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Page v. Virginia State Board of Elections

United States District Court, E.D. Virginia, Richmond Division

October 7, 2014

DAWN CURRY PAGE, et al., Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants

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[Copyrighted Material Omitted]

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For Gloria Personhuballah, an individual, James Farkas, an individual, Plaintiffs: John Kuropatkin Roche, Perkins Coie LLP, Washington, DC; John Michael Devaney, Marc Erik Elias, PRO HAC VICE, Perkins Coie LLP (DC-NA), Washington, DC; Kevin Hamilton, PRO HAC VICE, Perkins Coie LLP, Seattle, WA; Mark Buchanan Rhoads, Robert W. Partin, McCandlish Holton PC, Richmond, VA.

For Charlie Judd, in his capacity as Chairman of the Virginia State Board of Elections, Kimberly Bowers, in her capacity as Vice-Chair of the Virginia State Board of Elections, Don Palmer, in his capacity as Secretary of the Virginia State Board of Elections, Defendants: Trevor Stephen Cox, LEAD ATTORNEY, Office of the Attorney General (Richmond), Richmond, VA; Mike Melis, Office of the Attorney General (Richmond), Richmond, VA.

For Robert B. Bell, Christopher Marston, Movants: Frederick W. Chockley, III, LEAD ATTORNEY, Baker & Hostetler LLP, Washington, DC; Efrem Mark Braden, PRO HAC VICE, Baker & Hostetler LLP(DC-NA), Washington, DC; Jennifer Marie Walrath, Baker & Hostetler LLP (DC), Washington, DC.

For Clerk of the Virginia Senate, Clerk of the Virginia House, Division of Legislative Services, Interested Partys, Cullen Dennis Seltzer, LEAD ATTORNEY, Sands Anderson PC, Richmond, VA.

For William Robert Janis, Interested Party, Frederick W. Chockley, III, LEAD ATTORNEY, Baker & Hostetler LLP, Washington, DC; Efrem Mark Braden, PRO HAC VICE, Baker & Hostetler LLP(DC-NA), Washington, DC; Jennifer Marie Walrath, Baker & Hostetler LLP (DC), Washington, DC.

For Eric Cantor, Congressman, Robert Wittman, Congressman, Bob Goodlatte, Congressman, Frank R. Wolf, Congressman, Randy Forbes, Congressman, Morgan Griffith, Congressman, Scott Rigell, Congressman, Robert Hurt, Congressman, Intervenor Defendants, John Matthew Gore, LEAD ATTORNEY, PRO HAC VICE, Jones Day (DC-NA), Washington, DC; Jonathan Andrew Berry, LEAD ATTORNEY, Michael Anthony Carvin, Jones Day, Washington, DC.

Before DUNDAN, Circuit Judge, O'GRADY, District Judge and PAYNE, Senior District Judge. PAYNE, Senior District Judge, Dissenting.

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MEMORANDUM OPINION

In the political landscape prior to the Supreme Court's June 25, 2013, decision in Shelby County v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), the Virginia legislature undertook the task of crafting United States congressional districts with the overarching goal of compliance with the Voting Rights Act of 1965 (" VRA" ) as it was then interpreted. In describing the methodology used in drawing the abstract lines currently under consideration, Delegate William Janis, the architect of that legislation, explained it thus:

I focused on the [Third] Congressional District and ensuring, based on recommendations that I received from Congressman Scott[,the representative from the Third Congressional District,] and from all 11 members of the congressional delegation, Republican and Democrat--one of the paramount concerns and considerations that was not permissive and nonnegotiable under federal law and under constitutional precedent is that the [Third] Congressional District not retrogress in minority voter influence.
And that's how the lines were drawn . . . .[T]he primary focus of how the lines in [the redistricting legislation] were drawn was to ensure that there be no retrogression in the [Third] Congressional District. Because if that occurred, the plan would be unlikely to survive a challenge either through the Justice Department or the courts because it would not comply with the constitutionally mandated requirement that there be no retrogression in the minority voting influence in the [Third] Congressional District.

Pl.'s Trial Ex. 43, at 25.[1] Delegate Janis's efforts were successful. His proposed legislation was approved by the United States Department of Justice (" DOJ" ), which found that it did not effect any retrogression in the ability of minorities to elect their candidates of choice.[2] As we explain below, however, the Supreme Court's Shelby County decision significantly altered the status quo.

Before turning to a description of the history of the litigation and an analysis of the issues it presents, we wish to emphasize at the outset what we hope will be clear throughout. We imply no criticism of Delegate Janis or Defendants, and do not question that all attempted to act appropriately under the circumstances as they understood them to be at the time. We must nevertheless determine whether the Virginia legislation passes constitutional muster, particularly in the wake of Shelby County.

I. THE LITIGATION

Plaintiffs Dawn Curry Page, Gloria Personhuballah, and James Farkas[3] (" Plaintiffs" )

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bring this action against Defendants Charlie Judd, Kimberly Bowers, and Don Palmer--in their respective official capacities of Chairman, Vice-Chair, and Secretary of the Virginia State Board of Elections[4]--and Intervenor-Defendants Eric Cantor, Robert J. Wittman, Bob Goodlatte, Frank Wolf, Randy J. Forbes, Morgan Griffith, Scott Rigell, and Robert Hurt--all Congressmen in the Commonwealth of Virginia--(collectively, " Defendants" )[5] challenging the constitutionality of Virginia's Third Congressional District as a racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In light of the evidence, and as State Board of Elections Defendants have acknowledged, we conclude that compliance with Section 5 of the VRA (" Section 5" ), and accordingly, race, " was the [legislature's] predominant purpose . . . underlying [the Third Congressional District's] racial composition in 2012." (Int-Def.'s Mem. Supp. Mot. Summ. J. 15, ECF No. 39). Moreover, the redistricting plan cannot survive the strict scrutiny required of race-conscious districting because it is not narrowly tailored.[6]

Equitable considerations preclude remediation prior to Virginia's November 2014 elections. Because, however, the constitutional infirmities of the Third Congressional District cannot be remedied in isolation, Virginia should act within the next legislative session to draw electoral districts based on permissible criteria.

Resolution of the issues before us involves an analysis of the interplay between the VRA and Virginia law governing voting rights and the redistricting process. We therefore begin by laying out the framework that will guide that analysis. We then set out the factual background and procedural history of this litigation, before proceeding to the issues at hand.

A. Voting Rights Act Background

A brief description of the history and purpose of the VRA, and its impact on Virginia, is a useful predicate for the discussion that follows. The VRA, passed in 1965, " was originally perceived as a remedial provision directed specifically at eradicating discriminatory practices that restricted blacks' ability to register and vote in the segregated South." Holder v. Hall, 512 U.S. 874, 893, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (Thomas, J., concurring). The VRA " is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

Section 4 of the VRA outlines " a formula defining the States and political subdivisions to which [the statute's] . . . remedies apply." Id. This " coverage formula" includes states or political subdivisions with the following characteristics: 1) as of November 1964, they maintained a test or device as a prerequisite for voting or registration; and 2) 1964 census data indicated that less than 50% of the voting-age population

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was registered to vote. See 42 U.S.C. § 1973b(a)(1)-(2). Section 5 contains specific redistricting requirements for jurisdictions deemed covered under Section 4. See id. § 1973c.

In November 1964, Virginia met the criteria to be classified as a " covered jurisdiction" under Section 5. See id. § 1973b-c. As such, Virginia was required to submit any changes to its election or voting laws to the DOJ for federal preapproval, a process called " preclearance." See id. § 1973c. To obtain preclearance, Virginia had to demonstrate that a proposed change had neither the purpose nor effect " of denying or abridging the right to vote on account of race or color." Id. § 1973c(a).

The legal landscape changed dramatically in 2013, when the Supreme Court ruled that Section 4's coverage formula, described above, was unconstitutional. Shelby Cnty., 133 S.Ct. at 2620-31. The Court concluded that the formula, although rational in practice and theory when the VRA was passed in 1965, was no longer justified by current voting conditions. Id. As a result of the invalidation of the coverage formula under Section 4, Virginia is no longer obligated to comply with the preclearance requirements of Section 5. See id.

B. Factual Background

We turn now to the Virginia constitutional and statutory scheme. The Virginia Constitution requires the state legislature to reapportion Virginia's United States congressional districts every ten years based on federal census data. Districts must be " contiguous and compact territory . . . constituted as to give, as nearly as practicable, representation in proportion to the population of the district." Va. Const. art. II, § 6.

Virginia's Third Congressional District was first created as a majority African-American district in 1991. See Va. Code § § 24.1-17.303 (1991); 24.1-17.303 (1992); 24.2-302 (1993). At that time, the Third Congressional District had an African-American population of 63.98%, and a black voting-age population (" BVAP," the percentage of persons of voting age who identify as African-American) of 61.17%. Moon v. Meadows, 952 F.Supp. 1141, 1143-44 (E.D. Va. 1997).

The 2010 federal census showed that Virginia's population grew 13% between 2000 and 2010. Pl.'s Trial Ex. 1, at 18. Because the growth was unevenly distributed, Virginia had to redraw its congressional districts in order to balance population totals within each district. See id. Pursuant to that goal, Virginia's Senate Committee on Privileges and Elections adopted Committee Resolution No. 2, establishing goals and criteria concerning applicable legal requirements and policy objectives for redrawing Virginia's congressional districts. See Pl.'s Trial Ex. 5. The criteria included: 1) population equality among districts; 2) compliance with the laws of the United States and Virginia, including protections against diluting racial minority voting strength and putting minority voters in a worse position than they were before the redistricting change (" retrogression" ); 3) contiguous and compact districts; 4) single-member districts; and 5) consideration of communities of interest. Id. at 1-2. The Virginia Senate noted that, although " [a]ll of the foregoing criteria [would] be considered in the districting process[,] . . . population equality among districts and compliance with federal and state constitutional requirements and [the VRA] [would] be given priority in the event of conflict among the criteria." Id. at 2 (emphasis added).

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Delegate Janis used the 2010 census data to draw a new plan for Virginia's United States congressional districts. Delegate Janis presented his plan, House Bill 5004, to the House of Delegates on April 6, 2011; the House adopted it six days later. Pl.'s Trial Ex. 8, at 7. The Virginia Senate, however, rejected Delegate Janis's plan and replaced it with a plan sponsored by State Senator Mamie Locke. Id. The House and Senate were unable to reconcile the competing plans and the redistricting effort stalled. Id. at 8.

The November 2011 elections changed the composition of the Virginia Senate, and, in January 2012, the newly seated House and Senate adopted Delegate Janis's plan without any changes.[7] See id. Governor Bob McDonnell signed the plan into law on January 25, 2012. Id. at 9. The congressional districting plan (" 2012 Plan" ) is codified at Va. Code Ann. § 24.2-302.2.

The 2012 Plan divides Virginia into eleven congressional districts. Plaintiffs describe the boundaries of the Third Congressional District as follows:

The northwest corner of the district includes parts of Richmond and the north shore of the James River. It then crosses the James River for the first time and juts west to capture parts of Petersburg. The district again crosses to the north shore of the James River to include parts of Newport News, though this portion of the district is not contiguous with any other part of the district. The district then hops over part of Congressional District 2 to include part of Hampton and crosses the James River and Chesapeake Bay to capture part of Norfolk, which is not contiguous with any other part of [the district].

(Compl. ¶ 34, ECF No. 1). A majority of the voting age population in the 2012 Plan's Third Congressional District is African-American. Whereas the BVAP of the previous iteration of the Third Congressional District (" Benchmark Plan" ), formed after the 2000 census, was 53.1%, the BVAP of the 2012 Plan's Third Congressional District is 56.3%. Pl.'s Trial Ex. 27, at 14. There is no indication that this increase of more than three percentage points was needed to ensure nonretrogression, however, because the 2012 Plan was not informed by a racial bloc voting or other, similar type of analysis. See Trial Tr. 342:11-23, 354:18-355:2. A racial bloc voting analysis, which legislatures frequently use in redistricting, studies the electoral behavior of minority voters and ascertains how many African-American voters are needed in a congressional district to avoid diminishing minority voters' ability to elect their candidates of choice. Trial Tr. 62:22-63:7, 98:16-99:6, 198:5-8; Pl.'s Trial Ex. 43, at 15.

Virginia submitted the 2012 Plan to the DOJ for Section 5 preclearance. As we have noted, the DOJ precleared the plan on March 14, 2012, finding that it did not effect any retrogression in the ability of minorities to elect their candidates of choice. (Def.'s Mem. Supp. Mot. Summ. J. 7, ECF No. 37).

On June 25, 2013, the Supreme Court issued its decision in Shelby County. As a result, as we have explained, Section 5's requirements of review and preclearance for covered areas no longer apply to Virginia with respect to future changes to its voting and election laws. See Shelby Cnty., 133 S.Ct. at 2627-31.

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C. Procedural History

Plaintiffs[8] brought this action on October 2, 2013, alleging that Virginia used the Section 5 preclearance requirements as a pretext to pack African-American voters into Virginia's Third Congressional District and reduce these voters' influence in other districts. (Compl. ¶ ¶ 3, 40, ECF No. 1). Plaintiffs seek a declaratory judgment that Virginia's Third Congressional District, as drawn in the 2012 Plan, is a racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 10. Plaintiffs also seek to permanently enjoin Defendants from giving effect to the boundaries of the Third Congressional District, including barring Defendants from conducting elections for the United States House of Representatives based on the current Third Congressional District. Id.

Any action under Section 5 must " be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28." 42 U.S.C. § 1973c; see also Allen v. State Bd. of Elections, 393 U.S. 544, 560-63, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Because Plaintiffs' action " challeng[es] the constitutionality of the apportionment of congressional districts" in Virginia, the Chief Judge of the United States Court of Appeals for the Fourth Circuit granted Plaintiffs' request for a hearing by a three-judge court pursuant to 28 U.S.C. 2284(a) on October 21, 2013. (ECF No. 10).

Virginia Congressmen Eric Cantor, Robert J. Wittman, Bob Goodlatte, Frank Wolf, Randy J. Forbes, Morgan Griffith, Scott Rigell, and Robert Hurt moved to intervene as Defendants in the case on November 25, 2013. (ECF No. 14). On December 20, 2013, all Defendants moved for summary judgment. (ECF Nos. 35, 38). We denied the motions on January 27, 2014. (ECF No. 50). A two-day bench trial began on May 21, 2014. (ECF Nos. 100, 101). We then ordered the parties to file post-trial briefs. (ECF No. 99). After reviewing those briefs, we determined on June 30, 2014, that further oral argument would not assist in the resolution of the issues before the Court. (ECF No. 108). Therefore, this case is now ripe for disposition. We have jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), and 28 U.S.C. § 1357.

II. ANALYSIS

To successfully challenge the constitutionality of the Third Congressional District under the Equal Protection Clause, Plaintiffs first bear the burden of proving that the legislature's predominant consideration in drawing its electoral boundaries was race. If they make this showing, the assignment of voters according to race triggers the court's " strictest scrutiny." Miller v. Johnson, 515 U.S. 900, 915, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). Then, the burden of production shifts to Defendants to demonstrate that the redistricting plan was narrowly tailored to advance a compelling state interest. See Shaw II, 517 U.S. at 908.

For the reasons that follow, we find that Plaintiffs have shown race predominated. We find that the Third Congressional District cannot survive review under the exacting standard of strict scrutiny. While compliance with Section 5 was a compelling interest when the legislature acted, the redistricting plan was not narrowly tailored to further that interest. Accordingly,

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we are compelled to hold that the challenged Third Congressional District violates the Equal Protection Clause of the Fourteenth Amendment.

A. Race As the Predominant Consideration in Redistricting

As with any law that distinguishes among individuals on the basis of race, " equal protection principles govern a State's drawing of congressional districts." Miller, 515 U.S. at 905. " Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters . . . ." Shaw v. Reno (Shaw I), 509 U.S. 630, 657, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). As such, " race-based districting by our state legislatures demands close judicial scrutiny." Id.

To trigger strict scrutiny, Plaintiffs first bear the burden of proving that race was not only one of several factors that the legislature considered in drawing the Third Congressional District, but that race " predominated." Bush v. Vera, 517 U.S. 952, 963, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). The Supreme Court has emphasized that this burden " is a 'demanding one,'" Easley v. Cromartie (Cromartie II), 532 U.S. 234, 241, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quoting Miller, 515 U.S. at 928):

The plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations.

Miller, 515 U.S. at 916. The Supreme Court has cited several specific factors as evidence of racial line drawing: statements by legislators indicating that race was a predominant factor in redistricting, see id., 515 U.S. at 917-18; evidence that race or percentage of race within a district was the single redistricting criterion that could not be compromised, see Shaw II, 517 U.S. at 906; creation of non-compact and oddly shaped districts beyond what is strictly necessary to avoid retrogression, see Shaw I, 509 U.S. at 646-48; use of land bridges in a deliberate attempt to bring African-American population into a district, see Miller, 515 U.S. at 917; and creation of districts that exhibit disregard for city limits, local election precincts, and voting tabulation districts (" VTDs" ), see Bush, 517 U.S. at 974. As we demonstrate below, all of these factors are present here.[9] Moreover, we do not view any

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of these factors in isolation. We consider direct evidence of legislative intent, including statements by the legislation's sole sponsor, in conjunction with the circumstantial evidence supporting whether the 2012 Plan complies with traditional redistricting principles.

1. Direct Evidence of Legislative Intent

When analyzing the legislative intent underlying a redistricting decision, we agree with the dissent that there is a " presumption of good faith that must be accorded legislative enactments." Miller, 515 U.S. at 916. This presumption " requires courts to exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race." Id. Such restraint is particularly warranted given the " complex interplay of forces that enter a legislature's redistricting calculus," id. at 915-16, making redistricting possibly " the most difficult task a legislative body ever undertakes," Smith v. Beasley, 946 F.Supp. 1174, 1207 (D.S.C. 1996) (three-judge court).

Nevertheless, " the good faith of the legislature does not excuse or cure the constitutional violation of separating voters according to race." Id. at 1208. Here, " [w]e do not question the good faith of the legislature in adopting [the 2012 Plan]" so long as " [t]he members did what they thought was required by [Section 5] and by the Department of Justice at the time." Id. At this stage of the analysis, we are concerned only with whether legislative statements indicate that " race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without [the Third Congressional District]." Miller, 515 U.S. at 916. We find such statements here, drawn from multiple sources.

We must also note, however, that it is inappropriate to confuse this presumption of good faith with an obligation to parse legislative intent in search of " proper" versus " improper" motives underlying the use of race as the predominant factor in redistricting, as the dissent does here. The legislative record here is replete with statements indicating that race was the legislature's paramount concern in enacting the 2012 Plan. Yet the dissent urges us to consider such statements as mere legislative acknowledgments of the supremacy of federal law, specifically the VRA. The dissent argues that subjecting a redistricting plan to strict scrutiny when it separates voters according to race as a means to comply with Section 5 " trap[s] [legislatures] between the competing hazards of [VRA and Constitutional] liability," Bush, 517 U.S. at 992 (O'Connor, J., concurring),[10] but this is a red herring. While " [a]pplying traditional equal protection principles in the voting-rights context is 'a most delicate task,'" Shaw II, 517

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U.S. at 905 (quoting Miller, 515 U.S. at 905), we must apply strict scrutiny when, as here, there is strong direct and circumstantial evidence that race was the only " nonnegotiable" criterion.

a. Defendants' Statements

Defendants concede that avoiding retrogression in the Third Congressional District and ensuring compliance with Section 5 was the legislature's primary priority in drawing the 2012 Plan. Defendants acknowledge that the legislature's top two priorities were " compliance with applicable federal and state laws, expressly including the [VRA]" and population equality. (Def.'s Mem. Supp. Mot. Summ. J. 12, ECF No. 37). Moreover, Defendants " concede[] that compliance with Section 5 was [the legislature's] predominant purpose or compelling interest underlying District 3's racial composition in 2012." (Int-Def.'s Mem. Supp. Mot. Summ. J. 15, ECF No. 39). Of course, we do not view the language of the Intervenor-Defendants' summary judgment brief as a " binding concession," as the dissent suggests. Rather, we take it for what it is--a candid acknowledgement of the incontrovertible fact that the shape of the Third Congressional District was motivated by the desire to avoid minority retrogression in voting.

b. Racial Threshold As the Means to Achieve Section 5 Compliance

Defendants' expert, John Morgan, also acknowledged that the legislature " adopted the [2012 Plan] with the [Third Congressional District] Black VAP at 56.3%" because legislators were conscious of maintaining a 55% BVAP floor. Int. Def.'s Trial Ex. 13, at 27. In 2011, the legislature enacted " a House of Delegates redistricting plan with a 55% Black VAP as the floor for black-majority districts" with strong bipartisan support. Id. at 26. Given the success of this prior usage of a 55% BVAP floor, the legislature considered a 55% BVAP floor for the 2012 congressional redistricting " appropriate to obtain Section 5 preclearance, even if it meant raising the Black VAP above the [53.1%] level[] in the Benchmark plan." Id. at 26-27. The legislature therefore " acted in accordance with that view," id. at 27, when adopting the 2012 Plan, despite the fact that the use of a 55% BVAP floor in this instance was not informed by an analysis of voter patterns. Indeed, when asked on the House floor whether he had " any empirical evidence whatsoever that 55[% BVAP] is different than 51[%] or 50[%]," or whether the 55% floor was " just a number that has been pulled out of the air," Delegate Janis, the redistricting bill's author, characterized the use of a BVAP floor as " weighing a certainty against an uncertainty." Pl.'s Trial Ex. 45, at 7.

c. Statements by the Author of the 2012 Congressional Maps

In addition to Defendants' statements, we credit explanations by Delegate Janis, the legislation's sole author, stating that he considered race the single " nonnegotiable" redistricting criterion. Pl.'s Trial Ex. 43, at 25. In disagreeing, the dissent attempts to discount the meaning of these statements by placing great reliance on remarks by legislative opponents characterizing the redistricting legislation as an incumbency protection plan, and by parsing Delegate Janis's statements regarding compliance with federal law generally from the necessary antecedent of relying on race to do so. In the face of Delegate Janis's clear words, we do not find these efforts persuasive.[11]

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Delegate Janis emphasized that his " primary focus" in drawing Virginia's new congressional maps was ensuring that the Third Congressional District maintained at least as large a percentage of African-American voters as had been present in the district under the Benchmark Plan. Pl.'s Trial Ex. 43, at 25; see also Pl.'s Trial Ex. 13, at 8 (" [W]e can have no less [percentage of African-American voters] than percentages that we have under the existing lines." ).

For example, at the second floor reading of the redistricting bill in Virginia's House of Delegates on April 12, 2011, Delegate Janis noted that " one of the paramount concerns in the drafting of the bill was [the VRA mandate] that [the legislature] not retrogress minority voting influence in the 3rd Congressional District." Pl.'s Trial Ex. 43, at 10 (emphasis added). He continued to reiterate this sentiment, noting that he was " most especially focused on making sure that the [Third] Congressional District did not retrogress in its minority voting influence." Id. at 14-15 (emphasis added).

Delegate Janis also stated that the avoidance of retrogression in the Third Congressional District took primacy over other redistricting considerations because it was " nonnegotiable" :

[O]ne of the paramount concerns and considerations that was not permissive and nonnegotiable . . . is that the 3rd Congressional District not retrogress in minority voter influence. . . .[T]he primary focus of how the lines in House Bill 5004 were drawn was to ensure that there be no retrogression in the 3rd Congressional District. Because if that occurred, the plan would be unlikely to survive a challenge either through the Justice Department or the courts because it would not comply with the constitutionally mandated requirement that there be no retrogression in the minority voting influence in the 3rd Congressional District.

Id. at 24-25 (emphasis added). Unlike the dissent, we deem it appropriate to accept the explanation of the legislation's author as to its purpose. And there is further support.

2. Circumstantial Evidence of the Third Congressional District's Shape and Characteristics

In addition to the evidence of legislative intent, we also consider the extent to which the district boundaries manifest that legislative will.[12] Evidence of a " highly

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irregular" reapportionment plan " in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions," indicates that racial considerations predominated during the 2011-12 redistricting cycle. Shaw I, 509 U.S. at 647. We consider each of these factors below.

a. Shape and Compactness

As the Supreme Court has recognized, " reapportionment is one area in which appearances do matter," Shaw I, 509 U.S. at 647, and the " obvious fact that the district's shape is highly irregular and geographically non-compact by any objective standard" supports the conclusion that race was the predominant factor in drawing the challenged district. Shaw II, 517 U.S. at 905-06 (internal quotation marks omitted). Moreover, compactness is one of two redistricting criteria required by the Virginia Constitution. Va. Const. art. II, § 6 (" Every electoral district shall be composed of contiguous and compact territory . . . ." ).

Because, as he explained to the Senate Committee on Privileges and Elections, Delegate Janis " didn't examine compactness scores" when drawing the 2012 congressional maps, Pl.'s Trial Ex. 14, at 8, we begin with a visual, rather than mathematical, overview of the Third Congressional District's shape and compactness. See Karcher v. Daggett, 462 U.S. 725, 762, 103 S.Ct. 2653, 77 L.Ed.2d 133 (Without applying any mathematical measures of compactness, " [a] glance at the [congressional] map shows district configurations well deserving the kind of descriptive adjectives . . . that have traditionally been used to describe acknowledged gerrymanders." ).

Plaintiffs contend that the Third Congressional District is the least compact congressional district in Virginia. Trial Tr. 73:10-14. And, indeed, the maps of the district reflect both an odd shape and a composition of a disparate chain of communities, predominantly African-American, loosely connected by the James River. See Trial Tr. 42:13-16; Pl.'s Trial Ex. 48. Defendants do not disagree. In fact, Defendants' expert, Mr. Morgan, concedes that the three primary statistical procedures used to measure the degree of compactness of a district all indicate that the Third Congressional District is the least compact congressional district in Virginia. Trial Tr. 375:21-24, 376:9-13. While Defendants acknowledge the irregularity of shape and lack of compactness reflected by the Third Congressional District, they submit that a desire to protect Republican incumbents explains the District's shape, a contention we discuss later. See infra section II.A.3; see also Trial Tr. 14:24-15:6.

b. Non-Contiguousness

In addition to requiring compactness, the Virginia Constitution also requires the legislature to consider contiguity when drawing congressional boundaries. See Va. Const. art. II, § 6. The Virginia Supreme Court has concluded that " land masses separated by water may . . . satisfy the contiguity requirement in certain circumstances." Wilkins v. West, 264 Va. 447, 571 S.E.2d 100, 109 (Va. 2002). While the Third Congressional District is not contiguous by land, it is legally contiguous because all segments of the district border the James River. Trial Tr. 74:22-24. Therefore, the Third Congressional District

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is legally contiguous under Virginia Law. See Wilkins, 571 S.E.2d at 109; see also Trial Tr. 221:12-14.

Yet contiguity and other traditional districting principles are " important not because they are constitutionally required," but rather " because they are objective factors" courts may consider in assessing racial gerrymandering claims. Shaw I, 509 U.S. at 647. To show that race predominated, Plaintiffs need not establish that the legislature disregarded every traditional districting principle. See Miller, 515 U.S. at 917 (holding that circumstantial evidence such as shape does not need to be sufficient, standing alone, to establish a racial gerrymandering claim). Rather, we consider irregularities in the application of these traditional principles together. Here, the record establishes that, in drawing the boundaries of the Third Congressional District, the legislature used water contiguity as a means to bypass white communities and connect predominantly African-American populations in areas such as Norfolk, Newport News, and Hampton. See Trial Tr. 75:15-76:1. Such circumstantial evidence is one factor that contributes to the overall conclusion that the district's boundaries were drawn with a focus on race.

c. Splits in Political Subdivisions

" [R]espect for political subdivisions" is an important traditional districting principle. Shaw I, 509 U.S. at 647. A county or city is considered split by a congressional district when a district does not entirely contain that county or city within its borders. See Pl.'s Trial Ex. 27, at 8. The Third Congressional District splits more local political boundaries than any other district in Virginia. Trial Tr. 76:18-20. It splits nine counties or cities, the highest number of any congressional district in the 2012 Plan. Pl.'s Trial Ex. 27, at 9. Moreover, the boundaries of the Third Congressional District contribute to the majority of splits in its neighboring congressional districts. See id.

The Third Congressional District also splits more voting tabulation districts, or VTDs, than any of Virginia's other congressional districts. Trial Tr. 78:17-19; see also Pl.'s Trial Ex. 27, at 10. A VTD is a Census Bureau term referring to what is commonly thought of as a voting precinct. Trial Tr. 78:5-8. In total, the 2012 Plan splits 20 VTDs; the Third Congressional District contributes to 14 of them. Trial Tr. 78:20-21; see also Pl.'s Trial Ex. 27, at 10. While some of these are " technical splits" (i.e., a VTD split that does not involve population; for example, a split across water), such technical splits were used strategically here, as they would not have been necessary " if [the legislature was not] trying to bypass [white] communities using water" and bring predominantly African-American communities into the district. Trial Tr. 79-80.

The dissent contends that the population swaps involving the Third Congressional District--and resulting locality splits--were necessary to achieve population parity in accordance with the constitutional mandate of the one-person-one-vote rule,[13] and can also be explained by the traditional redistricting criterion of " preserving district cores." [14] See post at 28, 36. The

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evidence does not substantiate either of these arguments. It is true that the Virginia legislature needed to add 63,976 people to the Third Congressional District to achieve population parity. See Trial Tr. 87. Yet, though the dissent asserts that " it is extremely unlikely that any combination of 'whole' localities in the vicinity of [the Benchmark Plan] could have been added to the [Third Congressional] District to augment the population by exactly 63,976 people," post at 36, Plaintiffs' alternative plan maintains a majority-minority district and achieves the population increase needed for parity, while simultaneously minimizing locality splits and the number of people affected by such splits. See Pl.'s Trial Ex. 29, at 1. Although this alternative plan results in only one less locality split than the 2012 Plan, it reduces the number of people affected by the locality splits between the Third Congressional District and Second Congressional District by 240,080.[15] See Trial Tr. 112; Pl.'s Trial Ex. 29, at 5, tbl. 3. The alternative plan also reduces the number of VTD splits involving the Third Congressional District from 14 in the 2012 Plan to 11. Trial Tr. 111. Moreover, Plaintiffs' alternative plan, unlike the 2012 Plan, keeps the cities of Newport News, Hampton, and Norfolk intact.[16] See id. at 112. This is a particularly important accomplishment because it reflects the fulfillment of a strong public sentiment, as expressed during 2010 redistricting forums,[17] against splitting localities, and in favor of keeping the integrity of cities like Hampton and Norfolk intact. See Pl.'s Trial Ex. 29, at 5; see also Pl.'s Trial Ex. 11-12.

The evidence similarly undercuts the dissent's contention that the boundaries of the Third Congressional District reflect an allegiance to the traditional redistricting principle of preserving district cores. Far from attempting to retain most of the Benchmark Plan's residents within the new district borders, the 2012 Plan moved over 180,000 people in and out of the districts surrounding the Third Congressional District to achieve an overall population increase of only 63,976 people. Trial Tr. 87. Tellingly, the populations moved out of the Third Congressional District were predominantly white, while the populations moved into the District were predominantly African-American. Id. at 81-82. Moreover, the predominantly white populations moved out of the Third Congressional District totaled nearly 59,000 residents__ a number very close to the total required increase of 63,976 people. See Pl.'s Trial Ex. 27, at 15, tbl. 6; see also Trial Tr. 87.

While " [t]he Constitution does not mandate regularity of district shape," Bush,

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517 U.S. at 962, Plaintiffs' circumstantial evidence of the Third Congressional District's irregularities and inconsistencies with respect to the traditional districting criteria described above, coupled with clear statements of legislative intent, supports our conclusion that, in this case, " traditional districting criteria [were] subordinated to race." Id.

3. Predominance of Race over Politics

Defendants, as well as the dissent, rely heavily on isolated statements in the legislative record, made by opponents of Delegate Janis's bill, suggesting that incumbency protection and partisan politics motivated the 2011-12 redistricting efforts. See, e.g., Pl.'s Trial Ex. 43, at 48-49 (opponent of Delegate Janis's plan stating that Janis " admitted today that one of the criteria that he used in development of the plan was incumbent protection," and deeming the redistricting effort " one for incumbency protection first, last, alpha, and omega" ); id. at 27 (opponent of the 2012 Plan suggesting that Delegate Janis used incumbency protection as a permissive redistricting criteria). The Supreme Court has made it clear, however, that the views of legislative opponents carry little legal weight in characterizing legislation. See, e.g., Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 29, 109 S.Ct. 278, 102 L.Ed.2d 186 (1998) (" The fears and doubts of the opposition are no authoritative guide to the construction of legislation." ); see also N.L.R.B. v. Fruit & Vegetable Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964)(" [W]e have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach." ); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95, 71 S.Ct. 745, 95 L.Ed. 1035, 60 Ohio Law Abs. 81 (1951) (" It is the sponsors that we look to when the meaning of the statutory words is in doubt." ). The rationale for this authority is patent: a bill's opponents have every incentive to place a competing label on a statute they find objectionable.

Defendants and the dissent are inarguably correct that partisan political considerations, as well as a desire to protect incumbents, played a role in drawing district lines. It would be remarkable if they did not. However, in a " mixed motive suit" --in which a state's conceded goal of " produc[ing] majority-minority districts" is accompanied by " other goals, particularly incumbency protection" --race can be a predominant factor in the drawing of a district without the districting revisions being " purely race-based." [18] Bush, 517 U.S. at 959. Indeed, the Supreme Court has observed that " partisan politicking" may often play a role in a state's redistricting process, but the fact " [t]hat the legislature addressed these interests [need] not in any way refute the fact that race was the legislature's predominant consideration." Shaw II, 517 U.S. at 907.

The dissent's attempts to analogize this case to Cromartie II are unavailing. Cromartie II involved a challenged district in which " racial identification correlate[d] highly with political affiliation," 532 U.S. at 258, and the plaintiffs were ultimately unable to show that " the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional

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districting principles" because the challenged redistricting plan furthered the race-neutral political goal of incumbency protection to the same extent as it increased the proportion of minorities within the district, id.

While it may be true, as the dissent observes, that Democratic votes in the Third Congressional District, and presumably many similarly-situated districts, " can generally be predicted simply by taking the BVAP of a VTD and adding about 21 percentage points," [19] post at 26, the evidence of political justification for the redistricting at issue in Cromartie II is quite different than that presented in this case. In Cromartie II, there was overwhelming evidence in the record " articulat[ing] a legitimate political explanation for [the state's] districting decision," 532 U.S. at 242, including unequivocal trial testimony by state legislators. While Defendants have offered post-hoc political justifications for the 2012 Plan in their briefs, neither the legislative history as a whole, nor the circumstantial evidence, support that view to the extent they suggest.

For example, Defendants point to a rather ambiguous statement by Delegate Janis that one goal of the 2012 Plan was to " respect . . . the will of the Virginia electorate." (Post-Trial Br. Int.-Def.'s and Def.'s at 11-12, ECF No. 106 (citing Pl's. Trial Ex. 43, at 19)). Taken in context, however, it is clear that this goal was " permissive" and subordinate to the mandatory criteria of compliance with the VRA and satisfaction of the one-person-one-vote rule. See Pl's. Trial Ex. 43, at 18-19. In support of the argument that political concerns trumped racial ones, the dissent points to Delegate Janis's remarks that incumbent legislators confirmed their satisfaction with the lines of their respective congressional districts. See id. at 5-6. It is undisputed, however, that the incumbents were not shown the entire 2012 Plan when they were solicited for their input, but were instead shown only the proposed changes to the lines of their individual districts. See Int.-Def.'s Trial Ex. 9, at 9. Delegate Janis testified that he had not asked any congressional representatives " if any of them supported the [redistricting] plan in its totality," or " [spoken] with anyone who plan[ned] to run against those incumbents" regarding the redistricting plan. Id. at 13-14. Delegate Janis stated: " I haven't looked at the partisan performance. It was not one of the factors that I considered in the drawing of the district." Id. at 14.

Finally, the nature of the population swaps and shifts used to create the Third Congressional District suggests that less was done to further the goal of incumbency protection than to increase the proportion of minorities within the district. " [A]mong the pool of available VTDs that could have been placed within the Third Congressional District that were highly Democratic performing," those with a higher BVAP were placed within the Third Congressional District, and those VTDs that were largely white and Democratic were left out, and instead shifted into the

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Second Congressional District.[20] Trial Tr. 89.

The record before us presents a picture similar to that in Shaw II, in which the Supreme Court found the evidence sufficient to trigger strict scrutiny:

First, the District Court had evidence of the district's shape and demographics. The court observed the obvious fact that the district's shape is highly irregular and geographically non-compact by any objective standard that can be conceived. In fact, the serpentine district has been dubbed the least geographically compact district in the Nation.
The District Court also had direct evidence of the legislature's objective. The State's submission for preclearance expressly acknowledged that [the] overriding purpose was to comply with the dictates of [the DOJ] and to create two congressional districts with effective black voting majorities.

Shaw II, 517 U.S. at 905-06 (internal quotation marks omitted). As we noted earlier, we do not find the dissent's attempts to distinguish Shaw II from the case at hand persuasive. As an initial matter, it is irrelevant that the challenged district in Shaw II was not only the least compact in the state, as is the Third Congressional District, but also the least compact district in the nation. Irregularities in shape need not be so extreme as to make the district an outlier nationwide; courts simply consider a " highly irregular and geographically non-compact" shape evidence of the predominance of race. Id. at 905-06. As the least compact and most bizarrely shaped district in the 2012 Plan, the Third Congressional District displays such characteristics. And again, we see no reason why it should make a difference whether Defendants' " explicit and repeated admissions," post at 42, of the predominance of race were made in the course of hearings on the House of Delegates floor, as here, or in the ...


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