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

Filing 8

PARTIAL CONSENT AGREEMENT re: 7 Joint MOTION for Consent Decree to resolve the issues under Section 5 of the Voting Rights Act and specifically to prevent the August 28, 2012 municipal election from being held in violation of federal law and to develop procedures for a special city election to be held on December 15, 2012 as further set out; Signed by Senior Judge Charles R. Butler, Jr on 8/20/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAN ALLEN, BOBBY WATKINS
and ALBERTA LEE

)
)
)
Plaintiffs,
)
)
vs.
)
)
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.
)

Case No.: 1:12:CV-00496-CB-M

PARTIAL CONSENT AGREEMENT
Plaintiffs filed this action pursuant to Sections 2 and 5 of the Voting Rights Act of 1965,
as amended, 42 U.S.C. 1973 and1973c (Section 5") and the 14th and 15th Amendments to
challenge the method of election for the Evergreen, Alabama, city council; and to challenge a
new system of determining voter eligibility and preparation of the list of eligible voters for
elections of the City of Evergreen. The parties respectfully file this Partial Consent Agreement
to resolve the issues under Section 5 of the Voting Rights Act, and specifically to prevent the

August 28, 2012 municipal election from being held in violation of federal law and to develop
procedures for a special city election to be held on December 15, 2012.1
The Court has jurisdiction of this action pursuant to 28 U.S.C. §1345 and 42 U.S.C.
§§1973C and 1973j(f). In accordance with the provisions of 42 U.S.C. § 1973c and 28 U.S.C. §
2284, the Section 5 claim must be heard and determined by a court of three judges. A single
judge may, however, enter a preliminary injunction such as is here proposed by the parties. 28
U.S.C. §2284(b)(3). Puerto Rican Legal Defense and Education Fund v. City of New York, 769
F.Supp. 74, 76 (S.D. N.Y. 1991). The events relevant to this action occurred in the City of
Evergreen in Conecuh County, Alabama, which is located in the United States District Court for
the Southern District of Alabama, Southern Division. See 28 U.S.C. §124.
Plaintiffs are black citizens and registered voters who reside in Evergreen, Alabama who
seek to vindicate rights protected by the Voting Rights Act and the United States Constitution.
The State of Alabama and its subdivisions are subject to the preclearance requirements of
Section 5. See 42 U.S.C. §1973c; see also 28 C.F.R. Part 51, Appendix. Section 5 provides that
any "voting qualification or prerequisite to voting, or standard, practice, or procedure with
respect to voting" different from that in force or effect in the State of Alabama or its subdivisions
on November 1, 1964, may not be lawfully implemented unless such change has been submitted
to the Attorney General, and the Attorney General has not interposed an objection within sixty
days; or the jurisdiction obtains a declaratory judgment from the United States District Court for
the District of Columbia that the change does not have the purpose and will not have the effect of

1

This Agreement does not resolve the claims as to the additional claims set forth in the Complaint in this action
under Section 2 of the Voting Rights Act and the 14th and 15th Amendments, including claims respecting the
boundaries of single-member districts to be used for city council elections.

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denying or abridging the right to vote on account of race, color, or membership in a language
minority group. See 42 U.S.C. § 1973c.
Defendant City of Evergreen ("City") is a subdivision of the State of Alabama and is
therefore subject to the Section 5 preclearance requirements. The City is governed by a mayor,
elected at large, and a five-member city council. Defendant Mayor and City Council members
are the governing body for the City and, along with the City Clerk, are responsible for
implementing and administering voting changes and conducting elections for the City. Each of
these officials also is a named Defendant, sued in his or her official capacity.
Members of the Evergreen city council are elected from five single-member districts,
each for four-year concurrent terms. The 2010 census established that the city council districts in
place since 2001 are mal-apportioned so that their continued use for elections would violate the
14th Amendment. On May 15, 2012, the City adopted a municipal redistricting plan. The City
submitted that plan to the Attorney General for Section 5 review and it was received by the
Attorney General on June 15, 2012. The City voluntarily has supplemented its submission on
multiple occasions since then. The City has not received preclearance of the May 15, 2012
redistricting plan.
The City has begun to implement the May 15, 2012 redistricting plan even though it has
not received Section 5 preclearance. The City accepted and subsequently closed candidate filing
under the plan, placing candidates in the new districts; the City prepared ballots and voter lists
based on the new districts; and the City mailed out absentee ballots and directed voters in areas
that had been moved from one district to another to cast ballots in the new districts.
The City also implemented changes in the system for preparing the list of eligible voters
for the August 28, 2012 election. In the past, the City uniformly has worked from an official list
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of registered voters in Conecuh County and, consistent with state law, placed all persons with
city addresses on the list of eligible voters. For August 28, 2012, the City worked from the list of
persons billed by the municipal utility system, and placed those persons who paid municipal
utility bills on the list of eligible voters. The City placed a large number of persons whose names
were on the county voter registration list on a separate list, denominated “Problem Voters.”
Plaintiffs’ aver that the Problem Voter list comprises nearly 30 percent of the entire voting age
population of the City of Evergreen, and includes many registered voters who reside within the
city. Plaintiffs’ aver, among other things, that the City also deliberately omitted other persons
whose names were on the county voter registration list and who reside in the city from both the
list of eligible voters and the Problem Voter list, although such persons are eligible to vote under
state and federal law. The City has not submitted the changes in its system for preparing the list
of eligible voters for the August 28, 2012 election to the Attorney General for Section 5 review,
and has not filed an action for a Section 5 declaratory judgment.
The parties recognize and agree that, as both a legal and a purely mechanical matter, a
municipal election cannot be held on August 28, 2012, in light of the unprecleared voting
changes and associated issues.
To avoid the burdens, cost and division of litigation over these issues, the parties have
agreed that the Section 5 issues in this lawsuit 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 the
Section 5 issues involved in this matter, and further agree to attempt to resolve amicably all

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remaining issues as to the boundaries of council districts, fees and costs. Accordingly, the
Plaintiffs and Defendants stipulate and agree to the following:
1.

The City of Evergreen, Alabama is a covered jurisdiction within the

meaning of Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.
1973c.
2.

The May 15, 2012 redistricting plan and the revised system for

determining what persons are eligible to vote in municipal elections constitute
voting changes within the meaning of Section 5. The voting changes are legally
unenforceable unless they receive the requisite preclearance under Section 5 of
the Voting Rights Act. See Clark v. Roemer, 500 U.S. 649 (1991); 28 C.F.R.
51.10.
3.

These redistricting plan and new voter eligibility system have not received

preclearance from the United States District Court for the District of Columbia or
the United States Attorney General, as required under Section 5 of the Voting
Rights Act.
4.

Defendants have taken irretrievable steps to conduct the August 28, 2012

City of Evergreen municipal elections based on the unprecleared voting changes,
including the redistricting plan and new voter eligibility system. The candidates
who prevailed in those elections would be sworn into office on November 3,
2012.
5.

Irreparable harm would be caused by Defendants' continued

administration and implementation of the unprecleared voting changes.

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Accordingly, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1.

Defendants, their agents, their successors in office, and all persons acting

in concert with them, are ENJOINED from using the redistricting plan adopted by
the City on May 15, 2012 unless either the Attorney General or the United States
District Court for the District of Columbia preclears the redistricting plan.
2.

Defendants, their agents, their successors in office, and all persons acting

in concert with them, are ENJOINED from administering or attempting to
administer any election using the lists of voters and Problem Voters prepared by
the City for use in the August 28, 2012 municipal election in any other election of
the City of Evergreen until Defendants obtain Section 5 preclearance, or from
honoring challenges to voters’ eligibility based on such a list without a sufficient
independent factual basis for such challenge.
3.

The City of Evergreen election scheduled for August 28, 2012 is

ENJOINED and the City shall conduct a special election on December 15, 2012,
and Defendants shall follow state law standards and requirements as to the
number of days before and after December 15, 2012 in which to perform an act in
conducting the special election and run-off, with the additional requirement that a
list of eligible voters shall be completed and presented to Plaintiffs 10 days prior
to the deadline for the official list so that they may inspect it and comment, and so
that the parties can amicably resolve any dispute as to the eligibility of any voter
prior to the election.

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4.

Defendants are ENJOINED to obtain, on or before September 1, 2012, the

assistance of an employee of the Office of the Secretary of State of Alabama or
other person agreed to by the parties to supervise the conduct of the December 15,
2012 election; train officials of the City in the proper conduct of an election; and
assure transparency in the creating of the list of registered voters eligible to
participate in the December 15, 2012 election.
5.

This decree is final and binding between the parties and their successors in

office regarding the claims raised in this action. This Decree shall remain in effect
for one year from the date of this Order.
6.

The Court shall retain jurisdiction of this case to consider the additional

Claims raised in the Complaint in this action under Section 2 of the Voting rights
act, 42 U.S.C. 1973 and the 14th and 15th Amendments; and to enter further relief
or such other orders as may be necessary for the effectuation of the terms of this
agreement and to ensure compliance with federal law.
Agreed to this the 16th day of August, 2012.

AGREED AND CONSENTED TO:
For Plaintiff:

For Defendants:

/s/Armardo W. Pitters

/s/James H. Anderson

ARMARDO W. PITTERS [8998-T64A]

JAMES H. ANDERSON [ANDE4440]

P.O. Box 973

JESSE K. ANDERSON [ANDE8821]

Montgomery, AL 36102

JACKSON, ANDERSON & PATTY, P.C.

Tel: [phone]

Post Office Box 1988

Fax: [phone]

250 Commerce Street, Suite 100
Montgomery, Alabama 36102-1988

/s/John K. Tanner

Tel: [phone]

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JOHN K. TANNER [Admitted Pro Hac Vice]

Fax: [phone]

3743 Military Road, NW
Washington, DC 20012
DONE and ORDERED this the 20th day of August, 2012.

s/ Charles R. Butler, Jr.
Senior United States District Judge

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