NAACP seeks injunction, asks return to district-only voting to replace Commissioner Pota Coston
Correction: The July 30 hearing will be held at 2 p.m. in Atlanta in the Richard B. Russell Building in Courtroom 2106.
It’s back to court for the Fayette County Commission and the NAACP.
Federal Judge Timothy Batten has scheduled a hearing in Atlanta for July 30 on the NAACP’s request for an injunction that would halt the county’s scheduled at-large election in September to fill the unexpired term of the late Pota Coston.
The NAACP and local plaintiffs want Judge Batten to order any special election be conducted only in the redrawn majority-minority District 5 — both the candidates and the voters would have to reside in that district, just like last fall’s general election.
Judge Batten asked the county to file its response to the NAACP request no later than next Monday, July 27, “given the time-sensitive nature of the issues involved,” according to the judge’s law clerk in an email to all parties.
“The county will oppose that motion” for an injunction, according to a news release Tuesday from the Fayette County Deputy Clerk Tameca White.
Shortly after the Board of Elections voted to conduct the Sept. 15 election using at-large voting and candidates from the 2012 map for District 5, opponents of the decision filed an injunction in U.S. District Court in Newnan.
The plaintiffs, listed on the motion as “Georgia State Conference of the NAACP, et al,” asked the court to prohibit the county from qualifying candidates and conducting the special election under at-large voting, and that they be ordered to complete the process “in a manner consistent with this court’s order of Feb. 18, 2014” — in other words, district voting using a court-drawn map that created a majority of black voters in that district.
That would be the ruling handed down last year by Judge Batten which allowed district voting for the first time in a county election. Coston won her seat in District 5 under a newer gerrymandered map and took office in January. She died July 3.
The 11th Circuit Court of Appeals threw out that decision only weeks after Coston took office. Though the appeals court did not void the results of the district vote, the effect of their ruling was to return Fayette to its prior at-large voting status, pending a bench trial by Judge Batten. No date has been announced for that trial.
One of the reasons listed by the plaintiffs in the injunction filed Friday is that “given the summary judgment and 11th Circuit’s ruling, there is substantial likelihood plaintiffs will succeed on the merits of their claim at trial.” That assumption is strongly disputed by many on the other side of the lawsuit who believe the county will prevail now that it has the opportunity to go to trial.
The plaintiffs also maintained in their motion that they “will suffer irreparable harm in the absence of the preliminary injunction” and that it will serve the public interest.”
Qualifying is scheduled to begin Aug. 10 and early voting would start Aug. 24.
County officials released a brief statement Monday saying they opposed the injunction “because the 2012 at-large plan is currently in effect and therefore the special election must be held under that plan. The plaintiffs want district voting to be used prior to a decision on whether district voting is required.”
The Board of Elections voted 2-1 July 14 to call for the special election but did not officially address the voting process or the map in that vote, since county attorney Dennis Davenport had advised them that those issues were out of their hands as a matter of law.
The election board heard more than an hour of public comment from the standing-room-only crowd of more than 200 in the main meeting room of the county’s administrative complex. Most of the 30 speakers urged the board to conduct the election the same way it was done last year, while a handful of opponents mostly suggested that the was not about race but about electing a Democrat in an overwhelmingly Republican county.
Election board member Darryl Hicks, who cast the dissenting vote, asked Davenport what would happen if he and his colleagues, Marilyn Watts and Addison Lester, declared their intention to go with district voting and the new map. Davenport told him that move would likely be ignored.
“You would be voting for something that does not exist,” he said. “The voting date is the crucial issue before you today, and that date is not solely at your discretion. You must use the date provided by state law, just as you must use the voting methodology provided by state law.”
Davenport laid out the legal reasoning for the election process as follows:
After the district voting lawsuit began in 2011, there were no hearings for evidence at the district court level. There were only motions from both sides for summary judgment, which Judge Timothy Batten was allowed to use as the basis for his ruling if he wished. He did just that, finding that there was a violation of Section 2 of the Voting Rights Act, and he implemented a remedy in the form of district voting and a new, racially selective map.
The 11th Circuit Court of Appeals made a decision that was procedural in nature, ruling that because Judge Batten made his ruling solely on legal arguments and not on facts in evidence, he could not find a violation of the Voting Rights Act because he saw no evidence such a violation occurred. That led to the appellate court’s ruling that the case go back to Judge Batten and start over.
Since no violations were found in a proper manner, the appellate court stated that the remedy cannot be implemented.
Davenport added that the appellate court made it clear that it could have overturned the 2014 election results but chose not to.
Hicks said just before the vote that he understood the law and what Davenport was saying, but he felt strongly that he had to take a different stand.
“I have to believe that we have an opportunity and defining moment right now to challenge the law and make the judge make a decision,” he said. “For me, this is more about what our children and grandchildren will experience than whether Darryl Hicks has to follow the law today. I believe that district voting moves us into the future.
“We’ve got to be strong enough to do the right thing because it’s the right thing,” Hicks said.
Lester said that, while he likes having the ability to vote for all of his commissioners under an at-large system, he can support district voting because that’s the way our state legislators and members of Congress are elected. But he realized that from a legal standpoint that was not his decision to make.
Watts, the election board chair, echoed that last comment, saying that she and the board “have pledged to follow the law. We are not attorneys.”
She quashed a rumor that had circulated throughout the county for a week, saying that her board was not directed by the Board of Commissioners in any way regarding their decision.
“We have not had any conversations about it,” she said. “They don’t have any more authority to change it than we do. If the method of voting needs to be changed, it is not up to us.”
