Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 1 of 93

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1 ORIGNAL Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 1 of 93 V" AEtiO IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SARA LARIOS, et al., ) Plaintiffs, ) CIVIL ACTION N0.1 :03-CV-693-CAP v. ) (Three-Judge Court) CATHY COX, in her official ) capacities as Secretary of State and ) Chair of the State Election Board, ) Defendant. ) DEFENDANT'S PROPOSED FINDINGS OF FACT ANA CONCLUSIONS OF LAW COMES NOW Cathy Cox, by and through her counsel the Attorney General of Georgia, and files these pre-trial Proposed Findings of Fact and Conclusions of Law pursuant to the Court's Order and LR 16.4.B.25, N.D. Ga. : FINDINGS OF FACT A. A HISTORICAL OVERVIEW OF REAPPORTIONMENT IN GEORGIA PRIOR TO THE REDISTRICTING CYCLE 1. The U.S. Constitution provides that "[Congressional] Representatives... shall be apportioned among the several states which may be included within this Union, according to their respective numbers U.S. Const. art. T, _ I.DOC

2 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 2 of The Georgia Constitution requires the State Senate and State House of Representatives to be reapportioned as necessary after each decennial census. Ga. Const. Art. III, 2, The Georgia State Senate consists of 56 Senators elected from singlemember districts apportioned among the respective districts of the State of Georgia. Ga. Const. Art. III, 2, 11 (a) ; O.C.G.A , Members of the Georgia State Senate are elected for two-year terms and serve until the time of the convening of the next General Assembly. Ga. Const., Art. III, 2, 1 V(a). 4. The Georgia House of Representatives consists of not fewer than 180 members apportioned among the respective districts of the State of Georgia. Ga. Const. Art. III, 2, 11 (b) ; O.C.G.A Members of the Georgia House of Representatives are elected for two-year terms and serve until the time of the convening of the next General Assembly. Ga. Const., Art. III, 2, 1 V(a). 5. In the 1970s, redistricting was accomplished with rudimentary equipment and data. Maps were composed on paper and district were colored with crayons. 2

3 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 3 of 93 The State's census figures were broken down by county and then into county census divisions and further subdivided into enumeration districts. Drawing maps based on this method of dividing population was difficult because county subdivisions and enumeration districts did not follow the same lines that serve as boundaries for political subdivisions. Instead, the units of population were based upon areas designed for the administrative convenience of the Census Bureau. Meggers Trial Test. 6. Georgia's Legislative Reapportionment Office did not use political data in the 1970s because it had no way to compile and organize that data to make it useful. However, political considerations were then, and always have been, part of the redistricting process. Without sophisticated political data, legislators still knew very well the political characteristics of the areas they were from, and political considerations were an important aspect of all redistricting decisions. 7. The process of redistricting did not change much by the 1980s. Again, census figures were the only form of data used to draw districts. The reapportionment office did not collect political data because the technology was not yet available to organize that information into useful data. The members of the 3

4 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 4 of 93 General Assembly, however, knew the results of elections and the political characteristics of the electorate in and around their own districts. Legislators again considered the political consequences of redistricting as part of their decision making. 8. The Republican Party was not yet in a position, as of , to have a realistic likelihood of winning a majority of the Georgia House, Senate, or congressional seats, but it was still a force. Political considerations and the partisan political consequences of districting began to become more of a factor in redistricting decisions by that time. 9. In addition to purely partisan Republican/Democratic considerations, other political considerations continued to be very important in all districting decisions. For example, incumbents were interested in drawing districts that would increase their chances of getting re-elected. The differences in political goals and interests between the various regions of the state continued to impact the redistricting process in the 1980s. These factors have continued to affect redistricting to this day. 4

5 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 5 of 93 ( t 10. The guidelines for reapportionment in the 1980s redistricting cycle provided in part that the population of each state legislative plan should not exceed a deviation of plus or minus 5%, and that the population of each congressional district should approach the ideal size as nearly as practicable. Pls.' Ex The 1980 Decennial Census showed that the total population of the State of Georgia was 5,464,285. Def.'s Ex The 1982 Senate plan contained 56 single-member districts. The deviation range for the 1982 Senate plan was -4.95% to +4.99%, for an overall deviation of 9.94% and an average deviation of 2.82%. Def.'s Ex The 1982 House plan contained 143 single-member districts and 13 multi- member districts. The deviation range for the 1982 House plan was -4.97% to +4.93%, for an overall deviation of 9.90%. Def.'s Ex

6 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 6 of 93 t 14. The 1982 Congressional plan contained 10 districts. The deviation range for the 1982 Congressional plan was -1.02% to +0.98%, for an overall deviation of 2.00%. Def.'s Ex Due to advances in computer technology, specifically geographic information system (GIS), redistricting changed significantly by the 1990s. The Reapportionment Office continued to use census data, but also collected political and voter registration data for the first time. In addition, legislators were getting more familiar with computers and asked for more detailed political data. The Reapportionment Office collected the data in response to frequent requests from both Republican and Democratic legislators. Data was collected from races for President, U. S. Senate, a few public service commission posts, and Governor held in 1986, 1988, and The Republican strategy in the redistricting of the House, Senate, and Congress was very different than the strategy followed by Republicans in , particularly with respect to splitting counties. The redistricting plans advocated by the Republicans in the most recent cycle are similar to what was 6

7 .. i~ Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 7 of 93 t advocated by many Democrats in the cycle - the minimal splitting of counties. 17. In the redistrictings, Republicans - all of whom were white -joined with African American legislators (all of whom were Democrats) to draw districts, wherever they could, that had very high black population percentages. In pursuing that objective, Republican and African American legislators advocated the view during the reapportionment that county lines were largely irrelevant. The plans that ultimately passed for the House, Senate, and Congress had lines that, in many instances, were substantially based on race. 18. The partisan political consequence of the plans was to substantially increase the number of districts likely to elect Republicans because the Republican/African American strategy put very high percentages of Democratic voters in a smaller number of districts than would have occurred had the lines not been drawn as they were. It was well known to legislators generally, both Republican and Democrat, that this redistricting strategy worked to the advantage of Republicans and would likely lead to the election of a substantially increased number of Republicans. ; see also Brown Trial Test. 7

8 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 8 of The guidelines for reapportionment in the 1990s redistricting cycle provided in part that the population of each state legislative plan should not exceed a deviation of plus or minus 5 l0, and that the population of each congressional district should approach the ideal size as nearly as practicable. Pls.' Ex. 57 at III.A The 1990 Decennial Census showed that the total population of the State of Georgia was 6,478,216. Refined Stip. Of Facts y[ The 1992 Senate plan created 56 single-member districts. The ideal district size for a State Senate district based upon the 1990 Decennial Census was 115,682, and the deviation range for the 1992 Senate plan was -5.02% to +4.94%, for an overall deviation of 9.96% and an average deviation of 3.19%. Def.'s Ex. 13A. 22. The 1992 House plan created 180 single-member districts. The ideal district size for a State House district based upon the 1990 Decennial Census was 35,990, and the deviation range for the 1992 House plan was -4.95% to +4.99%, for an overall deviation of 9.94% and an average deviation of 3.01%. Def.'s Ex. 20A. 8

9 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 9 of The 1992 Congressional plan created 11 districts. The ideal district size for a Congressional district based upon the 1990 Decennial Census was 588,929, and the deviation range for the 1992 Congressional plan was -0.46% to +0.48%, for an overall deviation of 0.94% and an average deviation of 0.35%. Def.'s Ex The impact of the redistricting strategy in the 1990s was as expected, giving Republicans substantial gains in the number of elected state and federal legislators. For example, as a result of the redistricting and the two elections that followed, the Georgia congressional delegation quickly changed from overwhelmingly Democrat to a delegation after the 1994 election that has eight Republicans and three Democrats. Meggers Trial Test. 25. The 1992 congressional plan was ultimately invalidated as a race-based gerrymander. See Miller v. Johnson, 515 U.S. 900 (1995). After the General Assembly was unable to reach agreement on a new congressional plan, a threejudge district court drew its own congressional remedy map for Georgia's eleven congressional districts. See Abrnnis v. Johnson, 521 U.S. 74 (1997). 9

10 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 10 of The court-drawn 1996 Congressional plan created 11 districts, and the deviation range for the court-drawn 1996 Congressional plan was -0.23% to l0, for an overall deviation of 0.35% and an average deviation of 0.11 %. Def.'s Ex Some House and Senate districts were also found to be illegal race-based gerrymanders and were modified to some degree through a consent process as part of litigation. See Johnson v. Miller, 929 F. Supp 1529 (S.D. Ga. 1996) (threejudge court). Mediated Senate and House Plans were used in the 1998 and 2000 elections for the Georgia General Assembly. 28. The 1998 Senate plan created 56 single-member districts. The deviation range for the 1998 Senate plan was -5.02% to +4.92%, for an overall deviation of 9.94% and an average deviation of 3.09%. Def.'s Ex. 13B. 29. The 1998 House plan created 180 single-member districts. The deviation range for the 1998 House plan was -4.98% to +5.02%, for an overall deviation of 10.00% and an average deviation of 2.73%. Def.'s Ex. 20B. 10

11 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 11 of 93 B. THE GENERAL ASSEMBLY'S SPECIAL AND REGULAR SESSIONS FOR REAPPORTIONMENT IN ZOO1-ZOO2 : GENERAL OVERVIEW 30. On March 22, 2000, the results for Georgia of the 2000 Decennial Census became generally available from the Census Bureau. Refined Stip. of Facts The 2000 Decennial Census showed that the total population of the State of Georgia was 8,186,453. 9[ Prior to the 2001 special session to consider reapportionment issues, the House and Senate Reapportionment Committees adopted guidelines for the reapportionment of congressional and legislative districts. See Pls.' Ex The Guidelines for Reapportionment adopted by the House and Senate Reapportionment Committees provided in part that the population of each state legislative plan should not exceed an overall deviation of 10%. See Pls.' Ex. 58, at III.A.4. This was substantially similar to the guidelines for legislative redistricting adopted for the 1980 and 1990 reapportionment cycles. See Pls.' Exs. 56&57. 11

12 r Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 12 of The Guidelines for Reapportionment adopted by the House and Senate Reapportionment Comrnittees provided in part that the population of each congressional district should approach the ideal district size as nearly as is practicable. See Pls.' Ex. 58, at III.A.S. This was substantially similar to the guidelines for congressional redistricting adopted for the 1980 and 1990 reapportionment cycles. See Pls.' Exs. 56 & On June 21, 2001, Governor Roy Barnes issued a proclamation calling the General Assembly into special session for purposes of reapportioning the State Senate and House of Representatives Ga. Laws Ex. Sess. 1 ; Refined Stip. of Facts This first special session of the General Assembly began on August 1 and ended on August 17, Refined Stip. of Facts As a minority party in the General Assembly, it was the Republicans' hope, expectation, and plan going into reapportionment in to duplicate their feat in As then-senate Minority Leader Eric Johnson testified, the current 12

13 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 13 of 93 Republican strategy was to try, again, to join forces with African Americans in the General Assembly. Republicans and African American Democrats would at this time have been an absolute majority and would have been able to do what they wanted. As Senator Johnson acknowledged, that strategy failed : Q: Who were the Democratic senators who you saw in your efforts, Senator Johnson, as the best possibilities, if you will, to form a coalition with to get a plan enacted? A : Well, we really had two lines of communication. One was through the Black Caucus, trying to work with them to prevent retrogression, increase minority members ; and second were with senators who didn't like their districts regardless of color. Q : A : [W]ho were the Democratic senators that you thought you had the best chance of getting to support... one of the plans that y'all had filed? The assumption was - going into the process that the Black Caucus and the Republican Caucus had mutual interests as they had ten years ago, but the - I think the - But that didn't prove to be the case. The Black Caucus was less concerned about retrogression and more concerned about holding on to the majority, so we began to - The strategy changed a little bit more to us trying to find Democratic senators who were unhappy with a district that was being forced on them. Johnson Depo. at 35 :7-16, 46:18-47 :9. 13

14 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 14 of Before the Republicans were rebuffed by the black Democrats in their attempted political courtship, they had assumed that, with a majority coalition, they could literally control the process. As Senator Johnson testified, it was "the assumption leading into redistricting that we [Republicans] would be able to work with the Black Caucus and... control the process." at 49 :9-13. Q : Did you have those discussions with the black - the representatives of the Black Caucus, you personally? A :... It was clear very early that the Black Caucus had either been coached or been decided that they were not going to work with Republicans this time around, that it had cost them a Congressional delegation in the past ; and, you know, whether what the Democrats promised the Black Caucus, I don't know ; but clearly they were not showing the group independence that they had in the past. Q : All right. They were acting as Democrats this year, weren't they, this last reapportionment? A : That they were unifying their caucus. Q: And by their, you're talking about the Democratic? A : The Democratic Caucus. Id. at 49:14-50 : Having failed in its political aspiration to "control" redistricting and its Republican/African American coalition, the Republican Party embarked instead on 14

15 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 15 of 93 a litigation approach to try and achieve its desired results of further improving its already strong political position, including seeking an impasse in the legislature with the goal of having the court draw plans. Brown Trial Test. To that end, they filed an "impasse" case in this Court in See Johnson v. Barnes, No. 1 :02- CV-877-WBH (filed Apr. 4, 2002). 40. The Republican leadership admits that Plaintiffs' attorneys in this case provided the "driving legal strategy for the party and the leadership." Johnson Depo. at 25 :1-26:2. In following this strategy, Republicans reversed diametrically their 1990's philosophy about how lines should be drawn, since they could no longer count on the Legislative Black Caucus to help develop a majority coalition. 41. During its first special session, the Georgia General Assembly enacted Senate Bill IEXI, which provided for the reapportionment of the Georgia State Senate (refereed to herein as the 2001 Senate Plan") Ga. Laws Ex. Sess. 2 ; Refined Stip. of Facts

16 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 16 of Senate Bill IEXI was adopted by the Georgia State Senate on August 10, 2001, by a vote of 29 to 26. The House passed Senate Bill lexi on August 17, 2001, by a vote of 101 to The Governor signed Senate Bill IEXl into law on August 24, 2001, as Act No. 1 EX Following completion of the first special session, the Governor called a second special session to continue consideration of the reapportionment of the General Assembly and to reapportion and redesignate Georgia's congressional districts The second special session of the General Assembly began on August 27, 2001 and ended on September 28, During its second special session, the Georgia General Assembly enacted House Bill 14EX2, which provided for the reapportionment of the Georgia House of Representatives. 159 ; 2001 Ga. Laws Ex. Sess

17 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 17 of House Bill 14EX2 was adopted by the Georgia House of Representatives on August 29, 2001, by a vote of 100 to 72. The Senate passed House Bill 14EX2 on September 6, 2001, by a vote of 29 to 22. Refined Stip. of Facts The Governor signed H.B. 14EX2 into law on October 1, 2001, as Act No. 2EX23. 9[ 61. This is the House Plan under which elections were held in 2002 (referred to herein as "the 2002 House Plan") 49. During its second special session, the Georgia General Assembly enacted Senate Bill 1 EX2, which provided for the reapportionment of Georgia's congressional districts. 170; 2001 Ga. Laws Ex. Sess Senate Bill lex2 was adopted by the Georgia House of Representatives on September 28, 2001, by a vote of 99 to 59. Refined Stip. of Facts Senate Bill lex2 was adopted by the Georgia State Senate on September 28, 2001, by a vote of 30 to

18 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 18 of 93 l 52. The Governor of Georgia signed Senate Bill lex2 into law on October 1, 2001, as Act No. 2EX This is the Congressional Plan under which elections were held in 2002 (referred to herein as "the 2002 Congressional Plan"). 53. Following the decision of the United States District Court for the District of Columbia in Georgia v. Ashcroft, 195 F. Supp. 2d 25 (D.D.C. 2002), the Georgia General Assembly enacted House Bill 1667, which provided for the reapportionment of the Georgia State Senate in response to the district court's decision. 9[ 82 ; 2002 Ga. Laws House Bill 1667 was adopted by the Georgia State Senate on April 9, 2002, by a vote of 31 to 23. The House passed House Bill 1667 on April 10, 2002, by a vote of 95 to 74. Refined Stip. of Facts The Governor signed House Bill 1667 into law on April 11, 2002, as Act No This is the Senate Plan under which elections were held in 2002 (referred to herein as "the 2002 Senate Plan"). 18

19 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 19 of 93 c t 56. Act No. 444 does not repeal or amend the provisions of Act No. lex6, the 2001 Senate Plan, but expressly provides that the provisions of the 2001 Senate Plan "are merely suspended pending a final determination of their enforceability under the federal Voting Rights Act of 1965, as amended." 2002 Ga. Laws 148, 149, 1, 9[ (d).' C. THE ZOOZ CONGRESSIONAL PLAN 57. The State of Georgia had 11 seats assigned to it under the post-1990 reapportionment of the United States House of Representatives based upon the 1990 decennial census. Parties' Refined Stip. of Facts Based upon a total population of 6,478,216 and the assignment of 11 seats in the United States House of Representatives for the State of Georgia, the ideal size of a congressional district for one person, one vote purposes based upon the 1990 decennial census was 588,929. Def.'s Statement of Facts in Dispute 129 and Pls.' resp.thereto. ' Although the enforceability of the 2001 Senate Plan under Section 5 of the Voting Rights Act is to be decided by the U. S. District Court for the District of Columbia following the remand in Georgia v. Ashcrofr, 123 S.Ct (2003), the 2002 Senate Plan is the plan currently in effect. Therefore, this Court can decide Plaintiff's challenge to the 2002 Senate Plan since it is the only plan which can currently be enforced under Section 5. 19

20 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 20 of Based upon the 1990 Decennial Census, the total population, deviation, and percentage deviation from the ideal congressional district for each of Georgia's congressional districts in the court-drawn 1996 Congressional Plan was as follows : Def.'s Ex. 5. District No. Total Actual % Deviation Population Deviation 1 588, ,583-1, , , , , , ,912-1, , ,

21 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 21 of Based upon the 1990 Decennial Census, the overall deviation for the 1996 Congressional Plan was 0.35%, with a range of -0.23% to +0.12%. 61. A challenge to the 1996 court-drawn congressional plan based upon an alleged violation of the constitutional guarantee of one person, one vote under Article I, Section 2 was rejected in Abranis v. Johnson, 521 U.S. 74, (1997). 62. By virtue of the 2000 Decennial Census, the State of Georgia's representation in the U. S. House of Representatives increased to 13 seats. Refined Stip. of Facts 9[ Based upon a total population of 8,186,453 people and the assignment of 13 seats in the U. S. House of Representatives for the State of Georgia, the ideal size of a congressional district for one person, one vote purposes is 629,727 people. at

22 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 22 of 93 l 64. Linda Meggers and the Reapportionment Office began the 2001 redistricting process as it had done in every other redistricting cycle. It produced one person, one vote reports, which overlay 2000 census figures on districts as they were drawn in the 1990 redistricting process. Meggers Trial Test. That allowed the staff to determine current deviations and provided a starting point in their attempt to create districts that would pass constitutional muster. 65. Based upon the 2000 Decennial Census, all of Georgia's then-existing congressional districts had populations larger than the ideal district size and were out of apportionment. The deviations were as follows : District 1 : 9.92% District 2: 3.28% District 3 : 24.13% District 4 : 18.33% District 5 : 2.82% District 6 : % District 7 : 19.44% District 8 : 5.25 % 22

23 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 23 of 93 t District 9 : 29.32% District 10 : 5.16% District 11 : 32.82% Refined Stip. of Facts Robert Brown and former House Speaker Tom Murphy were the principal legislators who oversaw the drawing of Georgia's congressional plan. Moore Depo. 43 : Senator Brown worked primarily with Joe Stanton in the reapportionment office in constructing the districts for the congressional map in the Senate. Brown Trial Test. On the House side, Speaker Tom Murphy took an active role in developing the congressional plan. Meggers Trial Test. 68. Individualized interests of those drawing maps also came into play and affected the configuration of congressional plans. For example, individual legislators who wanted to run for Congress advocated plans to accommodate their political aspirations. 23

24 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 24 of Once the House and Senate each passed their version of the congressional plan, the matter was sent to the conference committee where each side attempted to work out the differences and come up with a plan that both the House and Senate would pass. Brown Trial Test. 70. The conference committee represents the height of the political process on redistricting ; not only is every individual member of the committee involved in the process, but the committee hears from individual legislators, congressional representatives, and their staff. 71. During the conference committee process on the congressional plan, Senator Brown recalls that individual legislators were not necessarily participating in actually drawing maps at the reapportionment office. Instead, various changes throughout the plan would be ferried back and forth between the conference committee and the reapportionment office. 72. Individual maps would be printed out on 8'/z by 11 sheets so that the conference committee members could review the changes. Once all the 24

25 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 25 of 93 t c participants agreed in principle, then a final map could be produced that included all of the conference committee changes. 73. Based upon the 2000 Decennial Census, the total population, deviation, and percentage deviation from the ideal congressional district for each of Georgia's congressional districts in the 2002 Congressional Plan is as follows : District No. Total Actual % Deviation Population Deviation 1 629, , , , , , , , , , ,

26 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 26 of 93 ( t , , Def.'s Ex. l E. 74. Prior to the 2002 election cycle, of the 11 seats in Congress allocated to the State of Georgia, there were eight Republican members and three Democratic members of the United States House of Representatives. Refined Stip. of Facts After the results of the 2002 general election, of the 13 seats in Congress allocated to the State of Georgia, there were eight Republican members and five Democratic members of the United States House of Representatives Republican incumbents who were victorious in the 2002 general election for the United States Congress were Jack Kingston, District 1 ; Johnny Isakson, District 6 ; John Linder, District 7; Mac Collins, District 8 ; Charlie Norwood, District 9 ; and Nathan Deal, District

27 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 27 of 93 t 77. Republican congressional candidates who won open seats in 2002 were Phil Gingrey in District 11 and Max Burns in District 12. Id D. THE 2001 AND 2002 SENATE PLANS 78. Based upon a total population of 8,186,453 people and the existence of 56 members of the Georgia Senate, the ideal size of a State Senate district for one person, one vote purposes under the 2000 decennial census is 146,187 people. Refined Stip. of Facts As with the 2002 Congressional Plan, Linda Meggers and the Reapportionment Office produced for the State Senate redistricting one person, one vote reports, which overlay 2000 census figures on districts as they were drawn in the 1990 redistricting process. Meggers Trial Test. That allowed the staff to determine current deviations and provided a starting point in their attempt to create districts that would pass constitutional muster. 80. The Reapportionment Office and the General Assembly have long used an overall deviation of 10%, or ±5% deviation as a guide to craft State Senate Plans to 27

28 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 28 of 93 l comport with the one person, one vote requirement. ; see also Def.'s Exs. 11, 13A, 13B ; El Depo. 21 :12-22:14 ; Stanton Depo. 41 :18-42 :10 ; Shelton Depo. 15 :21-16:10. The State's attorneys provided that same legal guideline prior to other reapporionments. Linda Meggers Trial Test. 81. Based upon the 2000 Decennial Census, 36 of the 56 then-existing Senate districts had population deviations in excess of ±S%. See Refined Stip. of Facts 115 ; Def.'s Ex. 14A. The range of deviation was from % to %. 82. Senator Robert Brown was the principal architect of the Senate map. Brown Trial Test. ; see also Georgia v. Ashcroft, 123 S.Ct. 2498, 2506 (2003) ; Moore Depo. at 25 :1-3, 36: Brown focused his efforts to draw a plan that complied with the Constitution and the Voting Rights Act. Consequently, his chief concerns were to draw districts with a population deviation of no greater than ±5% in the ideal district size and to ensure that the districts did not "retrogress" in violation of Section 5 of the Voting Rights Act. Brown Trial Test. 28

29 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 29 of 93 c c 84. Once these two considerations were met, Brown also tried to protect or enhance opportunities for Democrats to be elected. Balancing these interests posed a great challenge for Brown and his subcommittee. While political performance was of importance to Brown personally, many Democratic legislators did not embrace the idea nor accept the notion that one could predict future election outcomes based solely on the available political data. 85. Contrary to the Plaintiffs' portrayal of the map drawing process as a discrete event where a single map is drawn by one person and submitted for passage, it was in fact a very dynamic, complex, and evolutionary process. The map eventually passed by the Senate was a conglomeration of innumerable changes and additions made at the request of individual senators ; Moore Depo. at 23 :20-25 : Brown started the redistricting process for the Senate by looking at different regions around the state and conceptualizing in his own mind how he thought the districts should look. Brown Trial Test. Before the 2001 special redistricting session began, Brown spoke with many senators about the process and about their personal preferences for their own districts.!d. Brown then began to actually 29

30 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 30 of 93 l l draw the maps with the technical assistance of the staff from the legislative reapportionment office, primarily Joseph Stanton. ; Stanton Depo. at 35 : During the special session, while putting together the map for the Senate, it was typical for Brown to be in Stanton's office to work on versions of the Senate map, During this time, various senators would come by the reapportionment office to look at their particular districts and to make suggested changes to satisfy their own personal preferences. Brown Trial Test. ; Stanton Depo. at 56: At the same time, individual senators worked independently with members of the reapportionment staff to come up with their own concepts for their districts and then presented them to Brown at various points during the process. Brown Trial Test. 89. Brown consulted with the staff at the Georgia Democratic Party on maps and on political data, but his subcommittee did its own redistricting work and did not adopt maps drawn by the party. While most of Brown's technical work occurred at the reapportionment office with Mr. Stanton, he did visit the state Democratic Party to review specific suggested changes and to allow members of the party to 30

31 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 31 of 93 ' ( t demonstrate how their suggestions could be integrated into the Senate map. These suggestions were accepted if the Senators agreed with them, and generally rejected in favor of what individual members preferred for their own districts. 90. In drawing the new Senate districts, the incumbents' individual political desires needed to be respected because the plan needed twenty-nine votes to pass and there were no votes to spare. Furthermore, Republicans were not going to support the Senate plan no matter what it looked like. 91. Drawing districts that could pass in the Senate was particularly challenging in south Georgia (generally that part of the state south of I-20), and in urban majority-minority districts. Both of these areas started out under populated compared to areas of north Georgia. As a practical political matter, incumbents in these areas resisted taking on more new population and voters than what was perceived to be legally necessary for one person, one vote purposes. As a general rule, incumbents - Democratic and Republican - do not want to take on more new constituents than necessary. Thus, as these incumbent legislators included their personal preferences for their districts in exchange for their support, higher deviations resulted. 31

32 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 32 of 93 ( t 92. Because of the complexity of the process, Doug Moore, the technical staff person at the Georgia Democratic Party trained in the use of the Mapitude software, cannot determine whether any of the particular changes he worked on actually made it into the final Senate map. Moore Depo. at 23 :19-24 : The Senate plan that was ultimately passed by the Senate was Robert Brown's plan. Moore Depo. at 36:7-16. While there were many versions of the plan drawn at various locations, including the reapportionment office and the Georgia Democratic Party, Robert Brown directed the entire process. 94. The role the Georgia Democratic Party played in creating various political maps was to share their maps with legislators to show them about different options that they had generated and what they would like to see passed in the plan. These efforts amounted to attempts to lobby various members of the House and Senate to use the Georgia Democratic Party's ideas in their plans. Moore Depo. at 42 :20-43 :7 ; Kirincich Depo. at 27 :1-10. John Kirincich, then the Executive Director of the state Democratic Party, perceived it to be his "job" to advocate for maps that increased Democratic performance. Kirincich Depo. at 27 :7-10. In fact, many of 32

33 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 33 of 93 the Democratic Party's suggestions were rejected. Kirincich Depo. at :23, 234:3-15 ; Brown Trial Test. Many legislators did not even rely on the Democratic Party's estimate of Democratic performance and specifically did not believe that Kirincich, who is not from Georgia, was well acquainted with Georgia politics. Brown Trial Test. 95. The Republicans in the legislature developed maps the same way as the Democrats and with the assistance of the Georgia Republican Party. Tyson Depo. at 52:6-53 :10, 57 :11-58 :22. Republican Party maps were often "imported" to the Reapportionment Office for introduction by Republican representatives and senators, and the Reapportionment Office was equally helpful to Republicans and Democrats who asked for technical assistance. Tyson Depo. at 60:24-63 :14 ; see also Stanton Depo. at 32 :3-20 ; 34 : In the Senate, Morgan Perry worked under the direction of Plaintiff Eric Johnson in the Senate minority office and was the sole person who did map drawing for Republican Senators. Perry Depo. at 17 :20-18 :3. She met with every Republican Senator and tried to integrate their individual desires into the plan, as she had been directed to do by Senator Johnson. ; see also Tyson Depo. 58 :6-33

34 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 34 of Those incumbent senators knew their districts politically ; they knew what areas supported them ; and they instructed her to draw their districts in exactly that fashion, to include the areas that voted for them : Q : And you know from talking to senators, they know what areas are -- support them and what areas tend not to support them. Fair statement? A : It's a fair statement. Q: And as a practical matter, incumbent senators of whatever stripe politically, they want districts that have people in there that generally would favor their reelection. Fair statement? A : Yes. That's a fair statement. Perry Depo. at 24:3-6; Republicans wanted as much of their old territory in their districts as they could get, just as did Democrats. Those are the instructions that they gave Ms. Perry : Q: When they would come in and say, well, I prefer my way of doing my district than what you've got in your plan, what things would they articulate about that? A: The current district they served in, building out from the current district in which they served, areas which they were familiar with, or had some knowledge or working relationship with. 34

35 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 35 of 93 Q:... So they might say, look, you've got me in too much new area, for example, correct? A : Correct. Q: And maybe I want more of my district that I know of my people. That, they usually say, right? A : Correct. Q: And when the senators, the Republican senators you are working with, Miss Peny, would make these requests of you, would you do the best you could to give them what they wanted? A : Yes, I would. at 37 :14-38 :3 ; 39 : Based upon the 2000 Decennial Census, the total population, deviation, and percentage deviation from the ideal Senate district for each of Georgia's Senate districts in the 2002 Senate Plan is contained in Def.'s Ex. 9E. The deviation range for the 2002 Senate Plan is -4.99% to +4.99%, for an overall deviation of 9.98%, about the same as the overall deviation of 9.94% in the 1998 Senate Plan., Def's Ex. 13B. 35

36 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 36 of After the 2000 general election, of the 56 seats in the Georgia State Senate, there were 32 Democrats and 24 Republican members. Refined Stip. of Facts 9[9[ 26, After the results of the 2002 general election, of the 56 seats in the Georgia State Senate, there were 30 Democrats and 26 Republicans elected. After the election, four Democrats switched allegiance to the Republican Party, giving the Republicans control of the State Senate by a margin of E. TYm 2002 HOUSE PLAN 101. The 1998 House plan contained 180 single-member districts. Def s Ex. 20B The ideal district size for a State House district based upon the 1990 Decennial Census was 35,990, and the overall deviation for the 1998 House Plan was 10.00%, with a deviation range of -4.98% to +5.02%. 36

37 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 37 of 93 t 103. Based upon a total population of 8,186,453 people and the existence of 180 members of the Georgia House, the ideal size of a State House district for one person, one vote purposes under the 2000 Decennial Census is 45,480 people. Refined Stip. of Facts As with the Congressional and State Senate Plans, Linda Meggers and the Reapportionment Office produced for the State House redistricting one person, one vote reports, which overlay 2000 census figures on districts as they were drawn in the 1990 redistricting process. Meggers Trial Test. That allowed the staff to determine current deviations and provided a staffing point in their attempt to create districts that would pass constitutional muster The Reapportionment Office and the General Assembly have long used an overall deviation of 10%, or ±5% deviation as a guide to craft State House redistricting plans to comport with the one person, one vote requirement. Iii. ; see also Def.'s Exs. 18, 20A, 20B. The State's attorneys provided that same legal guideline prior to other reapportionments. Meggers Trial Test. 37

38 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 38 of 93 f t 106. Based upon the 2000 Decennial Census, 144 of the 180 then-existing House districts had population deviations in excess of ±5%. Def.'s Ex. 21A ; Refined Stip. of Facts 117. The range of deviation was from % to % The legislative reapportionment staff, and particularly Linda Meggers, worked with individual House members to draft legislative districts. Meggers Trial Test Once various components were integrated into the working plan, legislators worked on the plan throughout the Summer of The former Speaker of the House, Tom Murphy, reviewed the process as individual legislators worked on aspects of the House plan Consistent with the historic trend, House districts in south Georgia and urban majority-minority districts were under populated compared to suburban areas of north Georgia. Because rural Georgia was "short" of population, 38

39 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 39 of 93 legislators worked hard to preserve their districts and representation for their rural constituencies Many south Georgia incumbents have seniority over other House members and used this political influence to preserve representation of rural interests as much as possible. Id As a result of incumbents' efforts to preserve representation of rural regions while at the same time protecting their seats, districts in south Georgia ended up with greater population deviations. Despite these efforts, south Georgia lost seven House districts and two Senate districts, causing both Republican and Democratic legislators to lose seats in rural Georgia In drawing the new House districts, the incumbents' individual political desires also needed to be respected because the plan needed ninety-one votes to pass, and Republicans were not going to vote for it no matter what it looked like. 39

40 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 40 of 93 c 114. The total population, deviation, and percentage deviation from the ideal House district for each of Georgia's House districts in the 2002 House Plan is contained in Def.'s Ex. 16E. The deviation range for the 2002 House Plan is -4.99%n to +4.99%n, for an overall deviation of 9.98%, just below the overall deviation of 10.00% in the 1998 House Plan., Def.'s Ex. 20B. 115 Prior to the 2002 election cycle, of the 180 seats in the Georgia House of Representatives, there were 105 Democrat members, 74 Republican members, and one Independent. Refined Stip. of Facts y[9[ 27, After the results of the 2002 general election, of the 180 seats in the Georgia House of Representatives, there were 107 Democratic members, 72 Republican members, and one Independent. Refined Stip. of Facts F. SECTION S PRECLEARANCE AND GEORGIA V. ASHCROFT 117. In order to obtain preclearance of the 2002 Congressional and House Plans and the 2001 Senate Plan under Section 5 of the Voting Rights Act, on October 10, 2001 the State of Georgia filed a petition for declaratory judgment in the United 40

41 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 41 of 93 States District Court for the District of Columbia. Georgia v. Aslicroft, No. O (D.D.C). Refined Stip. of Facts On April 5, 2002, a three-judge court issued a declaratory judgment preclearing both the 2002 Congressional and House Plans. Georgia v. Ashcroft, 195 F. Supp. 2d 25, 31, 97 (D.D.C. 2002). The court denied the State of Georgia a declaratory judgment that the 2001 Senate Plan complied with Section 5. Id At the request of the State of Georgia, the district court maintained jurisdiction of the case to permit the submission of a revised 2002 Senate Plan for preclearance under Section 5 in order to facilitate the conduct of the 2002 Senate elections. Georgia v. Ashcroft, 202 F. Supp. 2d 4, 5 (D.D.C. 2002). By order dated June 3, 2002, the district court granted a declaratory judgment to the State of Georgia preclearing the 2002 Senate Plan. Id. at The State of Georgia appealed the denial of declaratory judgment on the 2001 Senate Plan to the United States Supreme Court. Refined Stip. of Facts 192. On June 26, 2003, the United States Supreme Court vacated the decision of the United States District Court for the District of Columbia denying preclearance of 41

42 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 42 of 93 l the 2001 Senate Plan, and remanded the case to the district court for further proceedings in light of the decision. Georgia v. Ashcroft, 123 S. Ct (2003) On August 20, 2003, the United States District Court for the District of Columbia issued an order that the DOJ and Benton Intervenors show cause why, given the Supreme Court's decision, a declaratory judgment should not issue in favor of the 2001 Senate Plan. Refined Stip. of Facts 193. The district court has since directed the parties to submit discovery plans and has indicated that a decision is not likely before the qualification period begins on April 26, [ 94. G. ADDITIONAL FACTS CONCERNING GEORGIA OFFICEHOLDERS 122. The current Governor of Georgia, Sonny Perdue, is a Republican who defeated the Democratic incumbent, Roy Barnes, in the 2002 General Election. q[ Not a single new Democratic candidate was elected to statewide office in the 2002 General Election

43 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 43 of 93 c t 124. In the 2002 General Election, Doug Everett, a Republican, defeated Earlene Sizemore, a Democratic incumbent, for a seat on the Georgia Public Service Commission. Irk In the 2002 General Election, Angela Spier, a Republican, defeated Lauren "Bubba" McDonald, a Democratic incumbent, for a seat on the Georgia Public Service Commission. Id. y[ In the 2002 General Election, Kathy Cox, a Republican, defeated Barbara Christmas, a Democrat, for an open seat for State School Superintendent In the 2002 General Election, Saxby Chambliss, a Republican, defeated Max Cleland, a Democratic incumbent, for the United States Senate

44 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 44 of 93 t t H. THE DEVIATIONS IN THE STATE HOUSE AND STATE SENATE PLANS 128. The evidence directly contradicts Plaintiffs' position that Democrats made a conscious decision to reduce populations in Democratic leaning districts and to have more than the ideal populations in districts that leaned Republican At no time during the State House and State Senate reapportionment process did any legislator ever use or even suggest the use of population deviations to achieve any particular political or partisan objective. Brown Trial Test. ; Meggers Trial Test. ; Kirincich Depo. at 239 :15-19 ; El Depo. at 42:23-43 :18 ; Stanton Depo. 63 :17-24, 94:22-95:17. In fact, maps with greater Democratic political performance and lower deviations had been proposed by the party but rejected. Kirincich Depo. at 231 :7-234: Indeed, the Republican House Minority Leader, Representative Lynn Westmoreland, testified that he never even had any "conversations with anyone involved in the drawing of the plans about why those deviations are as they are." Westmoreland Depo. at 75 :

45 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 45 of 93 ( t 131. Senator Johnson testified to the same effect. His belief that there is some purposeful connection is pure speculation based on his own "surmise." Senator Johnson admitted that he, too, had never had a conversation with anyone involved in drawing the plans at issue about how the deviations had actually come about. Johnson Depo. at 65 :8-67: The Republican staff employees who drew and reviewed the Republican plans testified to the same effect. Bryan Tyson worked under House Minority Leader Westmoreland and did the entire Republican map drawing in the House. Tyson Depo. at 57:23-58 :22. Tyson admitted that he had neither directly heard from any legislator directly how the deviations had come about, nor had he ever heard a single statement by any Republican legislator that would have attributed such statements to Democratic legislators (or other persons) who had been involved in drawing the districts that are before the Court. at 113:22-114: Tyson's Senate counterpart, Morgan Perry, testified to the same effect, that she neither had any direct conversation with any Democrat concerning how the deviations came about, nor had she ever heard any Republican or anyone else 45

46 Case 1:03-cv CAP Document 148 Filed 01/06/2004 Page 46 of 93 attribute any conversation to any Democrat involved in the line drawing as to why the deviations were as they are. Perry Depo. at 54: Senator Brown has explained how the deviations in the Senate Plan came about : At the time of the 2000 census, those districts south of I-20 were, on average, far below the ideal district size. On the other hand, more northern districts appeared to be, on average, above the ideal district size. Brown Trial Test. Significant changes were required, and it was clear from the outset that the Senate was going to lose some districts in south Georgia. However, in part to gain the support of rural incumbents, while at the same time meeting the rigors of the Voting Rights Act and the Constitution, the subcommittee had to preserve as many incumbents and representation in this area as possible, which had nothing to do with partisan strategies or partisan advantages or disadvantages Because of the population shortages, it was simply unavoidable that some districts would be divided up to provide population for neighboring districts. It is a reality of politics that incumbents, working to preserve their political influence, want their districts to change as little as necessary, and typically just enough to comply with the one person, one vote requirement. As the both the Democrats 46