Will judge hear voting lawsuit?

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Appeals court judges question whether district voting should be decided by a judge at a bench trial

Federal appeals court judges last week questioned whether the whole district voting lawsuit filed by the NAACP against Fayette County ought to be heard by a judge at a bench trial.

The appeal of a federal court decision mandating district voting in Fayette County was heard Dec. 10 at the U.S. 11th Circuit Court of Appeals in Atlanta. There is no established time frame for a decision on the appeal to be rendered.

Questions about whether a bench trial would be appropriate surfaced on several occasions during the proceedings.

A three-judge panel heard the appeal by the Fayette County Board of Commissioners (BOC) and Fayette County Board of Education (BOE), and responses from the plaintiffs — the Georgia Conference of the NAACP (National Association for the Advancement of Colored People) and a number of Fayette County residents.

Each side had 15 minutes to present arguments and field questions from the judges.

The BOE and BOC are appealing the March summary judgment by U.S. District Judge Timothy C. Batten that mandated the NAACP’s call for district voting in Fayette County. A summary judgment is one issued by the court without a full trial.

With Judge Batten’s ruling, Fayette County held its first district voting elections in November.

The three-judge panel included 11th Circuit Court of Appeals Judge Charles R. Wilson, appointed to the court by Pres. Bill Clinton in 1999, 11th Circuit Court of Appeals Judge Robin S. Rosenbaum, appointed to the court by Pres. Barack Obama in 2014, and U.S. District Court for the Middle District of Florida Chief Judge Anne C. Conway.

Representing the NAACP in both hearings was NAACP Legal Defense and Educational Fund attorney Leah C. Aden.

Representing the Fayette County Board of Commissioners were attorneys Anne Lewis and Bryan Tyson. Attorney David Walbert represented the Fayette County Board of Education.

The idea behind the hearing was not to present new evidence, rather it provided an opportunity for attorneys to have their say on why the district voting mandate should or should not be upheld and to give the judges an opportunity to have questions answered.

Judge Wilson in the BOE hearing asked the school board’s opinion on the procedural issues of the summary judgment issued by Judge Batten. BOE attorney Walbert in his answer said the BOE submitted a discovery plan, though discovery did not occur. Walbert said the BOE never responded to a motion for summary judgment.

Judge Wilson continued, asking if the BOE is saying the case should be judged and commenting that the case looks like a 3-day bench trial.

Walbert said there was no trial and no cross examination and that the issue was more complicated, adding that “politics is what’s driving this.” Walbert said he believed the outcome of a trial would be different than the summary judgment issued by Judge Batten. Walbert in other comments questioned the expenditure of additional funds in the case if a bench trial is ordered.

Representing the NAACP, Aden said the BOE failed to appear at the deposition and failed to develop evidence to dispute the existing racial polarization.

Judge Wilson responded, noting BOE comments that they were not given an opportunity and asking if it would be better to have court trial conducted.

The BOE was not sandbagged by the District Court, Aden said, explaining that the BOE had opportunities to raise what they considered to be contradictory evidence but did not do so.

Asked by Judge Wilson in the BOC hearing if the summary judgment was premature, Aden cited recent summary judgement rulings of a similar nature, adding that the BOC case was straightforward and was evidence of racially-polarized voting.

Asking if the conclusion would be different if a bench trial had been conducted, Aden said the “outcome would be the same.”

An issue that surfaced more than once by judges was whether Section 2 of the Voting Rights Act was upheld in the summary judgment. Both sides maintained their long-held posture, with the NAACP saying Section 2 was upheld while the BOC and BOE disagreed.

“Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section’s prohibition against discrimination in voting applies nationwide to any voting standard, practice or procedure that results in the denial or abridgment of the right of any citizen to vote on account of race, color or membership in a language minority group,” according to the U.S. Dept. of Justice.

Aden during the proceedings pointed out to the judges that a large number of those in the packed audience included members and supporters of the Fayette Branch of the NAACP.

Among its arguments, the BOE in its brief said plaintiff’s contention that the BOE appeal must fail because BOE failed to litigate is baseless, that a geographically-compact majority African-American district cannot be drawn in Fayette, that the plan deliberately under-populated District 5 and deliberately over-populated other districts to construct a majority “any part black” voter age population district and that the district court could not properly issue a summary judgment given numerous disputed questions of fact pertaining to the drawing of a majority-minority district.

Plaintiffs in their summary of the argument stated that Judge Batten’s court held that the at-large electoral method used by the BOC and BOE results in improper vote dilution and recognized that, though black voters comprise 20 percent of the voting age population, they are geographically compact in the northern part of the county and are politically cohesive.

Fayette’s (prior) at-large electoral method, in combination with racially-polarized voting, denies them the opportunity to participate equally in the political process and elect responsive elected officials. As the District Court recognized, no black candidate has ever been elected to the BOC or BOE, plaintiffs said.

Pertaining to the BOE, plaintiffs maintained that it relied entirely on the BOC arguments, adding that the BOE’s failure to litigate any aspect of this case after the settlement attempts with plaintiffs were unsuccessful is fatal to its appeal.

Under district voting, residents can only vote for the commission and board of education post associated with the district in which they live. Under the county’s previous at-large voting system, voters could cast a ballot on all five posts for both governing bodies.

The district voting ruling from Judge Batten in early 2014 concluded a lawsuit filed by the NAACP, which argued that black residents were unable to elect “the candidate of their choice” in previous county elections. The lawsuit argued that Fayette’s at-large voting format prevented any black candidate from winning election to the county commission or the board of education.

Batten instituted a district voting map that included a specially-carved 5th District, drawn to include a voting age population consisting of more than 50 percent black voters.

While the district voting map wasn’t finalized until late February, Batten in May 2013 issued an order declaring district voting the law of the land in Fayette County.

One of the underlying facts needed to be proven in the lawsuit was that the county’s district voting format presented black candidates from getting elected to office. The lawsuit specifically referred to the fact that no black resident had ever been elected to either the BOC or BOE.

The board of education’s appeal is noteworthy because it initially had voted to settle the district voting lawsuit by adopting its own district voting map. While it was first approved by the court, Judge Batten later overturned the settlement because the county commission, listed as co-defendant in the case, had not approved of the settlement.

The 2014 general election in November saw white Democratic District 5 school board incumbent Leonard Presberg defeating Republican challenger Dean Dutton and Democratic challenger Pota Coston, an African American, defeating Republican incumbent Allen McCarty in the District 5 Fayette County Commission race.

The lawsuit was filed on behalf of several local residents in conjunction with the NAACP.