Appendix — Busbee v. Smith

PART I

DISTRICT COURT DECISION

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

GEORGE D. BUSBEE, et al., .

Plaintiffs

V.

WILLIAM FRENCH SMITH, et al., COT ION

Defendants 82-0665

WILLIAM C. (BILLY)

RANDALL, IR., et al.

Intervenor-Defendants |

BEFORE: Harry T. Edwards; Circuit Judge; Aubrey E.

Robinson, Jr.; and June L. Green, District

Judges

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

INTRODUCTION

This action was commenced by the State of Georgia

pursuant to Section 5 of the Voting Rights Act of 1965,

42 U.S.C. § 1973c. The State seeks a declaratory judg-

ment from this Court that Act No. 5 of the 1981 Extra-

ordinary Session of the Georgia General Assembly, which

is the plan for reapportionment of the State’s congres-

sional districts, ‘“does not have the purpose and will not

have the effect of denying or abridging the right to vote on

account of race. 42 U.S.C. § 1973c. Such a declaratory

judgment is necessary for the State to implement its re-

apportionment plan, as the United States Attorney

General refused preclearance of Act No. 5 upon his find-

ing that the Fourth and Fifth Congressional districts

created by the Georgia law violated the Voting Righis

la

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Act of 1965. See Id.

Trial was held before this three judge court from June

28 through July 1, 1982.

FINDINGS OF FACT

1. Application of 1980 Census figures to the 1972

Georgia congressional apportionment plan demonstrated

that the districts delineated in the 1972 pl.n did not

satisfy the one-person, one-vote standard of the Four-

teenth Amendmit to the United States Constitution.

(Stipulation of Facts J 3.) New districts had to be drawn

to satisfy the constitutional requirement.

2. On August 13, 1981, the Governor of Georgia,

George Busbee, called a special session of the Georgia

General Assembly starting August 24, 1981 to consider,

inter alia, reapportionment of Georgia’s state legislative

districts and congressional districts. (Jd. © 19.)

3. On September 17, 1981, the Georgia General As-

sembly adopted Act No. 5, Extraordinary Session 1981,

providing for the reapportionment of Georgia’s ten con-

gressional districts. (Jd. © 47.) Governor Busbee approved

Act No. 5 on September 22, 1981 and it became state

law.

4. For each district created by Act No. 5, the total

son, one-vote requirement) are as follows:

On May 24, 1982, this Court enjoined the State of Georgia from

i Act No. 5 in any fashion absent the requisite declare-

Rehnquist for a stay of the injunction.

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TABLE 1. Population of Districts Created by Act No. 5.

Percent Percent

1 541,180 — 96 179,818 33.23

2 550,237 + 69 200,646 36.47

3 540,865 —1.01 185,762 4.35

4 549,846 + 62 116,530 21.19

5 542,592 — 70 310,822 57.28

6 548,891 + 45 81,937 14.93

7 545,889 — 09 32,641 5.98

8 542.552 — 70 191,342 35.27

9 551,773 + 97 28,608 5.18

10 550,440 + 73 137,351 24.95

(Id. J 45.)

5. The 1980 total population, black population and

deviation from the ideal population of each district

created by the 1972 appointment, which Act No. 5 re-

placed, are as follows:

TABLE 2. 1980 Population of 1972 Districts.

1 — 342 180,225 34.15

2 552, — 429 192,649 36.83

3 500,941 — 832 173,936 34.72

4 543,954 — 45 150,798 27.72

5 420474 —2305 211,634 50.33

6 626,354 14.63 146,991 23.46

7 605,720 +1085 40,086 6.06

5 508,028 — 7.03 156,721 30.84

9 660,892 720.95 31,414 4.75

10 547218 + 14 181,003 33.07

6. Based on 1980 Census figures, in the Fifth Congres-

sessional district, 48% of the white population is of voting

age and 52% of the black population is of voting age.

However, 54% of the registered voters are white and 46%

are black. (Stipulation of Facts, J 50.)

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7. Geographically, Act No. 5 splits Fulton County,

Georgia into three congressional districts: the Fourth, the

Fifth and the Sixth. DeKalb County is split between the

Fourth and Fifth Districts. The cities of Atlanta, Roswell

and Alpharetta are split on a north-south axis between the

Fourth and Fifth Congressional districts. (Joint Ex. 23.)

8. Demographically, Act No. 5 splits into separate

congressional districts cohesive neighborhoods and com-

munities in that part of metropolitan Atlanta which lies

in south Fulton and DeKalb Counties. The black popula-

tion in Fulton and DeKalb Counties is concentrated in

one contiguous area stretching from southwest Fulton

County to south Central DeKalb County. During the

past decade, the black population has increased dramati-

cally in south Fulton and unincorporated south DeKalb

Counties. Virtually all census tracts in this area displayed

an increase in black population of 100 percent or more

from 1970 to 1980. (Grier Trial Testimony, 532-537;

Defendants’ Exhibits EEE, FFF, GGG and FFFF.) The

black population has not increased similarly in north

Fulton and DeKalb Counties. A racial boundary line,

which tracks the Southern Railroad Line and North

Avenue in Fulton County and the Georgia Railroad Line

in DeKalb County, separates the races in both counties on

an east-west axis. (Grier Trial Testimony, 535.)

9. The racial boundary line formed by the Southern

and Georgia Railroads and North Avenue, separates, in

general, persons residing in rental dwellings from those in

owner-occupied houses, persons who are apartment

dwellers from home owners, and persons having larger

families from those with smaller families. (Defendants’

Exhibits AAAA, BBBB, CCCC, and DDDD; Grier Trial

Testimony, 540-547.) Most of the citizens in southern

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social concerns on account of their race, income, educa-

tional level, housing and household size. (Jd.; Bond Trial

Testimony, 561.)

10. Furthering the cohesion of black neighborhoods is

the incidence of racially polarized voting which prevails

in this area. (Young Deposition, 9, 31; Bullock Trial

Testimony 255, 260, 263; Fulton [sic] Deposition, 43, 200-

203, 228-228 |sic]; Lowe Deposition, 83-84, 226, 228-229;

Holmes Deposition 79-88 ; Sells Deposition, 8-14, 17; Plain-

tiffs’ Exhibit 25.) Although Andrew Young won a seat as a

United States Congressman in the Fifth District in 1972

when the black population was a lower percentage than

under the State’s proposed congressional plan, the evi-

dence indicates that racial polarization has increased

since that time. (Id.)

11. Although Act No. 5 split a cohesive black com-

munity in Districts 4 and 5, it placed cohesive white

communities throughout the state of Georgia into single

Congressional districts. For example, the so-called ‘‘moun-

tain counties“ of North Georgia, which were described as

having peculiarly unified interests and concerns, were

placed together in the Ninth District. (Miller Trial

Testimony, 169A.)

12. The demographics of south Fulton and DeKalb

Counties were well known to members of the Georgia

General Assembly in 1981. They were aware that black

citizens of the same socio-economic background lived in

this area. (See Finding § 43, infra.) The testimony of Dr.

George Grier and the exhibits prepared by him, though

relying on census information not available in 1981, con-

firmed that which was readily apparent to the Georgia

legislators at the time of the reapportionment at issue.

13. Historically, discriminatory tactics were commonly

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utilized by whites against blacks in the south Fulton and

De Kalb area. For example, literacy tests, the poll tax, the

white primary and the county unit system were employed

to destroy black voting strength. (Willingham Trial Testi-

mony, 661-663.) See, e.g., Gray v. Sanders, 372 U.S. 368

(1963) (Georgia’s county unit system found unconstitu-

tional). In the 1970 reapportionment of the Atlanta area,

the boundary line separating Districts Five and Six was

drawn to fragment the concentration of black persons

residing in the area. (Hamilton Trial Testimony, 133.)

The line separating Districts Five and Six also was drawn

to exclude from the Fifth District the residences of black

persons who were clearly recognized as potential candi-

dates for election in the Fifth District, and to include in

the Fifth District the residences of white persons who

were recognizable potential candidates. The residences of

Andrew Young and Maynard Jackson (black persons

recognized as potential candidates) were located approxi-

mately one block from the boundary of the proposed

Fifth District. (Young Deposition, 28-31; Defendants’

Exhibit N(a).) The reapportionment plan was submitted

to the United States Attorney General for review pur-

suant to Section 5 of the Voting Rights Act and on

February 11, 1972, the Attorney General interposed a

Section 5 objection to the plan. The objection was inter-

posed because the Attorney General was unable to con-

clude “that these new boundaries will not have a dis-

criminatory racial effect on voting by minimizing or

diluting black voting strength in the Atlanta area.”

(Defendants’ Exhibit N(a).) The congressional reappor-

tionment plan was subsequently revised by the Georgia

General Assembly in 1972, and the Attorney General

granted the necessary Section 5 preclearance to the re-

vised plan. (Defendants’ Exhibit N(b).) The 1972 plan

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is the plan currently in effect. The aforementioned histori-

cal discriminatory practices were abandoned only when

made illegal by civil rights legislation, objected to by the

Department of Justice or enjoined by the Courts.

14. The reapportionment process which resulted in the

enactment of Act No. 5 began with the appointment of

legislature members to the House and Senate Reappor-

tionment Committees.

15. The Chairman of those Committees had a signifi-

cant impact on the plans that were considered by the

reapportionment committees, the process by which they

were considered and the plans ultimately adopted.

16. Speaker of the Georgia House, Thomas Murphy,

who served as floor leader for former Governor Lester

Maddox, appointed Representative Joe Mack Wilson

Chairman of the House Permanent Standing Committee

on Legislative and Congressional Reapportionment.

17. Representative Joe Mack Wilson is a racist. Wilson

uses the term nigger' to refer to black persons. (Wall

Deposition, Vol. II, 57.) He stated to one Republican

member of the Reapportionment Committee that there

are some things worse than niggers and that’s Republi-

cans. (Wilson Trial Testimony, 436.) Wilson opposes

legislation of benefit to blacks, which he refers to as

“nigger legislation.“ (Wall Deposition, Vol. II, 59;

Coverdell Trial Testimony, 598; Wall Deposition, Vol. I,

30; Randall Deposition, 65-66; Wilson Deposition, 122,

148; Phillips Deposition, 36; Holmes Deposition, 52-55.)

His views on blacks are well known to members of the

General Assembly. From the House reapportionment

committee to the Conference committee, Wilson played

the instumental role in 1981 Congressional reapportion-

ment and he was guided by the same racial attitudes

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throughout the reapportionment process that guided his

other legislative work.

18. Representative Grace Hamilton is a black who was

appointed Vice-Chairman of the House Reapportionment

Committee. She was one of two blacks appointed to the

nineteen member committee. (Stipulation of Facts, J 9.)

She was unwaivering in her support of the leadership on

the powerful House Policy Committee, which is the

Speaker’s vehicle for obtaining the necessary votes to

either pass or defeat legislation. (Elliott Deposition, 11-12,

17-18; Randall Deposition, 19.) Illustrative of her per-

spective, Mrs. Hamilton testified that she knew of no

instances where black people had difficulty in registering

or voting in the Atlanta area in the years just prior to the

passage of the Voting Rights Act of 1965. (Hamilton Trial

Testimony, 155.) During the 1981 Congressional reap-

portionment process, Mrs. Hamilton served as a pawn for

the House leadership. She has been characterized as an

“Aunt Jane,” the female analogue to “Uncle Tom.”

(Holmes Deposition, 58-58a.) (See also Randall Deposi-

tion, 121-124.)

19. With only one other black member of the House

Reapportionment Committee, black citizens did not have

effective representation on the Committee.

20. The Senate reapportionment Committee was an

ad hoc committee established just prior to the 1981

legislative session. It was chaired by State Senator Perry

Hudson, who was selected by Lt. Governor Zell Miller.

21. State Senator Julian Bond, a black, was also on the

six member Senate Reapportionment Committee. He was

the only black member.

22. One of the first official acts of both Committees was

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a meeting with officials of the Voting Section in the Civil

Rights Division of the United States Department of

Justice, which, on behalf of the Attorney General, ulti-

mately denied Section 5 preclearance of the Georgia

reapportionment plan. (Stipulation of Facts, J 10.)

23. At that meeting, the Georgia officials were in-

formed that to comply with the Voting Rights Act, a

reapportionment plan could have neither the purpose nor

the effect of discriminating on account of race. Specifical-

ly, the legislators were instructed that a plan could not

cause retrogression (a reduction in the percentage of

black voters in a particular district) and that the legis-

lators should not split concentration of black population.

The legislators were further informed that because a

larger percentage of whites vote than do blacks, for blacks

to cast a majority of votes in a given election, at least 65%

of the population in a district would have to be black.

(Defendants’ Exhibit CC, 2.)

24. Chairman of the House Reapportionment Com-

mittee Wilson denied that the Justice Department warned

against splitting concentrations of blacks. (Wilson Trial

Testimony, 446-47). Senator Hudson, testifying other-

wise, acknowledged that the Justice Department had

warned against splitting concentrations of biacks. (Hud-

son Trial Testimony, 358).

25. Approximately one week after the legislators’

meeting with the Justice Department officials, Chairman

Wilson stated at that time that he didn’t know what's

going to be the outcome of this [reapportionment] be-

cause the Justice Department is trying to make us draw

nigger districts and I don’t want to draw nigger dis-

tricts.’”’ (Hudgins Depesition, 7-8.)

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26. The shared reapportionment goals of the House

and Senate committees, as articulated by their respec-

tive chairmen in documents distributed to Committee

members, were:

(a) all plans were to comply with the Voting Rights Act

of 1965 in that they were not to be developed with

the purpose or have the effect of diluting minority

voting strength;

(b) all plans were to Py my with the one person, one

vote requirement of the Fourteenth Amendment;

(c) county units were to be maintained in constructing

districts;

(d) if county lines were not maintained, district lines

should follow county precinct lines to the extent

possible.

(Stipulation of Facts, { 16-17; Joint Exhibits 8, 10.)

27. The Committees held joint public hearings through-

out the State of Georgia at which citizens proffered their

goals for reapportionment. The minutes of the public

hearings revealed that while residents of some districts

indicated a desire to retain existing districts, no partici-

pant in the Atlanta public hearing asked that the Fifth

Congressional district be maintained in its existing con-

figuration. (Joint Exhibit 5-Tab 9.)

28. Dr. Clinton Warren, representative from the

Atlanta NAACP, stated at the Atlanta public hearing

that, in adding population to the Fifth District, the re-

appointment committees should remember that south

Fulton County has an increasing minority population and

that these persons share economic and cultural ties with

the City of Atlanta. (Joint Exhibit 5, May 21, 1981,

Atlanta Public Hearing, Tab 9, at 3.) Dr. Warren implied

that the black communities should be included entirely

within the new Fifth District. Chairman Wilson testified

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that the House Reapportionment Committee ignored Dr.

Warren’s recommendation; the Fifth District under the

House passed plan split this very concentration of black

population among three congressional districts. (Wilson

Trial Testimony, 453-54.)

29. House Committee Chairman Wilson’s stated goal,

beyond the goals enumerated in the memorandum to

committee members, was to keep Congressional districts

in their “historical configuration“, (Wilson Trial Testi-

mony, 409); he admitted that the historical“ configura-

tions were, in some cases, those which resulted after the

1970 apportionment. (Id., 423.)

30. Representative Hamilton’s chief objective was to

keep the City of Atlanta intact and exclusively within the

Fifth District. (Hamilton Trial Testimony, 135.) Never-

theless, she endorsed the House alternative to the Senate

plan, discussed infra, which divided the City of Atlanta

into two districts.

31. Lt. Governor Miller asserted that keeping the

cohesive mountain counties together was crucial. (Miller

Trial Testimony, 171.) He felt that uniting that area—

where there are few blacks—was more important than

keeping the cohesive black community in south Fulton

and DeKalb counties together. (Id., 201.)

32. Senator Hudson’s goal was to maintain existing

districts to the extent possible. (Hudson Trial Testimony,

334.)

33. Most of the factors which the legislative leadership

identified as important were disregarded in the final ap-

portionment plan. For example, Act No. 5 splits Gwinnett

County between the Ninth and Tenth Congressional

Districts and also splits the Gwinnett County municipali-

12a

ties of Snellville and Loganville in the same manner. The

Tenth District, which complied with the one-person, one-

vote standard in its pre-existing configuration, now

stretches from central Georgia to the Atlantic Ocean,

and bears no resemblence to the pre-existing district.

(Citizens at the Tenth Congressional District Public Hear-

ing were overwhelmingly in favor of kezping their district

“as it is.“ See Joint Exhibit 5, Tab 12, at 7, 9, 10.)

Moreover, the reapportionment of the Tenth District did

not protect Congressman Doug Bernard, as “‘he [lost] a

great many of the counties around his home area,”

(Murphy Trial Testimony, 30; see also Murphy Deposi-

tion, 60), and a portion of predominantly Republican

Gwinnett County was added to the Tenth District.

Finally, DeKalb County is split between the Fourth and

Fifth Districts. (Joint Exhibit 23; Defendants’ Exhibit

NNN.) Where compromise was necessary, the goals were

ignored. (Elliott Deposition, 30-31; Felton Deposition,

38-39; Lowe Deposition, 47-48.)

34. However, in drawing the Fifth District, those goals

which were realized were characterized by the leadership

as inviolable, with the result that the “historial’’ line

dividing the black community in metropolitan Atlanta

was preserved. (See, e.g., Wilson Trial Testimony, 450.)

The committee process, floor consideration and conference

committee work demonstrate that the purported invio-

lability of those goals was a pretext for splitting the

cohesive black community in the greater Atlanta area of

south Fulton and DeKalb counties.

35. The House Reapportionment Committee was

divided into two subcommittees, one to consider state

legislative reapportionment and the other to consider

Congressional reapportionment.

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36. Chairman Wilson maintained, incredibly, that he

exercised absolutely no control over the proposals con-

sidered by the subcommittees or committee as a whole.

(See, e.g., id., 411-414.)

37. In fact, Rep. Wilson utilized the full power of his

position and personality to insure passage of his desired

Congressional plan.

38. At the outset of and throughout the process, Wilson

threatened and cajoled legislators that if they did not sup-

port him on Congressional redistricting, the members’

legislative districts might be in jeopardy. Wilson main-

tained at trial that since legislative redistricting was

completed before Congressional reapportionment, such

threats were unenforceable. Wilson overlooked that

aspect of the legislative process known as “‘logrolling,”

where a legislator agrees to a future vote on behalf of

another legislator who has power over a present legislative

proposal. Some legislators were willing to trade their vote

on Congressional redistricting to insure the configuration

of their own legislative districts.

39. The Senate and House reapportionment commit-

tees agreed to complete the legislative reapportionment

plans for their own bodies prior to focusing on congres-

sional reapportionment. (Stipulation of Facts, J 20.)

Reapportionment of House districts proceeded on a dele-

gation-by-delegation basis until completion of the plan.

This procedure permitted Chairman Wilson to “lock-in”

support for his positions for the duration of the congres-

sional, as well as the House, reapportionment processes,

(Scott Trial Testimony, 626.) Accordingly to Repre-

sentative Scott:

Whenever a delegation or a member of that [reappor-

tionment] committee was allowed to have a signifi-

l4a

cant amount of input in drawing his own district,

... he was really committed to the chairman for the

duration of the reapportionment process to support

the chairman’s views on reapportionment positions.

(Scott Trial Testimony, 625.) Chairman Wilson actually

asked legislators appearing before the committee, “If I

allow you to make some changes in your district, are you

going to be with me?” (/d.) The commitments Chairman

Wilson obtained during the reapportionment of the

House, in fact, translated into votes for his position on

congressional reapportionment.

40. Representative Auten noted that some legislators

had voted for or against reapportionment plans because

“the leadership of the House or the leadership of the

Senate told them to.. Fear of losing your district line

has been an agenda of the day. I’m afraid I’m going to

get hurt if I don’t vote for it you tell me.” (Joint Exhibit

16 at 194.) In light of this public testimony from the well

of the House, Chairman Wilson’s trial testimony that

threats were not used to secure votes for the conference

committee plans is incredulous. (Wilson Trial Testimony,

434-35.)

41. The General Assembly received technical assistance

in developing congressional and legislative reapportion-

ment plans from the Reapportionment Services Unit. The

Reapportionment Unit is a separate unit of the Institute

of Government at the University of Georgia, and operates

under a contract with the General Assembly. (Meggers

Deposition, 67-79.)

42. The Director of the Reapportionment Unit is

Linda Meggers. During the reapportionment process, she

worked under the direction of the Chairman of the House

and Senate Reapportionment Committees, and also re-

15a

ported to the Director of the Institute of Government.

(Meggers Deposition, 67, 72-73.)

1

drew plans and provided census data to the legislators.

(Meggers Deposition, 78-79.) The staff also prepared

color-coded maps, including one of the Atlanta metropoli-

tan area, showing the location of significant concentra-

tions of black population. These maps were displayed on

the walls of the reapportionment staff office and most

legislators who came to the Reapportionment Unit for

discussions with staff members passed through that office.

(Bunting Deposition, 45-48; Nally Deposition, 24-27; Vey

Deposition, 10.) With respect to the location of black

population concentrations in the Atlanta metropolitan

area, it was common knowledge amongst legislators and

staff members that the black population had spread from

Atlanta into south DeKalb County. (Nally Deposition,

27; Vey Deposition, 30-31; Allgood Deposition, 16-18;

Bond Trial Testimony, 561; Elliott Deposition, 45-47.)

The Atlanta press, immediately prior to reapportionment,

reported about the shift of black population to the south-

ern suburbs of Fulton and DeKalb counties. (Defendants’

Exhibit BBB, Atlanta Constitution, April 26, 1981.)

44. The reapportionment staff was given specific in-

structions by Linda Meggers regarding the manner in

which districts should be drawn which contain black popu-

lation concentrations. The staff was instructed by Meg-

gers that they should try to avoid dilution or a reduction

in black voting strength and that they were to inform

legislators when reapportionment plans drawn at the

legislators’ request resulted in vote dilution. (Bunting

Deposition, 22-23; Nally Deposition, 12-14; see also Vey

Deposition, 17.) Furthermore, Meggers instructed the

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staff that a safe black district” is a district that contains

a 65 percent black population, and legislators understood

that the 65 percent figure was the goal the staff was seek-

ing to achieve. (Bunting Deposition, 18-21; Nally Deposi-

tion, 10, 14; Vey Deposition, 15, 50-51, 68-69; Lowe

Deposition, 22-23, 160.) It was the understanding of the

staff that a district must be 65 percent black in order for

it to be considered saſe“ because blacks have a lower

voting age population and a lower registration rate than

‘he white population. (Bunting Deposition, 18-21.) Final-

ly, the staff was instructed that, in drawing district lines,

they should try to avoid splitting black population con-

centrations and that they were to inform legislators when

plans requested by the legislators resulted in the division

of black populations. (Bunting Deposition, 14-17; Nally

Deposition, 15-18.) Staff members also were provided with

a copy of the memorandum prepared by the Office of

Legislative Counsel which discussed how the Voting

Rights Act applied to Georgia’s reapportionment process.

(Vey Deposition, 7-8.)

45. The Chairman of the House Reapportionment

Committee, the Senate Reapportionment Committee, as

well as the Spcaker of the House, relied on the reappor-

tionment staff to inform them when plans impaired

minority voting strength and violated the Voting Rights

Act. (Murphy Trial Testimony, 59-60; Wilson Deposi-

tion, 216-217; Starr Deposition, 16-18.)

46. Other guidelines followed by the reapportionment

staff in drawing plans were that they were to follow the

one-person one-vote standard, district lines were to follow

natural boundaries, county lines were not to be split if

possible, and incumbents were to be kept in separate

districts. There were no set instructions regarding the

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maintenance of existing district lines. (Bunting Deposi-

tion, 26-28; Nally Deposition, 9-11; Vey Deposition, 8-9.)

47. During the summer of 1981, prior to the General

Assembly’s Special Session on reapportionment, the re-

apportionment staff, at the direction and under the super-

vision of Linda Meggers, drew 16 alternative congressional

reapportionment plans. These plans were designed to show

the many different ways in which the existing congres-

sional districts could be altered within the context of the

one-person, one-vote standard. (Meggers Deposition,

494-496 ; 543-610; Defendants’ Exhibit EE.) For example,

Alternative 3 was developed with the “‘idea of creating a

horseshoe suburban district around the top of Fulton

County and a strictly mountain district across the top of

Georgia. (Meggers Deposition, 551-552.) Alternative 4

was developed as an attempt to draw congressional dis-

tricts that maintained proposed House and Senate dis-

tricts within a single congressional district. (Meggers

Deposition, 561-562.) With reference to the so-called

“mountain district,’’ some alternative plans drew such a

district (e.g., Alternatives 3 and 6; see Defendants’

Exhibit EE) while others did not (e.g., Alternatives 1, 2,

4, and 5; see Defendants’ Exhibit EE.)

48. Though Meggers described the alternate plans as

“practice exercises for the reapportionment staff, the

plans were presented to both the House and the Senate

Reapportionment Committees and were sent to Georgia’s

Congressmen. (Meggers Deposition 495-496.) Moreover,

Alternate 7 Revised was adopted by the House Reap-

portionment Committee on August 12, 1981 (the Com-

mittee later adopted a different plan), and the Senate

Reapportionment Committee, on August 18, 1981,

adopted Alternate 11 Revised as amended by Senator

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Bond. (Bond Trial Testimony, 565-566; Joint Exhibits

12 and 13.)

49. The only district of the ten congressional districts

in Georgia that basically remained the same in all the

alternate plans was the Fifth Congressional District. In

almost all the plans, the configuration of the Fifth District

followed the pre-existing district line; it stretched from

north to south Fulton County, with part of east Fulton

County lying in the Fourth Congressional District and

part of south Fulton County lying in the Sixth Congres-

sional District. In three alternate plans (Alternates 4, 5

and 7 Revised), Fulton was divided between two con-

gressional districts, districts Five and Six. (Defendants’

Exhibit EE.) The black population percentage in the

Fifth District in all the alternate plans remained between

51 and 52 percent. (Meggers Deposition, 509, 511, 660-

662; Joint Exhibit 7, Transcript of Senate Reapportion-

ment Committee Meeting of August 5, 1981, at 9.)

50. Though the alternate plans all contained basically

the same configuration for the Fifth District, Linda

Meggers had developed, in May, 1981, a potential Fifth

District configuration known as Fifth District Maximiz-

ing which had a black population percentage of approxi-

mately 74 percent. The district lay on an east-west axis

stretching across south Fulton and south DeKalb coun-

ties. This district could have been included in the alternate

plans, but was not. (Defendants’ Exhibit DD; Meggers

Deposition, 380-382, 654-656.) Ms. Meggers testified,

however, that had she not been bound by the pre-existing

configuration of the Fifth District and had started from

scratch, she would have drawn a district that went east to

west to encompass the black concentration. (Meggers

Deposition, 737-740.) “I would have drawn a black

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district. I would not have gone another direction that did

not create a black district.” (Id., at 739.)

51. The Congressional reapportionment subcommittee

adopted the plan submitted by Representative Benson

Ham, which permitted the Fifth District a black popula-

tion of 51.73%.

52. Representative Albert Scott, one of the two black

members of the Reapportionment Committee, attempted

to have plans for the Fifth District introduced in sub-

committee. Scott’s plans placed the Fifth District on an

east-west axis, encompassing the black community of

Metropolitan Atlanta. (Defendant’s Exhibits TTT-VVV.)

53. Chairman Wilson persuaded Scott not to present

his plans to the subcommittee and asked him to make his

presentation to the full committee as an alternative to

the subcommittee recommendation. (Scott Trial Testi-

mony, 631.) According to Representative Scott, not one

of his three options was acceptable to the full Committee.

Chairman Wilson informed Representative Scott that

“we might get to one of your options during t!:e conference

committee.” (Scott Trial Testimony, 631-632.)

54. On August 12, 1981, the full House Reapportion-

ment Committee adopted the plan presented by Repre-

sentative Ham.

55. The Senate Reapportionment Committee was not

divided into subcommittees.

56. The full committee narrowed its choice of congres-

sional plans to two proposals which would have created a

Fifth District in which the black population was 51.73%

of the total population. (Defendants’ Exhibits FF and GG;

joint Exhibit 7.)

20a

57. On August 17, 1981, committee member Senator

Julian Bond introduced a plan for the Fifth District which

provided for a 73.38% black population.

58. Senator Bond’s proposal encompassed the black

communities of Fulton and DeKalb counties, abandoning

the pre-existing north-south boundaries of the Fifth

District. Senator Bond’s rationale for drawing his plan,

which he explained to the Senate Committee, was:

to put together a large, harmonious, homogeneous

black community living in southern Fulton and

DeKalb counties who share a common income level

1 The value of their ho stock is general-

the same. Their education level is generally the

same. And most important, their race is almost abso-

lutely the same.

(Bond Trial Testimony, 561.)

59. The Bord plan did not effect districts other than

the Fourth and Fifth. It was introduced relatively late in

the committee process to insure that disputes on other

districts had been resolved and that this proposal would

have no effect on the drawing of the other districts. (Bond

Trial Testimony, 564.)

60. The Bond plan was immediately critized [sic] hy

Committee Chairman Hudson. The Chairman adjourned

the meeting at which the Bond plan was introduced with-

out holding a vote on the plan, commenting, We've been

informed and shocked, so we will look at that overnight.”

(Joint Exhibit 7, 30.)

61. The next day, the reapportionment committee

adopted a plan which included the Bond proposal. Chair-

man Hudson cast the lone vote in opposition, in violation

of Georgia Senate rules, which permit the Chairman to

vote only in the event of a tie. (Joint Exhibits 4, 7.) That

21a

action was the first of several that Hudson would take to

avoid u reapportionment plan which would allow blacks

in the metropolitan Atlanta area a unified district.

62. When the Bond Amendment was brought to a vote,

Senator Terrell Starr took a walk,“ rather than vote on

the Amendment. (Bond Trial Testimony, 565.) Senator

Starr admitted that he opposed the Bond Amendment as

proposed in Committee. (Starr Deposition, 65-68.) The

record, as a whole, clearly demonstrates that Senator

Starr and Senator Hudson were opposed to the Bond plan

because the proposed Fifth District might allow the black

community an opportunity to elect a candidate of its

choice to the United States Congress. All other members

of the Senate Reapportionment Committee supported the

Bond plan.

63. The special session of the Georgia General Assem-

bly convened on August 24, 1981. (Stipulation of Facts,

{ 19.)

64. On August 25, 1981, Senator Hudson, as Chairman

of the Senate Reapportionment Committee, introduced in

the Senate the proposed congressional redistricting plan

that had been adopted by the Senate Committee on

August 18, 1981. The plan was introduced as Senate Bill 2

EX., which was read for the first time and in accordance

with Senate procedures, transmitted back to the Senate

Reapportionment Committee. In committee, the plan

embodied in Senate Bill 2 EX. was substituted by the

“Reynolds Revised plan with the Bond Amendment.”

(Defendants’ Exhibit GG.) The Senate Committee re-

commended to the full senate that the Reynolds Revised

Plan, as amended, be adopted. (Joint Exhibit 13.) This

plan, like the earlier plan which had originally passed out

of the Sena e Committee, created a Fifth Congressional

22a

District with a 73.38% black population. (Bond Trial

Testimony, 566.)

65. On the floor of the Senate, Chairman Hudson, along

with Senator Starr—at the urging of Lt. Gov. Miller—

introduced an amendment to the plan recommended by

the Committee. (Hudson Deposition, 181-184; Starr

Deposition, 27; Miller Deposition, 67-68.) The amend-

ment did two things: it dealt with controversial Gwinnett

County by splitting that county between two districts

so that Gwinnett County would not overshadow the

mountain district in the Ninth District; as noted in

Finding J 17, supra, the mountain district was the home

of Lt. Gov. Miller and its electoral strength was of special

concern to him. (Miller Trial Testimony, 169A; Finding

J 31, supra.) The amendment also drew a Fifth District

with a 55.74% black population and placed the City of

Atlanta in the Fifth District. Much of south Fulton

County was placed in the Sixth District, with the excep-

tion of Senator Hudson’s residence and senatorial dis-

trict. (Defendants’ Exhibit HH.)

66. Senator Bond moved to amend the Hudson-Starr

plan to allow a Fifth District with a 69.01% black popu-

lation; the Bond amendment was essentially the same as

the plan adopted by the Senate Reapportionment Com-

mittee. (Defendants’ Exhibit RRR.)

67. Senator Hudson went to the well of the Senate and

spoke in opposition to the Bond amendment: It brings

out resegregation in a fine county like Fulton and resegre-

gation in a fine city like Atlanta.“ (Defendants’ Exhibit

W.) He also argued that the Bond plan would disrupt the

“harmonious working relationship between the races“ in

Atlanta and Fulton counties, (Bond Trial Testimony,

568; Allgood Deposition, 20-21) and would cause “white

23a

flight from the county. (Nalls Deposition, 153.) The

thrust of Senator Hudson’s argument, according to

Senator Allgood, was that you are dividing the Congres-

sional Districts into black and white and they [the races]

should be commingled. . . .”” (Allgood Deposition, 20-21.)

At trial, Senator Hudson admitted that his opposition to

Senator Bond’s plan was stated in racial terms. (Hudson

Trial Testimony, 363.)

68. Two additional Senators went to the well to sup-

port the Bond amendment. Senator Tate, the only other

biack Senator in the General Assembly, responded to

Senator Hudson’s remarks. He noted that it was peculiar

that people worried about the harmonious working rela-

tionships in the single district in which whites might con-

stitute the minority of the population, but made no

mention of working relationships in the other nine con-

gressional districts in which whites constituted 65 pere2nt

or more of the population and blacks were in the minority.

(Bond Trial Testimony, 568.) The second spokesperson,

Senator Allgood, emphasized his support of the Bond plan

and attempted to dispel the racist characterizations of the

proposed Fifth District. He noted:

If it is a ghetto, so be it. We did not create it. We

merely recognize in this amendment what exists

there, and we give those people an opportunity, a

1 opportunity. If they want to elect fa] black, let

it be.

(Defendants’ Exhibit W, Video Transcript at 3.)

69. Both Senators Hudson and Starr voted against the

Bond amendment, which the Senate adopted. (Joint

Exhibit 13, at 139.)

70. The final plan passed by the Senate contained the

Bond amendment. It was transmitted to the House for

24a

71. The House referred the Senate plan to the reappor-

tionment committee, which rejected it. (Joint Exhibit 6.)

It chose instead a plan designed by Representative Wil-

liams and Chairman Wilson (who at trial disavowed any

part in its formulation). (Wilson Trial Testimony, 414.)

That plan returned to the pre-existing Fifth District

configuration, which split Fulton County, and the black

population, into three congressional districts. The total

black population in this Fifth District proposal was

51.74%. (Defendants’ Exhibit MM.)

72. Joe Mack Wilson opposed the Bond plan. Repre-

sentative Wilson testified at trial that his objection to the

Bond plan was that it packed or herded all the black

people in one district, and created a lily white district on

the opposite side in the Fourth District.” (Wilson Trial

Testimony, 417, 457-458.) He admitted, however, that

he does not corsider the creation of a congressional

district with a 70 percent white population to be herding

whites as they were already there.“ (Id., 460-461.) The

inconsistency of Chairman Wilson’s standards is based

solely on race.

73. At trial, Chairman Wilson and Speaker Murphy

also raised the spectre that a Republican would be elected

from the Fourth District under the Senate plan. (Wilson

Trial Testimony, 489; Murphy Trial Testimony, 67-68.)

This testimony, however, is entirely inconsistent with

their previous testimony on the subject. Chairman Wilson

testified in deposition that the possible creation of a

Republican district played no role in his opposition to the

Senate plan. (Wilson Deposition, 677.) He also observed

that throughout the House, there ain't no fear of Repub-

licans,“ and cited the fair reapportionment of Republican

25a

Newt Gingrich’s Sixth District as evidence. (Id., 678.)

Similarly, Speaker Murphy denied opposition to Repub-

lican districts. He testified that we made no efforts

to try to get it to where a Republican who is now serving

couldn't be re-elected.” (Murphy Deposition, 131.)

74. On the House floor, there were three attempts to

amend the Williams-Wilson plan with respect to the Fifth

District and one attempt to substitute it. Rep. William

McKinney, a black representative, proposed a Fifth

District with a 60.87% black population. This plan was

identical to that proposed by Rep. Scott during the pre-

session committee process. The second amendment, intro-

duced by Reps. Bolster and Fuller, was similar to the

McKinney proposal. The final proposed amendment was

offered by Rep. Lane. It removed approximately 2,900

moderate, conservative folks“ from the Fifth District

and placed them in the Sixth District in order to give

[them] representation.” (Joint Exhibit at 84.) Rep. Scott

ffered a substitute to the Williams-Wilson plan, which

created a Fifth District with a 60.87% black population.

Two primary spokesmen for the House leadership, Reps.

Williams and Ham, voiced strenuous opposition to the

three amendments and Scott Subtitute [sic] 13A. Repre-

sentative Williams stated from the well of the House that

he did not] see that we need to unnecessarily create a

minority district in Fulton and Dekalb.” (Joint Exhibit

16, at 73.) Representative Ham criticized the Bolster-

Fuller Amendment and Scott’s Substitute 13A because

they created a primarily white district in northeastern

Fulton County and DeKalb County and Rockdale Coun-

ty and a primarily black district in the Fifth District in

Fulton County.” (Joint Exhibit 16, at 74.) According to

Representative Ham, the two incumbent Congressmen

from the Fourth and Fifth Districts would lose their seats

26a

as a result of such a reapportionment. (Id.) Moreover,

Representative Ham considered the creation of 60.87 per-

cent black district in Fulton and DeKalb Counties to be

the product of racial gerrymandering. (Id., 17.) He was

not able, however, to respond to challenges by members

of the Legislative Black Caucus about the inequity of the

Williams-Wilson plan which, first, created nine congres-

sional districts having 60 percent or greater white popu-

lation and, second, gerrymandered part of the black

community in southeast Fulton County out of the Fifth

District and placed it in the Fourth. (Id., 16-17; see also

Defendants’ Exhibit SSS.)

75. All three amendments were defeated; the Scott

substitute was never presented to the House for a vote.

(Joint Exhibit 12.)

76. The Williams-Wilson substitute for the Senate Bill

was passed. (Jd.) Under the House plan, Fulton County

and its black population were split into three congres-

sional districts—the Fourth, the Fifth and the Sixth.

(Defendants’ Exhibit OOO.) The Fifth District had a

black population of 51.74%.

77. Mr. Wilson has virtually admitted that his pro-

posal for the Fifth Congressional District was motivated

by a desire to minimize black voting strength. He testified

at trial:

[T]he Senate has passed one that is about [69] per-

cent. So although I don’t have any objections to the

Scott Plan [with a 60.87 percent black Fifth District]

as a personal thing, I don’t want to start out at 60

percent to nezotiate.

(Wilson Trial Testimony, 470.) Mr. Wilson was of the

view that the Voting Rights Act would clearly not allow

him to lower the black percentage of the Fifth District

27a

below 50%, (Wilson Trial Testimony, 404) and, thus, in

light of what the Senate had done, he determined that a

51 percent black district was the place you start.”

(Wilson Trial Testimony, 461.) Although Mr. Wilson

recognized that the foreseen conference procedure would

require some movement from 51 percent, he clearly was

determined to maintain black voting strength at the

lowest possible level. This strategy was consistent with

his opposition to drawing what he referred to as a “nigger

district.”

78. The Senate rejected the House substitute for the

bill; the House reaffirmed its position. (Stipulation of

Facts, N 27, 29.) Thereupon, conference committees for

the House and Senate were appointed.

79. The Conference Committee was principally re-

sponsible for the reapportionment of the Fourth and Fifth

Districts which ultimately were included in Act No. 5.

80. The power of the conference committee cannot be

underestimated. As Chairman Wilson explained to Repre-

sentative Scott during the reapportionment committee

process: “(t]he congressional reapportionment was not

going to be decided at the committee level nor on the full

floor of the House. It would be decided in conference

committee.“ (Scott Trial Testimony, 612.)

81. The conference committee controls the final form of

legislation (Elliott Deposition, 38-39.) A conference com-

mittee report cannot be amended on the floor of the

House or the Senate, so the members must either accept

or reject the report. Theoretically, a legislator may make

a motion to instruct the conference committee to consider

a different viewpoint, but such efforts would be futile if

the leadership opposed the suggestion. Thus, there is no

legislative mechanism for presenting views which are

contrary to the leadership’s position before the General

Assembly for a vote. (Id.)

82. The identity of the conferees makes a significant

difference in the final legislation adopted.

83. The reapportionment conference committee was

packed by the House and Senate leadership with individ-

uals who overtly opposed any plan which would unite

the black population in the metropolitan Atlanta area or

increase the black population above a level that satisfied

the no retrogression' effect test of Section 5. The Con-

ference Committee demonstrated best of all the discrimi-

natory purpose of the Georgia legislature in adopting Act

No. 5.

84. The only criterion for appointment to the Con-

ference Committee from either the House or the Senate

is that a legislator must have supported his chamber’s

proposal as a whole, even if he opposed certain aspects of

the proposal. (Joint Exhibit 3.)

85. In the House, Speaker Murphy’s asserted criteria

for selecting the three House Conferees was that each

section of the state (north, middle, south) be represented.

(Murphy Trial Testimony, 32.)

86. No blacks were selected to serve on the conference

committee although some satisfied the criteria for selec-

tion. Speaker Murphy claimed to have asked Represen-

tative Hamilton to serve on the committee; (Murphy

Trial Testimony, 44); Rep. Hamilton denied ever being

asked to serve. (Hamilton Trial Testimony, 141.)

87. Speaker Murphy refused to put Rep. Scott on the

conference committee because, I did not think that [the

conferees] would ever reach a conclusion of a conference

committee report that the House would ever adopt.”

(Murphy Trial Testimony, 45.) Since the Senate plan had

already been defeated in the House, nothing would be

accomplished by placing ‘‘a Representative on there who

would come back with that same plan.” (/d., 45-46.)

Speaker Murphy was fully aware, however, that the

Black Caucus also endorsed the Scott plan which pro-

vided for a much lower percentage of black population in

the Fifth District than the Bond plan. (/d., 47.) The

60.87 percent plan was also unacceptable to the Speaker

because the House had previously voted on and defeated

this plan in the form of the McKinney Amendment.

(Id., 49.) That single vote was sufficient to convince the

Speaker that if he had put Representative Scott on [the

conference committee] it would [njever come back with a

plan that the House would adopt.” (Id., 48.) The Speaker

agreed, however, that Representative Scott could have

signed a conference report with the three Senate con-

ferees, and, thereby, passed out a conference report that

would have given House members an opportunity to vote

on the 60.87 percent plan. (Id., 48.) Speaker Murphy

consciously denied the House members he opportunity

to vote on such a plan.

88. Speaker Murphy testified that he opposed the

Bond Amendment because “I was concerned that . . . w

were gerrymandering a district to create a black district

where a black would certainly be elected. (Murphy

Trial Testimony, 68.) Speaker Murphy’s attitude about a

majority black district is also reflected in a statement he

previously inade to several legislators. Speaker Murphy

had delivered a speech to a Parents-Teachers Association

meeting in DeKalb County. The audience had only two

black individuals in attendance. After the speech, Speaker

Murphy described the racial composition of the audience

30a

to several legislators, and noted, Wouldn't you love to

have a district like that.” (Elliott Deposition, 132-133.)

89. Speaker Murphy’s racial attitudes are highly rele-

vant to this case because he appointed the House con-

ferees— the ultimate decision-makers in the congressional

reapportionment process. The evidence demonstrates

that Speaker Murphy purposefully discriminated on the

basis of race in selecting House members to serve on the

conference committee. He selected white persons whom he

knew would adamantly oppose the creation of a congres-

sional district in which black voters would be able to elect

a candidate of their choice to the United States Congress;

and he refused to appoint black persons to the conference

committee solely because they might support a plan

which would allow black voters, in one district, an op-

portunity to elect a candidate of their choice.

90. Speaker Murphy appointed Representative Ham,

who authored the initial House proposal for the Fifth

District containing a bare minimum black population to

satisfy the effect“ element of Section 5. Speaker Murphy

also appointed freshman legislator John Godbee, who was

described as a pliable, inactive participant in the reap-

portionment process. (Elliott Deposition, 40-41.)

91. Speaker Murphy also appointed Rep. Joe Mack

Wilson. Throughout the conference process, Wilson’s

asserted goal was if that line [in the House plan] splits it

[the black population], I was going to continue to hold

that line“ which formed the previous boundary for the

Fifth District and which split the black population in

greater Atlanta. Wilson said he opposed the Senate plan

because it packed all the black people in one district.”

(Wilson Trial Testimony, 417, 457-458.) Wilson had no

objection to “packing” the white voters in the mountain

3la

distric into one congressional district. (Id., 460-461.)

92. In the Senate, Lt. Gov. Miller’s opposition to the

Bond plan motivated his selection of the Conference Com-

mittee members. His proffered reason for opposing the

Bond plan was that it split the mountain district and cre-

ated a Republican Fourth District. The Bond plan had

no effe on the mountain counites (sic. (Joint Exhibit

13.) An examination of the Bond Amendment and 8.B. 2

EX. proves that the Lieutenant Governor’s opposition to

the Bond Amendment could not be based on its impact on

the mountain counties (Joint Exhibit 13, 137-138; Joint

Exhibit 14); all ten mountain counties are included in

the Ninth District and the Bond Amendment, by design,

affected only the Fourth and Fifth Districts. (Miller

Trial Testimony, 190-191; Bond Trial Testimony, 563-

565, 566-567.)

93. The Lieutenant Governor’s alleged reason for

opposing the configuration of the Fourth District, i.e. it

created a Republican district, is similarly suspect. Ac-

cording to Senator Bond, no Senator argued at the time

of reapportionment that the Bond Amendment would

result in the creation of a Republican congressional dis-

trict. (Bond Trial Testimony, 568.) Senator Paul Cover-

dell, a Republican who is minority leader in the Senate,

agreed that the issue of creating a Republican district

was not raised in reference to the Bond Amendment

during the entire process. He stated:

This was not a Republican matter. The entire issue

that was being debated was what the minority per-

centage be in the Fifth District, pure and

r

i

that this was a Republica Democrat matter. In

fact, this was not. question was minority repre-

32a

sentation in that district.

(Coverdell Trial Testimony, 599-600.) Moreover, it is

significant that Lieutenant Governor Miller did not

oppose the reapportionment of the Sixth Congressional

District, which is represented by Republican Newt Ging-

rich. The Sixth District under both 8.B. 2 EX. and Act

No. 5 remained virtually the same as it had been under

the 1972 reapportionment plan. (Plaintiffs’ Exhibit 1.)

Thus, the single incumbent Republican Congressman

from Georgia was treated quite differently than one would

expect if the fear of Republican representation were

sincere. Furthermore, Lieutenant Governor Miller put

his seal of approval on the plan drawn by Senator Hudson

(the Hudson-Starr plan), which before it was amended by

the Bond Amendment, put a portion of the predominantly

Republican Gwinnett County (Wilson Trial Testimony,

418) in the Fourth Congressional District. (See Defen-

dants’ Exhibit HH.)

94. Beyond the technical requirement that a conferee

must have voted in support of his chamber’s proposal, it

is expected that a conferee will urge adoption of a final bill

which embodies as much of his chamber’s proposal as

possible. (Murphy Trial Testimony, 44; Miller Trial

Testimony, 179.) Notwithstanding this custom and not-

withstanding the fact that the Fifth District was a major

conference issue, Lt. Gov. Miller appointed the two most

outspoken opponents to the Bond amendment contained

in the Senate bill: Senator Starr and Chairman Hudson.

Mr. Miller purposefully discriminated on the basis of race

in selecting Senate members to serve on the conference

committee. He not only denied Senator Bond a position

on the conference committee because of Senator Bond’s

race, but he also selected two members (out of three) who

33a

were adamantly opposed to the Senate’s position on the

area of primary dispute.

95. Senator Bond was not appointed to the conference

committee because, it would offend the House.“ (Bond

Trial Testimony, 571.)

96. There were only two major issues considered in con-

ference: the division of Gwinnett County (whose popula-

tion was not welcomed in the homogenous mountain

district) and the racial composition of the Fifth District.

(Hudson Trial Testimony, 367; Wilson Trial Testimony,

417-418.)

97. The Conference Committee produced six reports

before the House and Senate finally agreed on a reappor-

tionment plan. The initial six conferees were reappointed

to each succeeding conference committee. (Stipulations of

Fact, JJ 30-47.)

98. Virtually no serious discussion of alternate plans

occurred at the conference committee meetings. (Bond

Trial Testimony, 573; Nalls Deposition, 162; Nally

Deposition, 34-35.) The meetings seldom lasted more than

two or three minutes, and the substance of the discussion

was essentially We've rejected that already; Go back

and bring us something else; or We will take it back

and study it or try it and see what our people say and

bring it back later.“ (Bond Trial Testimony, 573.) One

observer noted that as the meetings progressed, ‘‘you got

the distinct impression that the decision was made before

they walked in there.“ (Nalls Deposition, 162.) The

Senate conferees participated equally in the meetings. As

for the House conferees, Representative Wilson . . ab-

solutely dominated the proceedings. Representatives

Ham and Godbee seldom, if ever, speaking; then when

they did, deferring to Representative Wilson.” (Bond

34a

Trial Testimony, 574; Kidd Deposition, 18.)

99. Reapportionment of the Fifth District dominated

the conference committee’s discussions from September 3

to September 10, 1981, at which time the First Con-

ference Committee Report was passed out of Committee.

(See Joint Exhibit 17.) The debate on the Fifth District

focused solely on the percentage of black population to be

included in the district. (Bond Trial Testimony, 579; Kidd

Deposition, 19; Nalls Deposition, 162-166; Vey Disposi-

tion, 40-49; Allgood Deposition, 49.) There was no dis-

cussion pertaining to the creation of a new Republican

district (Bond Trial Testimony, 574; Vey Deposition,

48-49), the desired placement of particular black neigh-

borhoods of DeKalb County in the Fourth District (Bond

Trial Testimony, 579), or the desired maintenance of the

pre-existing configuration of the Fifth District. (Kidd

Deposition, 40; Bond Trial Testimony, 574.)

100. The Senate conferees presented five or six pro-

posals over a period of several meetings, that created a

Fifth Congressional District in which the black popula-

tion ranged from 62 to 64 percent of the total population.

(Kidd Deposition, 18-19; Defendants’ Exhibit PP.)

Chairman Wilson summarily rejected the plans, without

permitting the other House conferees to review them.

(Kidd Deposition, 19, 30.) According to Senator Kidd, the

“only input he [Representative Wilson] seemed to have

any interest in was the percentage of minority as it would

be in that particular Congressional area.” (Id., 19.) Plans

that contained a Fifth District with more than 51 percent

black population simply were not acceptable and that

was it.“ (Id., 30.) According to one reapportionment staff

member, [Joe Mack Wilson’s] job there was just to be

stubborn and that’s exactly what he was. And he stone-

35a

walled whatever progress could have been made.

(Vey Deposition, 45.)

101. Chairman Wilson’s notion of compromise is

clearly revealed by his proposed congressional plans, two

of which have been identified by the reapportionment staff

as House Compromise Plan, September 7, 1981, and

House Compromise #2. (Defendants’ Exhibit NN and

00.) Both plans contained a Fifth District with a 51.74

percent black population, identical to the House Substi-

tute plan. Chairman Wilson testified that he] was hope-

ful [that he could compromise] at 51 . . . I was hopeful that

I wouldn't {have to compromise higher than that.]“

(Wilson Deposition, 328-329.)

102. Chairman Wilson elaborated on his position on

the Fifth District reapportionment outside the committee

meetings. In a conversation with several white Demo-

cratic legislators during this time, Chairman Wilson was

asked whether reapportionment was settled. He re-

sponded, ‘“‘No. We are still working on that district,

Fourth and Fifth District, Julian’s district.“ Wilson

would not predict the outcome but stated, ‘I’m not for

drawing a nigger district and I’m not for drawing a

Republican district.“ (Hudgins Deposition, 10-11.)

Chairman Wilson also indicated that he was not in favor

of drawing a district that gave blacks in Georgia the op-

portunity to elect a black Congressman. (Hudgins Deposi-

tion, 10-12.)

103. After a seven-day stalemate, the Conference

Committee produced its first report which resulted in a

Fifth District with a 51.74 percent black population; it

was identical to the House plan. (Joint Exhib:t 17.) Rep.

Wilson refused to consider any other plan. The Senate

rejected that report. (Stipulation of Facts, J 31.)

36a

104. The second configuration for the Fifth District

drawn by the Conference Committee was the result of

Wilson’s only compromise on the Fifth District. The plan

was virtually unaltered in the succeeding conference

reports. The plan split Fulton County into three Congres-

sional districts; north Fulton County was placed in the

Fourth Congressionsl District with DeKalb County; the

City of Atlanta, including that portion of Atlanta in

DeKalb County, and parts of unincorporated south Ful-

ton County constituted the Fifth District; the so-called

“Tri-City” area of Hapeville, East Point and Union City

(included in Senator Hudson’s senatorial district) in

South Fulton County was placed in the Sixth Congres-

sional District. The plan also split several municipalities

in north and south Fulton County. The concentration of

black population in South Fulton and DeKalb counties

was split into three congressional districts. (Joint Ex-

hibit 17.) The plan allowed a 57.28 percent black popula-

tion in the Fifth District.

105. According to several legislators, presentation of

the plan calling for a 57 percent black Fifth District was

the House leadership’s prearranged sirategy. According

to Senator Kidd, Chairman Joe Mack Wilson jumped

rather suddenly to a 57 percent black population in the

Fifth District and “indicated very strongly that that’s as

high as they [the House Conferees] could go.” (Kidd

Deposition, 40-41.) Representative Elliott testified that

“after the Bond plan came over from the Senate with 60-

some-odd percent black composition, that the House

leadership arrived at this magical 57 percent figure and,

by God, they were not going to budge.”’ ‘Elliott Deposi-

tion, 48.) He noted that no logical or legal reason was

given for the 57 percent plan.

37a

The important thing to me it had little or nothin

to do with either county lines or community o

interests concepts. It was just flat percentage that,

by God, this is the highest we are going to go, come

hell or high water—no matter what the logical

reasons might be for adjusting the black-white ratios

in any given percentage.

(Elliott Deposition, 49.) Senator Bond testified that Con-

ference Committee Reports 2-6 provided for a Fifth Dis-

trict with a 57 percent black population because the

House Conferees knew that they [sic] 57 percent black

population district was in fact a 46 percent black voting

district and that a black candidate for office would be un-

successful in that district.”” (Bond Trial Testimony, 577.)

106. The Second Conference Committee Report failed

to pass either House. (Stipulation of Facts, V 34-35.)

107. The only manner in which the Fifth District

configuration changed in subsequent reports was, in the

third report, to reunite the City of Alpharetta, at the

request of a white Representative, Luther Colbert, and in

the fourth report, to place four predominantly white

census tracts in that portion of Atlanta which is located

in DeKalb County. (Wilson Trial Testimony, 465; Joint

Exhibits 18 and 19.)

108. In contrast to the committee acceding to the

request of white legislators, request of black legislators to

increase the percentage of black population in the Fifth

District were ignored. (Randall Deposition, 28-29.)

109. Representative Scott approached Representatives

Ham and Wilson and inquired about the possibility of the

conferees adopting his 60.87 percent option. Representa-

tive Ham replied that his hands were tied, “that he had to

38a

support the chairman’s position, Chairman Wilson.”

(Scott Trial Testimony, 642.) Representative Scott had

approached Representative Ham because Senator Kidd

had told him that “if the [Black Caucus] would get Ham

or one of the other conferees on the House, that he would

work on the Senators. It would only take four of the con-

ferees to pass a plan.“ (Scott Trial Testimony, 642.)

Representative Wilson, however, dashed all hopes that

the Conferees or the Georgia House would have an oppor-

tunity to consider Representative Scott’s 60.87 percent

plan. According to Representative Scott, Representative

Wilson told him that “if you blacks want anything

higher than this 57 percent, you better be prepared to get

it from the Justice Department or the courts.” (d., 641.)

110. Chairman Wilson’s opposition to Representative

Scott’s 60.87 percent option plan was based solely on the

percentage of blacks in the Fifth District. In comparing

the Scott option to conference Committee Reports 2-6,

Representative Wilson acknowledged that: 1) the Scott

plan, like the committee plans, placed part of north

Fulton County in the Fourth District; 2) the Scott plan

included more of south Fulton County in the Fifth Dis-

trict than the committee plans, consistent with the

House’s reapportionment criteria; and 3) the Scott plan

included all of Atlanta/DeKalb in the Fifth District,

rather than divide the city as in the committee plans,

which was again consistent with the reapportionment

criteria. (Wilson Trial Testimony, 472-473.) Chairman

Wilson agreed that the single difference was that Repre-

sentative Scott’s plan had a Fifth Congressional District

with over a 60 percent black population. (Id., 472.)

111. Representative Thomas Phillips, a white repre-

sentative from Gwinnett County, received the same treat-

39a

ment as members of the Black Caucus when he prepared a

plan during the Conference period that left Gwinnett

County intact in the Ninth Congressional District and

created a Fifth Congressional District with a 60 percent

black population. Phillips had taken copies of his plan to

the clerk’s office for distribution, but later learned that

Speaker Murphy had given instructions to not distribute

the congressional plan. After Phillips discovered the

order, the Speaker permitted the plan to be distributed.

(Phillips Deposition, 26-27.)

112. Representative Phillips introduced the plan in the

House on September 15, 1981, after the Fourth Confer-

ence Report had been defeated. (Joint Exhibit 16 at 128.)

He requested an instruction that the House Conferees

take the plan to the Senate Conferees for their considera-

tion. (Id., 30.) When Chairman Wilson learned of Phillips’

proposal, he “came storming down the center aisle“ and

told Phillips, “You keep this up, and we're going to get

you goddamned Republicans and get them damned

niggers too.“ (Id., 28; Wall Deposition, 27-28.)

113. Subsequent committee work focused on how to

apportion troublesome Gwinnett County and shifted

lines to accommodate legislators’ interests in the districts

of state transportation officers— whose districts are con-

trolled by congressional districts.

114. Conference Report No. 5 made no change in the

Fourth and Fifth Districts. The Senate rejected that

report.

115. After several Conference Committee reports were

defeated, the House and Senate leadership exerted tre-

mendous pressure on legislators to pass a plan. From the

well of the House, representatives described the pressure

and arm-twisting on members of this House by the House

40a

Leadership and especially by our Speaker.“ (Joint Exhibit

16 at 97.) One legislator noted, however, that “Speaker

Murphy is a pussycat when compared with Zig Zag Zell

[Miller] and his arm-twisters from across the hall.“ (Id.)

During the debate on the Fifth Conference Report, which

was passed by the House, (Joint Exhibit 12 at 496),

Representative Scott stated from the well of the House

that:

I saw one fellow approach my desk over there shaking

his arm; I don’t know what was wrong with it, I ex-

pect he got it twisted. This plan is very much like [the

one] we looked at last night with the exception that

perhaps enough arms have been twisted that maybe

the vote’s a lot closer.

(Joint Exhibit 16 at 144.) The same theme was described

during the debate of the Sixth Conference Report; Legis-

lators were afraid of being hurt“ if they didn’t vote for the

leadership plan. (Id., 194).

116. Conference Report No. 6 became Act No. 5 when

adopted by the Georgia House and Senate.

117. According to Senate Majority Leader Allgood,

several Senators specifically told him that they were going

to vote for the Sixth Report because “my district is all

right and if we keep on with new plans then sooner or later

the dime is going to fall on my district like it has on

yours.” (Allgood Deposition, 43-44.) A second reason

that Senators cited as the basis for their affirmative vote

on Conference Report Six was they didn't] want to have

to go home and explain why I [the Senator] was the leader

in getting a black elected to the United States Congress.

(Id., 43.)

118. The same sentiment was expressed by members of

the House. According to Representative Wall, the Bond

4la

plan was perceived as an effort to put Julian Bond in the

United States Congress and most of those members of the

House were not going to have any part of doing that or be

a party to doing that. (Wall Deposition, Vol. II, 77-73.)

Representative Godbee, a member of the Conference

Committee, advised Representative Felton that,

We [the conferees] didn’t really feel that it [Act No. 5

would be approved by the Justice Department but

we felt that it would be better politically if we were

forced to draw a black district then for us to volun-

tarily go back and let it be known that we were on a

Conference Committee or that even our other col-

9g in the House voted for a district to seat a

ck.

(Felton Deposition, 35.)

119. The only reason the Georgia General Assembly

failed to enlarge the black population in the Fifth District

more than it did and failed to unite black neighborhoods

was solely because the population was of the black race.

120. There was no legitimate, nondiscriminatory rea-

son why the Fifth District was drawn the way it was.

121. Numerous legislators perceive that the Fifth

Congressional District under Act No. 5 was adopted for a

racially discriminatory purpose. (Bond Trial Testimony,

580; Felton Deposition, 377, 155; Allgood Deposition, 30,

68; Randall Deposition, 55-56; Lowe Deposition, 50-53;

Wall Deposition, 33-35, Vol. II, 72.) One legislator stated

that the motivation of the House leadership“ in creating

the Fifth District under Act No. 5 was to “increase [the

percentage of black population] just enough to say they

had increased it [and] so that it would look like they had

increased it, but they knew they had not increased it

enough to elect a black.” (Felton Deposition, 155.)

According to Representative Lowe, It was just a fact

42a

that the majority of the members on the floor did not

want to draw a black Fifth District.’’ Legislators wanted

to keep the Fifth District ‘as white as possible. . but

just within the limits . to satisfy the Voting Rights

Act. (Lowe Deposition, 50.)

122. The purported goals of maintaining “historical

borders, preserving county and city lines and avoiding a

Republican Fourth District were only pretexts for dis-

crimination. Those goals were ignored when drawing the

First, Third, Sixth, Seventh, Eighth, Ninth and Tenth

Districts. (See Finding J 33, supra.) The goal of uniting

a cohesive voting bloc was followed in the white mountain

district; it was abandoned in the black south Fulton and

DeKalb area.

123. The discrimination in this case is explicit and

implicit. The contradictions, illogical justifications and

feigned ignorance reflected in testimony at trial indicate

an attempt to cover-up the true motive of the Georgia

General Assembly.

124. The words of Wilson and Hudson speak for them-

selves insofar as these legislative leaders expressed a

strong determination to limit the percentage of the black

population in the new Fifth District. Their demeanor

while testifying also indicated a lack of candor on their

parts. To the extent that their testimony conflicted with

other testimony or evidence with respect to the purposes

underlying the enactment of Act No. 5, it must be dis-

credited as untrustworthy.

125. The actions of the legislators who adopted Act

No. 5 also speak for themselves. The legislators knew a

cohesive black community existed in south Fulton and

DeKalb Counties, that it would take a 65 percent black

43a

population to allow a black electoral majority and that

the Fifth District embodied in the final conference report

divided the black community and prevented a black

majority. The Fifth District was drawn to suppress black

voting strength in Georgia.

CONCLUSIONS OF LAW

1. This Court has jurisdiction to hear this case. 42

U.S.C. § 19736; 28 U.S.C. § 1346(a)(2); 28 U.S.C. § 2201.

2. This Court is properly convened as a court of three

judges. 42 U.S.C. § 1973c; 28 U.S.C. § 2284.

3. The State of Georgia is subject to the preclearance

requirement of Section 5. Georgia v. United States, 411

U.S. 526, 527-528 (1993) [sic].

4. If the United States Attorney General refuses to

preclear a voting plan submitted to him pursuant to

Section 5, the State must obtain a declaratory judgment

from this Court before it may implement the plan. 42

U.S.C. § 19730.

5. In an action for a declaratory judgment under

Section 5, the burden of proof is on the plaintiff. South

Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); Georgia

v. United States, 411 U.S. at 538. To sustain that burden,

the State of Georgia must demonstrate the absence of

both discriminatory purpose and discriminatory effect.

6. The focus of this litigation is on Congressional

Districts Five and Four in the Atlanta area. If Plaintiffs

can demonstate that the manner in which Districts Five

and Four were drawn is free of racially discriminatory

purpose and effect, then they are entitled to the relief

they seek. No party has contended that the manner in

which the remaining eight districts were drawn justifies

the denial of the requested declaratory relief.

44a

7. The Fifth District contained in Act No. 5 hes a

higher black population percentage than under the exist-

ing plan, there is no retrogression. Thus, technically, the

voting plan does not have a discriminatory effect, as that

term has been construed under the Voting Rights Act.

Beer v. United States, 425 U.S. 141 (1975).

8. Simply demonstrating that a plan increases black

voting strength does not entitle the State to the declara-

tory relief it seeks; the State must also demonstrate the

absence of a discriminatory purpose. City of Richmond v.

United States, 422 U.S. 358, 378-379 (1975); City of Rome

v. United States, 446 U.S. 156, 172 (1980).

9. The Supreme Court has emphasized the importance

of discriminatory purpose in a Section 5 case:

Ijt may be asked how it could be forbidden by §5 to

ve the purpose and intent of achieving only what is

a perfectly legal result under that section and why we

need remand for further proceedings with respect to

ee a, See ae sae ae ae

it. An official action . . taken for the purpose of

discriminating against N on account of their

race has no legitimacy at all under our Constitution

or under the statute. Section 5 forbids voting changes

taken with the purpose of denying the vote on ac-

count of race or color. „

to prevent such gross racial slurs. .

lawful may become unlawful when done to accom-

plish an unlawful end. [A py emp = proved

to be of this kind and not proved to have a justifiable

basis is forbidden by §5, whatever its actual effect

may have been or may be.

422 U.S. at 378-379.

10. The Supreme Court in Beer v. United States, 425

U.S. 141 (1975), the case in which the nonretrogression

test for effect was announced, recognized that nonretro-

45a

gression is not the only test for compliance with the

Voting Rights Act. The Court emphasized that even an

ameliorative plan would violate Section 5 if it 80 dis-

criminates on the basis of race or color as to be unconsti-

tutional.” 425 U.S. at 141n.14.

11. A plan is unconstitutional if it is adopted with an

invidious discriminatory purpose constituting a denial of

equal protection. State of Mississippi v. United States,

490 F. Supp. 569, 583 (D. D. C. 1979).

12. If racial purpose has been a motivating factor in

the decision,” the State has unconstitutionally denied

black citizens equal protection. Village of Arlington

Heights v. Metropolitan Housing Development Corporation,

429 U.S. 252, 265-66 (1977).

13. Direct and circumstantial evidence are both rele-

vant to a finding of discriminatory purpose. ‘‘[I}nvidious

discriminatory purpose may often be inferred from the

totality of relevant facts.” Washington v. Davis, 426 U.S.

229, 242 (1976).

14. Proof of discriminatory intent requires ‘‘a sensitive

inquiry into such circumstantial and direct evidence of

intent as may be available.“ Village of Arlington Heights,

supra, 429 U.S. at 226.

15. Overt racial statements, present in this case, pro-

vide only one basis for finding discriminatory intent.

Justice Stevens noted in Washington v. Davis, supra:

“Frequently the most probative evidence of intent will be

objective evidence of what actually happened rather than

evidence describing the subjective state of mind of the

actor. For normally the actor is presumed to have in-

tended the natural consequences of his deeds.” 426 U.S. at

253 (concurring opinion). In this case, the state frag-

46a

mented the large and contiguous black population that

exists in the metropolitan area of Atlanta by splitting that

population between two Congressional districts, thus

minimizing the possibility of electing a black to Congress

in the Fifth Congressional District. The impact of this

state action is probative of racial purpose.

16. “Evidence of historical discrimination is relevant

to drawing an inferrence of purposeful discriminaiion,

particularly in cases such as this one where the eviderce

shows that discriminatory practices were commonly

utilized, that they were abandoned when enjoined by the

courts or made illegal by civil rights legislation, and that

they were replaced by practices which, though neutral on

their face serve to maintain the status quo.“ Rogers v.

Lodge, 50 U.S.L.W. 5041, 5044 (July 1, 1982).

17. The absence of a legitimate, non-racial reason for a

voting change is probative of discriminatory purpose,

“particularly if the factors usually considered by the

decision makers strongly favor a decision contrary to the

one reached.” Arlington Heights, 429 U.S. at 267. The

evidence in this case demonstrates no legitimate nonracial

reason for adoption of a Fifth District which split a cohe-

sive black community. Moreover, the purported criteria

for apportionment were ignored.

18. The evidence demonstrates that the State at-

temped to “maximize” the voting strength of persons in

other areas whom State officials believe to possess similar

communities of interest. For example, the Lieutenant

Governor expressly required that the mountain people“

be maintained in one district for the precise reasons that

Senator Bond proposed that the black neighborhoods of

Fulton-DeKalb be maintained in one district. Thus, al-

though the Voting Rights Act does not require the State

47a

to maximize minority voting strength, if the State deter-

mines to implement a policy of preserving ‘communities

of interest“ it bears a heavy burden under the Act to

demonstrate why such a policy would be implemented in

white residential areas but not in black residential areas.

Such unexplained departures from the results that might

have been expected to flow from the [State’s] own neutral

guidelines can lead . . to a charge that the departures

are explicable only in terms of a purpose to minimize the

voting strength of a minority group.“ Connor v. Finch,

431 U.S. 407, 425 (1977). The evidence here of the diver-

gent utilization of the “community of interest standard

is indicative of racially discriminatory intent.

19. Overt racial statements, the conscious minimizing

of black voting strength, historical discrimination and the

absence of a legitimate nonracial reason for adoption of

the plan at issue mandates the conclusions that Act No. 5

as it pertains to the Fourth and Fifth Congressional dis-

tricts has a discriminatory purpose in violation of See-

tion 5.

20. A plan which is the product of purposeful racial

discrimination, has no legitimacy at all under our Con-

stitution or under [Section 5J.“ City of Richmond v. United

States, supra, 422 U.S. at 378-379. See also Beer v. United

States, supra, 425 U.S. at 141 n. 14; Donnell v. United

States, supra; Hale County v. United States, supra; Missis-

sippi v. United States, 490 F. Supp. 569, 581, (D.D.C.

1979), aff'd, 444 U.S. 1050 (1980) (‘‘Plaintiff’s burden in a

suit for declaratory relief under Section 5 is to demon-

strate that the reapportionment plan . . fairly reflects the

strength of black voting power as it exists.’’)

21. In concluding that Plaintiffs have failed to demon-

strate that the manner in which the Fifth and Fourth

48a

Districts of Act No. 5 were drawn is not the product of

purposeful racial discrimination, the Court expresses no

view as to which plan the General Assembly should have

adopted. The plan drawing process is a legislative respon-

sibility (Reynolds v. Sims, 377 U.S. 533, 587 (1964);

Chapman v. Meier, 420 U.S. 1, 27 (1975)), but the Voting

Rights Act requires that it be carried out without racial

discrimination. The record clearly reveals that if the

“gross racial slurs“ (City of Richmond v. United States,

supra, 422 U.S. at 378) had been eliminated from the

reapportionment process, the boundary between Districts

Five and Four would have been drawn differently; it is not

possible for the Court to conclude which plan might have

resulted since such a result would be determined by the

nondiscriminatory functioning of the political process. In

this case, however, the political process did not function

in a nondiscriminatory manner. Blacks, solely because of

their race, were excluded from the final decision-making

process, (i.e., the Conference Committee); and whites

who, for racialiy discriminatory reasons, opposed the

creation of a district which might allow black voters an

opportunity to elect a candidate of their choice were en-

trusted with the decision-making responsibility.

22. The Court’s decision does not require the State of

Georgia to maximize minority voting strength in the

Atlanta area. See, e.g., Beer v. United States, supra, 425

U.S. at 140-142; Mississippi v. United States, 490 F.

Supp. 569, 582 (D.D.C. 1979). The State is free to draw

the districts pursuant to whatever criteria it deems appro-

priate so long as the effect is not racially discriminatory

and so long as racially discriminatory purpose is absent

from the process. Act No. 5 is being denied Section 5 pre-

clearance because State officials successfully implemented

a scheme designed to minimize black voting strength to

49a

the extent possible; the plan drawing process was not

free of racially discriminatory purpose.

23. The Plaintiffs have failed to satisfy their burden of

demonstrating that the reapportionment was nondis-

criminatory in purpose. Thus, the State of Georgia is not

entitled to the declaratory relief sought in this litigation.

24. In recognition of the fact that there must be an

election in November for the members of the United

States House of Representatives“ (May 3, 1982 Opinion

of the Georgia Attorney General, at 2-3), the Court will

retain jurisdiction of this action to allow the Plaintiffs to

submit to this Court within twenty (20) days of the date

of this Order, a revised plan for the conduct of said elec-

tion, which plan satisfies the requirements of the Voting

Rights Act.

25. An appropriate Order accompanies these Findings

of Fact and Conclusions of Law.

/s/ Harry T. Epwarps

Harry T. Edwards

United States Circuit Judge

/s/ AuBREY E. Rostnson, IR.

Aubrey E. Robinson, Jr.

United States District Judge

/s/ June L. GREEN

June L. Green

United States District Judge

DATE: July 22, 1982

50a

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

GEORGE D. BUSBEE, et al.,

Plaintiffs

V.

WILLIAM FRENCH SMITH, et al, CI

ACTION

WILLIAM C. (BILLY)

RANDALL, IR., et al.,

Intervenor-Defendants |

ORDER

Upon consideration of the Findings of Fact and Con-

clusions of Law entered this date, and of the entire record

herein, it is by the Court this 22nd day of July, 1982,

DECLARED, that Act No. 5 of the 1981 Extraordinary

Session of the Georgia General Assembly was enacted with

the purpose of denying or abridging the right to vote on

account of race; and it is

ORDERED, that Plaintiffs’ request for a declaratory

judgment that Act No. 5 of the 1981 Extraordinary

Session of the Georgia General Assembly does not violate

Section 5 of the Voting Rights Act of 1965 be and hereby

is DENIED; and it is

FURTHER ORDERED, that Plaintiffs are enjoined

from implementing Act No. 5 in any fashion insofar as it

affects the Fourth and Fifth Congressional Districts; and

it is

FURTHER ORDERED, that on or before August 11,

1982 Plaintiffs shall submit to the Court for its approval a

|

5la

reapportionment of the Fourth and Fifth Congressional

/s/ Harry T. Epwarps

Harry T. Edwards

United States Circuit Judge

/s/ AuBREY E. Rostnson, Jr.

Aubrey E. Robinson, Jr.

United States District Judge

/s/ June L. GREEN

June L. Green

United States District Judge

52a

PART II

NOTICE OF APPEAL

[Filed in Clerk’s Office July 26, 1982.

By: Clerk, U.S. District Court, District of Columbia]

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GEORGE D. BUSBEE, et al.,

Plaintiffs,

v CIVIL

WILLIAM FRENCH SMITH, et al., ACTION

Defendants, { NO.

WILLIAM C. (BILLY) 82-0665

RANDALL, IR., et al.,

Defendant-Intervenors. |

NOTICE OF APPEAL

TO THE SUPREME COURT OF

THE UNITED STATES

Notice is hereby given this 26th day of July, 1982, that

Governor George D. Busbee, Lieutenant Governor Zell

Miller, Attorney General Michael J. Bowors, Speaker of

the House Thomas B. Murphy, and the State of Georgia,

Plaintiffs in the above-styled case, hereby appeal to the

Supreme Court of the United States from the Order of

July 22, 1982, which, inter alia, declared that Georgia’s

congressional redistricting plan, as it pertains to the 4th

and 5th Congressional Districts (Act No. 5, 1981 Extra-

ordinary Session), has the purpose of denying or abridg-

ing the right to vote on account of race, and enjoined

Plaintiffs from implementing said plan insofar as it

affects the 4th and 5th Congressional Districts.

53a

This appeal is taken pursuant to 28 U.S.C. § 1253 and

42 U.S.C. § 1973c.

Respectfully submitted,

MIcHAEL J. Bowers

Attorney General

Rosert S. Stusss II

Executive Assistant Attorney General

/s/ H. Perry MICHAEL.

H. PERRY MICHAEL

Senior Assistant Attorney General

/s/ Caro, ATHA COSGROVE

CAKOL ATHA COSGROVE

Senior Assistant Attorney General

S Mark H. Conen

MAKK H. COHEN

Staff Assistant Attorney General

/ JosepH W. Dorn

JOSEPH W. DORN

Special Assistant Attorney General

Please address all

communications to:

CAROlL. ATHA COSGROVE

Senior Assistant Attorney General

132 State Judicial Building

Atlanta, Georgia 30334

Telephone: (404) 656-3336

AND

Special Assistant. Attorney General

i istant Attorney

2501 M. Street, N.W.

Washington, D.C. 20037

Telephone: (202) 833-8000

54a

CERTIFICATE OF SERVICE

I, MARK H. COHEN, Staff Assistant Attorney

General for the State of Georgia, do hereby certify that I

have this day served the within and foregoing NOTICE

OF APPEAL upon Defendants, by hand-delivering a

copy of same to:

PAUL HANCOCK

U.S. Department of Justice

320 First Street, N.W.

Washington, DC 20530

and upon Defendant-Intervenors by hand-delivering a

copy of same to:

LAUGHLIN McDONALD

52 Fairlie Street, N.W.

Suite 355

Atlanta, GA 30303

This 26th day of July, 1982.

S Marx H. Conen

MARK H. COHEN

Staff Assistant Attorney General