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

Filing 45

ORDER granting Plaintiffs' 36 renewed motion for entry of court-ordered redistricting plan and election schedule. Signed by Judge Callie V. S. Granade on 3/20/2013. (Attachment: # 1 Exhibit 1) (mab)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAN ALLEN, et al.,
Plaintiffs,
vs.
THE CITY OF EVERGREEN,
ALABAMA, et al.,
Defendants.

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) CIVIL ACTION NO. 13-107-CG-M
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ORDER

This matter is before the Court on the plaintiffs’ renewed motion for entry of
a court-ordered redistricting plan and special election schedule (Doc. 36),
defendants’ responses thereto (Docs. 42, 43) and plaintiffs’ reply (Doc. 44).
This action began on August 6, 2012, based on Plaintiffs’ challenges to the
single member districts used for elections of the City of Evergreen and to a newly
adopted system for determining which registered voters were eligible to vote in the
August 26, 2012, election.1 Plaintiffs brought these claims under sections 2 and 5 of
the Voting Rights Act, 42 U.S.C §§1973 and 1973c and the 14th and 15th
Amendments to the United States Constituion. The three-judge panel enjoined the
regular election for the City of Evergreen, due, inter alia, to the failure of the
defendants to obtain preclearance, under section 5 of the Voting Rights Act, of the

The original action was divided into two actions, with the original case, 1:12-cv00496-CG-KD-EC, being heard and determined by a three-judge court pursuant to
28 U.S.C. § 2284. (Doc. 37).
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2012 redistricting plan for city council districts adopted by the City of Evergreen on
May 15, 2012. (Doc. 32).
Plaintiffs filed their initial motion for entry of court-ordered plan on
December 12, 2012. (Docs. 20-23). The Court has given the parties an opportunity
to discuss settlement, but the parties have not been able to come to terms.
Plaintiffs have now renewed their motion, this time proposing an adjusted
redistricting plan and including a request that this Court schedule a prompt special
election. The parties previously conceded that a prompt special election is
necessary and appropriate. (Doc. 24, ¶ 5).
Since the parties have been unable to settle and defendants have not
obtained preclearance of their proposed plan, it now has become the “unwelcome
obligation” of this Court to order into effect a redistricting plan that comports with
the laws and Constitution of the United States. See Connor v. Finch, 431 U.S. 407,
415 (1917).
The facts presented in plaintiffs’ initial motion and renewed motions and
briefs establish that the likelihood that Defendants’ 2012 redistricting plan will not
satisfy Section 5 preclearance standards are “not insubstantial.” See Perry v. Perez,
132 S.Ct. 934, 942 (2012). While over sixty-two percent (62%) of the City of
Evergreen’s population is black, and that black population of the city is
concentrated so that three compact and contiguous districts with substantial black
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majorities easily can be drawn, the defendants’ proposed plan would retain three
districts with white voter registration majorities by over-concentrating (“packing”)
the bulk of the black population in two districts (4 and 5) that have black population
majorities in excess of eighty-six percent (86%). The remainder of the black
population concentration is scattered among districts 1, 2 and 3, all with white
voting population majorities. Plaintiffs’ evidence of the presence of indicia of
discrimination, as outlined in Village of Arlington Heights v. Metropolitan Housing
Development Corp, 429 U.S. 252, 266-68 (1977), is neither rebutted nor
distinguished by the defendants. Indeed, the defendants, in their responses to the
current motion, have not objected to the above factual conclusions.
The plan submitted by Plaintiffs in their renewed motion satisfies all of the
requirements of federal law. The City of Evergreen has acknowledged that the
proposed plan meets the standards for a court-imposed interim redistricting plan.
(Doc. 42). The plan provides for five compact and contiguous single-member
districts and provides both the black citizens and the white citizens of Evergreen an
equal opportunity to elect candidates of their choice. The population deviations in
the districts proposed by the current plan are well within acceptable one-person,
one-vote standards.
The Court deems the plan proposed in the renewed motion preferable to
Plaintiffs’ prior proposed plan because it adheres more closely to the districts in the
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plans adopted by the defendants in 2001 and 2012. Perry v. Perez, 132 S.Ct. at 943,
n.2 (“This Court has stated that court-drawn maps are held to a higher standard of
acceptable population variation than legislatively enacted maps. But this Court has
also explained that those ‘stricter standard[s]’ are not triggered where a district
court incorporates unchallenged portions of a State’s map into an interim map.”
citations omitted). Indeed, the plan does not alter two of the districts (3 and 4)
drawn by Defendants in 2012. Therefore, the plan proposed by the plaintiffs’
renewed motion is preferable because it better follows the Supreme Court’s
guidance in Perry v. Perez than did the original proposed plan.
The citizens of Evergreen have waited many months beyond the statutory
date to vote for their city officials. The parties previously have agreed to a prompt
special election on terms consistent with this Order and no further delay is
warranted.
Accordingly, Plaintiffs’ renewed motion for entry of a court-ordered
redistricting plan and election schedule (Doc. 36) is hereby GRANTED.
It is hereby ORDERED, ADJUDGED and DECREED that:
1.

Defendants are ENJOINED to utilize as the plan for the districts used

to elect members of the Evergreen City Council the plan attached to their
motion (Doc. 36) as Exhibit 1;

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2.

Defendant are ENJOINED to conduct a special election for the mayor

and city council eight weeks (56 days) following the first Tuesday after the
date of this Order. If a problem with this deadline should arise, the Special
Master shall have authority to make such adjustments as are necessary to
ensure the orderly conduct of an election. Any additional dates and deadlines
that need adjustment consequent to such alteration shall 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; and
4.

Defendants are ENJOINED to adhere to state law with the additional

requirements that:
(a) Plaintiffs and Defendants may each submit to the Special
Master a list of persons eligible to serve as poll officials for the
new election; and
(b) 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; and any candidate who is certified by the Special
Master as having received a majority of the votes in any run-off

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election shall be sworn in and take office immediately upon such
certification by the Special Master.
DONE and ORDERED this 20th day of March, 2013.

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

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