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Vesilind v. Virginia State Board of Elections

Supreme Court of Virginia

May 31, 2018





         In this appeal, we consider whether the circuit court erred in confirming the constitutional validity of Virginia General Assembly legislative districts that were allegedly drawn in violation of the compactness requirement expressed in Article II, § 6 of the Constitution of Virginia.

         Procedural Background

         On September 14, 2015, Rima Ford Vesilind and 13 other "citizens of the Commonwealth of Virginia, who live in legislative districts that are alleged to have been drawn in violation of the compactness requirement" contained in Article II, § 6 of the Constitution of Virginia (Challengers), filed a complaint in the Circuit Court of the City of Richmond against the Virginia State Board of Elections (VSBE) and several officers of the VSBE, in their official capacities (collectively, the Board). The complaint sought a declaratory judgment that the "State House of Delegates and Senate districting plans, and specifically House of Delegates districts 13, 22, 48, 72, and 88, and Senate districts 19, 21, 28, 29, 30, and 37 [(the Challenged Districts)] violate the Constitution of the Commonwealth of Virginia, " as those districts were drawn in the 2011 redistricting plan (Enacted Plan or 2011 Plan) adopted by the General Assembly. The districts in the 2011 Plan were established in H.B. 5005, Va. Gen. Assem. (Spec. Sess. 2011), which was codified in Code § 24.2-303.3 (Senate districts) and Code § 24.2-304.03 (House districts).

         In their complaint, the Challengers state that legislative districts must be drawn so as to comport with certain mandatory requirements. The requirements include those in Article II, § 6 of the Constitution of Virginia, which provides that legislative districts "shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district, " as well as federal requirements of "one person, one vote" and the Voting Rights Act, 52 U.S.C. § 10101 et seq. (VRA).[1] The complaint asserts that "[w]hile the legislature may consider other rational public policy considerations, the mandates of the United States and Virginia Constitutions can never be subordinated to those considerations."

         The Challengers allege that the General Assembly "subordinated" the mandatory compactness requirement to other public policy considerations, and ignored compactness in favor of "nonconstitutional considerations, " such as "favor[ing] partisan interests" and "protect[ing] particular incumbent[s], " "with the result that the Challenged Districts are not within any acceptable objective measures of compactness." They claim that "when the General Assembly drew the 2011 House and Senate district plans . . . it did not make a good-faith effort to draw compact districts and . . . numerous districts in the adopted plans are not in fact compact as required by the Virginia Constitution."

         In their complaint, the Challengers contend that "[a]s measured by quantitative and qualitative tests, objective and reasonable persons could not reach any conclusion but that the Challenged Districts do not meet the Virginia Constitution's compactness requirement." Accordingly, they request a judgment declaring the Challenged Districts, and thus the 2011 Plan, in violation of the Constitution of Virginia.

         On October 21, 2015, the circuit court entered a consent order permitting the Virginia House of Delegates and the Honorable William J. Howell, then the Speaker of the House of Delegates (the House), to intervene as defendants.[2] The Board and the House filed answers and defenses, denying that the Challenged Districts were constitutionally infirm.

         The case subsequently proceeded to a three-day bench trial beginning on March 13, 2017. The Challengers, the Board, and the House presented evidence.

         On March 31, 2017, the circuit court issued its final order and opinion. Weighing the evidence on both sides, the circuit court concluded that the evidence would "lead reasonable and objective people to differ, " as to whether the Challenged Districts were compact, and so it was "fairly debatable" whether the Challenged Districts violated the compactness requirement expressed in Article II, § 6. Therefore, the circuit court denied the Challengers' request that the Challenged Districts be declared to be in violation of the Constitution of Virginia.

         The Challengers appeal, asserting that the circuit court erred by finding that the evidence produced at trial sufficed to make the constitutionality of the General Assembly's redistricting decision, regarding the compactness of the Challenged Districts, fairly debatable.


         A. Evidence Provided by the Challengers

         The Challengers presented two witnesses, Nicholas Mueller (Mueller) and Dr. Michael McDonald (Dr. McDonald). First, Mueller testified that he used software called Maptitude "under [Dr. McDonald's] direction to draw [the] alternate [Virginia legislative district] maps" to compare against the 2011 Plan and the Challenged Districts.

         Mueller stated that the goal of the "Alternative Plan 1" House and Senate maps he created was to "make the [alternative legislative] districts as compact as possible, " while "preserv[ing] the majority/minority [VRA] districts exactly as they are in the current plan, " and also meeting the continuity and "same equal population" criteria mandated by federal and state law.

         Mueller also created "Alternative Plan 2" House and Senate maps at Dr. McDonald's direction. Alternative Plan 2 kept the VRA districts unchanged and has contiguous districts with the same equal population criteria, but it also incorporates two discretionary criteria: (1) refraining from splitting political subdivisions and voting districts, and (2) refraining from pairing incumbents to the extent possible. Mueller authenticated the materials he produced.

         Thereafter, Dr. McDonald was presented as an expert in redistricting. He testified that he has been consulting for political redistricting matters in 14 states since the 1980s. Dr. McDonald testified that he was asked to determine if priority was given to the constitutional requirement of compactness in the Challenged Districts or whether other discretionary criteria, not mandated by federal or state law, predominated over compactness. He explained that "Required Criteria" means those criteria required by the federal Constitution, Constitution of Virginia, or the VRA, and "Discretionary Criteria" refers to all other criteria that the legislature could conceivably have considered in drawing the districts.

         Dr. McDonald testified about his methodology for measuring constitutional compactness and his conclusions. He explained that he chose the Reock, Polsby-Popper, and Schwartzberg scores to measure compactness of the legislative districts because Virginia measures compactness based on spatial parameters, rather than population-based parameters, and because the Office of the Attorney General of Virginia used all three measures in its report to the Department of Justice under Section 5 of the VRA.[3] He stated that he directed Mueller to produce compactness scores for the alternative map districts so that those scores could be compared to the compactness scores of the districts in the 2011 Plan maps.

         Dr. McDonald stated that in contemplating how to approach this case, he "struck upon this idea that we could use predominance" to demonstrate how compactness had been subordinated to discretionary criteria. He theorized that predominance could be proven by determining if the compactness of an ideally compact district (such as in Alternative Plan 1) was reduced by more than 50 percent when discretionary criteria were considered in redrawing that ideally compact district. He concluded that if the compactness score was reduced more than 50 percent when discretionary criteria were considered, then it "must be that [the] discretionary criteria had predominated over the state constitutional requirement of compactness."

         Dr. McDonald's Alternative Plan 1 did not simply maximize compactness in the Challenged Districts, but tried "to maximize the compactness of all the districts, " because changing the borders of one district has a "ripple effect" for other districts. Alternative Plan 2 was developed to "show how the legislature could pursue other discretionary goals . . . without failing that predominance test, " and Dr. McDonald selected the two discretionary criteria of not splitting counties, cities, and voting districts and pairing incumbents because they "were easily measurable."

         Dr. McDonald testified regarding each of the Challenged Districts that the degradation in compactness between the Enacted Plan and Alternative Plan 1 compactness scores was more than 50 percent, and so he opined that "discretionary criteria predominated over the constitutional requirement of compactness" in each of the Challenged Districts.

         For example, he compared maps of House District (HD) 72 as enacted and as designated in Alternative Plan 1, and compared the composite average of the Reock, Polsby-Popper, and Schwartzberg measures for the enacted version of HD 72 and for the HD 72 in Alternative Plan 1. Based on his comparisons, he explained:

the degradation is the composite score [of the alternative plan], .71, minus the composite score of .21 [of the enacted district], that difference, and then it's divided through by the composite score, .71. It tells us what percentage decrease that we had in the composite score from Alternative Plan 1 to the current plan. And here we see that the degradation was 70.42 percent, and that's above 50 percent. And so my opinion, then, is that for this district, that discretionary criteria predominated over the state constitutional requirement of compactness.[4]

         Dr. McDonald found that there was "only a degradation of 19.72 percent . . . in terms of compactness" for HD 72 between Alternative Plan 1 and Alternative Plan 2, which showed "an attempt to draw districts that are going to conform to local political boundaries that will respect voting precincts and will attempt to minimize the pairing of incumbents."

         Dr. McDonald did not apply his predominance test to VRA districts, because "[t]hose are districts where there are other considerations that are at play, and the test that we have devised is one that can only be applied to nonvoting rights districts." He stated that those considerations "are not present in any of the [C]hallenged [D]istricts except for House District 72, " which shares a small border with a VRA district in the Enacted Plan, but not in Alternative Plan 1.

         Dr. McDonald acknowledged that there was "no universal measure of what constitutes the best measure for compact districts, " and that "[i]n the social science community, there's no threshold for when a district is compact or noncompact" using these measures. He stated that a difference of 0.01 or 0.02 in compactness scores, and even a difference of 0.03, was not "a large difference." On cross-examination, he conceded that he had not previously used or published the predominance test, and was not aware of another expert, court opinion, or state using the "predominance test" that he used to develop degradation percentages regarding compactness of the legislative districts.

         B. Stipulations

         The parties stipulated to the number of counties, cities, and precincts split in the 2001 and 2011 redistricting plans, as well as in Alternative Plans 1 and 2 developed by Dr. McDonald. They stipulated to the compactness scores for the 2001 and 2011 redistricting plans, as well as the scores for the districts in Dr. McDonald's Alternative Plans 1 and 2. They also stipulated to the Reock, Polsby-Popper, and Schwartzberg compactness scores of the districts challenged in Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180 (1992), and Wilkins v. West, 264 Va. 447, 571 S.E.2d 100 (2002), because the scores were not reported in those opinions. Based on these scores as stipulated, the lowest Reock score in the relevant legislative districts was 0.12 in Jamerson and 0.16 in Wilkins, and the lowest Polsby-Popper score in both cases was 0.10. For the Challenged Districts, the lowest Reock score was 0.15 (SD 28), and the lowest Polsby-Popper score ...

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