Cobb commissioners appear poised to enter uncharted political territory on Tuesday with an attempt to upend the state’s redistricting process by reinstalling county commission district lines to the Democratic majority’s liking and overruling lines drawn by the Republican-led state Legislature.
With no historical precedent on which to rely, the issue is almost certain to be decided in a courtroom.
Redistricting is particularly controversial in Cobb, where GOP state officials drew Cobb Commissioner Jerica Richardson, a Democrat, out of her seat with two years left in her term. Richardson was part of a ‘blue wave’ in Cobb County when, in 2020, Democrats became the majority on the county commission with the election of three Black women. Democrats also ousted the long-time Sheriff, a staunch conservative, and won the District Attorney’s office.
Now, the county commission is fighting back against the Republican redistricting map. And with a 3-2 Democratic majority, the board is expected to amend the maps in a way that would keep Richardson in her seat by using the map created by the Democratic state lawmakers in the Cobb delegation.
The county claims it has the authority to amend the maps through the state’s home rule statute, which grants counties the ability to pass laws to govern themselves and amend or repeal local laws passed by the Legislature. Experts say a judge will most likely need to determine whether the county has the legal authority to redraw the district lines by interpreting the home rule statute.
The redistricting process is mandated every ten years as a way to keep the population numbers essentially equal in political boundaries. The General Assembly passes hundreds of local electoral maps for county commissions and school boards across the state to reflect population changes based on new data from the U.S. Census Bureau.
State lawmakers whose districts lie in the county typically coordinate with the local officials to draw an agreed-upon map.
When the time came to redraw electoral maps during the last legislative session, Democratic state lawmakers in the Cobb delegation proposed a commission district map that adjusted for population changes while keeping the districts mostly the same.
But that map was never introduced to the full General Assembly. Instead, Cobb delegation Republicans pushed through a map of their own that gives conservative candidates an edge in the two districts currently held by the GOP.
Larry Ramsey is the general counsel for the Association of County Commissioners of Georgia, a nonprofit corporation that provides guidance to all 159 county governments, including on the redistricting process.
He said the partisan splits among both the local commissioners and the state lawmakers led to the current dispute. While Democrats have a one-seat edge on the Cobb delegation, the Republican-dominated Legislature overruled the local maps in a handful of Democrat-led counties.
“In the vast majority of cases, the local delegation and the board of commissioners are kind of on the same page as to what the map should look like, and so you don’t have this kind of conflict setup like you have in Cobb right now,” Ramsey said.
Equally unclear is what will happen with Richardson if the county fails and the map passed by the Legislature takes effect Jan. 1.
When asked if she plans to resign, Richardson said: “Great constitutional question. I know that I would be prohibited from voting on county business starting January 1. It’s impossible for me to continue to serve. I mean, I can’t refer to the playbook. It doesn’t exist.
“Any sitting elected official can be drawn out at any time, by anyone, and to me, that is a very, very scary precedent.”
Redistricting maps for county commissions and school boards are considered local legislation because they only affect a particular municipality. General legislation applies to bills that impact the entire state and undergoes a different process.
When Republican lawmakers in the Cobb delegation proposed their map, it started as a local bill but was treated and passed as a general bill, said Rep. Teri Anulewicz (D-Smyrna).
“I don’t know how the courts would define it, if they would define it as it was introduced, or if they would define it as it was passed,” said Anulewicz, the vice chair of the Cobb delegation.
The home rule statute of the Georgia constitution gives counties the power to amend local bills, but it will be up to the court to determine whether the map is a local bill as it was introduced, or a general bill as it was passed.
Cobb County Attorney Bill Rowling declined interview requests for this story. Chairwoman Lisa Cupid said in a statement that the county has to defend itself against the “drastic nature of the state’s action” which “has undermined the cooperation” between counties and state lawmakers.
“It has also undermined the expectation voters should have in trusting that those they elect to serve will be able to do so,” Cupid said in the statement.
Barnes: ‘I heard the debate’
As a senator, former Gov. Roy Barnes held a leadership role when the home rule statute was negotiated and ratified into the Georgia Constitution in 1982.
Barnes, a Democrat, said he thinks Cobb can amend its map.
“I sat in the constitutional convention. I heard the debate. I heard what was being said in the hall. And I think they have the authority,” said Barnes, who lives in Cobb. “The intent was to give full power to counties for home rule, unlimited. That’s the reason they didn’t list out what they could do.”
Redistricting has historically been the role of the state Legislature, except for cities, which are explicitly granted the ability to draw their own council maps in their own home rule provision. Rep. Ed Setzler (R-Acworth) said because counties do not have that explicit power like cities do, they do not have redistricting power.
“Counties simply, as a matter of law, do not have home rule power to do that,” Setzler said.
A state court has never interpreted whether the county home rule statute applies to redistricting powers, Ramsey said.
“I don’t know that any county has ever tried to use home rule power in this way,” he said. “So there hasn’t been a reason for a court to decide how the home rule provision applies in this context.”
The law excludes the county from invoking home rule when it comes to eight areas, two of which include actions affecting “any elective county office” and actions affecting the “procedure for election or appointment ... of the county governing authority.”
In an opinion letter released this week by the Office of Legislative Counsel, which serves the General Assembly, deputy legislative counsel Stuart Morelli said the county does not have redistricting power under home rule. He said it is “practically indisputable” that changing the boundaries of districts falls under those two exceptions by “affecting the procedure for election of the county’s governing authority.”
Allowing counties to have this power would upend Georgia’s redistricting process completely, and University of Georgia political science professor Charles Bullock said he doubts a judge will allow it.
“If they could do that, then the Legislature would get cut out of the process,” he said. “So the county would be unilaterally able to do what it wanted to do, and the Legislature would be damned.”
No one seems to know exactly what the next step will be.
If the commissioners vote twice to approve the resolution amending the map, Barnes said it will go to the Secretary of State’s office following home rule procedures.
“Then, somebody will file a suit claiming that it’s invalid, and, of course, it’d go to the courts,” Barnes said.
Mike Hassinger, a spokesman for the Secretary of State’s office, said this situation has never come up before, but his office follows what is passed into law by the Legislature and the governor. He said the county may have to go to court “to force the ballots to be created in a manner consistent with their maps instead of the legislators’ maps.”
Ramsey said he believes both sides have “reasonable arguments.”
“A court’s going to make whatever decision they make,” he said. “If someone challenges this, we’ll get an answer to this question for the first time.”