Allen et al v. The City of Evergreen, Alabama et al

Filing 24

PARTIAL CONSENT AGREEMENT TO A NEW ELECTION DATE, that part of the Court's 8 Order dated 8/20/12 setting the City of Evergreen election 12/15/12 is VACATED as to the election date, & the election date only. City of Evergreen is ENJOINED to conduct a new special election on 2/26/13 as set out. Special Master is authorized & directed to file a Final Report upon the completion of his duties as set out. Signed by Judge Callie V. S. Granade on 12/14/2012. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAN ALLEN, BOBBY WATKINS and
ALBERTA LEE
Plaintiffs,
v.
CITY OF EVERGREEN, ALABAMA; PETE
WOLFF, III, Mayor of the City of
Evergreen, Alabama; LUTHER UPTON,
DIANE SKIPPER, JOHN SKINNER, JR.,
VIVIAN FOUNTAIN, and MAXINE HARRIS
Council Members of the City of Evergreen,
Alabama; BECKY B. ROBINSON, City
Clerk for the City of Evergreen, Alabama,
Defendants.

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CIVIL ACTION NO. 12-0496-CG-M

PARTIAL CONSENT AGREEMENT TO A NEW ELECTION DATE
The Plaintiffs and Defendants stipulate to the following facts:
1.

Plaintiffs brought this action challenging both the current (2001) and

proposed (2012) redistricting plans for Defendant under Sections 2 and 5 of the
Voting Rights Act and the 14th and 15th Amendments based on claims of racial
discrimination and mal-apportionment. Plaintiffs also challenged the adoption by
Defendants of a new system for determining which registered voters were eligible to
vote in elections of the City of Evergreen. Pursuant to joint motions of the parties,
this Court enjoined the August 28, 2012 election, appointed a Special Master to
oversee the development of an accurate list of eligible voters, and set a December
15, 2012 date the 2012 municipal election. (Docs. 8 and 13).
2.

The efforts of the parties to obtain agreement on the numerous issues in this

case have taken longer than the parties had anticipated in seeking the December

15, 2012 election date. Specifically, the list of registered voters has not been
finalized despite what the parties agree have been the exemplary efforts of the
Special Master and despite the cooperation of the clerk and Plaintiffs’
representative: unanticipated problems with the registration list have arisen and
that task proved to be more complicated than the parties had anticipated. The
completion of the list is imminent, but it already has gone beyond the date
necessary for the conduct of an election on December 15, 2012. Further, the parties
have not reached agreement on any redistricting plan for city council districts; as a
result, voters cannot be assigned to districts and local citizens cannot determine
whether they wish to qualify for particular offices in the new election. Accordingly,
as a practical matter, the election simply cannot be held on that date.
3.

The parties advise the Court that the remaining issues can be resolved

according to the proposed schedule. The list of eligible voters will be complete in
the very near future. With the commendable work the Special Master has
performed to get the list of eligible voters in shape, the assignment of voters to city
council districts can be accomplished quickly.
4.

As to a redistricting issue, the parties report that Plaintiffs have proposed

three alternative city council redistricting plans to Defendants. Defendants have
not agreed to any plan, nor have Defendants taken further steps to obtain Section 5
preclearance. The parties accordingly are at an impasse on that issue, but agree
that it is ripe for resolution by the Court. Specifically, Defendants propose use in
the special election of the redistricting plan it originally adopted. Plaintiffs seek a

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new plan and propose presently to file an appropriate motion with the Court to that
effect. Under these circumstances, the parties have agreed that the election can
and should be held according to the proposed schedule.
5.

The schedule agreed to by the parties contemplates a primary election on

February 26, 2013. That schedule contemplates that candidate filing should
commence on December 26, 2012 and close on January 15, 2013. The parties agree
and stipulate that in the event that the Court requires more time to approve and
adopt a redistricting plan, and in light of the size of the City of Evergreen and the
duration of this matter, the period for candidate qualifying should be delayed for a
period of up to two weeks, from December 26, 2012 to January 8, 2013, and that the
close of qualifying should occur on January 15, 2013. The parties further have
agreed that any additional dates and deadlines that need adjustment consequent to
such alteration should be determined by the Special Master after notice to and
opportunity to comment by counsel for the parties as the Special Master deems to
be in the best interests of the voters and the conduct of an orderly election.
6.

The parties further have agreed to the need for certain adjustments to the

normal statutory schedule. First, this Court has provided that the “Special Master
shall have the full statutory and customary authority of officials of the City of
Evergreen to supervise the conduct of the December 15, 2012 special election and
any subsequent run-off election that may be necessary.” (Doc. 13 at 4) One such
duty is the appointment of poll officials. The Special Master is not a resident of
Evergreen or personally familiar with potential poll officials. The parties have

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agreed to assist the Special Master in selecting poll officials, and both Plaintiffs and
Defendants shall recommend qualified persons to serve as poll officials one week
prior to the date for the Special Master’s appointments.
7.

Second, and because the Evergreen mayor and city council members are

serving in office beyond their statutory terms of office, the parties have agreed that
new officials should take office immediately upon certification by the Special Master
that they have received a majority of the votes, either in the primary or the run-off
election.
8.

Third, the parties have agreed that at the close of the municipal elections,

including any run-off election that may be necessary, the Special Master should file
a Final Report describing the problems associated with the development of an
accurate list of eligible voters so as to provide guidance for the future and for the
benefit of governments in Alabama generally.
9.

To avoid the burdens, cost and division of litigation over these issues, the

parties have agreed that the issues addressed herein should be resolved through the
terms of this Partial Consent Decree (“Decree”). Accordingly, the Plaintiffs and the
Defendants hereby consent to the entry of this Decree, as indicated by the
signatures of counsel at the end of this Decree. The parties waive a hearing and
entry of findings of fact and conclusions of law on these issues, and further agree to
attempt to resolve amicably all issues that may arise as the case moves toward its
conclusion following the Special Master’s certification of results and Final Report.

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Accordingly, the Plaintiffs and Defendants agree and stipulate to the provisions set
forth below.
Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that:
1. That part of the Court’s August 20, 2012 Order setting the City of Evergreen
election December 15, 2012 is hereby VACATED as to the election date, and
the election date only.
2. The City of Evergreen is hereby ENJOINED to conduct a new special
election on February 26, 2013, and Defendants shall follow state law
standards and requirements as to the number of days before and after
February 26, 2013 in which to perform an act in conducting the special
election and run-off, with the additional requirements that:
(a) Plaintiffs and Defendants each may submit to the Special Master a list of
persons eligible to serve as poll officials for the new election.
(b) Any candidate who is certified by the Special Master as having received a
majority of the votes in the February 26, 2013 primary election shall be
sworn in and take office immediately upon such certification; and any
candidate who is certified by the Special Master as having received a
majority of the votes in the primary election shall be sworn in and take
office immediately upon such certification by the Special Master.
3. The Special Master is authorized and directed to file a Final Report upon the
completion of his duties describing the problems associated with the

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development of an accurate list of eligible voters so as to provide guidance for
the future and for the benefit of governments in Alabama generally.
Agreed to this 10th day of December, 2012 by the undersigned counsel.
AGREED AND CONSENTED TO:
Dated:

December 10, 2012

For Plaintiff:
/s/John K. Tanner
JOHN K. TANNER
3743 Military Road, NW
Washington, DC 20015
[e-mail]
Admitted pro hac vice
Tel: [phone]

For Defendants:
/s/James H. Anderson
JAMES H. ANDERSON [ANDE4440]
JESSE K. ANDERSON [ANDE8821]
JACKSON, ANDERSON & PATTY, PC.
250 Commerce Street, Suite 100
Montgomery, AL 36104
[e-mail]
Tel: [phone]
Fax: [phone]

/s/Armardo W. Pitters
ARMARDO W. PITTERS [8998-T64A]
P.O. Box 973
Montgomery, AL 36102
Tel: [phone]
Fax: [phone]
[e-mail]
DONE and ORDERED this the 14th day of December, 2012.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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