The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 08, 2002
THOMAS K. KAHN
CLERK
No. 01-10806
D. C. Docket No. 00-00273-CV-TWT-1
TIBERIO P. DEJULIO,
EVA C. GALAMBOS,
Plaintiffs-Appellants,
versus
STATE OF GEORGIA, ROY E. BARNES,
in his official capacity as the Governor of Georgia, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Georgia
(May 8, 2002)
ON PETITION FOR REHEARING AND SUGGESTION
OF REHEARING EN BANC
Before BIRCH, COX and ALARCON*, Circuit Judges.
BIRCH, Circuit Judge:
No member of this panel nor other judge in regular active service on the
Court having requested that the Court be polled on rehearing en banc (Rule 35,
Fed.R.App.P. 11th Cir. Rule 35-5), the suggestion of rehearing en banc is
DENIED. However, the original panel grants rehearing (although on grounds
other than those urged by appellant), withdraws the previous panel opinion dated
December 21, 2001, published at 276 F.3d 1244 (11th Cir. 2001), and the
following opinion is substituted.
This appeal presents the following issues: (1) whether the procedures by
which the Georgia General Assembly considers “local legislation” violate the
principle of “one person, one vote,” and (2) whether the changes in internal rules
and procedures by which the General Assembly enacts local legislation are subject
to the preclearance requirement of the Voting Rights Act of 1965, 42 U.S.C. §
1973 et seq., as amended. The district court determined that, although the
members of the Georgia General Assembly’s local delegations were popularly
elected, they did not engage in governmental functions, and, therefore, the “one
*
Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
2
person, one vote” requirement did not apply. Regarding the second issue, the
district court found that the preclearance requirements of the Voting Rights Act did
not apply to the changes in the General Assembly. We AFFIRM.
I. BACKGROUND
The legislative power of the state is vested in the General Assembly, which
consists of a House of Representatives and a Senate.1 Ga. Const., art. III, § 1, ¶ 1.
Both the House and Senate have adopted their own rules to govern organization
and basic rules of operation.2 Local legislation, which is legislation that applies to
a specific city, county, or special district, comprises a large part of the bills
introduced and enacted by the General Assembly each year.3 Because of this
volume, the House and the Senate have adopted local delegations for the
consideration of local legislation. Each county, municipality, or other jurisdiction
1
Hereinafter, the Georgia House of Representatives and Georgia Senate will be referred
to respectively as “House” and “Senate.”
2
The district court took judicial notice of the 2000 Rules of the Georgia House of
Representatives and the 2000 Rules of the Georgia Senate. DeJulio v. Ga., 127 F. Supp.2d 1274,
1284 (N.D. Ga. 2001).
3
Local legislation is introduced to change city boundaries, create local authorities, or
make other changes that apply only to the particular political subdivision named in a bill.
Approximately one-third of all legislation enacted during the General Assembly’s 2000 session
was local legislation. DeJulio, 127 F. Supp.2d at 1280. In 1999, local legislation constituted
52.5% of all enacted legislation. Id.
3
has a local delegation and any legislator whose district encompasses territory
within a specific city or county is a member of the local delegation for that entity.
The local delegations make recommendations to the House and Senate
standing committees, which then recommend local legislation to the entire body4.
A local bill must receive the requisite majority from the local delegation to be
reported favorably out of the standing committees with a “do pass”
recommendation. Absent local delegation rules filed in the House Standing
Committee, unanimous support from the local delegation is required for the
committee to report the legislation favorably to the full House with a “do pass”
recommendation.5 Similarly, Senate Rule 187(u) provides that local legislation
must be approved by a majority of the senators who represent the locality in
question. If the local delegation is equally divided on the proposed legislation,
however, the committee then considers the legislation on its own merits and can
report it with either a “do pass” or “do not pass” recommendation.
4
The standing committees are the State Planning and Community Affairs Committee in
the House and the State and Local Government Operations Committee in the Senate. Id. at
1280-81.
5
House Rule 11 provides that a majority of the representatives whose districts lie within
a political subdivision may file with the State Planning and Community Affairs Committee their
own local rules for consideration of local legislation.
4
If local legislation has received the requisite number of signatures of
representatives and senators whose districts lie partially or wholly within the
locality which the legislation affects, it is ordinarily passed on an uncontested basis
as a matter of local courtesy.6 The underlying assumption of local courtesy is that
the bill affects only a certain city or county, and, therefore, representatives and
senators of other districts should defer to that local delegation’s judgment. Local
courtesy is a custom, however, and is not provided for in either the House or
Senate rules. Should a member of the House or Senate choose to challenge local
legislation on the floor, local courtesy is not enforced.7
It is undisputed that these challenges seldom happen. The district court
noted that “in practice, the local delegations propose all local legislation; and this
legislation typically, but not always, is ‘rubber-stamped’ by the full General
Assembly without further discussion or debate.” DeJulio, 127 F. Supp.2d at 1281.
For local legislation to become law, however, the Governor must sign it within
forty days from the end of the legislative session. Id.
6
Both the House and Senate permit numerous local bills to be voted on by the full body
through a “local consent calendar” that contains uncontested local legislation. DeJulio, 127 F.
Supp.2d at 1281.
7
Senate Rule 113(e) provides that three senators, only one of whose district must lie
within the political subdivision directly affected, may have a particular local bill removed from
the local consent calendar by objecting to it in writing.
5
Plaintiffs-appellants, Tiberio P. DeJulio and Eva C. Galambos (hereinafter
“Voters”), filed a voting rights action pursuant to 42 U.S.C. § 1983, the Fourteenth
Amendment of the United States Constitution, and an action to enforce the
provisions of the Fourteenth Amendment and the Voting Rights Act of 1965, 42
U.S.C. § 1973 et seq., as amended. Voters alleged that the current procedures for
enactment of local legislation of the General Assembly constituted a violation of
the “one person, one vote” standard.8 Additionally, Voters argued that the changes
in the General Assembly’s internal rules are subject to the preclearance
requirement of Section 5 of the Voting Rights Act. DeJulio, 127 F. Supp.2d at
1282. The district court granted summary judgment to the appellees and
determined that: (1) the “one person, one vote” requirement did not apply to the
General Assembly’s local legislative delegations, and (2) the changes in internal
rules and procedures by which the General Assembly enacted local legislation were
not subject to the Voting Rights Act’s preclearance requirements. Id. at 1302.
Voters appeal this judgment on both issues.
II. DISCUSSION
8
Voters’ argument is based on the undisputed population data for Georgia’s 159 counties
broken down according to the House and Senate Districts located in those counties. Voters
allege that a House or Senate member with constituents in the county have one vote on local
legislation while another House or Senate member with fewer constituents in the county also has
one vote on local legislation affecting the county.
6
We review a district court’s grant of summary judgment de novo, apply the
same standard as the district court, and review all facts and reasonable inferences
in the light most favorable to the nonmoving party. Allison v. McGhan Med.
Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Summary judgment is appropriate
when “the pleadings, depositions and answers to interrogatories, and admissions on
file, together with the affidavits, if any,” show there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law. Celotex v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P.
56(c)).
A. “One Person, One Vote”
In Hadley v. Junior College Dist., the Supreme Court enunciated the
principle of “one person, one vote”:
[W]henever a state or local government decides to select
persons by popular election to perform governmental
functions, the Equal Protection Clause of the Fourteenth
Amendment requires that each qualified voter must be
given an equal opportunity to participate in that election,
and when members of an elected body are chosen from
separate districts, each district must be established on a
basis that will insure, as far as is practicable, that equal
numbers of voters can vote for proportionally equal
numbers of officials.
397 U.S. 50, 56, 90 S. Ct. 791, 795 (1970) (emphasis added). Thus, under Hadley,
in order for the “one person, one vote” requirement to apply to the General
7
Assembly’s local delegations, Voters must show: (1) that the House and Senate
delegations are selected by “popular election;” and (2) that these delegations
perform “governmental functions.” Id.
We agree with the district court that the first element of the Hadley test is
clearly satisfied. “When public officials become members of a governmental body
simply by virtue of their popular election to the legislature, they are deemed
popularly elected for the purposes of the ‘one person, one vote’ requirement.”
DeJulio, 127 F. Supp. 2d at 1294. Georgia’s local legislative delegations are
deemed popularly elected because representatives and senators become delegation
members by virtue of their popular election, not through appointment.
As to the second element of the Hadley test, the district court correctly
concluded that the Georgia General Assembly’s local delegations do not engage in
“governmental functions.” The Supreme Court has recognized the following
functions as governmental: the ability to “levy and collect taxes, issue bonds with
certain restrictions, hire and fire teachers, make contracts, collect fees, supervise
and discipline students, pass on petitions to annex school districts, acquire property
by condemnation, and in general manage the operations of the junior college,”
Hadley, 397 U.S. at 53-54, 90 S. Ct. at 794, appoint county officials, make
contracts, establish and maintain a courthouse and jail, administer the county
8
welfare system, perform duties in connection with elections, set the county tax rate,
build roads and bridges, adopt the county budget, build and run hospitals, airports,
and libraries, fix school district boundaries, establish a housing authority, and
determine the election districts for county commissioners. Avery v. Midland
County, 390 U.S. 474, 476-77, 88 S. Ct. 1114, 1116 (1968). This list, however, is
non-exhaustive.
Voters claim that, although the local delegations do not carry out any of the
listed functions, the delegations engage in “lawmaking,” a distinct governmental
function, which brings them under the ambit of the “one person, one vote”
requirement.9 They argue that “the local delegations draft, consider, debate, and,
9
Voters contend that their argument is buttressed by Vander Linden v. Hodges, 193 F.3d
268 (4th Cir. 1999), where the Fourth Circuit concluded that South Carolina’s local legislative
delegations did engage in governmental functions. However, as the district court points out,
Voters’ ignore important relevant distinctions between the role of South Carolina’s local
legislative delegations and those of Georgia. The district court distinguishes Vander Linden by
noting:
A reading of the statutes at issue in Vander Linden shows that South
Carolina’s local legislative delegations performed local governmental
functions either in lieu of or in concert with local governments,
depending on the situation. The statutes the Fourth Circuit cited in
Vander Linden do not limit the role of South Carolina’s local
legislative delegations to consideration of local legislation. They
instead broadly define the role of South Carolina’s local legislative
delegations in overseeing and approving local governments’ general
activities. Indeed most of these statutes explicitly provide that the
local legislative delegation, not the entire General Assembly, is the
final authority. . .
In contrast, no final governmental authority is granted to the Georgia
General Assembly’s local delegations. The Georgia Constitution
explicitly provides that the General Assembly as a whole, not
9
for all practical purposes, enact all local bills, which the General Assembly merely
‘rubber stamps’ in ministerial fashion without further discussion or debate.”
Appellants’ Br. at 13.
As Voters point out, a local bill must receive the requisite majority from the
local delegation to be reported favorably out of the standing committees with a “do
pass” recommendation. It is true, moreover, that if local legislation has received
the requisite number of signatures of representatives and senators whose districts
lie partially or wholly within the locality which the legislation affects, it is
ordinarily passed on an uncontested basis as a matter of local courtesy by the
General Assembly.
As the district court noted, however, Georgia law does not codify or require
the discretionary deference to local courtesy when either the House or Senate
addresses local legislation. Local delegations are made up of individual members
of the General Assembly and operate solely within the procedural confines of the
legislature itself. Members of the General Assembly can contest local legislation
of which they disapprove by removing it from the consent calendar and requiring
specific local delegations, is the legislative authority for Georgia’s
counties and municipalities.
DeJulio, 127 F. Supp. 2d at 1296-97. We find the district court’s reasoning persuasive.
Accordingly, Vander Linden is distinguishable from this case.
10
the whole body to vote upon it. Objections to local legislation typically are not
pursued; nonetheless, this does not render plenary authority to the local delegations
with respect to the enactment of local legislation, as Voters argue. The local
delegations only make recommendations to the House and Senate standing
committees, which then propose local legislation to the entire body. Local
legislation is not officially enacted until it is voted on by a majority of the full
House and Senate and signed by the Governor. Thus, the General Assembly,
which has undisputedly been apportioned in accordance with the “one person, one
vote” requirement, engages in the governmental function of lawmaking, not the
local delegations.
B. Section 5 of the Voting Rights Act
Section 5 of the Voting Rights Act requires a jurisdiction covered by the Act
to obtain either judicial or administrative preclearance before implementing a new
“voting qualification or prerequisite to voting, or standard, practice, or procedure with
respect to voting different from that in force or effect on November 1, 1964."10 42
U.S.C. § 1973c (Voting Rights Act of 1965 § 5). If a covered jurisdiction fails to seek
preclearance for a proposed voting-law change, a private party injured by that change
10
Georgia is a “covered jurisdiction,” as are its “political subunits.” 28 C.F.R. Part 1 & §
51.6.
11
can bring an action for a declaratory judgement and injunctive relief by alleging that
the change is within the scope of Section 5 and that it requires preclearance. Id.
In this case, Voters, without identifying specific rule changes, argue that the
changes in Rules of the General Assembly are subject to preclearance. The
preclearance requirements of the Voting Rights Act apply to legislative internal rule
changes in only the most limited of circumstances: (1) changes to the manner of
voting; (2) changes to candidacy requirements and qualifications; (3) changes to the
composition of the electorate; and (4) changes that affect the creation or abolition of
an elective office. Presley v. Etowah County Commission, 502 U.S. 491, 493, 112
S.Ct. 820, 823 (1992). In Presley, the Court held that changes in the decision-making
authority of elected officials are not changes in voting practices or procedures that
require preclearance pursuant to Section 5 of the Voting Rights Act. Id. at 503, 112
S.Ct. at 829. The change “concerns only the internal operations of an elected body
and the distribution of power among officials, and, thus, has no direct relation to, or
impact on, voting.” Id. at 492, 112 S.Ct. at 823. Hence, the district court correctly
determined that preclearance requirements did not apply to changes in internal rules
and procedures by which the General Assembly enacted local legislation applicable
to a specific city, county, or district.
III. CONCLUSION
12
This case involved the appeal of a grant of summary judgment in which the
district court held: (1) the “one person, one vote” requirement did not apply to the
General Assembly’s local legislative delegations, and (2) the changes in internal
rules and procedures by which the General Assembly enacted local legislation were
not subject to the Voting Rights Act’s preclearance requirements. Local
delegations do not perform governmental functions, which would bring them under
the “one person, one vote” requirement. Further, preclearance is not required
because changes in the decision-making authority of elected officials are not
changes in voting practices or procedures that require preclearance pursuant to
Section 5 of the Voting Rights Act. We AFFIRM the judgment of the district
court.
13