RIMA FORD VESILIND, ET AL.
VIRGINIA STATE BOARD OF ELECTIONS, ET AL.
THE CIRCUIT COURT OF THE CITY OF RICHMOND W. Reilly Marchant,
BERNARD GOODWYN JUSTICE.
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.
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).
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). 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."
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
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.
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. The Board and the
House filed answers and defenses, denying that the Challenged
Districts were constitutionally infirm.
case subsequently proceeded to a three-day bench trial
beginning on March 13, 2017. The Challengers, the Board, and
the House presented evidence.
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.
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.
Evidence Provided by the Challengers
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.
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.
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.
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.
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. 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.
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."
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."
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.
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.
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
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.
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
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 ...