Brooks v. State Board of Elections , 775 F. Supp. 1490 ( 1991 )

ORDER

On April 25, 1990, the Attorney General completed his Section 5 review of the statutes being challenged in this case and declined to withdraw his objections to those statutes creating additional judgeships. The next day, defendants renewed their motion for reconsideration of the remedial portion of this Court’s December 1, 1989 Order, 775 F.Supp. 1470, which calls for the elimination of unprecleared judgeships at the end of the sitting incumbents’ terms. Having carefully weighed the arguments of each side, we GRANT the motion.

Defendants ask that we allow judges in unprecleared seats to remain in their posts, beyond the end of their terms if necessary, until a new electoral scheme is precleared and implemented. They contend that such a modification will guarantee time to seek preclearanee from the District Court for the District of Columbia without risking the loss of sitting judges during the pend-ency of that litigation.

We understand the State’s desire to pursue judicial preclearance, in which the parties obtain a full trial on the merits. In the case at bar, issues of statewide importance lie in the balance. While Congress provided for preclearanee review by the Justice Department as an administrative alternative to the declaratory judgment action, see Morris v. Gressette, 432 U.S. 491, 503, 97 S.Ct. 2411, 2419-20, 53 L.Ed.2d 506 (1976), it may be that the issues in this case warrant an adversarial proceeding.

By granting the requested relief, we assure that the defendants will be able to seek judicial review of the statutes without the risk of serious disruption of Georgia’s judiciary.¹ The modification does not impose an undue burden upon the plaintiffs or upon the minority voters who the plaintiffs propose to represent. Therefore, we change the second full sentence on page 26 of our Order of December 1, 1989 to read as follows:

Incumbents whose terms end in 1990 may continue to serve in unprecleared judgeships until one of the following events occurs:

a) our December 1, 1989 Order requiring preclearance is reversed by the United States Supreme Court;

b) a declaratory judgment favorable to the defendants is obtained from a court of competent jurisdiction, as provided for in the Voting Rights Act;

c) the state legislature of Georgia enacts a scheme for judicial elections which is precleared, and an election is conducted pursuant to that scheme.

Should the event described in either subsection (a) or (b) occur, these judges may hold over until the state conducts new elections. Further, should the plaintiffs prevail in the declaratory judgment action, the incumbents whose terms end in 1990 may continue to serve in the unprecleared judgeships for 150 days. In the event of any vacancy in an unprecleared judgeship by reason of death, resignation, or otherwise, the Governor may make appointments as authorized by the laws of Georgia.

The remainder of our Order is unchanged. The most recently created judge-ships, to which no judge has ever been elected, will continue to go unfilled until precleared. Any decisions by incumbent judges holding over pursuant to this Order are of course valid. The Court’s adjudication of this matter is now final.

SO ORDERED.

1 . As plaintiffs accurately note, defendants could have filed a declaratory judgment action at any time after the statutes creating the new judge-ships were passed; the oldest of the statutes was passed in 1967. However, before the issuance of our December 1, 1989 Order, the question of whether the new judgeships were covered by Section 5 was in dispute. We assume that defendants will now expeditiously pursue judicial preclearance.