mallory jones complaint 06.27.13 (with exhibits)

7/28/2019 Mallory Jones Complaint 06.27.13 (With Exhibits)

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

MALLORY C. JONES,

Plaintiff,

v.

MACON-BIBB COUNTY BOARD OF

ELECTIONS AND VOTER

REGISTRATION; JEANETTA

WATSON, in her official capacity asExecutive Director of the Bibb County

Board of Elections and Voter Registration,

and MACON-BIBB COUNTY BOARD

OF COMMISSIONERS,

Defendants.

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CIVIL ACTION FIL

NO.: ____________

EMERGENCY RELIEF R

VERIFIED COMPLAINT FOR

DECLARATORY, INJUNCTIVE, AND OTHER RELIE

COME NOW Mallory C. Jones, the Plaintiff in the above styled

(Plaintiff), and submits this Verified Complaint for Declaratory, Inju

other Relief (Complaint), based on the following allegations:

N t f th C


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state law (Ga. L. 2012, p. 5595 and amended by S.B. 25), the election

officials to serve in the newly created consolidated government for

Macon and Bibb County, Georgia (County) was to occur, via majori

non-partisan elections, on July 16, 2013 (the Election). A copy

(hereinafter the Bill) which provides for these elections is attache

Exhibit A.

2.

On or about June 1, 2013, the Defendant Board of Elections an

was unilaterally delaying the Election because pre-clearance by the U

Department of Justice (DOJ) of the voting changes contained in the

yet been obtained pursuant to Section 5 of the Voting Rights Act (

copy of the Submission is attached as Exhibit B.

3.

On June 25, 2013, the United States Supreme Court held Secti

Voting Rights Act (42 U.S.C. 1973e) (VRA) unconstitutional. She

v. Holder, et al., ___ U.S. ___, 2013 WL 3,184,629. The effect of this


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4.

Plaintiff seeks a declaratory judgment holding that the Bill i

enforceable and requires Defendants to conduct the Election on July 16

that cannot be done, at the earliest possible lawful date without the re

candidate qualification or any other alteration to the electoral process

the Bill. Plaintiff further requests the Court issue appropriate injunct

enforce the declaratory judgment and to award Plaintiffs counsel

attorneys fees.

Statement of Jurisdiction

5.

This action is brought under 42 U.S.C. 1983 and 1973. This a

relief pursuant to Article 4, 2, the Fourteenth Amendment to the Con

the United States, Article I, I, II of the Constitution of the State

(Constitution), and the Voting Rights Act of 1965.

6.

This Court has original jurisdiction pursuant to 28 U.S.C


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7.

Plaintiff has complied with O.C.G.A. 21-2-32(g) by providing

this Complaint to the Chair of the Georgia State Election Board via U

Postal Service Certified Mail, though compliance with said statute is

required for actions brought in this Court.

Parties

8.

Plaintiff Mallory C. Jones (Jones) is a resident and elector of B

Georgia, and a candidate in the upcoming Election. He desires and

participate in the electoral and political processes of the consolidated M

County government as evidenced by his decision to qualify as a ca

Commissioner in District Four (4) of the consolidated government.

9.

Defendant Macon-Bibb County Board of Elections and Voter R

(BOE) is the Elections Superintendent for Macon-Bibb County, G

such, the Board is responsible for conducting all City, County and


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to prepare and publish all notices and advertisements in connectio

conduct of elections; to transmit to the Secretary of State a copy of any

in which a call for an election is issued; to prepare, equip and furnish

places; to count all ballots; and to certify the results of all elections as

by law. Service of the Summons and Complaint is being acknow

Counsel for the BOE.

10.

Defendant Jeanetta Watson (Watson) is the current Executive

the Board located at 2445 Pio Nono Avenue, Macon, Georgia, 31

Defendant is subject to the jurisdiction of this Court. Service of the Su

Complaint is being acknowledged by Counsel for Watson.

11.

Defendant Macon-Bibb County Board of Commissioners (Comm

the governing authority for Bibb County and participates in the call

setting of the date for the Election. Service of the Summons and C

expected to be acknowledged by Counsel for the Commission.


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party Defendants for purposes that include enjoining them from (a) app

new candidate qualifications for elected positions within the c

government; and (b) further delaying the Election since the Bill estab

consolidated government and the election schedule to populate its elec

is no longer required to be pre-cleared by the DOJ and should be im

immediately. Defendants actions in unilaterally delaying the Election

the scope of their lawful authority and must be enjoined.

Facts

13.

During the 2012 session, the Georgia General Assembly pass

which proposed consolidation of the City and County governments

approval by voter referendum. Consolidation was approved by the vo

31, 2012.

14.

On February 8, 2013, the BOE submitted the Bill to the DO

clearance. See Exhibit B.


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19.

The Election was scheduled by law for July 16, 2013. On or ab

2013, the BOE announced it was putting the Election on hold followin

the DOJs letter of May 24, 2013, seeking additional information. Exhi

20.

Neither pre-clearance nor an objection by the DOJ was forthcom

the decision by the United States Supreme Court on June 25, 2013, in

County case. This decision invalidated Section 4 of the VRA and there

the pre-clearance requirements of Section 5 as applied to the Bill and ot

changes.

21.

Since the decision in Shelby County, the Defendants have refused

the Election on the date set forth in the Bill, citing the delay in the elect

created by its decision to stay the Election.

22.

A genuine controversy exists between Plaintiff Jones and the De


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harm if candidate qualifying is reopened and the election is further d

the injury will continue until the electoral process proposed by the BOE

to be unconstitutional as a product of the unconstitutionality of Secti

VRA.

COUNT ONE: VIOLATION OF EQUAL PROTECTION

DUE PROCESS, AND THE VRA

23.

Plaintiff incorporates by reference all previous allegations conta

Complaint.

24.

Pursuant to the United States Constitution and federal statute,

vote is a fundamental right guaranteed to U.S. citizens. It is a right tha

arbitrarily manipulated or denied by Defendants.

25.

The Fourteenth Amendment to the United States Constitution,

that: No state shall make or enforce any law which shall abridge the p

i iti f iti f th U it d St t h ll t t d i


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26.

42 U.S.C. 1983 provides, in relevant part, as follows:

Every person who, under color of any statue, ordinance,

regulation, custom, or usage, of any State or Territory of

the District of Columbia, subjects, or causes to besubjected any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress. . . .

27.

Defendants are person[s] and Plaintiff is a citizen of the Un

within the meaning of 42 U.S.C. 1983.

28.

Under the First and Fourteenth Amendments, it is unlawful for a

to refuse to conduct elections under the terms provided for by law.

29.

Plaintiff intends and desires to participate in the electoral an

processes of the City of Macon and Bibb County, Georgia.


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through their failure and refusal to conduct the Election for the new c

government according to law.

31.

There is no adequate remedy at law for the irreparable harm P

suffer. The Defendants refusal to conduct the Election denies Plaintiff

vote and to seek public office.

32.

Accordingly, Plaintiff is entitled to permanent injunctive and

relief declaring the unilateral delay of the elections unconstitutional an

the Election to be held at the earliest feasible date.

WHEREFORE, Plaintiff respectfully prays that this Court

following relief:

A) Assume jurisdiction of this case;

B) Enter a declaratory judgment holding that the Defen

comply with the Bill and conduct the Election on July 16, 2013,

thereafter as legally possible;


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F) Award Plaintiff all other relief which the Court deems ne

proper.

/s/ A. Lee ParksA. Lee Parks

Georgia Bar No. 563750

[email protected]

/s/ David F. Walbert

David F. WalbertGeorgia Bar No. 730450

[email protected]

PARKS, CHESIN & WALBERT, P.C.

75 Fourteenth Street, 26th

Floor

Atlanta, GA 30309

(404) 873-8000 Telephone

(404) 873-8050 Facsimile

Counsel for Plaintiff

/s/ Harlan S. Miller

Harlan S. Miller

Georgia Bar No. [email protected]

OF COUNSEL:

PARKS, CHESIN & WALBERT, P.C.

3646 Vi ill A


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V E R I F I C A T I O N

I , Mallory C. Jones, make this verification under oath and statePlaintiff in this matter; that I have read the foregoing Verified CDeclaratory, Injunctive and other Relief and that I hereby verify that thof fact contained in said Complaint are true and correct and that as Plaction, I w i l l suffer irreparable injury i f the injunctive relief requgranted.

This 2 7 day of June, 2013.

Sworn to and subscribed before methis day of June, 2013.NOTARY PUBLIC /


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O F F ~ C E OF SECRETARY OF STATEJ) /Jn:an P Jlmp 5ecf'etaf'lJ' o/State o/ he State o

{jeorr;ia, do hef'eb'I cef'tih thatthe four pages of photocopied matter hereto attached contains atrue and correct copy of an Act approved by the Governor onFebruary 14, 2013 humbered Act No. 3, Senate Bill. No. 25; all assame appear of file and record in this office.


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ENROLLMENT

This /3t!::: day of F'ihrt.A.AJ 2013Approved

Governor

S.B. No. __ __ Act No. _3GENERAL ASSEMB

ANACTTo amend an Act entitled "An Act torestructuring of the government ofthe CitCity of Payne City, ap.d Bibb County," ap2012 (Ga L, 201'2, p. 5595), so as to providelections of the mayor and commissionerpurposes.

Read !"timeRead 2d timeRead 3n1 timeAnd

Yeas 34

Read 1 1 timeRea.d 2nd timeRead 3'dtlmeAnd

IN SENATEJan. 15, 2013

J ~ ) . 1 . 29,2013Passed

IN HOUSEJart. 30, 20 t jJan, 3I, 2013Feb. 12, 2013Passed

Nays

y , ~ ~


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...

AN ACT

To amend an Act entitled "An Act to provide for the restructuringof he government of theCity ofMacon, the City of Payne City, and Bibb County," approved April 20, 2012 (Ga. L.2012, p. 5595), so as to provide for nonpartisan elections of he mayor and commissioners;to repeal conflicting laws; and for other purposes.

BE IT ENACIB[l BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.An Act entitled ''An Act to provide for the restructuring of the. government ofthe City ofMacon, the City ofPayne City, and Bibb County," approved April 20, 2012 (Ga. L. 2012, p.5595), is amended by revising subsection (c) of Section 9 to read ?S follows:"(c) The comri1ission sha:ll consist of nine members. The initial comrriissioriers shall beelected at a noilpartisan election held ori thethifd Tuesday In July,,2Ql3, for tenns of threeyears and until their successors are duly elected and qualified. Their successors shall beelected in nonpartisan elections for tenns offour years and shall take office on the.first dayof January imniediately following the date of the election. The members .shall be electedfrom the nine districts specified in subsection (a) of this section by a majority Of electorsvoting in such election from such distriet. All members of the cofillnission shall be fullvoting members of the coimniSsion. The mayor shall be the presiding officer of thecommission but shall not be a voting membei' of the commission; provl.ded, however; thatthe mayor may cast a vote on any matter before the comrnl.ssion to break a tie. The mayormay propose ordinances ih. the same manner as a commissioner/

SECTION2.Said Act is furtlwr amended by revising subsections (b) and (d) of Section 10 to read asfollows:H(b) The initial mayor shall be elected in a nonpartisan election to be held on the thirdTuesday in July, 2013. Candidates shall be elected by majority vote as provided in thissection. The person elected as mayor atsuch electionshall take f f i c e o n t h e s ~ c i o n d Tuesday


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expiration of a tenn of office, shall take office on the first day of January imntediatelyfollowing the date of the election, and shall have. a term ofoffice of four years and until asuccessor is elected and qualified. The mayor shall be elected by a majority vote on acounty-wide basis by the electors of he entire county.""(d) Except as otherwise provided in ihis section, all elections for the mayor and membersof he commission shall be in accordance with theprovisions ofChapter 2 ofTitle 21 of heO.C.G.A., the 1GeorgiaElection Code,t as now or hereaftel' amended. Any person who is aregistered voter of Macon-Bibb County shall be eligible to vote in atiy election undet thissection."

SECTiON3.All laws and parts of aws in conflict with this Act are repealed.


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VIRGIL L. ADAMSD. JAMES JORDANCAROLINE W. HERRINGTONDAWN MAYNOR LEWISCEDRIC B. DAVIS*

*Of Counsel

ADAMS &JORDANATTORNEYS AT LAWAPROFESSIONAL CORPORATIONFickling &Co. Building577Mulbe11y Street, Suite 1250Post Office Box 928Macon, Georgia 31202-0928

Telephone (478) 743-2159Toll Free (866) 743-88'14Telecopier (478) 743-4938Writer's Email: [email protected] 18, 2013

VIA FEDERAL EXPRESS OVERNIGHTTRACKING NUMBER 7947 7251 3130

M'.illedgev.ille115 E. McinPost Office BMilledgevillTelephone (Toll Free (8Telecopier (

SUBMISSION UNDER SECTION 5 OF THE VOTING RIGHTS ACChief, Voting SectionCivil Rights. DivisionRoom 7254-NWBUnited States Department of Justice1800 G Street, NWWashington, DC 20006

RE: Submission of Preclearanc.e for Non-Partisan Elections for Macon-Bibb Consolidated Government Elections pursuant Section 5 of the Voting Rights Act of 1965 as amendedDear S.ir/Madam:

In my capacity as County Attorney for Bibb County, (3eorgia, I hereby spre-clearance non-partisans elections for the newly created consolidated govbe known as Macon-Bibb County, Georgia, pursuant to the Voting Rights Actas amended (42 U.S.C. 1973 c).

Pursuant to the requirements of 28 C.F.R. 51.27, I hereby submit thewith respect to this request:


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Chief, Voting SectionFebruary 18, 2013Page Two

restructuring of the governments of City of Macon, City of PayneBibb County, approved April 20, 2012 (Ga. L 2012, p. 5595), soprovide for non-partisan rather than partisan elections of the macommissioners;

(b) .A copy of any ordinance, enactment order, or regulation emthe voting practice that is proposed to be repealed, amendeotherwise changed.See Exhibit "2 " attached hereto and incorporated herein by ref

(c) If the change affecting voting either is no t readily apparentface of the documents provided under paragraphs (a) and (section or is not embodied in a document, a clear statemenchange explaining the difference between the submitted chthe prior law or practice, or explanatory materials adequatedisclose to the Attorney General the difference between theproposed situation With respect to voting.The change, is readily apparent on the face of the document in (of this section. Exhibit "2" is the existing charter Which was apthe General Assembly on April 20, 2012, and approved by the velection on July 31, 2012. This charter provided for partisan elethe mayor and nine (9) commissioners for the new government Macon-Bibb County 13nd Exhibit "1" under section (a) above amcharter to now provide for non-partisan e.lections of the mayor acommissioners for the new government known as Macon-Bibb C

(d) The name, title., address, and telephone number of the persmaking the submission.Virgil L. AdamsBibb County Attorney


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Chief, Voting SectionFebruary 18, 2013Page Three

(e) The name of the submitting authority and the name of thejurisdiction responsible for the change, i f differentThe submitting authority is the County Attorney for Bibb Countyand the Georgia General Assembly is the jurisdiction responsibchange.

(f) If the submission is not from a State or county, the name ocounty and State in which the submitting authority is locatNot applicable.

(g) Identification of the person or body responsible fo r makingchange and the mode of decision ( e ~ g . , act of State legislatordinance of city council, administrative decision by regist

(h)

The body responsible for making the change is the Georgia GeAssembly and the mode of decision is an act of the State legislA statementidentifying the s t a t u ~ o r y or other authority undthe jurisdiction undertakes the change and a descripticm oprocedures the jurisdiction was required to follow in decidundertake the change.To the best of my knowledge, Act No.3, Senate Bill No. 25, waspursuant to ~ u t h o r i t y granted the General Assembly by the 198Constitution of the State of Georgia, Art. Ill, Sec. V.

(i) The date of adoption of the change affecting voting.Act. No. 3, Senate Bill No. 25 Was passed by the Georgia GeneAssembly on February 13, 2013, and was approved by GovernDeal on February 14, 2013. (See Exhibit "1").


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Chief, Voting SectionFebruary 18, 2013Page Four

(k) A statement that the change has not yet been enforced oradministered, or an explanation of why such a statement cmade.The proposed change has not yet been enforced or administerehowever, it is the purpose of this Act to provide for the non-partelections for mayor arid nine (9) commissioners of the newly cogovernment of Macon-Bibb County. The change will take effecJuly, 2013 elections as contemplated in the Act.

(I) Where the change will affect less than the entire jurisdictioexplanation of he scope of the change.The entire jurisdiction will be affected.

(m) A statement of the reasons for the change.To the best of my knowledge, the proposed change to non:-partelections results :from a decision ofthe General Assembly initiatBibb County local legislative delegation. .

{n) A .statement of the anticipated effect of the change on memracial or language minority groups.The proposed ch13nge is not anticipated to have a major effect omembers of racial minority groups.

(o) A statement identifying any past or pending litigation concchange or related voting practices.To the best of my knowledge, there is no past or pending litigatconcerning the change.

(p) A statement that the prior practice has been precleared (wi


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Chief, Voting SectionFebruary 18, 2013Page Five

The prior practice was pre-cleared on October 3, 2012. (See Eand refer to DOJ File No. 2012-2935.(q) For redistrict ings and annexations: the items listed under(a)(1) and (b)(1); for annexations only: the items listed und51.28 (c)(3).

(r)Not applicable.Other information that the Attorney General determines is fo r an evaluation of the purpose or effect of the change. Suinformation may include items listed in 51.28 and is mostbe needed with respect to redistrictings, annexations,. andcomplex changes. hi the interest of time such informationfurnished with the initial submission relating to voting chathis type. When such information is required, but not proviAtto.rney General shall notify the submitting authority in thprovided in 51.37.Please see additional information provided below.

Pursuant to .28 C.F.R. 51.28, the following additional information is s(a) Demographic information.

Please refer to previous pre-clearance submissions under DOJ2012-1990 and DOJ File No. 2012-2935 for all relevant demoginformation.(b) Maps

Please refer to previous p r e - c l ~ a r a n c e submissions under DOJ2012-1990 and DOJ File No. 2012-2935 for all maps of the prenewly created commission districts.


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Chief, Voting SectionFebruary 18, 2013Page Six

(d) Election returns.To the. best of my knowledge, there are no election returns relevaction; however election returns from the July 31, 2012 primary the referendum to apprbve Act. No. 625 (House Bill 1171) 2012 provided fo r the consolidation of the governments of Macon, Paand Bibb County were previously submitted on August 9, 2012 uFile NO. 2012-2935.

(e) Language use.To the best of my knowledge, the change does not affectthe uslanguage of a minority group in the elective process.

(f) Publicity and Participation.Notice of intention to introduce local legislation wi:;is published inTelegraph which is the o f f i c i ~ I organ of Bibb County, Georgia onDecember6, 2012. A certification evidencing this fact is attacheExhibit i 1 " ~ There was media coverage concerning proposed leto change to non-partisc:m elections, including articles in The Teprior to the legislature's vote on and passage of the Act.

(g) Availability of the submission.Copies of th.is submission are available to the public throl!gh thethe Bibb County Board of Commissioners, the Clerk of the City and this submission will be advertised by a legal advertisementMacon Telegraph, the legal organ for Bibb County, Georgia.

(h) Minority group contacts.1. The Honorable Nikki RandallRepresentative, District 138


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Chief, Voting SectionFebruary 18, 2013Page Seven

2. The Honorable James BeverlyRepresentative, District 139Post Office Box 13451Macon, GA 31208(404) 656-0220 (Capitol phone)(478) 803-0001 (District phone)

3. The Honorable David LucasSenator, District 262594 Saratoga DriveMacon, GA 31211(404) 65.6-5035 (Capitol phone)(478) 254-7600 (District phone)

On the basis of the foregoing, I respectfully request approval and precthis action. Please feel free to contact me should you hcwe any questions or additional information concerning this submission.

VLA/abpEnclosures

Sincerely,

Virgil L AdamsCounty Attorney

cc: Representative Nikki Randall, Chairperson, Bibb County Legislative DSamuel F. Hart, Sr., Chairman, Bibb County Board of CommissionersRobert A.B. Reichert, Mayor, City of MaconMs. Jeanetta Watson, Macon-Bibb County Elections Supervisor


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EXHIBIT

C

mallory jones complaint 06.27.13 (with exhibits)

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