Georgia NAACP v. Fayette County Board of Commissioners Plaintiffs' Statement of Additional Undisputed Material Facts in Support of Motion for Summary Judgement
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October 4, 2012

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Brief Collection, LDF Court Filings. Georgia NAACP v. Fayette County Board of Commissioners Plaintiffs' Statement of Additional Undisputed Material Facts in Support of Motion for Summary Judgement, 2012. a299da34-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2a5b5231-d8b7-45fc-acc1-5254eb8876c8/georgia-naacp-v-fayette-county-board-of-commissioners-plaintiffs-statement-of-additional-undisputed-material-facts-in-support-of-motion-for-summary-judgement. Accessed July 06, 2025.
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Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION GEORGIA STATE CONFERENCE OF THE NAACP; eta!., Plaintiffs, v. CIVIL ACTION NO. 3:11- CV-00123-TCB FAYETTE COUNTY BOARD OF COMMISSIONERS; et a!., Defendants. PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO COUNTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 2 of 30 TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................... ij SUMMARY OF THE ARGUMENT....................................................................... 1 ARGUMENT........................................................................................................... 3 I. PLAINTIFFS’ ILLUSTRATIVE PLAN COMPLIES WITH SHAW BECAUSE IT DOES NOT SUBORDINATE TRADITIONAL REDISTRICTING PRINCIPLES TO RACIAL CONSIDERATIONS AND CREATES A REMEDIAL DISTRICT THAT PROVIDES BLACK VOTERS WITH AN OPPORTUNITY TO ELECT A CANDIDATE OF THEIR CHOICE................................................................................................... 3 A. There Is No Dispute of Material Fact That The Split Precincts in Plaintiffs’ Illustrative Plan Are Not the Product of Racial Gerrymandering.......................................................................................10 B. There Is No Dispute of Material Fact That Black Residents in District 5 of Plaintiffs' Illustrative Plan Constitute a Community of Interest.................................................................................................13 II. PLAINTIFFS’ IRREFUTABLE EVIDENCE ESTABLISHES THAT FAYETTE COUNTY’S BLACK COMMUNITY IS GEOGRAPHICALLY COMPACT................ 15 1. The Minority Population in District 5 is Compact.......................16 2. The Illustrative Plan is Compact................................... 19 CONCLUSION......................................................................................... 24 i Case 3:ll~cv-00123-TCB Document 141 Filed 10/04/12 Page 3 of 30 TABLE OF AUTHORITIES Askew v. City o f Rome, 127 F.3d 1355 (1 1th Cir. 1997), reh 'g denied. 136 F.3d 1333 (11th Cir. 1998).............................................. 7, 23 Bush v. Vera, 517 U.S. 952 (1996)............................................................................7, 9, 11, 16 Chen v. City o f Houston, 206 F.3d 502 (5th Cir. 2000)..............................................................................9 Davis v. Chiles, 139 F.3d 1414 (11th Cir. 1998)..........................................................................8 Dillard v. Baldwin County Board o f Education, 686 F. Supp. 1459 (M.D. Ala. 1988).......... ......................................................23 Easley v. Cromartie, 532 U.S. 234 (2001)......................................................................................... 8 Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff’d, 515 U.S. 900 (1995)................................................................8, 17, 19, 20 Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. 1996).................................................................17 Kara her v. Daggett, 462 U.S. 725 (1983)......................................................................................... 19 Larios v. Cox, 314 F. Supp. 2d 1357 (N.D. Ga. 2004)............................................. ..... 9, 19, 20 League o f United Latin American Citizens v. Perry, 548 U.S. 399 (2006)....................................... ............................................16, 17 Prejean v. Foster, 83 F. App’x 5 (5th Cir. 2003).............................................................................8 Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994).....................................................................8 ii Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 4 of 30 Shaw v. Hunt, 517 U.S. 899 (1996).................................................. ............................. 3,4, 5,7 Shaw v. Reno, 509 U.S. 630(1993).......................... 4 Thornburg v. Gingles, 478 U.S. 30(1986).............................................................................................. 2 United States v. Village o f Port Chester, 704 F. Supp. 2d 411 (S.D.N.Y. 2010)..............................................................12 DOCKETED CASES Lindsey v. Fayette County Board o f Commissioners, No. 3:12-cv-00040-TCB (N.D. Ga.)................... 10 OTHER AUTHORITIES B. Grofman. Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 85 (1985)...................................................... ...................... 19 Fayette County, Georgia, Community Sendees: Elections & Voter Registration, Voting Precincts, available at http://www.fayettecountyga.gov/elections/ voting_precincts.htm (last visited Oct. 4, 2012)............................................... 11 iii Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 5 of 30 SUMMARY OF THE ARGUMENT County Defendants in this case concede that Plaintiffs1 have established that: (1) Black voters in Fayette County are sufficiently large to constitute a majority of the voting-age population in a properly apportioned single-member district (“District 5”); (2) Fayette County's Black residents’ voting patterns are politically cohesive in elections involving candidates to the Board of Commissioners (and Board of Education); and (3) bloc voting by Fayette County’s White majority electorate consistently defeats Black preferred candidates, such that no Black candidate has ever been elected to the Board of Commissioners (or Board of Education), In addition, County Defendants do not dispute that the current at- large method of electing its members, in combination with racially polarized voting, guarantees that Fayette County's racial minorities cannot participate on equal terms in Fayette County's political process. Moreover, County Defendants do not contest that Plaintiffs have established that, under the totality of circumstances, Fayette County’s Black residents have less opportunity than White residents to elect their preferred candidate of choice. Plaintiffs are the Georgia State Conference of the NAACP, Fayette County Branch of the NAACP, Henry Adams, Terence Clark, Alice Jones, John E. Jones, Dan Lowry, Aisha Abdur- Rahman, Ali Abdur-Rahman, Lelia Richardson, Elverta Williams, and Bonnie Lee Wright. References to exhibits attached to the Declaration of Ryan P. Haygood in Support of Plaintiffs’ Motion for Summary Judgment, Doc. 110-3, are cited herein as “Ex. 1 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 6 of 30 Given these significant concessions, the only remaining matter before this Court is to find that, as a matter of law, Section 2 of the Voting Rights Act (“VRA”) proscribes this discriminatory result. County Defendants’ defense is limited to two arguments: that, as a matter of law, (1) although a compact single-member district can be created in Fayette County in which Black voters are the majority of the voting-age population, it cannot be done without racial gerrymandering; and (2) Black residents of Fayette County, though sufficiently numerous to be a majority in a compact district, are a geographically disparate community, rather than a compact one. As discussed more fully below, neither of these arguments are meritorious. First, Plaintiffs’ Illustrative Plan is not the product of racial gerrymandering. Plaintiffs have established that Plaintiffs’ expert, William Cooper (“Mr. Cooper”) developed District 5 with considerations of traditional redistricting principles and of remedying minority vote dilution in Fayette County. Second, County Defendants have conceded the existence of racially polarized voting—the element most critical in a Section 2 analysis. See Thornburg v. Gingles, 478 U.S. 30, 46, 48-49 (1986) (emphasizing racial bloc voting as the essence of a successful vote dilution claim). Under a Section 2 analysis, politically cohesive minorities, which can be drawn into a compact district, are not “disparate” groups, as County Defendants contend. Rather, they are a politically 2 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 7 of 30 cohesive community protected by the Voting Rights Act. Therefore, since Count}' Defendants recognize that Black voters in Fayette County share a common political interest, among other things, in the candidates that they collectively support, their second argument fails. For these reasons, and those discussed below, Plaintiffs respectfully request that this Court deny County Defendants' Motion for Summary Judgment, Doc. 108, and grant summary' judgment in favor of Plaintiffs, see Doc. 110. ARGUMENT I. PLAINTIFFS’ ILLUSTRATIVE PLAN COMPLIES WITH SHAW BECAUSE IT DOES NOT SUBORDINATE TRADITIONAL REDISTRICTING PRINCIPLES TO RACIAL CONSIDERATIONS AND CREATES A REMEDIAL DISTRICT THAT PROVIDES BLACK VOTERS WITH AN OPPORTUNITY TO ELECT A CANDIDATE OF THEIR CHOICE. County Defendants first contend that race was the dominant factor in creating Plaintiffs’ Illustrative Plan, and, therefore, it does not comply with Shaw v. Hunt, 517 U.S. 899 (1996). Doc. 108-2, County Defs.’ Br. at 12-13 (“all of [the] circumstantial evidence of racial predominance is present in this case and without the contrary political evidence that prevented the grant of summary judgment in [Shaw].”); see Shaw, 517 U.S. at 905, 908-11 (holding that a redistricting plan in which race is the “dominant and controlling consideration” is unconstitutional unless there is a “strong basis in evidence” that the plan represents an effort “to comply with the Voting Rights Act”) (citation and internal quotation marks 3 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 8 of 30 omitted). In fact, however. Plaintiffs' Illustrative Plan complies with Shaw for two reasons. First, race was not the “dominant and controlling consideration” in creating the Illustrative Plan. Indeed, the record reflects that, in addition to seeking to remedy the existing Section 2 violation, Mr. Cooper developed the Illustrative Plan with careful attention to non-racial factors.2 In particular, Mr. Cooper considered traditional redistricting principles, including precinct and municipal boundaries, incumbency, school attendance zones, respecting the one-person, one- vote principle, and compactness. See, e.g., Ex. 9, Cooper Deck 35-42; Ex. 10, Cooper Suppl. Deck 3, 7, 11-12; Ex. 11, Cooper Second Suppl. Deck 36-42; Doc. 107, Cooper Dep. Tr. 131:16-132:22, 136:24-137:23, 163:3:11, 157:22-24, 184:6-187:6. The Supreme Court has recognized that adherence to such traditional redistricting principles “may serve to defeat a claim that a district has been gerrymandered on racial lines.” Shaw v. Reno, 509 U.S. 630, 647 (1993); see also Shaw, 517 U.S. at 907 (“strict scrutiny applies when . . . the legislature subordinate[5] traditional race neutral districting principles . . . to racial Had Plaintiffs sought to maximize Black voting strength in a single district and focus solely on race, Mr. Cooper could have drawn a remedial district at 53.58 percent Black voting- age population (“VAP”), rather than at 50.22 percent Black VAP in the Illustrative Plan. See Ex. 10, Cooper Suppl. Deck ][ 8; Ex. 9, Cooper Deck 31. Contrary to County Defendants’ incorrect assertion, the record reflects that Mr. Cooper considered school attendance lines in creating Plaintiffs’ Illustrative Plan. Doc. 108-2, County Defs.’ Br. at 4; see, Doc. 107, Cooper Dep. Tr. at 134:1-4, 137:7-14, 163:3-11, 189:1-9, 286- 16:24-287:1-3; Ex. 9, Cooper Deck 36-38, Ex. 10, Cooper Suppl. Deck f l 11-12, Ex. 11, Cooper Second Suppl. Deck 37-38. 4 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 9 of 30 considerations”) (citation and internal quotation marks omitted; emphasis added; alteration in original). Plaintiffs’ Illustrative Plan stands in stark contrast to the district at issue in Shaw, where it was an "obvious fact that the district's shape [wa]s highly irregular and geographically non-compact by any objective standard that can be conceived,” such that the district in question had been "been dubbed the least geographically compact district in the Nation.” 517 U.S. at 905-06 (citations and internal quotation marks omitted). Here, Count}’ Defendants concede that the Illustrative Plan is not facially "bizarre on its face” under Shaw. Doc. 108-2, County Defs.’ Br. at 13. Indeed, in light of the shape and aesthetic appeal of districts in Georgia counties—such as Baldwin, Bulloch and Newton counties—District 5 compares favorably. See Ex. 10, Cooper Suppl. Deck, at % 18. Moreover, the shape of the Illustrative Plan, far from resembling a district created predominately based on race, has boundaries that compare favorably with those of the Board o f Education Plan ('LBOE Plan”), which County Defendants' expert, John Morgan ("Mr. Morgan”), concedes comports with traditional redistricting principles. Ex. 9, Cooper Deck Tj 35-42; Ex. 10, Cooper Suppl. Deck n i l , 14; see also Ex. 13, Morgan Deck % 39 (“traditional redistricting principles were followed in drafting the [BOE Plan], in that the district boundaries follow precinct and major road boundaries, the districts are compact and the population of 5 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 10 of 30 the districts are close to ideal); Ex. 14, Morgan Suppl. Decl. ^ 13; Doc. 119, Morgan Dep. Tr. 178:5-12. Mr. Morgan's concession is not surprising, since Mr. Cooper based the shape of the Illustrative Plan on the BOE Plan—the Illustrative Plan follows similar county, precinct, and municipal lines as the BOE Plan. Doc. 107, Cooper Dep. Tr. 134:1-6 (“[I]t was easy for me to look at the district as drawn in the [Illustrative Plan] and say, yes, that can be a functional district. It follows county lines, precinct lines, municipal boundaries, you know, what 1 really thought was the school boundaries to a large extent.”); see also id. at 136:24-38, 144:13-14 (discussing how the “Illustrative Plan splits Sandy Creek precinct as the [BOE Plan] does”). Moreover, two-thirds of the perimeter for District 5 follows already existing political lines in Fayette County. Ex. 9, Cooper Decl. ^ 36-38; Ex. 10, Cooper Suppl. Decl. ^ 3, 11-12; Ex. 11, Cooper Second Suppl. Deck ^ 18-19, 23-25, 36; Doc. 107, Cooper Dep. Tr. 70:1 1-13, 106:17-18, 134:1-6, 136-38, 144:13-145:23, 157:22-24, 190:4-11, 258:12-15, 273:8-14; Ex. 13, Morgan Decl. ^ 39; Ex. 14, Morgan Suppl. Decl. ^ 13; Doc. 119, Morgan Dep. Tr. 178:5-12. Specifically, the “northeast and northern tier of District 5 follows the Clayton and Fulton County lines,” and that “[m]uch of the remaining perimeter of [District 5] follows the [BOE Plan] boundaries, precinct lines, or parts of the city limits of Fayetteville and 6 Case 3:l.l-cv-00123-TCB Document 141 Filed 10/04/12 Page 11 of 30 Tyrone.” Ex. 9, Cooper Decl. 37. Consequently, Shaw is inapplicable here, as Plaintiffs have not proposed a remedial district in which “[r]ace was the criterion 4that, in the [jurisdiction’s] view, could not be compromised.” 517 U.S at 907. Second, the Illustrative Plan satisfies Shaw because there is a strong basis in evidence that remedial District 5 is necessary for Section 2 compliance. Plaintiffs' Illustrative Plan seeks to remedy County Defendants' dilutive electoral scheme by creating a district (District 5) that will “provide African Americans with an opportunity to elect their preferred candidates.” Ex. 9, Cooper Decl. * jj 31 (explaining that District 5 “will provide African American voters with a reasonable opportunity to elect a candidate of their choice in the district"). Mr. Cooper created the Illustrative Plan “within the context of a Section 2 lawsuit,’ and used race as “one consideration of many,” but not as the “dominant and controlling The race consciousness of plaintiffs' demographer, Mr. Cooper, in a vote dilution claim is a recognized consideration, given that plaintiffs seek a remedy that has a majority-minority district. See Bush v. Vera, 517 U.S. 952, 958 (1996) (O'Connor, J„ principal opinion) (“Strict scrutiny does not apply merely because redistricting is performed with consciousness of race'). Thus, County Defendants' strategy of proving Mr. Cooper's racial motive, see generally, Doc. 108-1, County Defsf Statement of Facts, is unpersuasive, as it is only when a demographer uniformly gives short shrift to other traditional redistricting criteria that race is considered predominant at an impermissible level. Shaw, 517 U.S. at 907. In addition, remedial plans, such as District 5 here, are not required to be completely cabined by traditional redistricting criteria, i.e., splitting some precinct lines does not establish that race predominated nor does protecting some, but not all incumbents, prove that race predominated. See Askew v. City o f Rome, 127 F.3d 1355, 1376-77(reaffirming that a “Section 2 district that is reasonably compact and regular, taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless beauty contests.”), reh ’g denied, 136 F.3d 1333 (11th Cir. 1998). In this case, there is ample support that race did not predominate over all other considerations. 7 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 12 of 30 consideration,” to “remedy racial discrimination.” Ex. 10, Cooper Suppl. Dec!. ^ 4, 11; Ex. 11, Cooper Second Suppl. Dec!. 36; see also Doc. 107, Cooper Dep. Tr. 148:10-13. Shaw protects this “‘compelling' interest in engaging in race-based redistricting to give effect to minority voting strength” if there is a ‘“strong basis in evidence' for concluding that such action is ‘necessary' to prevent [an] electoral districting scheme from violating the [VRA].” Johnson v. Miller, 864 F. Supp. 1354, 1381 (S.D. Ga. 1994) (quoting Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994)), aff’d, 515 U.S. 900 (1995). Thus, County Defendants' reliance on the Shaw defense that race predominated in the creation of Plaintiffs' Illustrative Plan should be rejected as a matter of law. See, e.g., Easley v. Cromartie, 532 U.S. 234 (2001) (finding clearly erroneous a district court's detennination that race rather than politics predominated—as evidenced by the district's shape, its split towns and counties, and high Black voting-age population—in statewide congressional plan); Davis v. Chiles, 139 F.3d 1414 (11th Cir. 1998) (reasoning that a district court holding that a judicial elections plan involved unconstitutional racial gerrymandering was clearly erroneous); Prejean v. Foster, 83 F. App'x 5 (5th Cir. 2003) (affirming district court's determination that state legislature’s redistricting motivation was incumbency, a traditional and legitimate districting concern rather than race); Chen Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 13 of 30 v. City o f Houston, 206 F.3d 502 (5th Cir. 2000) (affirming district court’s dismissal on summary judgment of claim that race predominated in city’s redistricting plan that was based, in part, on racial and ethnic data at the precinct level, contained maximum population deviation, and had four districts that were not compact). Significantly, County Defendants’ expert, Mr. Morgan, failed to consider compliance with the VRA when reviewing Plaintiffs’ Illustrative Plan. Doc. 119, Morgan Dep. Tr. 149-151 (admitting that he failed to include compliance with Section 2 in his “exhaustive list of traditional redistricting criteria’'); see also Bush. 517 U.S. at 952, 990-91 (assuming without deciding that a state has a compelling interest in complying with Section 2 of the Voting Rights Act) (O’Connor, J.„ concurring); Larios v. Cox, 314 F. Supp. 2d, 1357, 1359-60 (N.D. Ga. 2004) (noting guidelines in redistricting include “reconciling the demands of the Constitution, the [VRA], and the redistricting principles traditionally recognized by Georgia,” and the former two take precedence over the latter). Thus, while Mr. Cooper balanced traditional redistricting principles and compliance with the VRA in developing Plaintiffs' Illustrative Plan, Mr. Morgan neglected to consider VRA compliance at all, even though it is at the center of this case. Doc. 107, Cooper Dep. Tr. 273:9-14 (recognizing “all of these [traditional redistricting] factors have to be balanced”). 9 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 14 of 30 Accordingly, the Illustrative Plan, and remedial District 5 within it, do not run afoul of Shaw. A. There Is No Dispute of Material Fact That The Split Precincts in Plaintiffs’ Illustrative Plan Are Not the Product of Racial Gerrymandering While conceding that the shape of District 5, by itself, is not problematic on its face, County Defendants assert that reviewing the shape of the District in conjunction with the underlying makeup of the population and precinct splits “tell[s] a story of racial gerrymandering.” Doc. 108-2, County Defsf Br. at 13. This argument, too, is without merit. As Mr. Morgan himself explains, it is “really [not] possible to re-district without splitting some towns.” Doc. 119, Morgan Dep. Tr. 74:5-6; see also id. at 95:2-8 (acknowledging that he split 10 precinct in a majority-minority congressional district in New Jersey); id. at 104:10-11 (acknowledging that he split a precinct in his redistricting work in Connecticut); id. at 108:14-15, 156:16-17 (acknowledging that “there were split precincts all over Virginia in the House-redistricting plan” which he drafted portions of). Given this reality, Plaintiffs’ Illustrative Plan splits eleven precincts,5 and the Commissioners’ Plan, which this Court approved in Lindsey v. Fayette Cnty. Bd. of Comm ’rs, No. 3:12-cv-00040-TCB (N.D. Ga. Mar. 27, 2012), splits seven Mr. Cooper also used whole precincts, including Blackrock, Kenwood and Europe, in developing District 5. See Ex. 9, Cooper Deck at Ex. E -l. Further, even after splitting precincts, Mr. Cooper commonly followed precinct boundaries. Id. at 37; Ex. 11, Cooper Second Suppl. Deck at Tf 19; Doc. 107, Cooper Dep. Tr. 134:1-6. 10 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 15 of 30 precincts.6 Ex. 10, Cooper Suppl. Decl. ‘f 17; Ex. 11, Cooper Second Suppl. Decl. 24; Ex. 14, Morgan Suppl. Decl. 19; Doc. 107, Cooper Dep. Tr. 146:15-21. Mr. Cooper provides legitimate, non-racial and unrefuted bases for splitting precincts—protecting incumbents and aligning the Illustrative Plan with the BOE Plan.1 Ex. 9, Cooper Decl. 35, 37; Ex. 10, Cooper Suppl. Dec!, 3, 11; Ex. 11, Cooper Second Suppl. Decl. % 23; Doc. 107, Cooper Dep. Tr. 148:10-13, 157:22-24. As Mr. Cooper explained, precinct lines are “not, sacrosanct, especially when Voting Rights Act violations are at issue" and “are routinely split to protect incumbents;” in this case, precincts were split in the BOE Plan, the Commissioners ’ Plan, approved by this Court, and the Illustrative Plan, to protect incumbents. Ex. 11, Cooper Second Suppl. Decl. at ^ 23; Doc. 107, Cooper Dep. There are 36 precincts in Fayette County. Fayette County, Georgia, Community Services: Elections & Voter Registration, Voting Precincts, available at http://www.fayettecountyga.gov/elections/voting__precincts.htm (last visited Oct. 4, 2012). County Defendants' Brief contains numerous mischaracterizations of Mr. Cooper's testimony and other aspects of the record. For example, the record reflects that in developing plans for this case and considering split precincts, Mr. Cooper, at various points, reviewed the Census block labels for the total population and the Black percentages within each block. Doc. 107. Cooper Dep. Tr. 107:9-15. It is not the case that the only Census block data that Mr. Cooper reviewed was racial. Doc. 108-2, County Defs/ Br. at 14; Cf Bush, 517 U.S. at 974 (1996) (abandonment of precincts, a traditional districting unit, which caused substantial administrative problems, and reliance by the state on racial data on the block level drove inference that district was motivated by race). In addition, Mr. Cooper testified that he split at least two precincts to protect incumbents, including Hopeful and Dogwood, despite the contention by County Defendants that he could only identify one precinct that he split in defense of incumbency. Doc. 107, Cooper Dep. Tr. 144:17-24, 145:15-16, 145:19-23. 151:16-20, 152:1-2: see also Doc. 108-2, County Defs.’ Br. at 4. Moreover, Mr. Cooper split Sandy Creek precinct to avoid overpopulation in District 5. Doc. 107, Cooper Dep. Tr. 119:8-10, 152:12-17, 257:7-12; see also Doc. 108-2, County Defs/ Br. at 4. 11 http://www.fayettecountyga.gov/elections/voting__precincts.htm Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 16 of 30 Tr. 152:1-25, 188:11:13, 257:1-21. Cf United States v. Vill. Port Chester, 704 F. Supp. 2d 411, 439 (S.D.N.Y. 2010) (“[Ejlection precincts are not such important political boundaries that they should negate a districting proposal, particularly where, as here, other key districting principles are obeyed.”). Finally, Mr. Cooper testified that he split precincts because he could not include the entire white population in Fayetteville and Tyrone in District 5 without ignoring the one- person, one-vote principle and the objective of developing a majority-minority district.8 Doc. 107, Cooper Dep. Tr. 159:15-160:1-2. Flence. contrary to County Defendants’ assertion, the shape of Plaintiffs’ Illustrative Plan, when viewed alongside the splitting of precincts to protect incumbency and align with the BOE Plan, demonstrates that Mr. Cooper did not subordinate traditional redistricting principles to race to create Plaintiffs’ Illustrative Plan. County Defendants do not dispute that Plaintiffs’ Illustrative Plan complies with the one- person, one-vote principle and, therefore, has an acceptable overall population deviation from the ideal district size of 5.69 percent because their Brief is silent on this redistricting principle. Ex. 9, Cooper Decl. 37; Ex. 11, Cooper Second Suppl. Decl. 26; see generally, Doc. 108-2, County Defs.' Br. 12 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 17 of 30 B. There Is No Dispute of Material Fact That Black Residents in District 5 of Plaintiffs’ Illustrative Plan Constitute a Community of Interest There is no genuine dispute of fact that Mr. Cooper accounted for communities of interest in developing the Illustrative Plan. Plaintiffs’ unequivocal testimony demonstrates that a community of interest exists between Black residents of Fayetteville and Tyrone, encompassed in District 5. In particular, Black residents of District 5: (1) share a similar socio-economic status, Doc. 107. Cooper Dep. Tr. 137:17-138:22 (explaining that Cooper “looked at the socioeconomic data for the county and for . . . Tyrone and Fayetteville” and finding that both have “very similar socioeconomic profiles”); (2) attend the same public schools; (3) share places of worship and recreation; (4) are patients of the same doctors; (5) belong to the same civic, political and homeowners organizations; (6) participate in fraternity and sorority events; (7) shop together; and (8) advocate for district voting in Fayette County. Doc. 135, Lowry Dep. Tr. 33:5-35:19, 54:5-13; Doc. 138, Wright Dep. Tr. 29:19-30:1; Doc. 134. John Jones Dep. Tr. 84:1-3, 85:13-86:9, 87:4-11; Doc. 133, Alice Jones Dep. Tr. 92:11-93:17; Doc. 136, Richardson Dep. Tr. 20:11-21:23; Doc. 129, Ali Abdur-Rahman Dep. Tr. 21:18-23:19, 41:14-15; Doc. 130, Adams Dep. Tr. 50:17-51:13; Doc. 131, Clark Dep. Tr. 68:5-69:7; Doc. 132, DuBose Dep. Tr. 60:12-62:23; Doc. 128, 13 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 18 of 30 Aisha Abdur-Rahman Dep. Tr. 59. There is no testimony to the contrary from County Defendants. Significantly. County Defendants concede that the residents of District 5 are politically cohesive—the calculus that is most critical in a Section 2 analysis. Mr. Cooper drew District 5 to contain neighborhoods in Fayetteville and Tyrone in which Black residents share a common political interest in the candidates that they collectively vote for, despite facing strict bloc voting against their preferred candidates by the County’s majority voters. Furthermore, while County Defendants’ expert. Mr. Morgan, asserts that the Black community in Fayette County constitutes three separate communities of Black individuals, Ex. 13, Morgan Deck ^ 14-17. 21-22, 48, his assertions cannot be given considerable weight by this Court, considering the method by which he reached this conclusion. Mr. Morgan, who does not reside in Fayette County, simply drove “around some of the neighborhoods in Fayette County,” and did not talk to any people in the “neighborhoods ... [and] houses” that he saw. Doc. 119, Morgan Dep. Tr. 26:8- 25, 27:1-25, 28:1-8; 148:5-13 (“It never would occur to me to stop someone on the street and ask [residents of Tyrone, Fayetteville and Kenwood if they are a community of interest]”). Furthermore, Mr. Morgan conceded that he did not “have enough information” to determine whether Kenwood, Blackrock, Fayetteville, and Tyrone were a single community, id. at 27:11-25. Hence, Mr. 14 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 19 of 30 Morgan's unsubstantiated opinion is insufficient to rebut the experiences testified to by Plaintiffs and also lived by other Black residents in Fayette County, id. at 145-48. in sum, there is no genuine dispute of fact that Black residents in District 5 of Plaintiffs’ Illustrative Plan constitute a community of interest. Finally, there is no dispute of fact that Mr. Cooper, in addition to seeking to remedy the existing Section 2 violation at issue in this case, accounted for non-racial commonalities, including political cohesion,9 when developing the Illustrative Plan. Ex. 11, Cooper Second Suppl. Deck *\\ 36, Doc. 107, Cooper Dep. Tr. 136:24-137:1-6 (testifying that he took “into account the perceived unity of the African-American community in the [cjities of Fayetteville and Tyrone and the Kenwood, Europe areas’"). II. PLAINTIFFS’ IRREFUTABLE EVIDENCE ESTABLISHES THAT FAYETTE COUNTY’S BLACK COMMUNITY IS GEOGRAPHICALLY COMPACT County Defendants further contend that, even if this Court finds that Plaintiffs' Illustrative Plan is not the product of a racial gerrymandering, “Plaintiffs have presented no evidence that the African-American community in Mr. Cooper also (1) considered block-level vote estimates from the Public Mapping Project file, (2) considered voter registration disaggregated by race at the precinct level, and (3) developed block level estimates, which he reviewed at all times while developing plans, contrary to County Defendants’ contention. Ex. 9, Cooper Deck 1| 27, Doc. 107 Dep. Tr. 108:5-110, 139:11-140:7, 279-280:3, 282:1-3, 4-17; see also Doc. 108-2, County Defs.’ Br. at 8. Mr. Cooper also was aware of Plaintiffs’ expert. Dr. Engstrom, racially polarized voting analysis while working on this case. See, e.g., Doc. 107, Cooper Dep. Tr. 122:11-17, 142:14-19. 15 Case 3:ll-cv-00123~TCB Document 141 Filed 10/04/12 Page 20 of 30 Fayette County is geographically compact.” Doc. 108-2, County Defs.’ Br. at 20. In support of its false assertion, County Defendants cite League o f United Latin American Citizens (“LULAC’) v. Perry, providing that “the first Gingles condition refers to the compactness of the minority population, not the compactness ot the contested district.” 548 U.S. 399, 433 (2006) (quoting Bush, 517 U.S. at 997). County Defendants’ reliance on LULAC fails because both Plaintiffs' Illustrative Plan, and District 5 in particular, are geographically compact. 1. The Minority Population in District 5 is Compact LULAC is simply no bar to this Court finding that, as a matter of law, Plaintiffs’ Illustrative Plan, and the minority population in District 5, are geographically compact. LULAC concerned a challenge to a Texas legislative redistricting plan that shifted substantial portions of a cohesive majority-Latino population out of a district in favor of white voters to protect an incumbent from losing his seat. Id. at 423-24, 428. The state then sought to place these Latino voters into a new district in which 300 miles separated the Latino communities and the characteristics and “needs and interests” of these communities—differences in socio-economic status, education, employment, and health—were distinct. Id. at 424, 432, 434. On these facts, the Supreme Court concluded that Latino communities in this new district were not compact, finding that the district at issue contained “two distant, disparate communities [in which] one or both groups will 16 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 21 of 30 be unable to achieve their political goals.” Id. at 434; see also id. at 402 (emphasizing “the enormous geographical distance separating” the Latino communities in the new district “coupled with the disparate needs and interests of these populations - not either factor alone - that renders [the new district] noncompact for §2 purposes”).10 Unlike the Latino populations in the district at issue in LULAC, Black voters in District 5 are reasonably compact, separated only by 3.5 miles, and significantly, are joined by cohesive voting patterns such that they have the potential to achieve their political goals, and various other connections and interests. The uncontested record here demonstrates that: (1) Black residents' voting patterns in District 5 are politically cohesive in elections involving candidates to the Board of Commissioners (and Board of Education); (2) bloc voting by other members of the electorate consistently defeats Black preferred candidates, such that no Black candidate has ever been elected to the Board ot Commissioners (or Board ot Neither the Illustrative Plan nor District 5 within “reaches out to grab small and ... isolated minority communities” which is evidence that a district is not reasonably compact. Bush, 517 U.S. at 979 (plurality opinion); see also Miller, 864 F. Supp. at 1389-90 (rejecting a proposed congressional district that, unlike in the instant case, combined minority groups “centered around four discrete, widely spaced urban centers [Atlanta, Augusta, Savannah, and Columbus] that have absolutely nothing to do with each other” in terms of economic conditions, educational backgrounds, media concentrations, commuting habits, and other aspects of life and “stretch the district hundreds of miles across rural counties and narrow swamp corridors”); Johnson v. Mortham, 926 F. Supp. 1460, 1472-73 (N.D. Fla. 1996) (rejecting congressional district encompassing, unlike here, four non-adjacent black populations in Jacksonville, Orlando, Daytona Beach, and Gainesville, some that were separated by 100 miles and “linked together only by narrow land bridges of white rural and small town populations” presenting administration difficulties). 17 Case 3:ll-cv-00123~TCB Document 141 Filed 10/04/12 Page 22 of 30 Education); and (3) Black voters in District 5 could elect their preferred candidate of choice on the strength of their votes alone, and without any support from white voters. Doc. 110-1. Pis.' Br. in Support of Mtn. for SJ at 4-6, 28-30: see also Ex. 8, Engstrom Deck at ^ 17, 19-30,; Ex. 29, Engstrom Suppl. Deck at 5-13. In addition, the record demonstrates that: (1) District 5 encompasses parts of Tyrone and Fayetteville, the two municipalities in Fayette with the highest percentages of Black residents, Ex. 9, Cooper Deck ^ 37, Morgan Deck YU 15-17; (2) these two municipalities are only 3.5 miles apart from city limits to city limits, or jogging distance from one another, Ex. 11, Cooper Second Suppl. Deck 36; (3) District 5 covers a land area of 31.2 square miles; (4) the Black population, as County Defendants' concede, is concentrated in the northern portion of Fayette County, including parts of Tyrone and Fayetteville, encompassing District 5, Ex. 9, Cooper Deck 1fl! 20-21; Ex. 13, Morgan Deck 20-21, 37; Doc. 120, Pfeifer Dep. Tr. 39:12-18; Doc. 114, Dunn Dep. Tr. 55:22-56:6, 69:18-70:12; Doc. 117, Horgan Dep. Tr. 69:24-70:10; Doc. 112, Brown Dep. Tr. 44:19-24, 64:19-67:15; Doc. 121, Smith Dep. Tr. 53:9-25; Doc. 131, Clark Dep. Tr. 30:8-15, 31:15-20; Doc. 128, Aisha Abdur-Rahman Dep. Tr. 58:5-17; and (5) Black residents in Fayetteville and Tyrone are a community of interest for the reason discussed supra (I)(B). Thus, applying the principles of LULAC to the facts of this case leads to the conclusion that the minority community in District 5 is compact. 18 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 23 of 30 2. The Illustrative Plan is Compact Plaintiffs’ Illustrative Plan, as a matter of law, is compact under any measure (i.e., Reock or Polsby-Popper). Courts are not required to rely on any particular method for measuring compactness. See, e.g., Karcher v. Daggett. 462 U.S. 725, 756 (1983) (stating that compactness requirements have been of limited use because of vague definitions and imprecise application); B. Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 85 (1985) (reviewing measures of compactness and stating that none are accepted as definitive). To be sure, courts have used various methods to calculate the compactness of a district, and have considered compactness in the context of numerous other redistricting principles—including adherence to the VRA without holding that any particular metric is required. This Court, in gauging the compactness of the districts at issue in Larios, considered metrics such as the smallest-circle or perimeter-to-area compactness measures, but did not ultimately favor any particular method for measuring compactness over another. 314 F. Supp. 2d at 1369 n.19. Moreover, the district court in Miller recognized the difficulty in assessing any one compactness test s superiority over another, stating that "| ujnfortunately, there is no litmus test tor compactness; it has been described as such a hazy and ill-defined concept that it seems impossible to apply it in any rigorous sense in matters of law.’ 864 F. Supp. 19 Case 3:11"CV-00123-TCB Document 141 Filed 10/04/12 Page 24 of 30 at 1388 (citation and internal quotation marks omitted); see also Doc. 107, Cooper Dep. Tr. 134:8-10 (recognizing "‘there are lots of flaws and issues with compactness measures"). Thus, as Larios and Johnson demonstrate, the Reock test11 relied on by Mr. Cooper, is a sufficient method, by itself for measuring compactness. Larios, 314 F. Supp. 2d at 1369 n.19; Miller, 864 F. Supp. at 1388. Mr. Morgan concedes this point. Doc. 119. Morgan Dep. Tr. 110:23-111:6, 113:25-114:1-4, 115:3-10 (“I don't think there's a requirement that you would use both" Reock and Polsby- Popper to measure a district's compactness). Indeed. Mr. Morgan testified that he did not know if “there is an acceptable range of compactness,” but that he simply compares “compactness scores in relation to other plans,” just as Mr. Cooper has done here, “ and that he conducts this compactness comparison only when asked by clients to do so. Ex. 11, Cooper Second Suppl. Deck 4; Doc. 119, Morgan Dep. Tr. 74:14-19; 69:7-17, 87:14-19. The “Reock test," one compactness indicator, is an area-based measure that compares each district to a circle. It is measured on a scale of 0 to l, with 1 being the most compact. Doc. 107, Cooper Dep. Tr. 225:8-12; Doc. 119, Morgan Dep. Tr. 1 11:6-18. Both Mr. Cooper and Mr. Morgan agreed that there is no objective ideal for compactness, but rather that compactness can only be measured by comparing one district to another. See, e.g., Doc. 107, Cooper Dep. Tr. 216:10-18 (explaining “you can compare compactness scores. You probably should go beyond that, but as a first cut, you can compare compactness scores”); id. at 48:14-20 (explaining that to satisfy Gingles one, “it needs to be a district that is potentially functional that would not confuse voters and is not terribly dissimilar from other districts that are out there”); see id. 166:1-6. 194:5-17; see also Doc. 119, Morgan Dep. Tr. 67:3-10, 68:7-12, 91:6-8, 113:16-18, 179:4-9 (explaining “you can look at districts and compare them to other districts and particular other districts in that region”). 20 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 25 of 30 Using the Reock test, the compactness of the Illustrative Plan compares favorably with the Commissioners’ Plan and the BOE Plan. The mean Reock score for the five districts in the Illustrative Plan is .42; in the Commissioner's Plan it is .45; and in the BOE Plan, which as discussed, supra, Mr. Morgan concedes is compact, is .49. Ex. 11, Cooper Second Suppl. Deck 8-9; Ex. 13, Morgan Deck *j 38. The Reock score for District 5 at .31 compares favorably with that of the Commissioners’ Plan at .45 and the BOE Plan at .43. Ex. 11, Cooper Second Suppl. Deck T[ 8; Ex. 13, Morgan Deck *11 38-39; Ex. 14. Morgan Suppl. Deck 1| 13; Doc. 119, Morgan Dep. Tr. 178:5-12. The Illustrative Plan also compares favorably under the Reock test to a number of recently adopted state and local redistricting plans in Georgia. Ex. 11, Cooper Second Suppl. Deck 5-6, 22; Doc. 107, Cooper Dep. Tr. 48:21-49:4 (explaining that Plaintiffs' Illustrative Plan “is more compact using the Reock standard than 25 percent of [Georgia's] legislative districts”). Moreover, based on the Reock test, Plaintiffs' District 5 under the Illustrative Plan is as compact or more compact than 23 county school board and county commission districts from a sample of 25 Georgia counties with a total of 125 districts. Ex. 11, Cooper Second Suppl. Deck 13-14. And, based on the Reock test, District 5 under the Illustrative Plan is as compact or more compact than 87 (out of 294) lower house legislative districts drawn by Mr. Morgan in three states (New Mexico, South 21 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 26 of 30 Carolina and Virginia). Id. at 8-10. There is, therefore, no dispute of fact that using the Reock compactness test, Plaintiffs' Illustrative Plan adheres more closely to the compactness principle than a significant number of Georgia's legislative, county commission and school board districts, and districts across the country drawn by County Defendants' expert. Id. at *[j 42. Moreover, the compactness of Plaintiffs’ Illustrative Plan fares well under the Polsby-Popper testlj favored by Mr. Morgan, with the mean score for the five districts in that Plan at .23 and District 5 scoring at .16. By comparison, the mean Polsby-Popper score for the Commissioner’s Plan is .35, and the score for District 5 under that Plan is .51. Significantly, using the Polsby-Popper test, at least one of the Illustrative Plan’s districts (District 2) is more compact at .39 than the same district in the Commissioners’ Plan at .35 and is as equally compact as that district under the BOE Plan at .39, which Mr. Morgan admits is compact.15 The Polsby-Popper test, another compactness indicator, computes the ratio of the district area to the area of a circle with the same perimeter, it is measured on a scale of 0 to 1, with 1 being the most compact. See. e.g.. Doc. 107, Cooper Dep. Tr. 225:16-18; Doc. 1 19, Morgan Dep. Tr. 111:6-25, 112:1-4. 14 Using the Polsby-Popper test, District 5’s (at .16) compactness score also compares favorably to 21 (or 11.67%) of the 2011 adopted Georgia House districts that have scores equal to or less than .16. Ex. 11, Cooper Second Suppl. Deck at 8, 11 and Tbl. 1. In addition, under the Polsby-Popper test, House District 63 in Fayette County, for example, is less compact than District 5 with a score of .12. Id. at *J 11. Using the Polsby-Popper test, not only is District 2 under the Illustrative Plan equally compact to District 2 under the BOE’s Plan, which Mr. Morgan admits is compact, but District 3 under both of those plans is equally compact. 22 Case 3:ll-cv-0Q123-TCB Document 141 Filed 10/04/12 Page 27 of 30 Thus, in consistently scoring favorably on various compactness tests with the Commissioners and BOE plans, as well as other redistricting plans and districts throughout Georgia, the record is clear that Plaintiffs’ Illustrative Plan is compact, complies with that traditional redistricting principle, and race was not the predominant consideration in its development. See Dillard v. Baldwin Cnty. Bd. o f Educ., 686 F. Supp. 1459, 1465-66 (M.D. Ala. 1988) (“By compactness, Thornburg does not mean that a proposed district must meet, or attempt to achieve, some aesthetic absolute, such as symmetry or attractiveness . . . [Geographical symmetry or attractiveness is . . . a desirable consideration for districting, but only to the extent it facilitates the political process."). Finally, County Defendants suggest that some of the districts that Mr. Cooper compared the Illustrative Plan to might have had unique reasons that they were less compact, such as that they were adopted to comply with the Voting Rights Act. See, e.g., Doc. 108-1, Cnty. Defs.’ Br. at 18, 21-22. 49. However, the reason(s) that similar covered jurisdictions did not adopt more compact plans is irrelevant to and in no way undercuts the compactness of Plaintiffs’ Illustrative Plan. See Askew, 127 F.3d at 1376-77. 23 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 28 of 30 CONCLUSION Based on the undisputed material facts, this Court should deny County Defendants' Motion for Summary Judgment, and grant Plaintiffs' Motion for Summary Judgment as a matter of law. DATED: October 4. 2012 Respectfully submitted, s/ Ryan P. Haygood DEBO P. ADEGBILE ELISE C. BODD1E RYAN P. HAYGOOD* DALE E. HO* NATASHA M. KORGAONKAR* LEAH C. ADEN* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 New York, NY 10013 Telephone: (212) 965-2200 Facsimile: (212)229-7592 Email: rhaygood@naacpldf.org * Admitted Pro Hac Vice NEIL BRADLEY Georgia Bar No. 075125 3276 Wynn Drive Avondale Estates GA 30002-1647 (404)298-5052 Attorneys fo r Plaintiffs 24 mailto:rhaygood@naacpldf.org Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 29 of 30 CERTIFICATE OF COMPLIANCE 1. The following response is made in accordance with Civil Local Rules 5.1(B) and 7.1(D). 2. This response was prepared in the processing system Microsoft Word 97-2003, with Times New Roman typeface, 14 point font (12 point footnotes). Dated: October 4, 2012. s/ Ryan P. Hay good DEBO P. ADEGBILE EL1SE C. BODDIE RYAN P. HAYGOOD* DALE E. HO* NATASHA M. KORGAONKAR* LEAH C. ADEN* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, 16th Floor New York, NY 10013 (212)965-2200 Fax: (212) 229-7592 * Admitted Pro Hac Vice NEIL BRADLEY Georgia Bar No. 075125 3276 Wynn Drive Avondale Estates GA 30002-1647 (404)298-5052 Attorneys for Plaintiffs 25 Case 3:ll-cv-00123-TCB Document 141 Filed 10/04/12 Page 30 of 30 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2012, I electronically filed Plaintiffs’ Response in Opposition to County Defendants’ Motion for Summary Judgment with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to all attorneys of record registered with the ECF system as required by this Court's Rules. I further certify that 1 mailed the foregoing document by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. s/ Ryan P. Haygood RYAN P. HAYGOOD* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 Fax: (212) 229-7592 * Admitted Pro Hac Vice 26 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION GEORGIA STATE CONFERENCE OF THE NAACP; et a l , Plaintiffs, CIVIU ACTION NO. 3:11- v CV-00123-TCB FAYETTE COUNTY BOARD OF COMMISSIONERS; et al., Defendants. PUAINTIFFS’ RESPONSE TO COUNTY DEFENDANTS’ STATEMENT OF MATERIAL FACTS Pursuant to Federal Rule of Civil Procedure 56(c) and Local Rule 56.1 .B (1), Plaintiffs Georgia State Conference of the NAACP, Fayette County Branch of the NAACP, Henry Adams, Terence Clark, Alice Jones, John FT Jones, Dan Lowry, Ali Abdur-Rahman, Aisha Abdur-Rahman, Lelia Richardson, Elverta Williams, and Bonnie Lee Wright (collectively, “Plaintiffs”) respectfully submit this Response to County Defendants’ Statement of Material Facts and in opposition to County Defendants’ Motion for Motion for Summary Judgment. 1. Plaintiffs do not object to County Defendants’ Statement of Material Fact No. 1. 2. Plaintiffs object to County Defendants’ Statement of Material Fact No. 2 insofar as it characterizes “[t]he shape of the majority-minority district” (District 5) in Plaintiffs’ five-member Illustrative Plan as “unusual” and “especially so when viewed against the racial composition of Fayette County” because these purported facts are neither relevant nor material to Plaintiffs’ burden of proof in this case. Rather, the evidence demonstrates that the shape of District 5 in Plaintiffs’ Illustrative Plan compares favorably with those of the Board o f Education Plan [BOE Plan] that County Defendants' expert, John Morgan (“Morgan”), concedes comports with traditional redistricting principles. Ex. 9, Cooper Decl. 35-42; Ex. 10, Cooper Suppl. Decl. 11, 14: Ex. 11, Cooper Second Suppl. Decl. 18-19 (“two-thirds of the perimeter for District 5 follows already existing political lines [in Fayette County]”); Doc 107, Cooper Dep. Tr. 134:1-6, 136-38, 144; Ex. 13, Morgan Decl. *| 39; Ex. 14, Morgan Suppl. Decl. [̂ 13; Doc. 119, Morgan Dep. Tr. 178:5-12. Moreover, the shape of District 5 in Plaintiffs’ Illustrative Plan is more regularly shaped than three adopted or proposed Georgia jurisdictions—Baldwin, Bulloch and Newton counties. Ex. 10, Cooper Suppl. Decl. 18. Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 2 of 33 2 Case 3:ll-cv-0Q123-TCB Document 141-1 Filed 10/04/12 Page 3 of 33 3. Plaintiffs object to County Defendants’ Statement of Material Fact No. 3 insofar as it represents that Plaintiffs’ Illustrative Plan “specifically includes areas with concentrations of African-American population while systematically excluding white population" because this purported fact is neither relevant nor material to Plaintiffs’ burden of proof in this case, (emphasis in original). In drawing District 5, a majority-minority district that is 50.22 percent Black voting- age population, a demographer will necessarily include some Black voting-age citizens and exclude some white voting-age citizens. Notably, Plaintiffs’ expert, William Cooper (“Cooper), testified to some of his considerations in developing District 5 including (1) that specifically excluding white populations in Fayetteville and Tyrone in District 5 would have made it impossible to adhere to the one- person, one-vote principle, and (2) to the objective of creating a district in Plaintiffs’ Illustrative Plan in which Black voters comprise a majority of the voting-age population. Doc 107, Cooper Dep. Tr. 159:15-25, 160:1-2; see also id. at 160:18-25-162:1 (explaining Cooper’s decision to place a predominantly Latino neighborhood northeast of Tyrone in a non majority-minority district under the Illustrative Plan was consistent with how other demographers drew school attendance zones for elementary schools in Fayette County and after assessing that that community is socioeconomically distinct). 3 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 4 of 33 4. Plaintiffs object to County Defendants' Statement of Material Fact No. 4 in that it contends that the only way to create a majority-minority district is to combine “three disparate concentrations of African-Americans" and “exclude the intervening white population" because the evidence demonstrates that majority- minority District 5 does not combine “disparate” Black communities. Indeed, County Defendants concede that Blacks in Fayette County are politically cohesive, Doc. 67, Cnty. Defs.' Resp. to Ct. Orders & Pis.’ May 2 Br., at 10, establishing as fact a shared community of interest among Blacks in Fayette County. This shared political interest is the key element in a successful vote dilution claim. See Thornburg v. Gingles, 478 U.S. 30, 46, 48-49. Further, the record is clear that Blacks in District 5 are a community of interest in that: (1) Tyrone and Fayetteville have the highest percentages of Black residents in Fayette County, Ex. 9, Cooper Deck U 37, Ex. 13. Morgan Deck 14-17; (2) these two municipalities are approximately 3.5 miles apart from city limits to city limits or jogging distance from one another, Ex. 11, Cooper Second Suppl. Deck 36; (3) the Black population is concentrated in the northern portion of Fayette County, including parts of Tyrone and Fayetteville, Ex. 9, Cooper Deck Iff 20-21; Ex. 13, Morgan Deck IfiJ 20-21, 37; Doc. 120, Pfeifer Dep. Tr. 39:12-18; Doc. 114, Dunn Dep. Tr. 55:22-56:6, 69:18-70:12; Doc. 117, Horgan Dep. Tr. 69:24-70:10; Doc. 112, Brown Dep. Tr. 44:19-24, 64:19-67:15; Doc. 121, Smith Dep. Tr. 53:9-25; Doc. 4 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 5 of 33 131, Clark Dep. Tr. 30:8-15, 31:15-20; Doc. 128, Aisha Abdur-Rahman Dep. Tr. 58; (4) Black residents in Fayetteville and Tyrone (a) attend the same public schools, (b) share places of worship and recreation, (c) are patients of the same doctors, (d) belong to the same civic, political and homeowners organizations, (e) participate in fraternity and sorority events, (f) shop together, and (g) advocate for district voting in Fayette County, among other things. Doc. 135, Lowry Dep. Tr. 33:7-35:19, 54:5-13; Doc. 138, Wright Dep. Tr. 29:19-30:1; Doc. 134. John Jones Dep. Tr. 84:1-3, 85:13-86:9, 87:4-11; Doc. 133, Alice Jones Dep. Tr. 92:11-93:17; Doc. 136, Richardson Dep. Tr. 6:18-19, 20-21; Doc. 129, Ali Abdur-Rahman Dep. Tr. 21:18-23:19, 41:14-15; Doc. 130, Adams Dep. Tr. 50:17-51:13; Doc. 131, Clark Dep. Tr. 68:5-69:7; Doc. 132, DuBose Dep. Tr. 60:12-62:23; Doc. 128, Aisha Abdur-Rahman Dep. Tr. 59; and (5) Cooper accounted for the “perceived unity of the African-American community in the [cjities of Fayetteville and Tyrone and the Kenwood. Europe areas,” Doc 107, Cooper Dep. Tr. 136:25, 137:1-6. 5. Plaintiffs object to County Defendants’ Statement of Material Fact No. 5 that District 5 “splits a large number of precincts without any explanation other than race.” While Cooper split precincts in District 5 to remedy the existing Section 2 violation at issue in the case, he also split precincts to maintain communities of interest, protect incumbents, follow existing municipal boundaries and school attendance zones, and respect the one-person, one-vote principle. Ex. 5 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 6 of 33 10, Cooper Suppl. Decl. 11; see also Doc 107, Cooper Dep. Tr. 148:10-13 (explaining “[a] lot of the precinct splits really are because we’re trying to protect incumbents and fit this into the [BOE Plan]”). Cooper also testified that “[pjrecinct lines are not, however, sacrosanct, especially when Voting Rights Act violations are at issue" and “precinct lines are routinely split to protect incumbents" and precincts were split in the BOE Plan, and Commissioners’ Plan, and the Illustrative Plan to protect incumbents. Ex. 11, Cooper Second Suppl. Decl. at *| 23. Defendants expert, Morgan, testified that certain splits are necessary, explaining that it is “really [not] possible to re-district without splitting some towns.” Doc. 119, Morgan Dep. Tr. 74:5-6. 6. Plaintiffs object to County Defendants’ Statement of Material Fact No. 6 as County Defendants' citation to Cooper’s testimony does not support that purported fact and the purported fact, in any event, is not material. 7. Plaintiffs object to County Defendants’ Statement of Material Fact No. 7 insofar as it contends that Cooper “disregarded precinct boundaries” and “us[ed] only Census blocks” in drawing District 5 for the reasons discussed in supra 2-3 5, Cooper also used whole precincts, including Blackrock, Kenwood and Europe, in developing District 5. See, Ex. 9, Cooper Decl. at Ex. E -l. 6 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 7 of 33 8. Plaintiffs object to County Defendants’ Statement of Material Fact No. 8 insofar as it contends that Cooper “decided which Census blocks to include in [District 5] while using the display feature showing the African-American percentage of each block” because County Defendants’ citation to Cooper's testimony does not support that purported fact and the purported fact, in any event, is not material. Instead, Cooper testified only that “[djuring various points in time when [he] was preparing [several] plans” did he have the total population number and the Black percentage in each Census block feature turned on. Doc 107, Cooper Dep. Tr. 107:13-15. 9. Plaintiffs object to County Defendants’ Statement of Material Fact No. 9 because County Defendants' citation to Cooper’s testimony does not support the purported fact, and reflects the reasons discussed in supra ffl[ 3, 5. 10. Plaintiffs object to County Defendants’ Statement of Material Fact No. 10 because it misstates Cooper’s testimony by stating that he could only “identify one split [precinct] that actually was the result of protecting an incumbent.” Cooper testified that he split at least two precincts to protect incumbents, including Hopeful and Dogwood. Doc 107, Cooper Dep. Tr. 144:17-18, 22-25, 145:15-16, 19-23, 151:16-20, 152:1-2. 7 Case 3:ll-cv~00123-TCB Document 141-1 Filed 10/04/12 Page 8 of 33 11. Plaintiffs object to County Defendants’ Statement of Material Fact No. 11, which contends that Cooper provided no explanation for the purpose of other split precincts, beyond those discussed in supra <| 10, because it is not supported by the record. Cooper also testified that he split Sandy Creek precinct to avoid overpopulating District 5. Doc 107, Cooper Dep. Tr. 119:8-10, 152:12-17, 257:7- 12. 12. Plaintiffs object to County Defendants’ Statement of Material Fact No. 12 that states that Plaintiffs' ‘fllustrative Plan scores very low on a variety of compactness measures compared to other plans for Fayette County.” Under the Reock test. District 5 in Plaintiffs’ Illustrative Plan (at .31) compares favorably with the Commissioners' Plan (at .45) and the BOE Plan (at .43), which County Defendants' expert, Morgan concedes is compact. Ex. 11, Cooper Second Suppl. Deck 1̂ 8: Ex. 13, Morgan Deck 38-39; see also Ex. 14, Morgan Suppl. Deck 13; Doc. 119, Morgan Dep. Tr. 178:5-12. Under another measure of compactness, the Polsby-Popper test, District 5 (at .16) also compares favorably with the Commissioners’ Plan (at .51) and the BOE Plan (at .40), which County Defendants’ expert, Morgan concedes is compact. Ex. 13, Morgan Deck |̂*f 38-39; see also Ex. 14, Morgan Suppl. Deck U 13; Doc. 119, Morgan Dep. Tr. 178:5-12. 13. Plaintiffs do not object to County Defendants’ Statement of Material Fact No. 13. Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 9 of 33 14. Plaintiffs object to County Defendants' Statement of Material Fact No. 14 insofar as it contends that various compactness methods “‘reward' different things in measuring compactness.” The record actually reflects that utilizing different methods of compactness will result in different scores, and that while using more than one measure of compactness is permissible, it is by no means required. Doc 107, Cooper Dep. Tr. 225:16-25, 226:1-3, 12-23; Doc. 119. Morgan Dep. Tr. 110:23-111:4. 113:25-114:1-4, 1 15:3-10 (“I don't think there's a requirement that you would use both” Reock and Polsby-Popper to measure a district's compactness). 15. Plaintiffs object to County Defendants’ Statement of Material Fact No. 15 insofar as it contends that the Illustrative Plan, generally, and District 5, particularly, have "lower compactness scores” when that purported fact is neither relevant nor material to Plaintiffs' burden in this because both Cooper and Morgan agreed that there is no objective ideal for compactness, but rather that compactness can only be measured by comparing one district to another. Doc 107. Cooper Dep. Tr. 48:14-20, 166:1-6, 194:5-17, 216:10-18; Doc. 119, Morgan Dep. Tr. 67:3-10, 68:7-12, 91:6-8, 113:16-18, 179:4-9. Moreover, County Defendants' citation for this proposition does not support this purported fact. To the extent that this purported fact implies that the compactness scores for the Illustrative Plan and District 5 within it are deficient, the record does not demonstrate that. Indeed, the 9 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 10 of 33 record reflects that Cooper, using the Reock test, determined that Plaintiffs’ Illustrative Plan compares favorably to a number of recently adopted state and local redistricting plans, county school board and commission district plans across Georgia, and lower house legislative districts drawn by Morgan in three states (New Mexico, South Carolina and Virginia). Ex. 11, Cooper Second Suppl. Deck ffll 5-6, 22, Doc 107, Cooper Dep. Tr. 49:1-4, (state and local redistricting plans), Ex. 11, Cooper Second Suppl. Deck ^ 13-14 (county school board and commission district plans), id. at 8-10 (lower house legislative districts). 16. Plaintiffs do not object to County Defendants’ Statement of Material Fact No. 16. 17. Plaintiffs object to County Defendants’ Statement of Material Fact No. 17 because it inaccurately states that Cooper conceded that “no more than 86 out of 908 districts (approximately 9%)” or “far less” of state legislative districts scored the same or lower than the compactness of District 5. The record reflects that Cooper only stated that, using the Polsby-Popper method, 86 state legislative districts scored lower or the same as District 5, see Doc 107, Cooper Dep. Tr. 229:1-4. This fact is not, however, material because Plaintiffs are not required to present the most compact District 5 possible or that District 5 is more compact than other plans. Rather, Plaintiffs need only satisfy generally accepted standards for compactness, which the record reflects they have. 10 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 11 of 33 18. Plaintiffs object to County Defendants’ Statement of Material Fact No. 18 insofar as it states that Cooper agreed that if states covered by Section 5 of the Voting Rights Act “were removed from his analysis, only eight districts out of 384 (approximately 2%) had compactness scores as low as the [District 5]," when Cooper testified that this was correct only when both the Reock and Polsby-Popper compactness measures were used, and he reiterated that Plaintiffs are only required to “consider one [test] rather than both.” Doc 107, Cooper Dep. Tr. 236:15-25- 237:2. Further, because Fayette County is a covered jurisdiction under Section 5 of the VRA, it is entirely appropriate to perform analyses of plans relevant in this case to those adopted in other Section 5 jurisdictions and not to “removef]” them from Cooper’s analyses as County Defendants suggest. Finally, this purported fact, in any event, is not material because Plaintiffs are not required to present the most compact District 5 possible or demonstrate that District 5 is more compact than other plans, but rather are required to show that Plaintiffs satisfy generally accepted standards for compactness, which the record reflects they have done here. 19. Plaintiffs object to County Defendants’ Statement of Material Fact No. 19 insofar as it contends that Cooper “admitted that only nine of the 125 districts (approximately 7%) he analyzed had compactness scores the same or lower than [District 5]” or “far lower,” when Cooper qualified that “[tjhat’s probably true” and “possible” only when both the Reock and Polsby-Popper 11 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 12 of 33 compactness measures both were used. Doc 107, Cooper Dep. Tr. 245:10-13. As stated above, supra TJ 18, Cooper also testified that Plaintiffs are only required to “consider one [test] rather than both." Id. at 236:15-25-237:2. This purported fact, in any event, is not material because Plaintiffs are not required to present the most compact District 5 possible or demonstrate that District 5 is more compact than other plans, but rather are required to show that Plaintiffs satisfy generally accepted standards for compactness, which the record reflects they have done here. 20. Plaintiffs object to County Defendants’ Statement of Material Fact No. 20 insofar as it contends, based on using more than one test for measuring compactness, that the “largest number of counties containing districts with compactness scores the same or lower than [District 5] ... was three out of 25.” As discussed above, while using more than one measure of compactness is permissible, it is by no means required. Doc 107, Cooper Dep. Tr. 225:16-25, 226:1-3, 12-23; Doc. 119, Morgan Dep. Tr. 110:23-111:4, 113:25-114:1-4, 115:3- 10 (“I don't think there’s a requirement that you would use both” Reock and Polsby-Popper to measure a district’s compactness). In addition, this purported fact is not material because Plaintiffs are not required to present the most compact District 5 possible or demonstrate that District 5 is more compact than other plans, but rather are required to show that they satisfy generally accepted standards for compactness, which the record reflects they have done here. 12 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 13 of 33 21. Plaintiffs object to County Defendants’ Statement of Material Fact No. 21 insofar as it contends that Cooper “was unable to identify which of any of the counties he analyzed have a majority-minority district that has to be protected under Section 5 of the [VRA]” because County Defendants’ citation does not support this purported fact. Rather, Cooper testified that he was “sure that most of them have minority districts” protected by Section 5 of the VRA, in fact, the “others probably all do,” but that he “doubtfed] if Cherokee” has a majority- minority district subject to Section 5. Doc 107, Cooper Dep. Tr. 244:5-7. In addition, for the reasons discussed in supra 18, Plaintiffs object to County Defendants’ inaccurate description of Cooper’s testimony admitting that Section 5 coverage “could lead to lower compactness scores.” 22. Plaintiffs object to County Defendants’ Statement of Material Fact No. 22 insofar as County Defendants’ citation does not support this purported fact. In addition, Plaintiffs’ object to this purported fact insofar as it suggests that District 5’s “lack of compactness ... cannot be explained by any geographic features in [Fayette].” The record reflects that Cooper asserted that the (1) “northeast and northern tier of District 5 follows the Clayton and Fulton County lines,” (2) that “[mjuch of the remaining perimeter of the [District 5] follows the [BOE Plan] boundaries, precinct lines, or parts of the city limits of Fayetteville and 13 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 14 of 33 Tyrone,” and (3) that “District 5 covers a land area of 3.12 square miles—a little less than one-sixth of the total land area in [Fayette].” Ex. 9, Cooper Decl. 1 37. 23. Plaintiffs object to County Defendants’ Statement of Material Fact No. 23 because County Defendants' citation does not support this purported fact. The record reflects that District 5 is compact. See Ex. 9, Cooper Decl. 44; Ex. 10, Cooper Suppl. Decl. ̂3; Ex. 11, Cooper Second Suppl. Decl. 4-22. 24. Plaintiffs object to County Defendants’ Statement of Material Fact No. 24 because this purported fact is neither relevant nor material to Plaintiffs’ burden of proof in this case. 25. Plaintiffs object to County Defendants’ Statement of Material Fact No. 25 because County Defendants’ citation does not support this purported fact. Rather, the record reflects that race was one of many considerations Cooper used in creating District 5, as well as maintaining communities of interest, remedying the existing minority vote dilution resulting from Fayette County’s at-large method of election, protecting incumbency, minimizing split precincts, maintaining municipal boundaries, assessing school attendance zones, and respecting the one- person, one-vote principle. Doc. 107, Cooper Dep. Tr. 163:3:11, 136:24-25- 137:22, 184:6-187:7; see also Ex. 9 Cooper Decl. *[fl[ 35-45; Ex. 10, Cooper Suppl. Decl. ]̂‘| 11-12; Ex. 11, Cooper Second Suppl. Decl. 36-42. In addition, in creating District 5, Cooper considered that Blacks in Fayette County are politically 14 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 15 of 33 cohesive, Doc 107, Cooper Dep. Tr. 122:11-17, 142:14-19. and this shared political interest is the key element in a successful vote dilution claim. See Thornburg v. Gingles, 478 U.S. 30, 46, 48-49. County Defendants also concede the existence of racial bloc voting in Fayette County, Doc. 67, Cnty. Defs.’ Resp. to Ct. Orders & Pis.’ May 2 Br., at 10, and, thus, establish as fact a shared political community among Blacks in Fayette County. 26. Plaintiffs object to County Defendants’ Statement of Material Fact No. 26 insofar as it inaccurately states that Cooper was “unaware of the location or attendance patterns for any churches or civic organizations besides the NAACP,” when the record reflects that Cooper “kn[ewj there are others,” but that he “just didn't commit them to memory,” Doc 107, Cooper Dep. Tr. 286:7-15. Plaintiffs also object to County Defendants' contention that Cooper “ignored municipal boundaries," as County Defendants’ citation does not support this purported fact. Rather, the record reflects that Cooper did follow such boundaries, see, e.g., id. at 134:1-4,190:9-11, Ex. 9, Cooper Deck Y\\ 36-38, Ex. 10, Cooper Suppl. Deck 11-12, Ex. 11, Cooper Second Suppl. Deck 36. Plaintiffs further object to this purported fact because the record reflects that Cooper considered school attendance lines, see, e.g., Doc. 107, Cooper Dep. Tr. at 134:1-4. 137:7-14, 163:3- 11, 189:1-9, 286-16:24-287:1-3; Ex. 9, Cooper Deck 36-38, Ex. 10, Cooper Suppl. Deck 11-12, Ex. 11, Cooper Second Suppl. Deck ^ 37-38. 15 Case 3:ll-cv-G0123-TCB Document 141-1 Filed 10/04/12 Page 16 of 33 27. Plaintiffs object to County Defendants’ Statement of Material Fact No. 27 because this purported tact is contrary to the record. Rather, the record reflects that Cooper sought to maintain existing precinct boundaries. Ex. 9, Cooper Decl. H 35, 37, Ex. 10, Cooper Suppl. Decl. H 3, 11, Ex. 11, Cooper Second Suppl. Decl. m 23-25; Doc 107, Cooper Dep. Tr. 70:11-13, 106:17-18, 157:157:22-24, 190:4-8, 258:12-15, 273:8-14. 28. Plaintiffs object to County Defendants’ Statement of Material Fact No. 28 insofar as it contends that Cooper’s “primary goal in drafting [District 5] was to create a majority-minority district,” exclusive of all other considerations. The record actually reflects, that Cooper was guided by several goals, including developing a “redistricting plan in which African Americans comprise the majority of the voting age population in a district that can be drawn that both (1) maintains the [BOE Plan] district boundaries, and (2) avoids the placement of two or more County Commissioner incumbents in the same district.” Ex. 9, Cooper Decl. H 35, 37; Ex. 10, Cooper Suppl. Decl. 1 3; see also Doc 107, Cooper Dep. Tr. 131:16-132:22, 157:22-24. 29. Plaintiffs object to County Defendants’ Statement of Material Fact No. 29 insofar as it contends that Cooper “could only identify race as a community of interest in [District 5] and would have subordinated every traditional redistricting principle to race if he felt it was necessary to achieve his goal of a 16 Case 3:ll~cv-00123-TCB Document 141-1 Filed 10/04/12 Page 17 of 33 majority-minority district” because County Defendants' citation does not support this purported fact. Rather, the record reflects that Cooper testified that (1) “[a]s a last resort, [he] probably would have” paired incumbents, (2) he “probably” might have split more precincts because while they are “important to try to follow ... they are routinely split, at the state level,” and “if you have to split more and you can still draw a reasonably compact district” then it’s appropriate, (3) school attendance zones “changfe] all the time,” so it’s not appropriate to conform a plan to those lines, and (4) likewise municipal lines “change” and it's not appropriate to conform a plan to those lines, Doc. 107, Cooper Dep. Tr. 187:8-190:15. In addition, this purported fact is neither relevant nor material to Plaintiffs' burden in this case to the extent that certain of Cooper’s responses are purely speculative. 30. Plaintiffs object to County Defendants’ Statement of Material Fact No. 30 insofar as it contends that Cooper “based his drawing on the belief that the Black voters in Fayette County want to be in the same district and that white voters would not want to be in such district,” because County Defendants' citation does not support this purported fact. Rather, the record reflects that Cooper testified that (1) he reviewed the racial demographics in various plans, including the Illustrative and Commissioners' plans, (2) he placed Black and white voters in District 5, though more Black voters in that district, and (3) he opined that “more black voters would want to be in a [majority-minority] district [like District 5] where they had 17 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 18 of 33 an opportunity to elect their candidate of their choice; and some of the white voters might not want to be in that district.” Doc. 107, Cooper Dep. Tr. 195-196 (emphasis added). In addition, Plaintiffs object to this purported fact because it is immaterial. 31. Plaintiffs object to County Defendants’ Statement of Material Fact No. 31 insofar as it contends that Cooper “did not consider any election data in creating this plan” and “focusjed] on the racial makeup of the district” because County Defendants' citation does not support this purported fact. Rather, the record reflects that Cooper (1) considered block-level vote estimates from the Public Mapping Project file, (2) considered voter registration disaggregated by race at the precinct level, and (3) developed block level estimates, which he reviewed at all times while developing plans. Ex. 9, Cooper Deck 27, Doc. 107, Cooper Dep. Tr. 108:5-110, 139:11-140:7, 279-280:3, 282:1-3, 4-17. 32. Plaintiffs object to County Defendants’ Statement of Material Fact No. 32 insofar as it suggests that Cooper “never performed any sort of political analysis of his plans” because County Defendants’ citation does not support this purported fact. Rather, as discussed in supra 31, Cooper considered political cohesion in developing his plans. 18 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 19 of 33 33. Plaintiffs object to County Defendants’ Statement of Material Fact No. 33 insofar as it suggests that Cooper (1) did not perform any political analyses of his plans, for the reasons discussed supra 31-32, and. (2) if he had, “he recognized [that] the number of split precincts in his plans introduces significant error” because County Defendants’ citation does not support this purported fact. Rather, the record reflects that Cooper testified that, in the context of moving from the precinct level to the block level where several precincts are split, there is the potential to “introduce] some error.” Doc. 107, Cooper Dep. Tr. 111:13-114. In addition, this purported fact is not material to Plaintiffs’ burden of proof in this case. 34. Plaintiffs object to County Defendants’ Statement of Material Fact No. 34 insofar as it suggests that Cooper “conceded the challenges faced in trying to achieve a majority-minority district in Fayette County when: (1) he attempted to make a district that was more compact, the population deviations rose and the black percentages dropped,” and (2) he “attempted to draw a district that had deviations closer to zero, the black percentages and compactness suffered” because County Defendants’ citations do not support these purported facts. Rather, Cooper testified that “if deviations are lower, in theory, you should be able to draw more compact districts,” or “[i]t could” or “it just depends” on the objective. Cooper specifically testified that “if you made compactness the guiding principle over 19 Case 3:ll-cv~00123-TCB Document 141-1 Filed 10/04/12 Page 20 of 33 everything else, then it should make it easier to draw a compact district^ with a lower deviation scoref,] but if you just start drawing perfect squares and forget about precinct lines and the county boundaries ... it would be more compact.” Doc 107, Cooper Dep. Tr. 241:2-242 (emphasis added). In addition, the record reflects that when Cooper drew the more compact plan, the deviation was higher, but still within an acceptable range to comply with the one-person, one-vote principle. Id. Further, Cooper testified that he did not recall the compactness scores on the low deviation plan during his testimony. Id. at 269:23-270:4. 35. Plaintiffs object to County Defendants' Statement of Material Fact No. 35 insofar as it suggests that “[i]t simply is not possible to draw [a district that is 50 percent Black voting-age population Fayette County] without focusing primarily on race as the predominant factor over every other consideration” because County Defendants’ citation does not support the purported fact, and the record reflects otherwise. Doc. 107, Cooper Dep. Tr. 136:24-25-137:22, 163:3:11, 148:10-13, 184:6-187:7; see also Ex. 9 Cooper Deck *}*[j 31, 35-45; Ex. 10, Cooper Suppl. Deck Tflj 4, 8, 11-12; Ex. 11, Cooper Second Suppl. Deck *|̂ | 23, 36-42. 36. Plaintiffs object to County Defendants’ Statement of Material Fact No. 36 insofar as it suggests that Cooper “never even reviewed whether the African-American community in Fayette County was geographically compact” because County Defendants’ citation does not support the purported fact. Rather, 20 Case 3:ll~cv~G0123-TCB Document 141-1 Filed 10/04/12 Page 21 of 33 the record reflects that Cooper, in assessing the compactness of the Black community in Fayette, reviewed the County's geography, the concentration of Black residents in northern Fayette, various compactness scores, the shape of District 5. the shape of Fayette County, precinct boundaries, and that he developed various plans. Doc. 107, Cooper Dep. Tr. 166:25-172; Ex. 11, Cooper Second Suppl. Deck T! 36. 37. Plaintiffs object to County Defendants’ Statement of Material Fact No. 37 insofar as it suggests that Cooper “determined the compactness of the [Black] community [only] by looking at the land area, his 'eyeball test" of how a district looks based on his experience in redistricting, his analysis of the demographics of the county, and maps he drew,” because County Defendants’ citation does not support the purported fact for the reasons discussed in supra 36. 38. Plaintiffs object to County Defendants’ Statement of Material Fact No. 38 insofar as it suggests that Cooper “developed his 'analysis" of geographic compactness on the spot during his deposition, fixing it primarily on his ability to draw a majority-minority district” because County Defendants’ citation does not support the purported fact for the reasons discussed in supra 36. 39. Plaintiffs object to County Defendants’ Statement of Material Fact No. 39 insofar as it contends that Cooper did not include any of the considerations referenced in supra 36 in his expert reports and “cited nothing to support his 21 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 22 of 33 analysis" because County Defendants’ citation does not support the purported fact for the reasons discussed in supra If 36. 40. Plaintiffs object to County Defendants’ Statement of Material Fact No. 40 insofar as it contends that '/Morgan’s analysis of geographic compactness demonstrates that where there is a significant white population between a concentration of minority population, the minority community is not geographically compact” but is "geographically dispersed,” because County Defendants’ citation does not support the purported fact. Rather, the record reflects that the Black community in District 5 is compact, see, e.g., Ex. 9, Cooper Deck 35-45, Ex. 10, Cooper Suppl. Deck fflf 11-12, Ex. 11, Cooper Second Suppl. Deck 4-22, 36. The record is clear that (1) District 5 encompasses parts of Tyrone and Fayetteville—two municipalities in Fayette with the highest percentages of Black residents, Ex. 9, Cooper Deck ^ 37, Morgan Deck 15-17; (2) these two municipalities are not remote from each other but only about 3.5 miles apart from city limits to city limits or jogging distance from one another, Ex. 11, Cooper Second Suppl. Deck 36; (3) District 5 covers a land area of 31.2 square miles, id.; (4) County Defendants easily identify that the Black population is concentrated in the northern portion of Fayette County, including parts of Tyrone and Fayetteville, encompassing District 5, Ex. 9, Cooper Deck 20-21; Ex. 13, Morgan Deck 20-21, 37; Doc. 120, Pfeifer Dep. Tr. 39:12-18; Doc. 114, 22 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 23 of 33 Dunn Dep. Tr. 55:22-56:6, 69:18-70:12; Doc. 117, Morgan Dep. Tr. 69:24-70:10; Doc. 112. Brown Dep. Tr. 44:19-24, 64:19-67:15; Doc. 121, Smith Dep. Tr. 53:9- 25; Doc. 131, Clark Dep. Tr. 30:8-15, 31:15-20; Doc. 128. Aisha Abdur-Rahman Dep. Tr. 58; (5) Black residents in Fayetteville and Tyrone share similar socio economic statuses, Doc 107, Cooper Dep. Tr. 137:16-138:22, (6) Black residents in Fayetteville and Tyrone: (a) attend the same public schools, (b) share places of worship and recreation, (c) are patients of the same doctors, (d) belong to the same civic, political and homeowners organizations, (e) participate in fraternity and sorority events, (f) shop together, and (g) advocate for district voting in Fayette Count}'. Doc. 135, Lowry Dep. Tr. 33:7-35:19, 54:5-13: Doc. 138, Wright Dep. Tr. 29:19-30:1; Doc. 134, John Jones Dep. Tr. 84:1-3, 85:13-86:9, 87:4-11; Doc. 133, Alice Jones Dep. Tr. 92:11-93:17; Doc. 136, Richardson Dep. Tr. 6:18-19, 20-21; Doc. 129, Ali Abdur-Rahman Dep. Tr. 21:18-23:19, 41:14-15; Doc. 130. Adams Dep. Tr. 50:17-51:13; Doc. 131, Clark Dep. Tr. 68:5-69:7; Doc. 132, DuBose Dep. Tr. 60:12-62:23; Doc. 128, Aisha Abdur-Rahman Dep. Tr. 59: and (7) Black residents in Fayetteville and Tyrone are politically cohesive, as County Defendants’ concede, Doc. 67, Cnty Defs.’ Resp. to Ct. Orders & Pis.' May 2 Br., at 10. County Defendants have not presented any evidence that different areas of the Black voters in District 5 have divergent needs and interests or that Black voters in District 5 are not a community. In fact, Morgan's opinion that the 23 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 24 of 33 minority community is “geographically dispersed” should not be credited because it is based solely on him: (1) traveling through Fayette in route to another location and driving “around some of the neighborhoods in Fayette County,” without talking to any people. Doc. 119, Morgan Dep. Tr. 26:8-25, 27:1-25, 28:1-8; 148:5- 13, (2) Morgan’s concession that he did not “have enough information” to determine whether Kenwood, Blackrock, Fayetteville, and Tyrone were a single community, id. at 27:11-25. 41. Plaintiffs object to County Defendants’ Statement of Material Fact No. 41 insofar as it contends that Cooper “testified that it was impossible to draw a majority-minority district using only precinct boundaries” because County Defendants' citation does not support the purported fact. 42. Plaintiffs object to County Defendants’ Statement of Material Fact No. 42 insofar as it contends that Cooper used only Census blocks to draw a majority-minority district because County Defendants’ citation does not support the purported fact. Rather, the record reflects otherwise. Doc 107, Cooper Dep. Tr. 117:7-118:16. 43. Plaintiffs object to County Defendants’ Statement of Material Fact No. 43 insofar as it contends that Cooper “conceded that while he was [developing a majority-minority district], he had labels on each Census block indicating the African-American percentage of every block” because County Defendants’ citation 24 does not support the purported fact for the reasons discussed in supra *[J 8; see also Doc 107, Cooper Dep. Tr, 158:15-21. 44. Plaintiffs object to County Defendants' Statement of Material Fact No. 44 insofar as it contends that in “each precinct [Mr.] Cooper split to achieve a majority-minority district, he always included areas with a high percentage of African-American population in the district while always excluding areas with a higher percentage of white population" because County Defendants’ citation does not support the purported fact. Rather, the record reflects otheiwise for the reasons discussed in supra *§*[] 3, 5. 45. Plaintiffs object to County Defendants’ Statement of Material Fact No. 45 insofar as it contends that “[w]ith eight split precincts, the exclusion of the white population took place every time and was part of the specific process necessaiy to achieve a majority-minority district” because County Defendants’ citation does not support the purported fact. Rather, the record reflects otherwise for the reasons discussed in supra *|flj 3, 5. 46. Plaintiffs object to County Defendants’ Statement of Material Fact No. 46 insofar as it contends that the “majority-minority districts that [Mr.] Cooper drew consistently score low on various compactness tests, even under comparisons performed by [Mr.] Cooper” because County Defendants’ citation does not support Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 25 of 33 25 the purported fact. Rather, the record reflects otherwise for the reasons discussed in supra 12-19. 47. Plaintiffs do not object to County Defendants’ Statement of Material Fact No. 47 for the reasons discussed in supra 12-17. 48. Plaintiffs object to County Defendants’ Statement of Material Fact No. 48 insofar as it contends that Plaintiffs’ District 5 “scored low on two compactness measures, and only a vanishingly small number of districts scored low on both measures” because County Defendants' citation does not support the purported fact and because of the reasons discussed in supra 18-19. 49. Plaintiffs object to County Defendants’ Statement of Material Fact No. 49 insofar as it contends that Cooper “was unable to explain what local issues may drive the lower compactness scores on his comparison plans” because County Defendants' citation does not support this purported fact and because of the reasons discussed in supra 18, 21. 50. Plaintiffs object to County Defendants’ Statement of Material Fact No. 50 because County Defendants’ citation does not support the pui-ported fact and because of the reasons discussed in supra 4, 26. 51. Plaintiffs object to County Defendants’ Statement of Material Fact No. 51 because County Defendants’ citation does not support the purported fact and because of the reasons discussed in supra 30. Case 3:ll-cv-00123-TCB Document 141-1 Fifed 10/04/12 Page 26 of 33 26 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 27 of 33 52. Plaintiffs do not object to County Defendants' Statement of Material Fact No. 52 to the extent that the record reflects that when Cooper drew the more compact plan, the Black percentage was higher, as was population the deviation, but still within an acceptable range to comply with the one-person, one-vote principle. Doc 107, Cooper Dep. Tr. at 241:2-242. 53. Plaintiffs object to County Defendants' Statement of Material Fact No. 53 to the extent that Cooper testified that he did not recall the compactness scores on the low deviation plan during his testimony, and that he believed that they are “similar to the Illustrative Plan'’', Doc. 107, Cooper Dep. Tr. at 269:23- 270:4. The record does not reflect, as this purported fact suggests, that the compactness of the low deviation plan decreased. In addition, this purported fact is neither relevant nor material to Plaintiffs' burden because both Cooper and Morgan agreed that there is no objective ideal for compactness, but rather that compactness can only be measured by comparing one district to another. Doc 107, Cooper Dep. Tr. 48:14-20, 166:1-6, 194:5-17, 216:10-18; Doc. 119, Morgan Dep. Tr. 67:3-10, 68:7-12, 91:6-8, 113:16-18, 179:4-9. 54. Plaintiffs object to County Defendants' Statement of Material Fact No. 54 insofar as it contends that the “African-American voting age population is so close to 50% ... that every single change has a dramatic effect on the racial makeup of [District 5]” because (1) a numerical majority is a majority as 27 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 28 of 33 acknowledged by this Court and conceded by County Defendants and their expert, Ex. 12, May 30 Hearing Tr. at 3:12-13; Doc. 67, County Defs.’ Resp. to Ct. Orders & Pis.' May 2 Br., at 14; Ex. 13, Morgan Deck ^ 28; Ex. 14, Morgan Suppl. Deck % 24; Doc. 119, Morgan Dep. Tr. 159:13-24, 167.1; and (2) this purported fact therefore is immaterial. 55. Plaintiffs object to County Defendants' Statement of Material Fact No. 55 because County Defendants’ citation does not support the purported fact and for the reasons discussed in supra 1j 25. 56. Plaintiffs object to County Defendants’ Statement of Material Fact No. 56 because County Defendants’ citation does not support the purported fact and for the reasons discussed in supra 8, 43. 57. Plaintiffs object to County Defendants' Statement of Material Fact No. 57 because County Defendants’ citation does not support the purported facts and for the reasons discussed in supra 28, 32. 58. Plaintiffs object to County Defendants’ Statement of Material Fact No. 58 because County Defendants’ citation does not support the purported facts and for the reasons discussed in supra 4, 12-15, 35, 40. 59. Plaintiffs object to County Defendants’ Statement of Material Fact No. 59 insofar as it contends that “there are three groups of minority population in Fayette County” and they are “geographically separated” because County 28 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 29 of 33 Defendants' citation does not support the purported fact and for the reasons discussed in supra 4, 12-15, 35, 40. In addition, this purported fact is neither relevant nor material to Plaintiffs’ burden in this case because Blacks in District 5 are a community of interest as demonstrated, among other things, by their political cohesiveness, which County Defendants concede, Doc. 67, Cnty Defs.’ Resp. to Ct. Orders & Pis.' May 2 Br., at 10. This shared political interest is an essential element in a successful vote dilution claim. See Thornburg v. Gingles, 478 U.S. 30, 46, 48-49. It therefore is appropriate to combine the Black community in District 5 to remedy the existing Section 2 violation. 60. Plaintiffs object to County Defendants' Statement of Material Fact No. 60 because County Defendants' citation does not support the purported fact and for the reasons discussed in supra YI 4, 12-15, 35, 40. This purported fact is rebutted by County Defendants’ expert own testimony about his lack of knowledge about the Black community in Fayette Count}'. Doc. 119, Morgan Dep. Tr. 26:8- 25, 27:1-25, 28:1-8; 145-148;148:5-13. In addition, this purported fact is neither relevant nor material to Plaintiffs’ burden in this case because Blacks in District 5 are a community of interest as demonstrated, among other things, by their political cohesiveness, which County Defendants concede, Doc. 67, Cnty Defs.’ Resp. to Ct. Orders & Pis.’ May 2 Br., at 10. This shared political interest is an essential element in a successful vote dilution claim. See Thornburg v. Gingles, 478 U.S. 29 30, 46, 48-49. It therefore is appropriate to combine the Black community in District 5 to remedy the existing Section 2 violation. 61. Plaintiffs object to County Defendants' Statement of Material Fact No. 61 because County Defendants’ citation does not support the purported facts and for the reasons discussed in supra 4, 12-15, 35, 40. 62. Plaintiffs object to County Defendants’ Statement of Material Fact No. 62 because County Defendants’ citation does not support the purported facts and for the reasons discussed in supra 3-4. 63. Plaintiffs object to County Defendants’ Statement of Material Fact No. 63 because County Defendants’ citation does not support the purported facts and for the reasons discussed in supra 36-38. 64. Plaintiffs object to County Defendants’ Statement of Material Fact No. 64 because County Defendants’ citation does not support the purported facts and for the reasons discussed in supra 111 36-38. DATED: October 4, 2012 Respectfully submitted, s/ Ryan P. Haygood DEBO P. ADEGBILE ELISEC. BODDIE RYAN P. HAYGOOD* DALE E. HO* NATASHA M. KORGAONKAR* LEAH C. ADEN* Case 3:ll~cv-00123-TCB Document 141-1 Filed 10/04/12 Page 30 of 33 30 Case 3:ll-cv-00123-TCB Document 141-1 Hied 10/04/12 Page 31 of 33 NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 New York, NY 10013 Telephone: (212) 965-2200 Facsimile: (212)229-7592 Email: rhaygood@naacpldf.org * Admitted Pro Hac Vice NEIL BRADLEY Georgia Bar No. 075125 3276 Wynn Drive Avondale Estates GA 30002-1647 (404)298-5052 A ttorneys for Plaintiffs 31 mailto:rhaygood@naacpldf.org Case 3:ll-cv-00123~TCB Document 141-1 Filed 10/04/12 Page 32 of 33 CERTIFICATE OF COMPLIANCE 1. The following response is made in accordance with Civil Local Rules 5.1(B) and 7.1(D). 2. This response was prepared in the processing system Microsoft Word 97-2003, with Times New Roman typeface, 14 point font (12 point footnotes). Dated: October 4, 2012. s/ Ryan P. Haygood____ DEBO P. ADEGBILE EL1SE C. BODDIE RYAN P. HAYGOOD* DALE E. HO* NATASHA M. KORGAONKAR* LEAH C. ADEN* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, 16th Floor New York. NY 10013 (212) 965-2200 Fax:(212)229-7592 * Admitted Pro Hac Vice NEIL BRADLEY Georgia Bar No. 075125 3276 Wynn Drive Avondale Estates GA 30002-1647 (404) 298-5052 Attorneys fo r Plaintiffs 32 Case 3:ll-cv-00123-TCB Document 141-1 Filed 10/04/12 Page 33 of 33 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2012. I electronically filed Plaintiffs' Response to County Defendants’ Statement o f Material Facts with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to all attorneys of record registered with the ECF system as required by this Court's Rules. I further certify that I mailed the foregoing document by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. s/ Ryan P. Haygood RYAN P. HAYGOOD* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 Fax: (212)229-7592 * Admitted Pro Hac Vice 33 Case 3:ll-cv-00123-TCB Document 141-2 Filed 10/04/12 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION GEORGIA STATE CONFERENCE OF THE NAACP; et al, Plaintiffs, CIVIL ACTION NO. 3:11- v CV-00123-TCB FAYETTE COUNTY BOARD OF COMMISSIONERS; et al, Defendants. PLAINTIFFS’ STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56(c) and Local Rule 56.1.B (1), Plaintiffs Georgia State Conference of the NAACP, Fayette County Branch of the NAACP, Henry Adams, Terence Clark, Alice Jones, John E. Jones, Dan Lowry, Aisha Abdur-Rahman, Ali Abdur-Rahman, Delia Richardson, Elverta Williams, and Bonnie Lee Wright (collectively, “Plaintiffs”) respectfully submit this Statement of Additional Undisputed Material Facts in support of their Motion for Summary Judgment, Doc. 110. Plaintiffs previously filed a Statement of Undisputed Material Facts, Doc. 110-2. Plaintiffs state that there are no genuine disputes with respect to the following additional material facts and summary- judgment is appropriate. Case 3:ll-cv-00123-TCB Document 141-2 Filed 10/04/12 Page 2 of 5 ADDITIONAL UNDISPUTED MATERIAL FACTS 1. Plaintiffs' expert, William Cooper, considered election data in creating Plaintiffs' Illustrative Plan. Doc. 107, Cooper Dep. Tr. 139:11-140:7, 279-280:3, 282:1-3, 282:4-17. 2. Black residents in northern Fayette County, including Tyrone and Fayetteville, share similar socio-economic statuses. Doc. 107, Cooper Dep. Tr. 137:16-138:22. 3. County Defendants’ expert, John Morgan, concedes that it is not possible to redistrict without splitting towns. Doc. 119, Morgan Dep. Tr. 74:5-6; see also id. at 95:2-8 (acknowledging that he split 10 precinct in a majority- minority congressional district in New Jersey); id. at 104:10-11 (acknowledging that he split a precinct in his redistricting work in Connecticut); id. at 108:14-15, 156:16-17 (acknowledging that “there were split precincts all over Virginia in the House-redistricting plan” which he drafted portions of). 4. There are 36 precincts in Fayette County. Fayette County, Georgia, Community Services: Elections & Voter Registration, Voting Precincts, available at: http://www.fayettecountyga.gov/elections/votingjprecincts.htm (last visited Oct. 4, 2012). 2 http://www.fayettecountyga.gov/elections/votingjprecincts.htm Case 3:ll-cv-00123-TCB Document 141-2 Filed 10/04/12 Page 3 of 5 5. Plaintiffs’ Illustrative Plan has an acceptable overall population deviation from the ideal district size of 5.69 percent. Ex. 9, Cooper Decl. ^ 37; Ex. 11, Cooper Second Suppl. Decl. Tf 26. DATED: October 4, 2012 Respectfully submitted, s/ Ryan P. Haygood DEBO P. ADEGB1LE ELISE C. BODD1E RYAN P. HAYGOOD* DALE E. HO* NATASHA M. KORGAONKAR* LEAH C. ADEN* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 New York, NY 10013 Telephone: (212) 965-2200 Facsimile: (212)229-7592 Email: rhaygood@naacpldf.org * Admitted Pro Hac Vice NEIL BRADLEY Georgia Bar No. 075125 3276 Wynn Drive Avondale Estates GA 30002-1647 (404) 298-5052 Attorneys fo r Plaintiffs 3 mailto:rhaygood@naacpldf.org Case 3:ll-cv-00123-TCB Document 141-2 Filed 10/04/12 Page 4 of 5 CERTIFICATE OF COMPLIANCE 1. The following statement is made in accordance with Civil Local Rules 5.1(B) and 7.1(D). 2. This statement was prepared in the processing system Microsoft Word 97-2003, with Times New Roman typeface, 14 point font (12 point footnotes). Dated: October 4, 2012. s/ Ryan P. Haygood DEBO P. ADEGB1LE ELISE C. BODDIE RYAN P. HAYGOOD* DALE E. HO* NATASHA M. KORGAONKAR* LEAH C. ADEN* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 Fax: (212)229-7592 * Admitted Pro Hac Vice NEIL BRADLEY Georgia Bar No. 075125 3276 Wynn Drive Avondale Estates GA 30002-1647 (404)298-5052 Attorneys fo r Plaintiffs 4 Case 3:ll-cv-00123-TCB Document 141-2 Filed 10/04/12 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2012, 1 electronically filed Plaintiffs' Statement o f Additional Undisputed Material Facts in Support o f Motion for Summary Judgment with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to all attorneys of record registered with the ECF system as required by this Court’s Rules. 1 further certify that I mailed the foregoing document by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. s/ Ryan P. Hay good RYAN P. HAYGOOD* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 Fax: (212) 229-7592 * Admitted Pro Hac Vice 5