                                                                     [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS                             \

                       FOR THE ELEVENTH CIRCUIT                   FILED
                        ________________________              U.S. COURT OF
                                                                  APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 00-12850                   MAR 29, 2001
                          ________________________           THOMAS K. KAHN
                                                                   CLERK

                     D. C. Docket No. 98-00412-CV-2-DF-5

JOHN W. SANDERS, PERRY L. BRIDGES, et al.,

                                                       Plaintiffs-Appellants,

                                     versus

DOOLY COUNTY, GA, TERRELL HUDSON,
in his official capacity as member of Dooly County
Board of Commissioners, et al.,

                                                       Defendants-Appellees,

DOOLY CO. NAACP, JAMES L. TAYLOR, et al.,

                                                       Interveners-Defendants-
                                                       Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________
                              (March 29, 2001)

Before BLACK, RONEY and COX, Circuit Judges.

PER CURIAM:
      The plaintiffs, five voters in Dooly County, Georgia, sued county officials,

claiming that a districting plan, shared by the county commission and the board of

education and effectuated by consent decree, contains racially gerrymandered districts

that violate the equal-protection principles announced in Shaw v. Reno, 509 U.S. 630,

113 S. Ct. 2816 (1993), and elaborated in Miller v. Johnson, 515 U.S. 900, 115 S. Ct.

2475 (1995), and many cases since. The district court granted the defendants

summary judgment on laches grounds. According to the court, the plaintiffs’ waiting

until November 1998 to file suit — over six years after the first use of the plan and

five years after Shaw v. Reno issued — was an inexcusable delay. This delay

prejudiced the defendants and citizens of Dooly County, the court concluded, in two

principal ways: (1) redistricting late in the decade would lead to back-to-back

redistrictings (the court-ordered one and the one using new census data) that would

confuse voters and be unnecessarily costly to the County; and (2) the census data

available to redistrict now are over ten years old and thus unreliable. The plaintiffs

appeal.

      Before reaching the merits of the appeal, we discharge our duty to examine the

district court’s jurisdiction, here questionable because two of the plaintiffs lack

standing. See Wilson v. Minor, 220 F.3d 1297, 1303 n.11 (11th Cir. 2000). Beginning

with Hays v. Louisiana, the Supreme Court has limited standing on this kind of equal-


                                          2
protection claim to residents of the challenged district. 515 U.S. 737, 738, 115 S. Ct.

2431, 2433 (1995). The plaintiffs do live in the districts they challenge, but since the

district court entered its judgment, the Supreme Court has further trimmed the number

of proper Shaw plaintiffs by holding that the residents of intentionally racially

gerrymandered districts have suffered no cognizable harm if the districts are not the

ones the districting plan originally set out to create, even if those gerrymandered

districts are indispensable to the racially motivated plan. See Sinkfield v. Kelley, 121

S. Ct. 446, 447 (2000) (plaintiffs lacked standing because they did not live in the

supermajority-minority districts of a max-black plan), vacating for lack of standing

Kelley v. Bennett, 96 F. Supp. 2d 1301, 1312-20 (M.D. Ala. 2000) (finding after trial

that intentional race-motivated gerrymandering produced some of the majority-

majority districts challenged by plaintiffs who lived in them). The plaintiffs allege

that the plan set out to create three majority-black districts. Taking that allegation as

true (because standing did not come up below, the plaintiffs have had no opportunity

to present evidence), it means that the plaintiffs who live in majority-white Districts

2 and 3, George C. Griggs and John W. Sanders, have suffered no cognizable harm

from the alleged gerrymandering of their districts. The district court therefore lacked

jurisdiction over their claims, for want of standing.




                                           3
      Turning to the merits, we conclude that the district court did not abuse its

discretion in deeming the claims seeking injunctive relief to be laches-barred for the

reasons that we described above. Cf. Fouts v. Harris, 88 F. Supp. 2d 1351, 1353 (S.D.

Fla. 1999) (relying on similar laches reasoning to dismiss Shaw claims), aff’d sub

nom. Chandler v. Harris, 120 S. Ct. 1716 (2000). But we do think that the district

court overstepped its discretion in judging the claims for declaratory relief to be

similarly barred, because the third element of a laches defense — prejudice to the

defendants from the unexcused delay — is missing. See AmBrit, Inc. v. Kraft, Inc.,

812 F.2d 1531, 1545 (11th Cir. 1986) (listing elements). None of the grounds for

prejudice that the district court relied on applies to the plaintiffs’ claims for a

declaration that the 1992 plan violates the Equal Protection Clause. There is no risk

of confusion from a redistricting, obviously; no burden to the county to redistrict; and

no use of out-of-date census data. An effect of a grant of such declaratory relief could

be to prevent the Attorney General from using the 1993 consent-decree plan as a

baseline for retrogression analysis in the post-2000 census round of preclearance




                                           4
proceedings under § 5 of the Voting Rights Act,1,               2
                                                                    but that effect is no more

prejudicial to the defendants now than it would have been in 1993.

       For the foregoing reasons, we (1) vacate the judgments against plaintiffs Griggs

and Sanders; (2) affirm the summary judgment against the remaining plaintiffs on

their claims for injunctive relief; (3) reverse the grant of summary judgment against

the remaining plaintiffs on their claims for declaratory relief; and (4) remand for

further proceedings and with instructions to dismiss Griggs’s and Sanders’s claims for

want of jurisdiction.

       VACATED IN PART; AFFIRMED IN PART; REVERSED IN PART;

REMANDED WITH INSTRUCTIONS IN PART.




1
       42 U.S.C. § 1973c.
2
        See Abrams v. Johnson, 521 U.S. 74, 96, 117 S. Ct. 1925, 1938 (1997) (plan declared
unconstitutional under Shaw may not serve as retrogression baseline); Office of the Assistant
Attorney General, Civil Rights Division, Guidance Concerning Redistricting and Retrogression
Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, 66 Fed. Reg. 5412, 5413 (January
18, 2001) (“Absent . . . a finding of unconstitutionality under Shaw by a federal court, the last
legally enforceable plan will serve as benchmark for Section 5 review.”); see also 28 C.F.R. §
51.54(b)(1)(retrogression comparison under § 5 is with the last “legally enforceable” practice
when existing practice is not “in effect” and otherwise unenforceable under § 5).

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