UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

E. RANDEL T. OSBURN;

LINDA DUBOSE;

BRENDA LOWE CLEMONS;

DOROTHY PERRY;

WENDELL MUHAMMAD;

Petitioners

v. CASE NO.

CATHY COX, Secretary of State of Georgia;

LINDA LATIMORE, DeKalb County

Elections Supervisor;

LYNN LEDFORD, Gwinnett County

Elections Supervisor;

DENISE MAJETTE, Candidate,

4th US Congressional District,

DEKALB COUNTY, GEORGIA REPUBLICAN PARTY;

GEORGIA REPUBLICAN PARTY;

GEORGIA DEMOCRATIC PARTY;

Defendants

COMPLAINT FOR EQUITABLE RELIEFUNDER THE VOTING RIGHTS ACT AND THE UNITED STATES CONSTITUTION

JURISDICTION AND VENUE

1.

This is an action to enforce the Voting Rights Act of 1965, 42 U.S.C. 1973 and 42 U.S.C. 1988. This action alleges that the crossover voting of the Republicans in the 2002 4th US Congressional District Democratic Primary in Georgia impermissibly diminished and interfered with the voting strength of African American Voters in the District on account of race. This action alleges that the malicious Republican crossover vote violated the First, Fourteenth and Fifteenth Amendments of the United States Constitution and 42 U.S.C. 1983.

2.

Jurisdiction is invoked pursuant to 28 U.S.C. 1331, 1343 and 1367; Plaintiffs' action for declaratory and injunctive relief is authorized by 28 U.S.C. 2201 and 2202; and by Rules 57 and 65, F.R. Civ. P. Venue is proper pursuant to 28 U.S.C. 1391 (b).

3.

Malicious crossover voting occurs when one party invades another party'S primary to sabotage that party's choice of its own nominee for political office. The Republican Party voters crossed over and affected the outcome of the 4th US Congressional District 8/20/2002 Democratic primary.

4.

Incumbent Congresswoman CYNTHIA MCKINNEY and DENISE MAJETTE were the only two Democratic candidates in the August 20, 2002 Democratic Primary.

5.

The date of the official counties' declaration or certification of the result in dispute is August 24, 2002; however, the Secretary of State consolidated the counties' vote totals and certified the results for the 4th District US Congressional District on or about August, 27, 2002.

6.

The Defendants are:

Cathy Cox, Secretary of State, who consolidated the returns and certified the final vote;

Denise Majette, the only other candidate in the Democratic Primary for August 20, 2002;

Linda Latimore, the DeKalb County Elections Supervisor who certified the DeKalb County Elections returns;

Lynn Ledford, the Gwinnett County Elections Supervisor who certified the 4th district returns in Gwinnett County;

The Georgia Democratic Party;

The Republican Party of DeKalb County;

The Georgia Republican Party.

7.

Plaintiffs are E. Randel T. Osburn, Linda Dubose, Brenda Lowe Clemons, Dorothy Perry, Wendell Muhammad, all black democratic voters of the 4th US Congressional District.

COUNT 1

CONSTITUTIONAL VIOLATIONS

8.

Georgia law provides that a political party may hold its own primary to nominate its own candidates for the general election. O.C.G.A. 21-2-150 et seq. (Ex. A) The State Democratic Party has bylaws ensuring the loyalty of those participating in party affairs: "All members, officers, and subdivisions of the State Party, and those seeking to participate in Party Affairs, are subject to this Charter and the State Party Bylaws." Art. I, Sec, I, By laws of the State Democratic Party approved on 8/13/1994. (Ex B)

9.

In the Democratic Primary on August 20, 2002 CYNTHIA MCKINNEY received the majority of democratic votes. (Ex R) Of the overall Democratic vote on 8/20/2002 McKinney won approximately 61% (49,058 and Majette won an estimated 39% (31,112). (Ex. R) In South DeKalb which is majority black and the most heavily democratic area of the district, McKinney won every precinct except one (North Hairston) winning 75% of the South DeKalb vote. The ONLY reason that Congresswoman McKinney lost the election was because of the Republican crossover vote which accounted for over 50% (over 37,500 of her 68,612 votes) of the votes cast for Defendant Majette. Majette had a total of 68,612 votes and McKinney 49,058 votes.(Ex S) Therefore, the result of the election was the selection of a nominee other than the one preferred by a majority of the Democratic voters in the 4th US Congressional District.

10.

Over 37,500 Republican voters were allowed to illegally and unconstitutionally crossover into the Democratic primary election and vote for Defendant Denise Majette. As evidence of the strength of the Republican crossover vote there were 117,670 democratic ballots cast while there were only 5,594 Republican ballots cast in the August 20, 2002 primary. Thus, the Republican crossover votes constituted 32% of the total votes cast in the August 20, 2002 Democratic primary, completely distorting the purpose of the primary. In the 2000 primary in the 4th Congressional District there were 54,861 Democratic ballots cast and 8,689 Republican ballots cast. In 1998 there were 42,648 Democratic primary ballots and 21, 636 Republican ballots. (Ex E) In the 1996 primary there were 62,997 democratic votes and 29,312 Republican votes. (Ex D)

11.

1996 marked the beginning of a trend of high black DeKalb County voter turnout, reflecting the County's demographic changes which also began to effect the County's power relationships. As a result, DeKalb County became the engine for Georgia's statewide democratic vote.

12.

The Georgia and DeKalb Republican Party members conceived a plan to run a candidate in the Democratic primary, funded that candidate, and then encouraged Republican voters to crossover and vote for that candidate. (Ex. F)

13.

Denise Majette was that candidate. Denise Majette regularly met with and sought counsel from Republican party operatives both before and during her candidacy. The Republican backed Majette voted for extreme right wing Republican Alan Keyes in the 2000 Republican presidential primary.(Ex. F) Denise Majette supported Michael Bowers in the 1998 Republican gubernatorial primary that selected the Republican candidate to run against Governor Roy Barnes. (Ex. G) Denise Majette accepted campaign contributions from known Republicans and those known to encourage Republican crossover voting. (Ex. H) Denise Majette maintains many Republican beliefs and positions. (Ex. I)

14.

During the month of August, 2002 former Republican gubernatorial candidate Guy Milner convened at least one meeting of Republican leaders at his home to promote the Republican crossover for Denise Majette. The Republicans believed that they could force McKinney out with a crossover vote, leaving the Democratic party without the one candidate who inspired the party faithful to vote. Such a strategy would also have the effect of diluting black voting strength statewide as the Democratic Party has greatly benefitted from a heavy turnout in the 4th US Congressional District. (Ex. J)

15.

Republican commentators, i.e. Jim Wooten, of the Atlanta Journal-Constitution, openly promoted the crossover. (Ex. K) Majette's own campaign promoted the crossover vote and used it in their polling calculations. Phone banking and mailings targeted the white Republicans for crossover voting. (Ex. M) Mark Davis, a Republican Party operative, with operations based at the DeKalb Republican Party Headquarters, co-founded "goodbyecynthia.com", along with Bubba Head, which promoted the crossover vote. (Exs. N,L) Steve Schultz founded a federal PAC, New Leadership for DeKalb, which funded the website that advocated the Republican crossover vote. (Ex. O) Audrey Morgan, a Republican operative and Denise Majette contributor, circulated a letter promoting the crossover vote. (Ex. P)

16.

Numerous and prominent Republicans contributed to Denise Majette. Bernard Marcus, Bill Dahlberg and Robert Loudermilk contributed to Denise Majette. The Loose Group contributed large donations to the Majette campaign including $5,000 but gave the rest of its $55,000 in donations in Georgia to Republicans. (Ex. Q) The Business Industry Political Action Committee, BIPAC, gave 85% of its donations in the 2002 election cycle to Republican candidates, but managed to give Majette $1,000. (Ex. Q) Audrey Morgan, who authored the pro crossover vote mailing, contributed to the Majette campaign.

17.

The United States Supreme Court found in California Democratic Party v. Jones,530 U.S. 567 (2000) this nation has a tradition of political associations in which citizens band together to promote candidates who espouse their political views. "(T)he First Amendment protects 'the freedom to join together in furtherance of common political beliefs," Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986), which 'necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.'" Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 122 (1981), quoted in California Democratic Party v. Jones, 530 U.S. 567,574 (2000). "In no area is the political association's right to exclude more important than in the process of selecting its nominee." Id. "(W)hen a State prescribes an election process that gives a special role to political parties, it ?endorses, adopts and enforces the discrimination against Negroes' that the parties .... bring into the process - so that the parties' discriminatory action becomes state action under the Fifteenth Amendment.'" California Democratic Party v. Jones 530 U.S. at 573. 18.

These Republican crossover votes in the Democratic primary race are unconstitutional and thus illegal: "permitting nonparty members to hijack the party" is unconstitutional. California Democratic Party v. Jones, 530 US 567,584 (2000).

19.

The First and Fourteenth Amendments to the United States Constitution forbid state practices "forcing political parties to associate with those who do not share their beliefs." California Democratic Party v. Jones, 530 U.S. at 585. The scheme employed here unconstitutionally "force[s] political parties to associate with - to have their nominees, and hence their positions, determined by - those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival." California Democratic Party v. Jones, 530 U.S. at 577.

20.

In this case there was an unconstitutional "malicious" crossover as the DeKalb County Republican Party promoted the crossover and expended funds in support thereof and Defendant Majette also openly promoted the Republican crossover into the Democratic Primary. The malicious crossover voting here is the extraordinary exception that the lower court in Democratic Party of California v. Jones, 530 U.S. at 579, indicated would make a difference in deciding whether crossover voting was illegal. California Democratic Party v. Jones, 169 F.3d 646, 656 (9th Cir. 1999).

21.

The malicious crossover vote orchestrated in this case by the Republican Party violates PetitionerS' right of association under the 1st and 14th Amendments to the United States Constitution. "But a single election in which the party nominee is selected by nonparty members could be enough to destroy the party." California Democratic Party v. Jones, 530 U.S. at 579.

22.

The results in the 4th Congressional District are part and parcel of a continuing trend by the Republican Party to interfere with minority voting as further evidenced by the Florida presidential vote in 2000 and the Stoneview, DeKalb County, Georgia, vote in November, 2000.

COUNT 2

VOTING RIGHTS ACT (Section 2)

23.

Becasue of Georgia's documented history of racial discrimination in general and denial of voting rights to black citizens in particular, Georgia is subject to the jurisdiction of the 1965 Voting Rights Act. Indeed, as with most of the other states of the Old Confederacy (Alabama, Missouri, South Carolina, Tennessee, Texas and Virginia) they retain the open primary, which can be used to replicate the infamous outlawed white primary.

24.

Past elections and an analysis of the results in this election, as set out herein and incorporated herein by reference, show that Cynthia McKinney is the candidate favored by black and democratic voters in the 4th US Congressional District in Georgia. (Ex. R)

25.

Racially polarized bloc voting exists in Georgia today and was exhibited in Georgia's 4th US Congressional District Democratic Primary on August 20, 2002. Election results indicate that white voters voted in a bloc. (Exs. C,R)

26.

The result was that the white bloc vote, of both Republicans and Democrats, in the Democratic primary greatly diluted the black democratic vote, rendering it impotent.

27.

The Voting Rights Act has been violated where the "totality of circumstances" reveal that members of protected classes have less opportunity than other citizens to participate in the political process and elect representatives of their choice. Thornburg v. Gingles, 478 U.S. 43, 106 S.Ct. 2752, 2762 (1986).

28.

The malicious crossover has the effect of discriminatorily denying black voters the right to participate in the political process and to elect a democratic congressional candidate of their choice.

29.

Black voters in the 4th US Congressional District in Georgia are politically cohesive as evidenced by the fact that McKinney won all but one South DeKalb precinct with over 74% of the vote in those precincts.

30.

A Democratic primary candidate that is favored by the majority of black and democratic voters in the 4th US Congressional District can be defeated by white republican crossover bloc voting and white democratic bloc voting.

31.

The existing crossover results in the 4th US Congressional District in Georgia has the result of diluting the influence of black voters in electing a candidate of their choice on account of race in violation of Plaintiffs's rights guaranteed by Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973.

32.

The current Georgia statutory scheme, governing primaries, as applied, has the purpose and effect of denying or abridging the right to vote on account of race in violation of Section 2 of the 1965 and 1973 Voting Rights Act: "No ... standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color."

33.

Plaintiffs have no adequate remedy at law other than this action for declaratory and injunctive relief. Plaintiffs are suffering irreparable injury as a result of the violations complained of herein and that injury will continue unless declared unlawful and enjoined by this Court.

COUNT 3

EQUAL PROTECTION

34.

On August 20, 2002 the State of Georgia conducted the Republican and Democratic Primaries for the 4th US Congressional District to nominate the respective parties' candidates for the November, 2002 General Election.

35.

There is no question that the Republicans held their primary and voted for their candidates without any interference.

36.

However, as set out above and incorporated herein by reference, the Republicans and their operatives, under color of law, conspired to deprive black democratic voters of their right to choose their candidate for the November, 2002 General Election.

37.

"The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise." Bush v. Gore, 531 U.S. 98, 104 (2000) 38. "It must be remembered that the ?right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Gore v. Bush, 531 U.S. at 104, quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964).

39.

Whatever procedures that are adopted by the States must be "consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate." Bush v. Gore, 531 U.S. at 105.

40.

"The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." Moore v. Ogilvie, 394 U.S. 814,819 (1963) See also Gray v. Sanders, 372 U.S. 368 (1963), The landmark case that was supposed to have killed the Georgia White primary and the County Unit system that led to the undercounting of black votes.

COUNT IV

42 U.S.C. 1983

41.

Plaintiffs hereby incorporate by reference the preceding paragraphs of this complaint.

42.

All Defendants, acting under color of state law, have deprived Plaintiffs of rights, privileges and immunities, secured to them under the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. 1983.

Wherefore, Plaintiffs request:

A. That this Court enter judgment declaring that malicious crossover voting is unconstitutional in violation of Section 5 of theVoting Rights Act;

B. That this Court enter a permanent injunction against the election results;

C. That this Court enter a permanent injunction against the certification of the vote in the 4th US Congressional District;

D. That the crossover votes be declared unconstitutional and invalid and McKinney declared the winner;

E. That this Court enjoin Defendants from conducting any elections where the use of malicious crossover voting is allowed.

F. To enjoin the November 5, 2002 General Election until this case is resolved;

G. That this Court retain jurisdiction of this case until a voting plan is in place that complies with the requirements of the Voting Rights Act, as amended.

H. That this Court award Plaintiffs their costs and attorneys fees pursuant to U.S.C. 1988.

I. That this Court grant Plaintiffs any further relief which may be necessary and proper.