
necessarily entail a material reduction in the ability of black
voters to elect candidates of choice under the proposed plan.
We recognize that the benchmark plan is severely
malapportioned, with Districts 1, 4, and 5 being the most
underpopulated, and that the black population percentage, on a
county-wide basis, has dropped seven points. Accordingly, our
analysis establishes that it is not possible to remedy the
existing malapportionment and still retain three black population
majority districts. While the loss of a third district that is
majority black in population appears to be unavoidable, the loss
of a second district in which the black voters can elect
candidates of choice is not.
Although the plan drops the number of viable minority
districts by one, the school board contends that this was
necessary as a result of the confluence of the malapportionment
and the drop in the county's black population from 1990, which
made the result inevitable. If a retrogressive redistricting
plan is submitted, the jurisdiction seeking preclearance of such
a plan bears the burden of demonstrating that a less-retrogressive
plan cannot reasonably be drawn. Supplemental
Guidance Concerning Redistricting and Retrogression Under Section
5 of the Voting Rights Act, 66 Fed. Reg. 5411 (Jan. 18, 2001).
Where the jurisdiction asserts that a non-retrogressive plan is
not possible in light of one-person, one vote guarantees or other
constitutional limitations, we look to see if an non-retrogressive
alternative is feasible and, in certain instances, may develop
illustrative plans as part our analysis. Id. at 5413.
Here, our analysis, which included the preparation of such
an illustrative plan, establishes that the significant reduction
in the black voting age population percentage in District 4, and
the likely resulting retrogressive effect on the ability of black
voters to elect a candidate of choice to two seats on the board,
was neither inevitable nor required by any constitutional or
legal imperative. Illustrative plans demonstrate that it is
possible to maintain the black voting age population in District
1 without causing a retrogressive effect and still meet the
school district's stated redistricting criteria.
The ability to devise a plan that does not eliminate a
second district in which black voters can continue to elect
candidates of their choice and also complies with traditional
redistricting principles establishes that the reductions in black
voting strength resulting from implementation of the proposed
plan were not unavoidable. Accordingly, the school district has
failed to meet its burden of demonstrating that the proposed plan
does not have a retrogressive effect.
Under Section 5 of the Voting Rights Act, a jurisdiction
seeking to implement proposed changes affecting voting, such as a
redistricting plan, must establish that, in comparison with the
status quo, the change does not "lead to a retrogression" in the
position of minority voters with respect to the "effective
exercise of the electoral franchise." See Beer v. United States,
425 U.S. 130, 141 (1976). If the proposed plan materially
reduces the ability of minority voters to elect candidates of
their choice to a level less than what they enjoyed under the
benchmark plan, preclearance must be denied. State of Georgia v.
Ashcroft, 195 F. Supp. 2d 25, 77 (D.D.C. 2002).
In light of the considerations discussed above, I cannot
conclude that your burden of showing that the submitted change
does not have a discriminatory effect has been sustained in this
instance. Therefore, on behalf of the Attorney General, I must
object to the submitted redistricting plan. 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 changes have neither 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. See
28 C.F.R. 51.44. In addition, you may request that the Attorney
General reconsider the objection. See 28 C.F.R. 51.45. However,
until the objection is withdrawn or a judgment from the District
of Columbia Court is obtained, the change continue to be legally
unenforceable. Clark v. Roemer, 500 U.S. 646 (1991); 28 C.F.R.
If you have questions on these matters, you should call Ms.
Maureen Riordan (202-353-2087), an attorney in the Voting
Section. Refer to file No. 2002-2643 in any response to this
letter so that your correspondence will be channeled properly.
Ralph F. Boyd, Jr.
Assistant Attorney General