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

    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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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.

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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”).

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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.

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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

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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.

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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,

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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).

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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.

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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