United States District Court, E.D. Virginia, Richmond Division
Arenda
L. Wright Allen, United States District Judge.
MEMORANDUM OPINION
BARBARA MILANO KEENAN, Circuit Judge.
The
plaintiffs, 12 Virginia registered voters, filed this civil
action in 2014, alleging racial gerrymandering in violation
of the Equal Protection Clause of the Fourteenth Amendment.
Dkt. No. 1; Am. Compl. ¶¶ 1, 7-18. They contend
that the Virginia General Assembly (the legislature)
predominantly relied on race in constructing 12
majority-black Virginia House of Delegates districts during
the 2011 redistricting cycle. Am. Compl. ¶¶ 1-2.
According to the plaintiffs, the legislature required each of
these districts to achieve a minimum 55% black voting age
population (BVAP), which BVAP requirement was not necessary
for black voters to elect their preferred candidates under
the mandate of the Voting Rights Act of 1965 (VRA), 52 U.S.C.
§ 10101 through § 10702. Am. Compl. ¶¶
2-3; 1st Trial Tr. at 5.
After
holding a bench trial in 2015, this Court issued a divided
opinion upholding the redistricting plan. See
Bethune-Hill v. Va. State Bd. of Elections, 141
F.Supp.3d 505 (E.D. Va. 2015). The United States Supreme
Court affirmed this Court's decision regarding one
district, but remanded for reconsideration of the question
whether race was used as the predominant factor in drawing
the 11 remaining districts. See Bethune-Hill v. Va. State
Bd. of Elections, 137 S.Ct. 788 (2017). After a second
trial, and upon our consideration of the evidence presented
at both trials, we hold that the plaintiffs have shown
through telling direct and circumstantial evidence that race
predominated over traditional districting factors in the
construction of the 11 remaining challenged districts. We
further hold that the intervenors have not satisfied their
burden to show that the legislature's use of race was
narrowly tailored to achieve the compelling state interest of
compliance with Section 5 of the VRA, 52 U.S.C. § 10304.
I.
We
begin with an overview of the procedural history of this
case.[1] Following the 2010 decennial census, the
legislature redrew the 100 Virginia House of Delegates
districts to take effect beginning with the 2011 election
cycle.[2] Bethune-Hill, 137 S.Ct. at 795;
see Pl. Ex. 65. Delegate Steven Christopher
Jones[3] was the chief patron of House Bill 5005,
which set forth the re-drawn districts (the 2011 plan, or the
2011 map). Pl. Ex. 48 at 10-12; 1st Trial Tr. at 316, 376-77,
395.
Jones
was the chair of the House Committee on Privileges and
Elections, and coordinated public meetings throughout the
state regarding the 2011 redistricting process. Pl. Ex. 48 at
3, 6; 2nd Trial Tr. at 112. In this role, Jones also was the
primary architect of the 2011 plan. 1st Trial Tr. at 397. To
construct the map, Jones and others used
“Maptitude” software to move census blocks and
voting tabulation districts (VTDs) in and out of the proposed
House of Delegates districts.[4] 1st Trial Tr. at 274; 2nd Trial
Tr. at 36, 61. Maptitude reflected the demographic changes in
each district resulting from the alterations of proposed
boundary lines. 1st Trial Tr. at 40. The software also was
available for the use of other legislators on computers
located in the legislature's Division of Legislative
Services office. 1st Trial Tr. at 33, 40, 420, 444.
To
achieve population equality among the districts as required
by the United States Constitution, the legislature determined
that each House of Delegates district was required to have
80, 000 residents, with a maximum population deviation of
plus or minus one percent.[5] Pl. Ex. 16 at 1; 1st Trial Tr. at 29,
70; see also Bethune-Hill, 137 S.Ct. at 795. Both
the 2001 and 2011 districting plans included 12 districts in
which black residents constituted a majority of the
districts' voting-age population (the majority-minority
districts, or the challenged districts).[6]
Bethune-Hill, 137 S.Ct. at 795. These districts were
located in four distinct areas of the state: the greater
Richmond/Tri-City region, the Southside area located along
the North Carolina border, North Hampton Roads (the
peninsula), including the cities of Newport News and Hampton,
and, finally, South Hampton Roads, including the cities of
Norfolk, Chesapeake, and surrounding areas. Pl. Ex. 50 at 69;
Pl. Ex. 69 at 9, 41; DI Ex. 94; 1st Trial Tr. at 319. At the
time of the 2010 census, the BVAP levels in the 12
majority-minority districts ranged from between 46.3% and
62.7%. Id.; Pl. Ex. 50 at 72. Because most of the 12
districts were underpopulated according to the 80, 000-person
population requirement, “any new plan required moving
significant numbers of new voters into these districts in
order to comply with the principle of one person, one
vote.” Id.
Under
Section 5 of the VRA, 52 U.S.C. § 10304, then-applicable
to Virginia's redistricting efforts, any new plan was
barred from “diminish[ing] the number of districts
[compared to the prior plan] in which minority groups can
‘elect their preferred candidates of choice' (often
called ‘ability-to-elect' districts).”
Bethune-Hill, 137 S.Ct. at 795 (quoting Harris
v. Ariz. Indep. Redistricting Comm'n, 136 S.Ct.
1301, 1307 (2016)). Section 5 thus mandated that covered
states “maintain a minority's ability to elect a
preferred candidate of choice.” Ala. Legislative
Black Caucus v. Alabama, 135 S.Ct. 1257, 1272 (2015).
To
comply with this “non-retrogression” requirement,
the legislature determined that all 12 majority-minority
districts were required to have a minimum 55% BVAP in the
2011 plan. Bethune-Hill, 137 S.Ct. at 795.
Imposition of this racial threshold necessitated an increase
in the BVAP in three districts, which had BVAP levels below
55% at the time of the 2010 census. Pl. Ex. 50 at 72. The
selection of the 55% BVAP figure was based on Jones'
assessment of the needs of District 75, a rural
majority-minority district located along the state's
southern border. Id. at 796; DI Ex. 94 at 7. The
legislature also applied the 55% BVAP requirement to the
remaining 11 majority-minority districts. Id.
In
April 2011, the legislature passed House Bill 5005 with broad
bipartisan support, as well as support from a majority of the
black members of the House of Delegates (the black caucus).
Id. After Governor Robert McDonnell signed the bill
into law, the United States Department of Justice
“precleared” the plan in accordance with Section
5 of the VRA.[7] Id.; Pl. Ex. 48 at 10-12; see
infra note 12 (discussion of Section 5 preclearance).
In
2014, the plaintiffs, registered voters in the 12
majority-minority districts, filed the present civil action
against the Virginia State Board of Elections and some of its
officials (the state defendants).[8] See Dkt. No. 1; Am.
Compl. ¶¶ 7-22. The plaintiffs challenged their
districts of residence[9] as racial gerrymanders in violation of the
Equal Protection Clause. Id.; Am. Compl.
¶¶ 1-2. They sought declaratory and injunctive
relief prohibiting the state from holding further elections
based on the unconstitutional districts. Am. Compl. at 17.
The initial three-judge district court, as well as the
present three-judge panel, were constituted pursuant to 28
U.S.C. § 2284(a).[10] Dkt. No. 11; see also Am.
Compl. ¶ 24.
Shortly
after the complaint was filed, the Virginia House of
Delegates and its speaker, Delegate William J. Howell (the
intervenors), who were the “parties that drew and
enacted the redistricting plan at issue, ” filed a
motion to intervene. Dkt. No. 13 at 2. We granted the motion.
Dkt. No. 26. Since that time, the intervenors have borne the
primary responsibility of defending the 2011 plan, with the
state defendants joining the intervenors' defense but
declining to present an independent substantive defense. 1st
Trial Tr. at 12-13, 830; 2nd Trial Tr. at 23-24. For ease of
reference, we will refer to the state defendants and the
intervenors collectively as “the intervenors.”
Following
a bench trial in July 2015 (the first trial), a majority of
this Court found that race was not the predominant factor
used in the construction of 11 of the 12 challenged
districts. Bethune-Hill, 141 F.Supp.3d at 505,
510-11. In reaching this conclusion, the majority found that
the plaintiffs had not shown that the legislature's use
of race was in “actual conflict” with
traditional, race-neutral districting criteria. Id.
at 524, 553-55, 559-71 (citation omitted). With respect to
District 75, however, the Court found that race had
predominated, but that the legislature's use of race was
narrowly tailored to achieve the compelling state interest of
compliance with the VRA. Id. at 511. Judge Keenan
filed a separate dissenting opinion, concluding that by
applying a mechanical 55% BVAP quota across the board to all
12 challenged districts, race predominated over other
districting criteria as a matter of law. Id. at 572
(Keenan, J., dissenting).
The
Supreme Court affirmed this Court's holding that District
75 satisfied strict scrutiny, concluding that Jones had
engaged in an adequate “functional analysis” of
the BVAP level necessary to avoid retrogression in that
district. Bethune-Hill, 137 S.Ct. at 801. However,
the Court disagreed with the majority's predominance
analysis in the other 11 districts. The Court held that the
plaintiffs were not required to show “actual
conflict” between race and traditional districting
criteria to prove predominance. Id. at 797-98. The
Court further explained that “there may be cases where
challengers will be able to establish racial predominance in
the absence of an actual conflict by presenting direct
evidence of the legislative purpose and intent or other
compelling circumstantial evidence, ” considering the
district as a whole. Id. at 799-800. Accordingly,
the Supreme Court remanded the case to this Court for
reconsideration of the question of predominance under the
proper standard. Id. at 800.
On
remand, we instructed the parties to file briefs regarding
the impact of the Supreme Court's decision on this case,
the continued viability of our prior factual findings, and
the need for additional evidence to be presented. Dkt. No.
136. After considering the parties' positions, we held a
four-day bench trial in October 2017 (the second trial), in
which the plaintiffs and the intervenors presented
substantial new evidence. Dkt. No. 224. Most relevant here,
the plaintiffs offered the testimony of two new expert
witnesses, and the intervenors presented a redistricting
consultant who testified that he had played a significant
role in drawing the 2011 plan. See infra discussions
of testimony of Jonathan Rodden, Maxwell Palmer, and John
Morgan. The parties also submitted extensive briefing
following the second trial. Dkt. No. 230-33.
We now
proceed to discuss the relevant legal principles, to consider
the evidence presented at both trials, to make relevant
credibility determinations, and to apply the Supreme
Court's instructions to these factual findings.
II.
Under
the Equal Protection Clause, a legislature may not
“separate its citizens into different voting districts
on the basis of race, ” without satisfying the rigorous
requirements of strict scrutiny. Miller v. Johnson,
515 U.S. 900, 911, 916, 920 (1995). The harm from such racial
sorting is apparent. By assigning voters to districts based
on race, a state “engages in the offensive and
demeaning assumption that voters of a particular race,
because of their race, think alike, share the same political
interests, and will prefer the same candidates at the
polls.” Id. at 911-12 (internal quotation
marks omitted) (quoting Shaw v. Reno, 509 U.S. 630,
647 (1993)); see also Bethune-Hill, 137 S.Ct. at 797
(explaining that harm from racial sorting “include[s]
being personally subjected to a racial classification as well
as being represented by a legislator who believes his primary
obligation is to represent only the members of a particular
racial group” (citation omitted)).
Nevertheless,
legislatures often act with a “consciousness of
race” in their redistricting decisions, and can do so
without subjecting their actions to strict scrutiny. Bush
v. Vera, 517 U.S. 952, 958 (1996) (principal opinion of
O'Connor, J.). In assessing a claim of racial
gerrymandering, courts “must be sensitive to the
complex interplay of forces that enter a legislature's
redistricting calculus.” Abbott v. Perez, No.
17-586, slip op. at 21 (U.S. June 25, 2018) (quoting
Miller, 515 U.S. at 915-16). Accordingly, a
plaintiff alleging a racial gerrymandering claim bears the
burden “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.” Bethune-Hill, 137 S.Ct.
at 797 (quoting Miller, 515 U.S. at 916).
Race is
the “predominant factor” in a redistricting
decision when the legislature “subordinate[s]
traditional race-neutral districting principles to racial
considerations.” Alabama, 135 S.Ct. at 1270
(emphasis and alterations omitted). Although the application
of a mandatory BVAP requirement for a district does not alone
compel the conclusion that race predominated, see
generally Bethune-Hill, 137 S.Ct. 788, such a
requirement is evidence of the manner in which the
legislature used race in drawing the district's
boundaries, see Id. at 800; Alabama, 135
S.Ct. at 1267.
For
example, if a legislature made line-drawing decisions for the
predominant purpose of complying with such a BVAP
requirement, and the evidence shows that these race-based
decisions dwarfed any independent consideration of
traditional districting criteria, a court could conclude that
the legislature “relied on race in substantial
disregard of customary and traditional districting
practices.” Miller, 515 U.S. at 928
(O'Connor, J., concurring). Under such circumstances, a
court could conclude that race was the predominant factor in
the construction of the district, because “[r]ace was
the criterion that, in the State's view, could not be
compromised, ” and the state applied traditional
districting criteria “only after the race-based
decision had been made.” Shaw v. Hunt, 517
U.S. 899, 907 (1996) (Shaw II); see also
Alabama, 135 S.Ct. at 1267 (explaining that when state
“expressly adopted and applied a policy of prioritizing
mechanical racial targets above all other districting
criteria, ” this use of a racial target “provides
evidence that race motivated the drawing of particular
lines”).
As set
forth by the Supreme Court, traditional districting criteria
include “compactness, contiguity, respect for political
subdivisions or communities defined by actual shared
interests, incumbency protection, and political
affiliation.” Alabama, 135 S.Ct. at 1270
(citations and internal quotation marks omitted). Notably,
however, the objective of achieving population equality is
not a traditional districting factor, as the requirement of
equal population is a “background rule against which
redistricting takes place.” Id. at 1270-71.
Instead, “the ‘predominance' question
concerns which voters the legislature decides to
choose, and specifically whether the legislature
predominately uses race as opposed to other,
‘traditional' factors when” moving voters for
the purpose of equalizing population in a given district.
Id. at 1271.
Contiguity,
a description of geographical connectedness within a
district, and compactness, a measure of the regularity of the
shape of a district, are traditional districting criteria
that also are required by the Virginia Constitution. Va.
Const. art. 2, § 6; see Shaw II, 517 U.S. at
905-06 (explaining that shape of a district that is
“highly irregular and geographically non-compact by any
objective standard” is evidence of racial
predominance); Page v. Va. State Bd. of Elections,
No. 3:13cv678, 2015 WL 3604029, at *10-11, 15 (E.D. Va. June
5, 2015); Wilkins v. West, 571 S.E.2d 100, 109-10
(Va. 2002). Voters residing in a geographically compact
district, or in a common political subdivision, are more
likely than voters who are more geographically dispersed to
share similar interests that can be represented by a common
legislator. Similarly, a district that is drawn with some
consideration of “communities of interest” links
voters who share a “common thread of relevant
interests, ” including political, social, or economic
interests. Miller, 515 U.S. at 919-20; see also
Bush, 517 U.S. at 964 (principal opinion of
O'Connor, J.) (communities of interest may share media
outlets, public transportation, and educational and religious
institutions).
Because
the Equal Protection Clause “prohibits unjustified
racial classifications” and not “misshapen
districts, ” the Supreme Court has held that “a
conflict or inconsistency” between a districting plan
and traditional districting criteria is not required to
establish predominance. Bethune-Hill, 137 S.Ct. at
798-99. Thus, although such a conflict or inconsistency may
constitute “persuasive circumstantial evidence”
of racial predominance, traditional districting criteria
still may be subordinated to race without such “actual
conflict.” Id. at 799. Under a contrary rule,
“a State could construct a plethora of potential maps
that look consistent with traditional, race-neutral
principles, ” while still using “race for its own
sake [as] the overriding reason” for choosing the
boundaries of the districts. Id.
For
similar reasons, if a legislature uses race as a proxy for a
legitimate districting criterion, such as partisan advantage
or protection of incumbents, [11] this consideration of race
likewise is subject to strict scrutiny. Bush, 517
U.S. at 968-73 (principal opinion of O'Connor, J.). Using
race in the service of a legitimate goal does not alter the
underlying fact that the legislature has selected voters for
inclusion in a district based on race. See Id. at
972 (“[T]he fact that racial data were used in complex
ways, and for multiple objectives, does not mean that race
did not predominate over other considerations.”).
Accordingly, when a state asserts that it drew district lines
on the basis of partisanship rather than race, we must
conduct “a sensitive inquiry into all circumstantial
and direct evidence of intent” to determine whether the
plaintiffs have “disentangle[d] race from politics and
prove[n] that the former drove a district's lines.”
Cooper v. Harris, 137 S.Ct. 1455, 1473 & n.7
(2017) (citation and internal quotation marks omitted).
Our
predominance inquiry requires a “holistic
analysis” that involves consideration of the
“districtwide context” to determine “the
legislature's predominant motive for the design of the
district as a whole.” Bethune-Hill,
137 S.Ct. at 800 (emphasis added). In conducting this
inquiry, we must determine “the actual considerations
that provided the essential basis for the lines drawn,
” and will disregard “post hoc justifications the
legislature in theory could have used but in reality did
not.” Id. at 799 (emphasis omitted). Our
consideration of the legislature's true motivations in
drawing the districts is highly fact-specific, and involves
numerous credibility findings based on our assessment of the
testimony presented at trial. See Cooper, 137 S.Ct.
at 1473-78.
If a
plaintiff makes a sufficient showing of racial predominance,
the burden shifts to the state to satisfy the requirements of
strict scrutiny, namely, that the use of race was narrowly
tailored to achieve a compelling state interest.
Bethune-Hill, 137 S.Ct. at 800-01 (citing
Miller, 515 U.S. at 920). In the present case, the
intervenors have asserted that compliance with Section 5 of
the VRA, 52 U.S.C. § 10304, is a compelling state
interest justifying the predominant use of race in the 2011
plan. See DI Post-Trial Br. at 29-32. Section 5
“prohibits a covered jurisdiction[12] from adopting
any change that ‘has the purpose of or will have the
effect of diminishing the ability of [the minority group] to
elect their preferred candidates of choice.'”
Alabama, 135 S.Ct. at 1272 (quoting 52 U.S.C. §
10304(b)). Like the Supreme Court, upon a finding of racial
predominance, we will assume without deciding that compliance
with Section 5 is a compelling state interest, and will focus
our analysis on the question whether the legislature's
reliance on race was narrowly tailored to achieving that
interest. See, e.g., Bethune-Hill, 137
S.Ct. at 801; Alabama, 135 S.Ct. at 1272-74.
To
satisfy the narrow tailoring prong of strict scrutiny, a
state must show that it had a “strong basis in
evidence” supporting its race-based decision.
Alabama, 135 S.Ct. at 1274 (citation omitted). Under
this standard, a state need not make a precisely accurate
determination of the BVAP percentage required to satisfy the
mandate of Section 5 in a particular district. Id.
at 1273. Instead, the state must show that it had “good
reasons to believe” that its use of race was required
under Section 5, even if a court later determines that the
state's action was not in fact necessary to comply with
the statute. Id. at 1274 (emphasis and citation
omitted).
Notably,
Section 5 “does not require a covered jurisdiction to
maintain a particular numerical minority percentage” in
a district. Id. at 1272. Instead, Section 5 imposes
a “non-retrogression” standard, which requires
the state “to maintain a minority's ability to
elect a preferred candidate of choice.” Id. at
1272-73. To achieve this goal, a state should not rely on a
“mechanically numerical view as to what counts as
forbidden retrogression, ” but should adopt a
“purpose-oriented view” that asks simply whether
a redistricting plan maintains a minority group's ability
to elect its preferred candidate. Id. at 1273-74.
With
these principles in mind, we turn to consider whether the
evidence presented at the two trials in this case supports a
finding that race was the predominant factor in the
construction of the 11 remaining challenged districts. Upon a
finding that race predominated, we will consider whether the
state had a “strong basis in evidence” for its
race-based decisions. Id. at 1274.
III.
In
accordance with the Supreme Court's instruction that we
employ a “holistic analysis” in determining the
legislature's predominant motive, Bethune-Hill,
137 S.Ct. at 800, we begin by reviewing the evidence of
racial motive in the plan as a whole, see
Alabama, 135 S.Ct. at 1267-68. Although statewide
evidence is not dispositive with respect to predominance in
any given district, “[s]uch evidence is perfectly
relevant” to our evaluation whether the plaintiffs have
satisfied their burden of showing “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.”
Id. at 1267 (quoting Miller, 515 U.S. at
916).
A.
Two
factual matters presented in the prior proceedings are
relevant to our predominance analysis. First, the intervenors
conceded in the first trial that the legislature was required
to consider, and did consider, race in its redistricting
decisions in order to comply with the VRA. 1st Trial Tr. at
403, 405. Consistent with this admission, the House Committee
on Privileges and Elections adopted a resolution (the House
resolution) listing several written criteria to guide the
redistricting process. See Pl. Ex. 16.
The
primary criterion of “population equality”
mandated that each district “be as nearly equal to the
population of every other district as is practicable, ”
with population deviations in the House districts within
plus-or-minus one percent. Pl. Ex. 16 ¶ I. After
population equality, the House resolution listed the
“Voting Rights Act” as the second criterion, and
provided as follows:
Districts shall be drawn in accordance with the laws of the
United States and the Commonwealth of Virginia including
compliance with protections against the unwarranted
retrogression or dilution of racial or ethnic minority voting
strength. Nothing in these guidelines shall be construed to
require or permit any districting policy or action that is
contrary to the United States Constitution or the Voting
Rights Act of 1965.
Pl. Ex. 16 ¶ II. The House resolution also enumerated
other, less important criteria, including contiguity and
compactness, single-member districts, and communities of
interest. Pl. Ex. 16 ¶¶ III-VI; see also
1st Trial Tr. at 402-03. The House resolution further
emphasized that population equality and compliance with
federal and state law, and the VRA in particular,
“shall be given priority in the event of conflict among
the criteria.” Pl. Ex. 16 ¶ VI.
A
second factual matter also is now settled, namely, that the
legislature employed a 55% BVAP threshold in drawing each of
the challenged districts. The fact that there was a 55% BVAP
requirement is contrary to the position that the intervenors
maintained at the first trial. 1st Trial Tr. at 20, 280-81,
406, 409, 860. In this Court's first opinion, we
described the parties' dispute regarding the fixed or
aspirational nature of the 55% number, but ultimately found
that “the 55% BVAP figure was used in structuring the
districts, ” Bethune-Hill, 141 F.Supp.3d at
519, a conclusion that was affirmed by the Supreme Court,
see Bethune-Hill, 137 S.Ct. at 794 (“[T]he
boundary lines for the 12 districts at issue were drawn with
a goal of ensuring that each district would have a [BVAP] of
at least 55%.”); see also Dissent Op. at 118
(“It is undisputed that race was considered, and it is
established that a 55% BVAP rule was employed.”). Upon
our review of the record of both trials, showing that the
legislature achieved a 55% minimum BVAP in each district by
drawing boundaries based on that threshold, we now find as a
matter of fact that the legislature employed a mandatory 55%
BVAP floor in constructing all 12 challenged
districts.[13]
Although
the existence of the 55% threshold is not dispositive of the
question of predominance, see generally
Bethune-Hill, 137 S.Ct. 788, the fixed BVAP requirement
nevertheless is evidence of the legislature's motive,
see Id. at 800; Alabama, 135 S.Ct. at 1267
(“That Alabama expressly adopted and applied a policy
of prioritizing mechanical racial targets above all other
districting criteria (save one-person, one-vote) provides
evidence that race motivated the drawing of particular lines
in multiple districts in the State.”). Moreover, race
may predominate in the drawing of a particular legislative
district even if that district begins with a BVAP over 55%,
or if particular district lines were not necessary to achieve
the 55% figure. See, e.g., Dissent Op. at 123-24,
130-31. We therefore evaluate the evidentiary weight to
accord the use of the 55% threshold in the context of the
other evidence presented.
B.
We turn
to consider the evidence of predominance that the plaintiffs
presented at the second trial. The plaintiffs offered the
testimony of two experts: Dr. Jonathan Rodden, a professor of
political science at Stanford University, and Dr. Maxwell
Palmer, an assistant professor of political science at Boston
University.[14] Pl. Ex. 69 at 72; Pl. Ex. 71 at 69. We
conclude that both experts provided credible testimony based
on sound methodology, and we will discuss their testimony in
turn.
At
trial, Dr. Rodden was accepted as an expert in the field of
“geo-spatial data analysis”[15] and its
application to redistricting. 2nd Trial Tr. at 159. Dr.
Rodden used geo-spatial data to determine whether it was
“plausible that the final shape of the districts could
have emerged without race being used as the dominant
consideration.” Pl. Ex. 69 at 2. In particular, Dr.
Rodden used census data to determine the geographic
distribution of groups of voting-age white residents and
voting-age black residents. Pl. Ex. 69 at 8; 2nd Trial Tr. at
163-64. He placed white “dots” representing a
designated number of white voting-age residents, and black
“dots” representing the same number of black
voting-age residents, randomly within each census block. Pl.
Ex. 69 at 8; see, e.g., Pl. Ex. 69 at 10. The
resulting “dot density maps” are a visual
illustration of the density of white and black voting-age
populations in the geographic region depicted on the
map.[16]Pl. Ex. 69 at 8; see also, e.g.,
Pl. Ex. 69 at 10. Dr. Rodden examined each challenged
district individually, as well as in regional groupings,
noting that changes made to one district also impacted
neighboring districts. 2nd Trial Tr. at 162.
Dr.
Rodden concluded that the dot density maps reflected
“telltale signs” of “race-based
maneuvering.” Pl. Ex. 69 at 4. In examining these maps,
Dr. Rodden opined that the goals of population equality and a
55% BVAP could not be achieved in the challenged districts
without “considerable creativity, ” and “in
many cases . . . do[ing] considerable violence to traditional
districting principles.” Pl. Ex. 69 at 3. Dr. Rodden
thus determined that race was the predominant factor used in
constructing all 11 challenged districts. 2nd Trial Tr. at
161.
Dr.
Rodden explained that, in general, expanding the
underpopulated challenged urban districts into the
overpopulated white suburbs would have caused the BVAP in the
challenged districts to fall below the 55% threshold. Pl. Ex.
69 at 3; see, e.g., 2nd Trial Tr. at 174. Given this
significant underpopulation in many of the challenged
districts, and the geographic distribution of white and black
residents, the legislature was forced to consider the racial
make-up of individual VTDs and, at times, to split VTDs
according to the racial composition of particular census
blocks.[17] Pl. Ex. 69 at 3-4. Dr. Rodden further
noted that boundary lines between districts frequently were
small residential roads separating predominantly white and
predominantly black neighborhoods. Pl. Ex. 69 at 4.
Accordingly, Dr. Rodden concluded that it was “simply
not possible to devise a credible post-hoc explanation for
these decisions that is not based on race.” Pl. Ex. 69
at 4.
The
visual depictions of racial sorting in the dot density maps
are telling. The regional maps showed that most significant
concentrations of black voters were swept into one of the
challenged districts. See, e.g., Pl. Ex. 69 at 12,
42. These maps also indicated that heavily populated black
areas often were shared between multiple challenged
districts, sometimes splitting municipal boundaries in the
process. See Pl. Ex. 69 at 43. As Dr. Rodden
observed, “[w]hen respect for county or municipal
boundaries would have undermined the ability to reach the
racial target, they were ignored.” Pl. Ex. 69 at 4.
The dot
density maps of individual districts, and “zoomed
in” portions of those districts, illustrated the
precision with which district boundaries coincided directly
with racial residential patterns. See, e.g., Pl. Ex.
69 at 45, 47. The dot density map of District 80, for
instance, showed a narrow “bridge” consisting of
two largely white VTDs, which were used to connect
geographically distinct clusters of black voters.
See Pl. Ex. 69 at 53. And as discussed further
below, the maps plainly showed that VTDs in each region were
split exactly along racial lines. See, e.g., Pl. Ex.
69 at 38 (District 63, Hopewell Ward 7), 47 (District 95,
Reservoir, Epes, Denbigh, Jenkins), 58 (District 89, Granby);
2nd Trial Tr. at 275. In one such example, the legislature
excised from District 89 a single census block of
predominantly white voters from the Granby VTD, and allocated
those voters to a neighboring non-challenged district. Pl.
Ex. 69 at 57-58. These visual depictions led Dr. Rodden to
reach the unavoidable conclusion that the challenged
districts were designed to capture black voters with
precision. See 2nd Trial Tr. at 275.
Dr.
Palmer was accepted as an expert in the area of redistricting
and data analysis as it pertains to redistricting. 2nd Trial
Tr. at 366. Dr. Palmer conducted statistical analyses
regarding the populations of the challenged districts to
determine whether race predominated in the construction of
those districts. See Pl. Ex. 71 at 2. Because
respect for political boundaries is an important traditional
redistricting principle, Dr. Palmer focused on the manner in
which VTDs and political subdivisions were split in the plan.
Pl. Ex. 71 at 4 ¶ 13; 2nd Trial Tr. at 370. And as
discussed further below, Dr. Palmer also evaluated the
reports of other experts who previously testified in the
case. 2nd Trial Tr. at 366-67.
Dr.
Palmer reached several general conclusions relevant to our
racial predominance inquiry. First, he observed that the
number of split VTDs increased between the 2001 plan and 2011
plan, and that splitting VTDs in the 2011 plan was more
common in the challenged districts[18] than in the
non-challenged districts. Pl. Ex. 71 at 5; see also
Pl. Ex. 50 at 70; 2nd Trial Tr. at 371.
Second,
Dr. Palmer concluded that there is “substantial
evidence” that race was the predominant factor in the
manner that VTDs, cities, and other places were split between
challenged and non-challenged districts. Pl. Ex. 71 at 2
¶ 3; 2nd Trial Tr. at 369. With only a few exceptions,
“these areas were divided such that the portions
allocated to challenged districts had a higher BVAP
percentage than the portions allocated to non-challenged
districts.” Pl. Ex. 71 at 2 ¶ 3; see also
2nd Trial Tr. at 381. In particular, in 31 of the 32 VTDs
that were split between challenged and non-challenged
districts, the areas assigned to the challenged districts had
higher BVAPs than the areas assigned to the non-challenged
districts. Pl. Ex. 71 at 4 ¶ 14; 2nd Trial Tr. at 374.
And, on average, the BVAP of the portions of split VTDs
assigned to challenged districts was 24% higher than the
portions assigned to non-challenged districts. Pl. Ex. 71 at
4 ¶ 14; 2nd Trial Tr. at 374. This pattern of higher
BVAP areas being assigned to challenged districts held true
for the ten cities, four towns, one military base, and ten
unincorporated places[19] split between challenged and
non-challenged districts.[20] Pl. Ex. 71 at 4 ¶ 16, 14
¶¶ 71-73, Tables 8-15; 2nd Trial Tr. at 392.
Dr.
Palmer found that BVAP level was predictive of an area's
inclusion in a challenged district, because “[a]s the
BVAP of a census block increases, the probability that it is
assigned to a challenged district increases.” Pl. Ex.
71 at 6-7 ¶ 26; see also 2nd Trial Tr. at
385-86. Dr. Palmer stated that this relationship between BVAP
and assignment to a challenged district is statistically
significant. Pl. Ex. 71 at 6-7 ¶ 29; 2nd Trial Tr. at
386. Based on this data, Dr. Palmer concluded that VTDs split
between challenged and non-challenged districts “were
divided by race.” Pl. Ex. 71 at 7 ¶ 29. Dr. Palmer
similarly concluded that “race predominated over the
principle of keeping political subdivisions whole, ”
because “[c]ities, towns, unincorporated places, and
even a military base were all divided according to
race.” Pl. Ex. 71 at 16 ¶ 82.
Splits
of particular VTDs provide stark illustrations of these
racial divisions. For example, Dr. Rodden explained that
District 95, located on the peninsula, was drawn to separate
black and white voters with “remarkable
precision.” Pl. Ex. 69 at 46; see also Pl. Ex.
71 at 35. The map-drawers achieved this division by splitting
four VTDs located at the northern end of the district,
Jenkins, Denbigh, Epes, and Reservoir, “precisely at
the point where black neighborhoods transitioned to white
neighborhoods.” Pl. Ex. 69 at 47. Epes was split
between District 95 and a neighboring non-challenged district
along small residential streets, separating multi-family
housing with significant black populations on one side of the
street from homes occupied by white residents on the other
side of the street. Pl. Ex. 69 at 47-48.
Dr.
Palmer emphasized that racial disparities in the manner that
VTDs were split were “especially strong evidence of
racial predominance.”[21] Pl. Ex. 71 at 2 ¶ 4;
see also 2nd Trial Tr. at 379. Dr. Palmer and Dr.
Rodden both explained that election data are not available
for individual census blocks that make up the VTDs, and
Virginia does not maintain political party registration data
in voter files. Pl. Ex. 71 at 2 ¶ 4; 2nd Trial Tr. at
372, 390, 954-58. For these reasons, the Maptitude software
is not capable of showing election result data at the census
block level. 2nd Trial Tr. at 954-58. Accordingly, the
precision and specificity with which VTD splits separated
white and black voters cannot be explained by anything other
than the intentional consideration of race. See Pl.
Ex. 69 at 4 (Rodden: “[I]t is simply not possible to
devise a credible post-hoc explanation for these decisions
that is not based on race.”); Bush, 517 U.S.
at 970-71 (principal opinion of O'Connor, J.) (explaining
that, because mapping software applied only racial data at
the block level, VTD and street-level splits supported the
conclusion that race predominated).
Third,
the results of Dr. Palmer's statistical analysis showed
that black voters were moved from non-challenged districts
into challenged districts at a higher rate than white or
Democratic voters. Pl. Ex. 71 at 2 ¶ 5; 2nd Trial Tr. at
395. Conversely, white and Democratic voters were moved out
of the challenged districts and into non-challenged districts
at a higher rate than black voters. Pl. Ex. 71 at 2 ¶ 5;
2nd Trial Tr. at 395. In all nine challenged districts in
which population was shifted to non-challenged districts, the
transferred areas had a lower BVAP than the BVAP of the
district as a whole. Pl. Ex. 71 at 17 ¶ 85, 61. And,
with one exception, [22] all the non-challenged districts that
experienced transfers of population into challenged districts
moved out areas with a higher BVAP than the non-challenged
district as a whole. Pl. Ex. 71 at 16-17 ¶ 84. From
these data, Dr. Palmer concluded that “race was the
predominant factor in moving populations between
districts.” Pl. Ex. 71 at 28 ¶ 146.
Using
an individual district as an example provides further
illustration of these complex racial patterns in population
shifts. Under the 2001 plan, District 74 in the Richmond area
already had a population within the allowable one percent
population deviation, and, at 62.7% BVAP, was well over the
55% BVAP threshold. See Pl. Ex. 50 at 69, 72.
Nevertheless, the legislature removed about 16, 000 voters
out of District 74, and moved about 16, 000 different voters
in, with the BVAP of the group moved out 17.8% higher than
the group moved in. Pl. Ex. 50 at 73, 77. The BVAP of the
areas removed from District 74 differed based on whether the
receiving district was a challenged district subject to the
55% BVAP requirement. For example, District 74 lost about 2,
000 people, with a very low 3.8% BVAP, to non-challenged
District 72. Pl. Ex. 71 at 43. In contrast, District 74 lost
a group of nearly 8, 000 people who were moved into
challenged District 71, which needed a significant influx of
black voters to reach the 55% threshold. Pl. Ex. 71 at 43.
That group of 8, 000 people moved from District 74 into
District 71 had an 85.5% BVAP. Pl. Ex. 71 at 43. Accordingly,
District 74, with its surplus of BVAP, served as a
“donor” district to surrounding challenged
districts with lower BVAP levels. Pl. Ex. 69 at 15, 31.
And
finally, Dr. Palmer engaged in an extensive analysis of the
question whether racial composition or political party
performance in a VTD was a stronger predictor that a
particular VTD would be assigned to a challenged district.
2nd Trial Tr. at 398. As part of his analysis, Dr. Palmer
sought to examine the methodologies and conclusions of two
experts who testified on the same subject in the first trial,
namely, Dr. Jonathan Katz, a professor of social sciences and
statistics at the California Institute of Technology, who was
presented as a witness by the intervenors, and Dr. Stephen
Ansolabehere, who was called by the plaintiffs. Pl. Ex. 50 at
1-2; DI Ex. 16 at 1, 3; see supra note 14
(discussing Dr. Ansolabehere's qualifications). Dr. Katz
also testified at the second trial.
Dr.
Ansolabehere concluded that race had a larger effect on the
assignment of VTDs to challenged districts than did
Democratic vote share. Pl. Ex. 50 at 46-47 ¶ 130; Pl.
Ex. 71 at 21 ¶ 115. In contrast, Dr. Katz concluded that
the effect of both race and party on the assignment of VTDs
was nearly equal, and that any effect was not statistically
significant.[23] DI Ex. 16 at 20; see also Pl.
Ex. 71 at 21-22 ¶ 115.
Dr.
Palmer identified two differences between the models used by
Dr. Katz and Dr. Ansolabehere. 2nd Trial Tr. at 396. Dr.
Palmer concluded that these differences had an important
effect on the results. First, Dr. Katz failed to weight each
VTD by total population in considering the effect of race and
party on likely VTD assignment. Pl. Ex. 71 at 22 ¶ 119;
2nd Trial Tr. at 401. As Dr. Palmer explained, a VTD
containing 5, 000 people is more significant to the results
of the model than a VTD containing only 50 people and, thus,
population weights were an important aspect of an accurate
analysis. Pl. Ex. 71 at 22 ¶ 119; see also 2nd
Trial Tr. at 396-97. After adding the appropriate population
weights to Dr. Katz's model, Dr. Palmer explained that
the results of the analysis almost mirrored the results
reached by Dr. Ansolabehere, namely, that “race, not
party, is the predominant factor in the assignment of VTDs to
challenged districts.” Pl. Ex. 71 at 22-23 ¶ 120;
2nd Trial Tr. at 400.
Second,
in the first trial, Dr. Katz criticized Dr.
Ansolabehere's analysis for failing to account for the
distance between the center of VTDs and challenged districts.
See DI Ex. 16 at 20; 1st Trial Tr. at 501, 503-05.
In Dr. Katz's view, because VTDs that are located farther
away from a challenged district were less likely to be
included in that district, proper modeling should include a
measure of distance. DI Ex. 16 at 20; see also Pl.
Ex. 71 at 21 ¶ 114. Dr. Palmer also accounted for
distance in his model, but explained that the particular
measure of distance that Dr. Katz used was flawed because it
considered the distance from each VTD to all 12
challenged districts. Pl. Ex. 71 at 23 ¶¶ 121-22;
2nd Trial Tr. at 403. As a result, Dr. Katz's analysis
produced the illogical conclusion that, for several of the
challenged districts, VTDs farther away from those districts
were more likely to be assigned to a challenged district than
VTDs located closer to such districts. Pl. Ex. 71 at 23
¶ 121; 2nd Trial Tr. at 404, 406. Accordingly, Dr.
Palmer incorporated into his model a different measure of
distance, namely, the distance from each VTD to the nearest
challenged district. Pl. Ex. 71 at 23 ¶ 122; 2nd Trial
Tr. at 407. This approach produced results showing that the
farther away a VTD was from the closest challenged district,
the less likely it was that this VTD would be assigned to a
challenged district. Pl. Ex. 71 at 23 ¶ 123; 2nd Trial
Tr. at 408.
Dr.
Palmer ultimately concluded that Dr. Katz's results
differed from Dr. Ansolabehere's “due to errors in
Dr. Katz's model.” Pl. Ex. 71 at 24 ¶ 124. In
light of these conclusions, including the illogical results
from Dr. Katz's distance measurement, we accept as more
credible Dr. Palmer's approach and the results he reached
regarding race-versus-party.[24]
Like
Dr. Ansolabehere, Dr. Palmer concluded that “the effect
of race is much larger than that of party in the assignment
of VTDs to challenged districts, ” and that, therefore,
race predominated over party in the assignment of VTDs to
those challenged districts. Pl. Ex. 50 at 45 ¶¶
127-29; Pl. Ex. 71 at 24 ¶¶ 123, 125; see
also 2nd Trial Tr. at 369, 408. Moreover, “[w]hile
the effect of race is large and statistically significant,
there is no substantive effect of Democratic vote share on
the assignment of a VTD to a challenged district.” Pl.
Ex. 71 at 24 ¶ 123; see also Pl. Ex. 71 at 63;
2nd Trial Tr. at 408. Based on Dr. Palmer's analyses, we
conclude that the BVAP of a VTD was a more accurate predictor
of whether that VTD would be included in a challenged
district than the Democratic performance of the VTD.
C.
In
contrast to the geo-spatial and statistical evidence
presented by Dr. Rodden and Dr. Palmer, the intervenors again
called Jones as a witness, and also offered testimony by
demographer John Morgan. 2nd Trial Tr. at 466-67, 586-87.
Morgan, who had nationwide redistricting experience in two
prior redistricting cycles, was hired by the Republican House
majority to assist Jones with the 2011 redistricting process.
2nd Trial Tr. at 588, 593-94. Morgan testified during the
second trial that he played a substantial role in
constructing the 2011 plan, which role included his use of
the Maptitude software to draw district lines. 2nd Trial Tr.
at 593. Morgan testified in considerable detail about his
reasons for drawing dozens of lines covering all 11
challenged districts, including purportedly race-neutral
explanations for several boundaries that appeared facially
suspicious. Despite Morgan's alleged centrality to the
2011 redistricting process, the intervenors neglected to call
Morgan to testify at the first trial. The intervenors'
belated reliance on Morgan's testimony strongly suggests
an attempt at post hoc rationalization. For this and the
following reasons, we decline to credit Morgan's
testimony.
Morgan
claimed that he, rather than Jones, decided to split VTDs at
the end of the map-drawing process primarily to equalize
population between adjoining districts. 2nd Trial Tr. at 613,
623, 730; see also 2nd Trial Tr. at 473-74, 504-07.
Morgan testified that he “really didn't take race
into account in splitting the VTDs” in the challenged
districts. 2nd Trial Tr. at 714-15.
We find
that this explanation was not credible. As an initial matter,
Dr. Palmer emphasized that to equalize population, typically
only one VTD needed to be split between a pair of districts.
2nd Trial Tr. at 381. Yet several of the challenged districts
had multiple VTDs that were split with the same
non-challenged district. Pl. Ex. 71 at 52 (three VTD splits
between Districts 63 and 62, and two splits between Districts
63 and 64), 53 (three VTD splits between Districts 74 and
72), 54 (two VTD splits between Districts 89 and 79; 77 and
76; and 90 and 85), 55 (five VTD splits between Districts 95
and 94).
And
notably, as discussed above, VTDs were split with exacting
precision separating predominantly black and white
residential areas, sometimes dividing a VTD along the middle
of a street. See Pl. Ex. 69 at 38-39 & Figure
12, 47-48; 2nd Trial Tr. at 494. In our view, Morgan's
contention, that the precision with which these splits
divided white and black areas was mere happenstance, simply
is not credible. 2nd Trial Tr. at 679, 748-50; see
also 2nd Trial Tr. at 379 (Palmer: “If we're
splitting VTDs to equalize population, we shouldn't
expect to see the same consistent pattern of division by race
across all of them.”).
Similarly,
Morgan asserted that he split certain VTDs at the census
block level in District 95 to increase Republican voting
strength in a neighboring, non-challenged district. DI Ex. 94
at 14; 2nd Trial Tr. at 675-80. This contention conflicted
with the testimony of Dr. Rodden and Dr. Palmer, as well as
with the testimony of the intervenors' own expert, Dr.
Thomas Hofeller, [25] who uniformly stated that election
results and partisan affiliation data were not available at
the census block level. Pl. Ex. 71 at 2 ¶ 4; 2nd Trial
Tr. at 372, 390, 942-44, 954-58. Indeed, Morgan conceded that
he could only estimate political performance at the census
block level by applying election results from the VTD as a
whole equally to each census block. 2nd Trial Tr. at 622.
This “partisan” approach based on overall VTD
performance, however, would not result in VTDs being split
precisely to separate predominantly black and white
neighborhoods. Accordingly, the only conclusion to draw from
Morgan's testimony is that, insofar as he sought to
obtain partisan political advantage by splitting VTDs in
particular ways, he did so by relying on race as a proxy for
political preference.[26] This assumption that members of a
particular racial group vote a certain way is antithetical to
the principles underlying the Equal Protection Clause. Using
race as a proxy for political performance constitutes the use
of race, not the use of politics, for
purposes of our predominance analysis. Bush, 517
U.S. at 968 (principal opinion of O'Connor, J.)
(“[T]o the extent that race is used as a proxy for
political characteristics, a racial stereotype requiring
strict scrutiny is in operation.”). For these reasons,
we conclude that Morgan did not present credible testimony,
and we decline to consider it in our predominance analysis.
And
finally, we observe that at the second trial, Jones had a
murky recollection regarding several important topics on
which he previously had testified, despite having had access
to the record of his testimony in the first trial for review.
See, e.g., 2nd Trial Tr. at 493-94. Additionally,
the testimony of multiple, credible witnesses at the second
trial directly undermined much of Jones' prior key
testimony. For example, Jones testified repeatedly at the
first trial that he consulted most members of the House when
drawing the 2011 plan, and relied heavily on input from
incumbent members of the black caucus who represented the
challenged districts. 1st Trial Tr. at 291-93, 324, 330, 381.
Jones
stated at the first trial that he received “extensive
input” on the plan from Delegate Algie Howell, who
represented District 90. 1st Trial Tr. at 338-39, 343;
Parties' Stipulations ¶ 17, Dkt. No. 208. At the
second trial, however, Howell denied that he gave significant
input into the drawing of his or any district. According to
Howell, he had a single, brief conversation with Jones after
the plan was drawn. 2nd Trial Tr. at 82-83. Similarly,
although Jones purported to rely on “significant
input” from incumbent Delegate Matthew James in the
construction of District 80, 1st Trial Tr. at 347-49, James
testified that he offered no input whatsoever to Jones
regarding the configuration of District 80.[27] 2nd Trial Tr.
at 71-73. In the face of these denials, Jones' testimony
at the second trial was far more equivocal than the first.
When asked specifically about James' role in drawing
District 80, Jones responded that he could not “answer
[the question] directly, ” but that it was his
“understanding” that James had given
input.[28] 2nd Trial Tr. at 499.
We
recognize that Jones offered voluminous testimony at the
first trial explaining many of his line-drawing decisions. We
also do not doubt that Jones considered some traditional
districting factors in constructing the 2011 plan. And we do
not disagree with the dissent's view that because
memories may fade with time, we cannot expect witnesses'
recollections to remain perfectly clear six years after the
events in question. See Dissent Op. at 95. However,
we do not discredit Jones' testimony based solely on his
faded memory. The first trial occurred more than four years
after the redistricting occurred, yet Jones had a remarkably
clear recollection of countless, specific line-drawing
decisions. But when faced at the second trial with new
witnesses challenging material aspects of his previous
testimony, and having had access to the transcript of his
testimony at the first trial, Jones was unable to produce
convincing explanations for the discrepancies. Thus, in light
of Jones' very poor memory at the second trial, as well
as his inability to account for material inconsistencies in
his testimony, we give little weight to Jones' testimony
regarding the reasons underlying the many changes made to
district boundary lines.
After
considering this statewide evidence, we find that the overall
racial disparities in population movement, and the splits of
VTDs and geographies along racial lines, are strong evidence
of racial predominance in the challenged districts. These
disparities and shifts did not result from the application of
traditional redistricting principles, but rather from the
predominant use of race. Additionally, Dr. Palmer's
conclusion that race predominated over party in predicting
the likelihood that a VTD would be assigned to a challenged
district further supports a finding of racial predominance.
As instructed by the Supreme Court, our task now is to
examine holistically the legislature's use of race in
drawing each individual challenged district.
IV.
Mindful
of the statewide evidence of race-based decisionmaking
identified by Drs. Rodden and Palmer, we turn to examine the
legislature's use of race in the construction of each of
the 11 challenged districts. Because a change to the
boundaries of any one district caused a ripple effect on
nearby districts, we will consider the challenged districts
in three regional groupings: the Richmond/Tri-City area,
North Hampton Roads (the peninsula), and South Hampton
Roads/Norfolk.
A.
We
begin with the Richmond/Tri-City region, which includes the
greater Richmond metropolitan area, as well as the cities of
Petersburg, Colonial Heights, and Hopewell. Pl. Ex. 69 at 9.
Five challenged districts were located in the
Richmond/Tri-City region in both the 2001 plan and the 2011
plan, namely, Districts 63, 69, 70, 71, and 74. Pl. Ex. 69 at
9. Since the 2001 redistricting cycle, the black population
in Richmond had increasingly spread from the city limits into
the surrounding suburbs. Pl. Ex. 69 at 13. The largely urban
districts under the 2001 plan, Districts 69 and 71, had lost
population, while both challenged and non-challenged suburban
districts either were at the target population level, or were
overpopulated. Pl. Ex. 50 at 72; Pl. Ex. 69 at 13.
Accordingly, to achieve a 55% BVAP in all five challenged
districts, the legislature made numerous decisions motivated
by race, including using Districts 70 and 74, which had a
surplus of BVAP and adequate population, as
“donors” of BVAP to other challenged districts.
See infra pp. 43-45, 51-54 (discussions of Districts
70 and 74); see also Pl. Ex. 50 at 72.
At the
end of the 2011 redistricting process, every majority-black
VTD in the Richmond/Tri-City region was either wholly or
partially within a challenged district. Pl. Ex. 69 at 41. And
in the final 2011 plan, the Richmond City portions of
Districts 69, 70, 71 and 74 had a combined BVAP of 56.2%,
whereas the Richmond City areas in non-challenged District 68
had a 6.8% BVAP. Pl. Ex. 71 at 15 ¶ 78, 58.
For the
reasons discussed below, we conclude that race was the
predominant factor in the legislature's construction of
Districts 63, 69, 70, 71, and 74.
i.
We
begin with District 71. Overwhelming evidence shows the many
ways in which the legislature used race as the predominant,
overriding criterion in constructing the district.
Under
both the 2001 plan and the 2011 plan, District 71 contained
portions of the city of Richmond and Henrico County. Pl. Ex.
50 at 69, 71. The incumbent delegate, Jennifer McClellan, had
represented District 71 since 2005 and had won each election
thereafter by overwhelming majorities. 1st Trial Tr. at
23-27. After hearing McClellan testify consistently at both
trials, we find that her testimony was highly credible and
was corroborated by other evidence in the case.
Two
features of District 71 at the time of the 2010 census
motivated the 2011 boundary changes, and had ripple effects
throughout the Richmond/Tri-City region. First, District 71
was underpopulated by about 5, 800 people. Pl. Ex. 50 at 72;
Pl. Ex. 69 at 15. Even more importantly, however, District 71
was racially heterogeneous and had the lowest BVAP of any of
the challenged districts at 46.3%, down from about 55% in
2001. Pl. Ex. 50 at 72; 1st Trial Tr. at 25. Because of this
low starting BVAP, Jones conceded that the 55% BVAP threshold
impacted the way the district was drawn. 2nd Trial Tr. at
532-33.
To
increase the district's BVAP by nearly nine percentage
points, more than 11, 000 people with a 21.3% BVAP were moved
out of District 71, and more than 17, 000 people
with a noticeably higher 72.1% BVAP were moved into
District 71. Pl. Ex. 50 at 72-73, 77. Accordingly, the
difference in BVAP between the groups moved in and out of
District 71 was more than 50 percentage points. Pl. Ex. 50 at
77. Notably, areas moved out of District 71 into
non-challenged districts had an extremely low 6.6%
BVAP. Pl. Ex. 50 at 79.
In
addition to these racial discrepancies in population
movement, three line-drawing decisions clearly illustrate the
importance of race in the construction of District 71. First,
the district added several heavily populated, high BVAP
Richmond VTDs to its eastern edge, which VTDs previously were
located in Districts 70 and 74: VTD 604 (91% BVAP), VTD 701
(97% BVAP), VTD 702 (94% BVAP), and a portion of VTD 703 (90%
BVAP). Pl. Ex. 64 at 9-10; Pl. Ex. 69 at 24, 29; DI Ex. 94 at
3-5. VTDs 701, 702, and part of 703 were removed from
neighboring District 70 over the objection of the District 70
incumbent, Delegate Delores McQuinn, who resided nearby and
had long represented these areas as a delegate and, earlier,
as a member of the school board.[29] DI Ex. 94 at 3-4; 2nd
Trial Tr. at 56, 97-98, 103-04, 533. Nevertheless, McQuinn
understood that she “would have to lose some of the
African-American population in that area” so that
District 71 would receive sufficient black voters to achieve
the 55% BVAP threshold. 2nd Trial Tr. at 103-04. Jones
himself conceded that this eastward move into District 70 was
required to ensure that District 71 had sufficient BVAP to
meet the 55% number and, thus, that the 55% BVAP threshold
impacted the drawing of the district's lines. 2nd Trial
Tr. at 532-33; see also DI Ex. 94 at 4.
Second,
despite Jones' contention that he sought to make District
71 more “Richmond centric” by removing three
predominantly white Henrico County VTDs at the northwest edge
of the district, [30] he proceeded to add the Ratcliffe VTD
from Henrico County to the eastern end of District 71. 1st
Trial Tr. at 305; 2nd Trial Tr. at 177-78, 531. Ratcliffe,
unlike the three predominantly white Henrico County VTDs
removed from District 71, had an 83% BVAP. Pl. Ex. 69 at 21,
24; see also 2nd Trial Tr. at 48-49.
And
finally, VTD 207, part of the Fan neighborhood of Richmond,
was removed from District 71 and transferred into District
68, represented by then-incumbent Republican Delegate Manoli
Loupassi. Pl. Ex. 69 at 17-19; 2nd Trial Tr. at 36, 175-76.
As a result, the Fan neighborhood, which previously was
contained primarily within District 71, was split between
District 71 and more-suburban District 68. 2nd Trial Tr. at
28, 34-36, 165. Prior to the 2011 redistricting, the entirety
of VTD 207 had been located in District 71 for at least 20
years. 2nd Trial Tr. at 35-36.
McClellan
testified that she strongly opposed removing VTD 207 and
sought to minimize splitting the Fan, the neighborhood where
her own residence was located. 2nd Trial Tr. at 28, 36, 38.
VTD 207 was heavily Democratic, had high levels of voter
turnout, and had been a strong base of support for McClellan,
but had a very low 3% BVAP.[31] Pl. Ex. 69 at 17; 1st Trial
Tr. at 39; 2nd Trial Tr. at 35, 52. According to McClellan,
when she approached Jones with her concern, Jones stated that
he would be open to suggested revisions, provided that any
changes complied with the population equality and 55% BVAP
requirements. 2nd Trial Tr. at 30-32. McClellan later used
the Maptitude software to draft alternative versions of the
plan that would retain VTD 207 in District 71. 2nd Trial Tr.
at 36, 39-41. However, because including all or a portion of
VTD 207 in District 71 would reduce the district's BVAP
below 55%, McClellan “became resigned” to the
fact that she would lose VTD 207 from her
district.[32] 2nd Trial Tr. at 36, 39.
For
similar reasons, predominantly white VTD 505 was split
between District 71 and District 69, another challenged
district located to the south. See Pl. Ex. 71 at 12
¶ 62; DI Ex. 94 at 4. McClellan testified that, although
she and Betsy Carr, the incumbent delegate in District 69,
sought to keep VTD 505 wholly within District 69, doing so
would have reduced the BVAP of that district below 55%. 2nd
Trial Tr. at 41-42, 59; see also Pl. Ex. 71 at 12
¶ 62. Retaining all of VTD 505 in District 71 similarly
would have reduced the BVAP of that district below 55%. Pl.
Ex. 71 at 12 ¶ 62; 2nd Trial Tr. at 388-89. Accordingly,
the two incumbent delegates agreed to split VTD 505 and to
allocate the largely white precinct between the two
challenged districts. 2nd Trial Tr. at 41-42, 59, 182;
see also Pl. Ex. 71 at 12 ¶ 62.
After
considering the credibility of the witnesses and the
documentary evidence, we conclude that race predominated in
the construction of District 71. Jones conceded that the low
existing BVAP in the district required significant boundary
changes to raise the BVAP above 55%. His admission that the
55% BVAP threshold affected the boundaries of District 71 is
compelling direct evidence of racial predominance.
See 2nd Trial Tr. at 532-33. Additionally, the 50
percentage point differential in BVAP between the populations
moved in and out of the district shows a “stark split[]
in the racial composition of populations moved into and out
of” District 71. Bethune-Hill, 137 S.Ct. at
800; see also Alabama, 135 S.Ct. at 1271; Pl. Ex. 50
at 77. This discrepancy further was illustrated by the swaps
of majority-white for majority-black VTDs that were made
contrary to the wishes of the incumbents. And finally, the
testimony of McClellan and McQuinn indicates that the
legislature disregarded traditional districting principles,
including incumbency protection and maintaining communities
of interest, in order to achieve a 55% BVAP in District 71.
ii.
We turn
to consider District 70. See DI Ex. 94 at 3. As
previously discussed, the significant race-based maneuvers
required to increase the BVAP of District 71 had a
substantial impact on the boundaries of District 70. For this
and other reasons, we conclude that race predominated in the
construction of District 70.
In both
the 2001 map and the 2011 map, District 70 included portions
of the city of Richmond, Chesterfield County, and Henrico
County. Pl. Ex. 50 at 69, 71. The incumbent, McQuinn, lived
in Richmond and had served on the Richmond City School Board
and the Richmond City Council for many years before being
elected to the House of Delegates in 2009. 2nd Trial Tr. at
97-99. After observing McQuinn testify at the second trial,
we find that her testimony was credible.
Unlike
District 71, District 70 was not underpopulated, as it was
within the one percent population requirement. Pl. Ex. 50 at
72. District 70 also satisfied the 55% BVAP threshold with a
61.8% BVAP. Pl. Ex. 50 at 72. However, because of its surplus
BVAP, District 70 was treated as a BVAP “donor”
for other challenged districts, resulting in the transfer of
high BVAP areas from District 70 to neighboring Districts 71
and 69, which needed both population and BVAP. Pl. Ex. 69 at
29; see also Pl. Ex. 50 at 36 (“[I]n order to
accommodate the increase in BVAP in HD 71, HD[] 70 . . . gave
up areas with high concentrations of adult African
Americans.”). In particular, as discussed above,
District 70 “donated” to District 71 high BVAP
VTDs 701, 702, and part of 703. See supra pp. 39-40.
And to the northwest, District 70 “donated” VTD
811 (76% BVAP) and VTD 903 (64% BVAP) to District 69. Pl. Ex.
69 at 29; DI Ex. 94 at 2-3.
Reflecting
its “donor” status and ideal population numbers,
nearly 26, 000 people were moved out of District 70, and a
different 26, 000 were moved in. Pl. Ex. 50 at 73. The BVAP
of areas moved out of District 70 was more than 16 percentage
points higher than the BVAP of the areas moved in. Pl. Ex. 50
at 77. As a result of these population shifts, the BVAP of
District 70 dropped by over five percentage points, to 56.4%
in the 2011 plan. Pl. Ex. 50 at 72.
In our
view, the primary factor driving these population shifts is
plain. No. changes to the boundaries of District 70 were
needed to ensure adequate population in that district, yet
26, 000 people were shifted in a noticeable racial pattern.
Pl. Ex. 50 at 72-73. It is clear that the 55% BVAP threshold
for the challenged districts affected the boundaries of
District 70, as Jones, McClellan, and McQuinn all testified
that VTDs 701, 702, and part of 703 were removed from
District 70 to ensure that the BVAP of District 71 reached
55%. 2nd Trial Tr. at 44, 103-04, 532-33, 538-39. We find
that these population and VTD transfers were not made to
achieve traditional districting goals, but instead were done
to ensure a numerical minimum BVAP level in neighboring
districts. For these reasons, we conclude that race was the
predominant factor used in the construction of District 70.
iii.
We next
consider District 69, which included portions of the city of
Richmond and crossed the James River into Chesterfield
County, in both the 2001 plan and the 2011
plan.[33] Pl. Ex. 50 at 69; Pl. Ex. 69 at 26; DI
Ex. 94 at 2. We conclude that race predominated in the
construction of District 69, which was affected by the
race-based maneuvers in the other Richmond-area challenged
districts.
District
69 was significantly underpopulated in 2011, and required an
addition of about 8, 700 people to satisfy the population
equality requirement. Pl. Ex. 50 at 72; Pl. Ex. 69 at 26.
District 69 had a 56.3% BVAP under the 2001 plan, and thus
could not lose much BVAP to stay above 55% BVAP in the 2011
plan. Pl. Ex. 50 at 72. Jones offered little explanation for
the line-drawing decisions in District 69, other than the
fact that the district was underpopulated and that the
incumbents in adjacent districts lived near one another. 1st
Trial Tr. at 304, 309-11; 2nd Trial Tr. at 540-43.
The
characteristics of the areas moved into District 69
illustrate the importance of race. For example,
non-challenged District 27, which bordered District 69 on the
west, was overpopulated by 8, 000 people, close to the
population deficit existing in District 69. Pl. Ex. 69 at 14,
26. Instead of collecting largely white Chesterfield County
precincts from District 27, however, District 69
lost two predominantly white Chesterfield precincts
to District 27. Pl. Ex. 69 at 26; Pl. Ex. 71 at 43; 2nd Trial
Tr. at 183-84. And despite the fact that District 70 was at
equal population under the 2001 plan and already was serving
as a “donor” to District 71, District 69 received
multiple precincts from District 70. Pl. Ex. 69 at 26; 2nd
Trial Tr. at 181-84; see supra p. 44 (District 70 as
“donor” to 71). In particular, District 69
received several predominantly white precincts from District
70, which would have decreased the BVAP of District 69 below
55%. 2nd Trial Tr. at 181-83. Accordingly, District 69 also
received two high-BVAP VTDs, 811 and 903, from District 70.
Pl. Ex. 69 at 26; 2nd Trial Tr. at 181-83.
In both
the VTDs split between District 69 and a non-challenged
district, the portion of the split VTD allocated to District
69 had a higher BVAP than the portion of the split VTD
allocated to the non-challenged district. Pl. Ex. 71 at 9
¶ 37. For example, District 69 received 77% of the
population from split VTD 410, but 93% of the VTD's BVAP.
Pl. Ex. 71 at 9 ¶ 37, 32; see also 2nd Trial
Tr. at 184-85. And, as discussed above, VTD 505 was split
between District 69 and District 71 to ensure that neither
district would obtain too many white voters from that VTD and
drop the BVAP of those districts below 55%. Pl. Ex. 71 at 12
¶ 62; 2nd Trial Tr. at 41-42, 59.
Ultimately,
the BVAP of the populations moved in and out of District 69
to achieve population equality was nearly identical. Pl. Ex.
50 at 72, 77. In the 2011 plan, District 69 had a BVAP of
55.2%, just barely satisfying the 55% BVAP threshold. Pl. Ex.
50 at 72.
Based
on this evidence, we reach the inescapable conclusion that
race played a significant role in the district lines in the
Richmond region as a whole, and that the legislature
subordinated traditional districting criteria to race. With
respect to District 69, the legislature faced limited options
to remedy the significant population deficit in the district
while also achieving compliance with the 55% BVAP threshold.
Other than District 71 to the northeast and District 70 to
the southeast, District 69 was bordered by majority-white
districts. See Pl. Ex. 69 at 14. District 71 did not
have population or BVAP to spare.[34] Accordingly, like
District 71, District 69 received the advantage of the
ability of District 70 to “donate” BVAP, which
enabled District 69 to retain a 55% BVAP. Considering the
relationship among, and the racial “needs” of,
Districts 69, 70, and 71, we conclude that race played a
predominant role in the construction of District 69.
iv.
We turn
to consider District 63. The incumbent delegate in District
63, Rosalyn Dance, testified at both trials. See 1st
Trial Tr. at 65; 2nd Trial Tr. at 111-12. Dance served as a
member of the six-person House of Delegates Committee on
Privileges and Elections during the 2011 redistricting cycle.
2nd Trial Tr. at 112. After considering Dance's testimony
from the first and second trials, we find that her testimony
was credible. We also conclude that overwhelming evidence
demonstrated that race predominated in the drawing of
District 63.
In the
2001 map, District 63 included portions of Chesterfield
County, and all of Dinwiddie County and the city of
Petersburg. Pl. Ex. 50 at 69. In the 2011 plan, District 63
still included part of Chesterfield County, added part of
Prince George County and part of the city of Hopewell, and
split Dinwiddie County with District 75. Pl. Ex. 50 at 69;
Pl. Ex. 71 at 57. In addition to these new split geographies,
eight VTDs were split in the 2011 plan, compared with zero
split VTDs in the 2001 plan. Pl. Ex. 50 at 70. District 63
also experienced a drastic reduction in compactness between
the 2001 plan and the 2011 plan. Pl. Ex. 50 at 70.
These
departures from traditional districting principles were
driven largely by the population and BVAP “needs”
of neighboring District 75, which was located in the
Southside area of Virginia. DI Ex. 94 at 6. As discussed
above, this Court concluded after the first trial that race
predominated in the drawing of District 75 but that the use
of race there satisfied strict scrutiny, which decision the
Supreme Court affirmed. See Bethune-Hill, 137 S.Ct.
at 800-02.
The
legislature faced several challenges in re-drawing District
75, which was underpopulated by more than 9, 000 people and
began with a BVAP of only 55.3%. Pl. Ex. 50 at 72. Because
“[v]irtually all” the rural majority-black VTDs
in the area already were included in District 75,
“drastic maneuvering” was required to ensure that
the BVAP of District 75 remained above 55%.
Bethune-Hill, 141 F.Supp.3d at 555; see also
Bethune-Hill, 137 S.Ct. at 796-97; Pl. Ex. 69 at 35.
These maneuvers included the “avowedly racial”
decision to split Dinwiddie County between District 75 and
District 63. Bethune-Hill, 141 F.Supp.3d at 553; Pl.
Ex. 50 at 69; 1st Trial Tr. at 80-81.
Before
these changes benefitting District 75 were made, District 63
also was significantly underpopulated and, as a result of the
split of Dinwiddie County, lost considerable additional
population and BVAP. Pl. Ex. 50 at 72; Pl. Ex. 69 at 35.
Dance testified that, to compensate for this loss of BVAP,
District 63 received the heavily black areas of the city of
Hopewell and Prince George County, for the express purpose of
increasing the district's BVAP to comply with the 55%
BVAP requirement.[35] 2nd Trial Tr. at 116-17. The data
corroborate Dance's explanation, showing, for example,
that the division of Hopewell plainly tracked racial
residential patterns, with the white portion of Hopewell
assigned to non-challenged District 62. Pl. Ex. 71 at 15
¶ 75, 37. Notably, the BVAP of the portion of Hopewell
assigned to District 63 was three times higher than
the portion of Hopewell assigned to District 62. Pl. Ex. 71
at 15 ¶ 75, 57.
The
split of a particular VTD in Hopewell further illustrates the
precision with which the map-drawers sought to separate black
and white voters. Hopewell Ward 7 was split between Districts
63 and 62 along racial lines, following the boundaries of
black and white neighborhoods. See Pl. Ex. 71 at 31.
As a result, although District 63 received 29% of the total
population of the Ward 7 VTD, District 63 received 51% of the
BVAP of that VTD. See Pl. Ex. 69 at 38; Pl. Ex. 71
at 8 ¶ 32. This same pattern, in which District 63
received higher BVAP sections of split VTDs, was true for all
four VTDs split between District 63 and a non-challenged
district. Pl. Ex. 71 at 8 ¶ 32.
It is
clear that the role of race in the construction of District
63 was inextricably intertwined with the race-based
population shifts of District 75. After District 63 lost
significant BVAP from Dinwiddie County to District 75, the
map-drawers disregarded traditional districting principles to
ensure that District 63 continued to comply with the 55% BVAP
threshold. See 2nd Trial Tr. at 117. The map-drawers
split geographies and VTDs precisely according to race.
See Bush, 517 U.S. at 970-71 (principal opinion of
O'Connor, J.) (“Given that the districting software
used by the State provided only racial data at the
block-by-block level, the fact that [the district] . . .
splits voter tabulation districts and even individual streets
in many places . . . suggests that racial criteria
predominated . . . .” (internal citations omitted)). We
therefore find that the configuration of District 63 cannot
be explained by traditional, race-neutral districting
principles. In light of this evidence, we conclude that race
was the predominant factor in the construction of District
63.
v.
Finally,
we consider the role of race in the configuration of District
74. District 74 experienced the ripple effect of the
race-based decisions in the Richmond City districts as well
as in District 63, to the southwest. See Pl. Ex. 69
at 14. Like the other Richmond/Tri-City districts, we
conclude that race predominated in the construction of
District 74.[36]
Under
the 2001 plan, District 74 included Charles City County, and
portions of Henrico County, the city of Hopewell, Prince
George County, and the city of Richmond. Pl. Ex. 50 at 69.
District 74 lost its portions of Prince George County and the
city of Hopewell under the 2011 plan. Pl. Ex. 50 at 69. The
2001 version of the district was shaped like an axe with a
long handle and was the least compact of all the challenged
districts. Pl. Ex. 50 at 70; DI Ex. 94 at 5. The district
maintained the same bizarre shape and low compactness score
under both the 2001 and 2011 plans.[37] Pl. Ex. 50 at 70; DI Ex.
94 at 5.
District
74 was slightly overpopulated under the 2001 plan, but was
still within the one percent population deviation allowance.
Pl. Ex. 50 at 72. District 74 also had a very high BVAP of
62.7%. Pl. Ex. 50 at 72. Accordingly, like District 70,
District 74 served as a “donor” district to
surrounding challenged districts that needed an influx of
BVAP to reach the 55% BVAP threshold. Pl. Ex. 69 at 15,
31-32. In furtherance of this goal, as discussed above, 16,
414 people were moved out of District 74, and 15, 855 were
moved into that district. Pl. Ex. 50 at 73. Notably, the BVAP
of the areas removed from District 74 and transferred to
other challenged districts was 69%, whereas the BVAP of areas
moved from District 74 to non-challenged districts was only
20.5%. Pl. Ex. 50 at 79. See supra p. 27 (noting
that BVAP of areas sent from District 74 to challenged
District 71 was 85.5%, but BVAP of areas sent from District
74 to non-challenged District 72 was 3.8% (citing Pl. Ex. 71
at 43)).
We
pause to highlight some of the familiar areas that other
challenged districts in the Richmond/Tri-City region received
from District 74. For example, the high BVAP Ratcliffe VTD in
Henrico County was “donated” to District 71 as
part of that District's eastward shift to gain additional
BVAP.[38] See Pl. Ex. 69 at 31-32; DI Ex.
94 at 4. District 74 also “donated” the high BVAP
areas of Hopewell to District 63 to replace some of the BVAP
that District 63 had lost to District 75 in Dinwiddie
County.[39] Pl. Ex. 69 at 31-32; 1st Trial Tr. at
80-83.
Moreover,
in all three VTDs split between District 74 and a
non-challenged district, the portion of the VTD allocated to
District 74 had a higher BVAP than the portion allocated to a
non-challenged district. Pl. Ex. 71 at 9 ¶ 41, 53. For
example, District 74 retained 38% of the population of the
Moody VTD, but received 85% of the VTD's BVAP. Pl. Ex. 71
at 9 ¶ 41, 32. In other words, the portion of the Moody
VTD in District 74 had a 41.7% BVAP, whereas the BVAP of the
portion of the Moody VTD in District 72 was only 4.3%. Pl.
Ex. 71 at 53.
As with
the other Richmond/Tri-City region districts, we conclude
that race predominated in the construction of District 74.
The irregular shape of the district is circumstantial
evidence that the legislature subordinated traditional
districting criteria to race. See Miller, 515 U.S.
at 913 (explaining that the bizarre shape of a district
“may be persuasive circumstantial evidence that race
for its own sake, and not other districting principles, was
the legislature's dominant and controlling rationale in
drawing its district lines”). Additionally, we find
that the line-drawing decisions in District 74 were made in
response to the pressures of population and BVAP deficits in
Richmond District 71, as well as the extreme population and
BVAP “needs” of District 63, and were not made to
pursue traditional districting goals. Accordingly, District
74 acted as a “donor” to other challenged
districts, transferring population and geographic areas on a
plainly racial basis and subordinating traditional
districting criteria in the process.
B.
We turn
to consider the North Hampton Roads region, otherwise known
as “the peninsula, ” located in the Tidewater
area of Virginia. Pl. Ex. 69 at 41; see, e.g., Pl.
Ex. 71 at 11. Challenged Districts 92 and 95 were located on
the peninsula and included portions of the cities of Hampton
and Newport News. Pl. Ex. 50 at 15 ¶ 37, 69; Pl. Ex. 69
at 41. Between 2001 and the 2010 census, the peninsula lost
substantial population, resulting in severe underpopulation
in Districts 92 and 95. Pl. Ex. 50 at 72; Pl. Ex. 69 at 46;
DI Ex. 62. In addition to being bordered by bodies of water,
Districts 92 and 95 were adjacent to large concentrations of
white residents in other districts. Pl. Ex. 69 at 42-44; DI
Ex. 94 at 13-14. Thus constrained by both geography and
demographics, the legislature was required to add substantial
population to Districts 92 and 95, while retaining a 55% BVAP
in each. See Pl. Ex. 69 at 46.
Accordingly,
the legislature undertook several patently race-based
maneuvers to equalize population in these districts. Most
notably, the legislature added a long, narrow appendage to
District 95, which on its face disregarded traditional
districting criteria. See Pl. Ex. 69 at 46-47. The
appendage also split several VTDs, causing separation of
predominantly black neighborhoods from predominantly white
neighborhoods with striking precision. See Pl. Ex.
69 at 47. Dr. Rodden could not “fathom” an
explanation for these changes other than race. Pl. Ex. 69 at
48.
In
addition to these plainly racial splits of VTDs, the data
also show more general illustrations of race-based
line-drawing on the peninsula. In the 2011 plan, all the
majority-black VTDs in the vicinity of Districts 92 and 95
were included in one of those districts. 2nd Trial Tr. at
247. The portions of the cities of Hampton and Newport News
assigned to Districts 92 and 95 had substantially higher BVAP
levels than the portions of those cities assigned to
neighboring non-challenged districts. Pl. Ex. 71 at 60. For
example, the portion of Hampton assigned to District 92 had a
60.7% BVAP, compared to the 27.9% BVAP in the areas of
Hampton assigned to non-challenged District 91. Pl. Ex. 71 at
60.
After
considering the evidence as discussed below, we easily
conclude that race was the predominant factor in the
construction of Districts 92 and 95.
i.
We
begin with District 95, which contained portions of the
cities of Hampton and Newport News under both the 2001 and
2011 plans.[40] Pl. Ex. 50 at 69, 71. We conclude that
the evidence overwhelmingly showed that race predominated in
the construction of District 95.
Although
District 95 had a high 61.6% BVAP, that district was the most
underpopulated of all the challenged districts at the time of
the 2010 census, with a population deficit of about 12, 000
people. Pl. Ex. 50 at 72; Pl. Ex. 69 at 44. To add the
thousands of residents required to equalize population, while
still maintaining a minimum 55% BVAP, the legislature added a
lengthy, narrow appendage to the northwest edge of the
district. Pl. Ex. 69 at 46. This appendage caused a
significant reduction in the compactness of District 95,
leading to the worst compactness score in the entire 2011
plan. Pl. Ex. 50 at 8 ¶ 16, 70; DI Ex. 94 at 14.
Overall,
the addition of the narrow appendage increased the number of
split VTDs in District 95 from one in the 2001 plan to five
in the 2011 plan.[41] Pl. Ex. 71 at 11, 50, 55. In all five
instances, the BVAP of the portion of those VTDs allocated to
District 95 was higher than the BVAP of the area allocated to
a neighboring non-challenged district. Pl. Ex. 71 at 11
¶ 54, 55. Accordingly, Dr. Palmer calculated a strong
positive and statistically significant relationship between
BVAP and the likelihood that a census block would be assigned
to District 95. Pl. Ex. 71 at 11 ¶ 55. Dr. Palmer
explained that a census block with a 75% BVAP was three times
“more likely to be assigned to District 95” than
a census block with a 25% BVAP. Pl. Ex. 71 at 11 ¶ 55.
Dr. Palmer further determined that black residents previously
located in non-challenged District 94 were seven times more
likely to be moved into District 95 than white residents. Pl.
Ex. 71 at 19 ¶ 101.
To
achieve these racial disparities, this appendage followed a
“narrow corridor through white neighborhoods in order
to reach a corridor” of black residents along a major
highway and an additional thoroughfare. Pl. Ex. 69 at 46. The
legislature split nearly every VTD at the northern end of
this corridor, separating white and black voters “with
remarkable precision.” Pl. Ex. 69 at 46. As Dr. Rodden
explained, the legislature split the four northernmost VTDs
in the new appendage, namely, Jenkins, Denbigh, Epes, and
Reservoir, “precisely at the point where black
neighborhoods transitioned to white neighborhoods.” Pl.
Ex. 69 at 47. Indeed, the legislature drew the boundary in
some cases along small residential streets, with the effect
of including in District 95 multi-family housing occupied by
black residents on one side of a street while excluding white
residents living on the other side of the same street. Pl.
Ex. 69 at 48. The dot density maps produced by Dr. Rodden
plainly illustrate the precision with which these VTDs were
split by race. See Pl. Ex. 69 at 47. As previously
explained, only population, race, and ethnicity data were
available at the census block level to aid in the division of
VTDs by census block, precluding any conclusion that these
VTDs were split on any basis other than race.[42]
The
narrow appendage added significant black population to
District 95, which allowed the district to
“donate” BVAP to neighboring challenged District
92. Pl. Ex. 69 at 45, 48; 2nd Trial Tr. at 231. Accordingly,
despite the 12, 000-person population deficit in District 95,
that district still transferred over 18, 000 people
into District 92. Pl. Ex. 50 at 72; Pl. Ex. 71 at 45. As
discussed further below, the legislature moved three heavily
black VTDs from District 95 into District 92, which shift
included over 6, 000 black residents of voting age, allowing
District 92 both to achieve population equality and to
satisfy the 55% BVAP threshold. Pl. Ex. 63 at 113; Pl. Ex. 69
at 48-49; 2nd Trial Tr. at 242.
In
light of this evidence, we conclude that race was the
predominant factor underlying the construction of District
95. The shape of the district, including the drastic
reduction in compactness from the 2001 plan, is suspicious on
its face. See Miller, 515 U.S. at 913 (explaining
that the bizarre shape of a district “may be persuasive
circumstantial evidence that race for its own sake, and not
other districting principles, was the legislature's
dominant and controlling rationale in drawing its district
lines”). More importantly, however, we cannot conceive
of any race-neutral explanation for the added appendage, in
which multiple VTDs were split precisely with the effect of
dividing neighborhoods based on race.[43]
ii.
We turn
to consider District 92, [44] which was contained wholly
within the city of Hampton in both the 2001 and 2011 plans.
Pl. Ex. 50 at 69. We conclude that race predominated in the
construction of District 92.
Like
District 95, District 92 had a starting BVAP of over 60%, but
was significantly underpopulated by about 9, 000 people. Pl.
Ex. 50 at 72; Pl. Ex. 69 at 46. At first glance, compliance
with certain traditional districting factors improved in
District 92 after the 2011 redistricting. In particular, the
district's compactness score improved from the 2001 plan,
and the number of split VTDs declined from three to zero. Pl.
Ex. 50 at 70. However, this lack of actual conflict with
traditional districting criteria is not dispositive of our
predominance inquiry. See Bethune-Hill, 137 S.Ct. at
797-99 (rejecting proposition that “actual
conflict” with traditional districting principles is a
threshold requirement for a finding of predominance). Here,
we have “compelling circumstantial evidence” of
the legislature's predominant use of race in District 92.
Id. at 799.
The
evidence showed that the construction of District 92 was
“intimately connected” with the plainly
race-based decisions made in District 95. 2nd Trial Tr. at
229. As Dr. Rodden explained, we cannot “understand the
districting decisions of one without thinking about the
implications for the other” of the two districts, with
respect to the need for population as well as the fixed 55%
BVAP threshold. 2nd Trial Tr. at 229.
Despite
the severe underpopulation of both districts, District 92
received population exclusively from District 95. Pl. Ex. 50
at 73; Pl. Ex. 71 at 45. After District 95 gained additional
population and BVAP from its racially designed northward
appendage, three VTDs with high BVAPs were moved from
District 95 into District 92, totaling nearly 16, 000
people.[45] Pl. Ex. 63 at 112; Pl. Ex. 71 at 45; 2nd
Trial Tr. at 242. This transfer of the Mallory, Forrest, and
Kraft VTDs was sufficient on its own to rectify the
population deficit in District 92, and, as noted above,
included over 6, 000 black voting-age residents. Pl. Ex. 63
at 113; 2nd Trial Tr. at 242. Without this donation of
significant population from District 95, the legislature
would have been forced to expand the boundaries of District
92 into heavily white precincts, negatively impacting the
BVAP level of District 92. See Pl. Ex. 69 at 46, 48
(Rodden: “[A]ny approach that was even remotely based
on traditional redistricting principles would have ended up
adding a very substantial number of whites . . . [which]
would have imperiled the 55 percent BVAP target.”).
In sum,
patently race-based maneuvers allowed District 95 to serve as
a “donor” of population and BVAP to District 92,
ensuring that the addition of thousands of people to District
92 would not decrease the BVAP of that district below 55%.
Although District 92 appears to comply with certain
traditional districting criteria, we find that race was
“the actual consideration[] that provided the essential
basis for the lines drawn.” Bethune-Hill, 137
S.Ct. at 799. Accordingly, because the population moved into
District 92 was controlled by the race-based decisions in
District 95, we conclude that race was the predominant factor
in the construction of District 92.
C.
And
finally, we turn to consider the four remaining challenged
districts, Districts 77, 80, 89, and 90, which were located
in the South Hampton Roads area of Tidewater. Pl. Ex. 69 at
41. These four districts included all or parts of the cities
of Chesapeake, Norfolk, Portsmouth, Suffolk, and Virginia
Beach. Pl. Ex. 50 at 69.
The
legislature faced a unique challenge in re-drawing the
districts in South Hampton Roads. One of the
non-majority-minority districts in the 2001 map, District 87,
was moved from the Tidewater area to Fairfax County in
Northern Virginia to compensate for population growth in that
region. 2nd Trial Tr. at 298-99. Additionally, like the
challenged districts on the peninsula, Districts 77, 80, 89,
and 90 were underpopulated, with limited options to gain
significant population while retaining a BVAP over 55%. Pl.
Ex. 50 at 72; Pl. Ex. 69 at 52. Districts 80 and 89 also had
BVAP levels under 55% at the time of the 2010 census. Pl. Ex.
50 at 72. Accordingly, the legislature engaged in complicated
population-shifting maneuvers to sweep concentrations of
black residents into one of the challenged districts, and to
respond to the ripple effects of such population shifts
throughout the region.
As in
the Richmond/Tri-City region and on the peninsula, the
prominent role of race in drawing the challenged districts in
South Hampton Roads is apparent. Five cities in the region
were split between a challenged and a non-challenged
district. Pl. Ex. 71 at 16 ¶ 80. In all five cases, the
portion of the city allocated to a challenged district had a
“substantially higher BVAP” than the portion
assigned to a non-challenged district. Pl. Ex. 71 at 16
¶ 80, 59. In total, the areas of these five cities
assigned to challenged districts had a 56.8% BVAP, whereas
the areas of the cities assigned to non-challenged districts
had a 20% BVAP. Pl. Ex. 71 at 16 ¶ 80. And under the
2011 plan, one neighborhood in downtown Norfolk was divided
into three districts, and included a half-mile stretch of
roadway running through District 89, into 90, returning to
89, moving into 80, and ending in 90. Pl. Ex. 69 at 51. This
bizarre configuration plainly disregarded traditional
districting principles.
Additionally,
in five of the six cases involving the transfer of population
from non-challenged districts to challenged districts, the
area sent to a challenged district had a higher BVAP than the
area retained in the non-challenged district. Pl. Ex. 71 at
18 ¶ 93. And conversely, in all four instances in which
a challenged district had population transferred to a
non-challenged district, the area moved out of the challenged
district had a lower BVAP than that of the area retained in
the challenged district. Pl. Ex. 71 at 18 ¶ 94.
The
intervenors have offered numerous race-neutral explanations
for certain line-drawing decisions in South Hampton Roads
that otherwise appear racially motivated. As discussed
further below, we decline to credit the majority of these
post hoc justifications because they are belied by the
record. After reviewing the evidence, we conclude that race
predominated in the construction of Districts 77, 80, 89, and
90.
i.
We
first consider District 80, which was the
“lynchpin” to the redistricting of South Hampton
Roads. Pl. Ex. 69 at 52. We conclude that race was the
predominant factor underlying the drawing of District 80.
In the
2001 plan, District 80 included portions of the cities of
Chesapeake, Norfolk, and Portsmouth. Pl. Ex. 50 at 69. As a
result of the 2011 redistricting, District 80 also gained a
portion of the city of Suffolk, thereby spanning four split
municipalities. Pl. Ex. 50 at 69, 71. James, the incumbent
delegate representing District 80, testified at the second
trial. 2nd Trial Tr. at 68. After observing his demeanor and
considering his testimony, we find that James testified
credibly.
At the
time of the 2010 census, District 80 was underpopulated by
more than 9, 000 people, and had a BVAP of 54.4%. Pl. Ex. 50
at 72; Pl. Ex. 69 at 52. The geography and demographics of
the surrounding area hampered the legislature's ability
to replenish the needed population while achieving the 55%
BVAP requirement. At that time, District 80 was surrounded by
largely white areas along the water and to the west of the
district. Pl. Ex. 64 at 15; Pl. Ex. 69 at 52-53; see
also 2nd Trial Tr. at 249. On the eastern side of the
district, District 80 shared a border with challenged
District 89, and a border with challenged District 77. Pl.
Ex. 69 at 43; DI Ex. 94 at 8, 10. District 89 had a
significant population deficit and an even lower BVAP than
District 80. Pl. Ex. 50 at 72; see also 2nd Trial
Tr. at 249-50.
To
accommodate the interrelated needs of these challenged
districts, the legislature removed more than 22, 000 people
from District 80, and replaced them with over 32, 000 new
residents. Pl. Ex. 50 at 73. As part of this population
shift, the district shed about 14, 000 people to neighboring
non-challenged District 79. Pl. Ex. 71 at 20 ¶ 105. In
that transfer, white residents were moved from District 80 to
79 at three times the rate of black residents, with
a 29.4% BVAP in the transferred population. Pl. Ex. 71 at 20,
44. Overall, these huge population shifts decreased the
compactness of District 80 and rendered the shape of the
district bizarre on its face, resembling a sideways
“S.” See Miller, 515 U.S. at 913
(explaining that bizarre shape of a district may be
“persuasive circumstantial evidence” of racial
predominance); Pl. Ex. 50 at 70; DI Ex. 94 at 10.
To
create this sideways “S, ” District 80 added
Portsmouth VTDs 33 and 34, which were predominantly white.
Pl. Ex. 63 at 124-25; DI Ex. 94 at 10. VTDs 33 and 34 acted
as a westward “bridge” into the VTDs of 38,
Taylor Road, Yeates, and Harbour View, located in Portsmouth,
Chesapeake, and Suffolk respectively, all of which had large
BVAP concentrations.[46] Pl. Ex. 63 at 106-07, 124-25, 127-28,
133-34; Pl. Ex. 69 at 53; DI Ex. 94 at 10; 2nd Trial Tr. at
252. As Dr. Rodden explained, this “bridge”
“correspond[ed] directly to race, ” and reached
these black neighborhoods in the four other identified VTDs
“by bringing in the smallest possible number of
whites.” See Pl. Ex. 69 at 53-54; DI Ex. 94 at
10. The westward extension also added an additional water
crossing to the district. DI Ex. 94 at 10; 2nd Trial Tr. at
252. We find that this oddly shaped westward extension of
District 80 was constructed primarily on the basis of race,
and cannot be explained otherwise as reflecting the
application of traditional redistricting principles.
Although
District 80 had only one populated VTD that was split in the
2011 plan, the nature of that split exhibited a stark racial
division. Pl. Ex. 50 at 70; Pl. Ex. 71 at 54. The BVAP of the
portion of VTD Nine assigned to District 80 was over 98%,
whereas the BVAP of the portion of that VTD assigned to
District 79 was more than 30 percentage points lower. Pl. Ex.
71 at 54.
And
finally, as previously discussed, we reject Jones'
contention at the first trial that the incumbent James
offered “significant input” regarding the drawing
of District 80. 1st Trial Tr. at 348-49. James flatly
contradicted this assertion at the second trial, testifying
credibly that he had no input in the redistricting process.
2nd Trial Tr. at 71- 73. Moreover, Jones equivocated at the
second trial regarding the extent to which the wishes of
James influenced the line-drawing decisions in District
80.[47] 2nd Trial Tr. at 499.
In sum,
after the 2011 redistricting, District 80 exhibited a shape
that was bizarre on its face, experienced a significant
reduction in compactness, and underwent massive population
shifts showing distinct racial patterns. We find that the
intervenors' proffered justifications for these
apparently racially motivated changes are not
credible.[48] We therefore conclude that race
predominated in the drawing of District 80.
ii.
We turn
to consider District 89, [49] which was contained entirely
within the city of Norfolk in both the 2001 and 2011 plans,
but nevertheless experienced a significant reduction in
compactness after the 2011 redistricting. Pl. Ex. 50 at
69-70. We conclude that race was the predominant factor in
the construction of District 89.
As in
District 80, District 89 began with a BVAP under the 55%
threshold. Pl. Ex. 50 at 72. Indeed, at the time of the 2010
census, District 89 had the lowest BVAP of any challenged
district in the entire South Hampton Roads region, at 52.5%.
Pl. Ex. 50 at 72. Also like District 80, District 89 was
significantly underpopulated, and needed more than 5, 700
additional people. Pl. Ex. 50 at 72; Pl. Ex. 69 at 55. The
legislature therefore made several decisions to bolster both
the overall population and the BVAP level of District 89,
ultimately achieving a BVAP of only 55.5%. Pl. Ex. 50 at 72.
As a
result of the legislature's race-based maneuvers, there
was a strong positive and statistically significant
relationship between the BVAP of a census block and its
likelihood of being assigned to District 89. In particular, a
census block with a 75% BVAP was 2.9 times more likely to be
allocated to District 89 than a census block with only a 25%
BVAP. Pl. Ex. 71 at 11 ¶ 52, 51.
As in
many other challenged districts, the legislature demonstrated
its racial motive in the way certain VTDs were split. In two
of the three VTDs split between District 89 and a neighboring
non-challenged district, the portion of the VTD allocated to
District 89 had a higher BVAP than the portion allocated to
the non-challenged district.[50]Pl. Ex. 71 at 10 ¶ 50. The
2011 plan also split the Brambleton VTD between challenged
Districts 89 and 90. Pl. Ex. 71 at 56. This change resulted
in over 4, 000 people, with a 96% BVAP, being split between
the two challenged districts, and more than 1, 000 black
voting-age residents being moved into District 89. Pl. Ex. 71
at 12-13 ¶ 64, 56. Although the Brambleton VTD
previously was contained entirely within challenged District
90, this split was required for District 89 to achieve the
55% BVAP threshold. Pl. Ex. 71 at 12-13 ¶ 64. As Dr.
Palmer explained, if District 89 had not received its portion
of Brambleton, the BVAP of the district would have fallen to
54.7%. Pl. Ex. 71 at 12-13 ¶ 64.
In
addition to Brambleton, District 89 received the
predominantly black Berkley VTD from District 80. Pl. Ex. 63
at 121-22; Pl. Ex. 69 at 55; DI Ex. 94 at 11; 2nd Trial Tr.
at 260. District 89 had been located entirely north of the
Elizabeth River in the 2001 plan. Pl. Ex. 69 at 55; DI Ex. 94
at 11. The addition of Berkley to District 89, however, added
a water crossing to District 89 in order to reach that single
VTD. Pl. Ex. 69 at 55; DI Ex. 94 at 11. In our view, the
reason for the transfer of the Berkley VTD is clear: Berkley
had a BVAP of over 95%, totaling over 2, 200 voting-age black
residents. Pl. Ex. 63 at 121-22.
In
contrast to gaining the heavily black Berkley VTD on the
south side of the district, District 89 lost the largely
white Suburban Park VTD on the north side. See Pl.
Ex. 63 at 121-22; DI Ex. 94 at 11; 2nd Trial Tr. at 255.
These two VTDs had similar overall populations, but differed
in their racial composition. Pl. Ex. 63 at 121. Additionally,
the legislature split the Granby VTD, which bordered Suburban
Park, with minute precision to include black residents in
District 89 while excluding white Granby residents. Pl. Ex.
69 at 58; 2nd Trial Tr. at 256-57. This race-based population
split was accomplished in the Granby VTD by the legislature
adding to District 89 an appendage encompassing significant
numbers of black residents, while carving a sliver out of the
middle of the Granby VTD to exclude a narrow band of white
residents.[51] Pl. Ex. 69 at 57-58; DI Ex. 94 at 11. We
agree with Dr. Rodden's assessment that it was
“very unlikely” that the legislature would have
achieved this precise racial split of the Granby VTD as a
coincidental side effect of equalizing population. 2nd Trial
Tr. at 256.
In
conclusion, like many other challenged districts, the
legislature moved VTDs in and out of District 89 based on
racial composition, and split VTDs clearly along racial
lines, in order to achieve the 55% BVAP threshold. We find
that these racial patterns were not coincidental to the
attainment of traditional districting goals, but that the
legislature was motivated primarily by race in drawing the
boundaries of District 89. For these reasons, we conclude
that race was the predominant factor in the construction of
District 89.
iii.
We now
consider the role of race in the configuration of District
77, the third challenged district in South Hampton Roads.
Like Districts 80 and 89, we conclude that race predominated
in the construction of District 77.
In both
the 2001 plan and the 2011 plan, District 77 included
portions of the cities of Suffolk and Chesapeake, connected
by a narrow east-west corridor in the middle of the district.
Pl. Ex. 50 at 69; DI Ex. 94 at 8. District 77 already had an
odd shape and an extremely low compactness score under the
2001 plan. Pl. Ex. 50 at 70; DI Ex. 94 at 8. The boundaries
of the 2001 version of District 77 extracted black residents
from Chesapeake, “divide[d] [black residents] in
suburban Portsmouth into two segments so as to share them
between Districts 77 and 80, ” and extended into
Suffolk so that black residents “on one side of town
were separated from whites on the other.” Pl. Ex. 69 at
62; see also 2nd Trial Tr. at 266. District 77
retained this general shape and low compactness score in the
2011 plan. Pl. Ex. 50 at 70; DI Ex. 94 at 8.
At the
time of the 2010 census, District 77 had a BVAP of 57.6%, and
was the least underpopulated of the challenged districts in
Hampton Roads, with a population deficit of about 3, 000
people. Pl. Ex. 50 at 72. Despite this relatively minor
underpopulation, the legislature moved more than 18, 000
people out of District 77, and replaced them with about 21,
000 others. Pl. Ex. 50 at 73. The legislature engaged in this
large population shift to account for the ripple effect of
the 55% BVAP threshold throughout South Hampton Roads, and
particularly to ensure that both District 77 and neighboring
challenged District 90 met the 55% BVAP requirement.
Initially,
four largely white Chesapeake VTDs in District 90 were
transferred to District 77, namely, Oaklette, Tanglewood,
Indian River, and Norfolk Highlands. Pl. Ex. 63 at 106-07;
2nd Trial Tr. at 266-68. This removal of white residents from
District 90 was necessary for that district to attain a 55%
BVAP. Pl. Ex. 69 at 64-65, 67.
To
compensate for this influx of white residents from District
90, District 77 lost four other majority-white VTDs, namely,
Westover, Geneva Park, River Walk, and E.W. Chittum School.
Pl. Ex. 63 at 106-07, 109-10; Pl. Ex. 69 at 65; DI Ex. 94 at
8; 2nd Trial Tr. at 269. By removing the Geneva Park VTD, the
already-narrow corridor linking the Chesapeake and Suffolk
portions of the district narrowed further, to a half-mile in
width. Pl. Ex. 69 at 66. As a result of this narrowing, no
east-west roads within District 77 connected the eastern and
western parts of the district. Pl. Ex. 69 at 66; 2nd Trial
Tr. at 271; see Page, 2015 WL 3604029, at *11
(explaining that the presence of “irregularities in the
application” of the contiguity principle may be
“circumstantial evidence . . . that contributes to the
overall conclusion that the district's boundaries were
drawn with a focus on race”). This east-west corridor
“generate[d] the starkest possible segregation of
blacks and whites.” Pl. Ex. 69 at 67. District 77
needed to retain the high BVAP Suffolk VTDs of Southside,
Hollywood, and White Marsh to achieve a 55% BVAP. Pl. Ex. 63
at 133-34; Pl. Ex. 69 at 66. Accordingly, District 77 had to
maintain some minimal connection between the Chesapeake and
Suffolk precincts to remain a contiguous district.
See DI Ex. 94 at 8.
We
reject the intervenors' contention, asserted by Jones at
the first trial, that some changes to the Chesapeake portion
of the district were made at the request of the District 77
incumbent, Delegate Lionell Spruill Sr. Parties'
Stipulations ¶ 17, Dkt. No. 208. According to Jones,
Spruill requested that the city of Old South Norfolk be
reunited into District 77 by moving certain precincts into
the district. 1st Trial Tr. at 334-37. In addition to our
reservations about the inconsistencies and stark variations
in Jones' testimony between the first and second trials,
we decline to credit this explanation given by Jones for
independent reasons. First, and notably, despite relying
heavily on Spruill's alleged input, the intervenors
failed to call him as a witness at either trial to
corroborate their theory. And second, this reunification did
not actually occur. District 77 lost the low-BVAP
Westover VTD, which also had been part of Old South Norfolk.
Pl. Ex. 69 at 64; 2nd Trial Tr. at 268.
And
finally, as in other challenged districts, the overall
population data and race-based splits of VTDs illustrate the
prominence of the legislature's racial motive.
See 2nd Trial Tr. at 274. There was a positive and
statistically significant relationship between the BVAP of a
census block and the likelihood of that census block being
assigned to District 77. A census block with a 75% BVAP was
2.5 times more likely to be assigned to District 77 than a
census block with a 25% BVAP. Pl. Ex. 71 at 10 ¶ 45.
Additionally, in both the VTDs split between District 77 and
a non-challenged district, the portion allocated to District
77 had a much higher BVAP than the portion assigned to the
neighboring non-challenged district. Pl. Ex. 71 at 54. For
example, in the Suffolk VTD of Lakeside, the BVAP of the
portion of the VTD allocated to District 77 was 79.4%, while
the BVAP of the area assigned to non-challenged District 76
was 36.1%. Pl. Ex. 71 at 54. In the case of another split
VTD, District 77 received 75% of the population of the John
F. Kennedy VTD, but received 96% of the BVAP. Pl. Ex. 71 at
10 ¶ 44, 33.
Overwhelming
evidence supports our conclusion that the legislature
predominantly relied on race in constructing District 77. To
the extent that the district retained lines that previously
were drawn based on race, we infer that race similarly
influenced the legislature's decision to retain those
lines. See generally Miller, 515 U.S. at 916
(explaining that the focus of the predominance analysis is
whether “race was the predominant factor motivating the
legislature's decision to place a significant number of
voters within or without a particular district”). The
creation of an exceptionally narrow corridor to connect
pockets of black residents in two cities, without including
an avenue for constituents or delegates to travel along that
corridor, is strong evidence that the legislature
subordinated traditional districting criteria to race.
iv.
We
conclude our evaluation of South Hampton Roads with District
90. Because the redistricting decisions made in that district
were integrally connected with the race-based decisions made
elsewhere in South Hampton Roads, we conclude that race
predominated in the drawing of District 90.
In the
2001 plan, District 90 included portions of the cities of
Chesapeake, Norfolk, and Virginia Beach. Pl. Ex. 50 at 69.
After the 2011 redistricting, District 90 lost its precincts
located in Chesapeake, and thus covered only two split
municipalities. Pl. Ex. 50 at 69. The district also improved
in compactness in the 2011 plan, and retained the same number
of split VTDs. Pl. Ex. 50 at 70.
As
previously discussed with respect to District 92, however,
these consistencies with traditional districting criteria do
not end our analysis of racial predominance. See
Bethune-Hill, 137 S.Ct. at 798-99. Instead of limiting
our inquiry to the shape of a district, we look to “the
actual considerations that provided the essential basis for
the lines drawn.” Id. at 799.
At the
time of the 2010 census, District 90 was significantly
underpopulated by nearly 9, 000 people, and had a BVAP of
56.9%. Pl. Ex. 50 at 72; Pl. Ex. 69 at 59. District 90 shared
a border with two other challenged districts, namely,
Districts 77 and 89. Pl. Ex. 69 at 43; DI Ex. 94 at 12.
Consistent with the pattern seen elsewhere in South Hampton
Roads, more than 18, 000 people were moved out of District
90, and were replaced by nearly 28, 000 others. Pl. Ex. 50 at
73.
We
already have discussed specific population shifts involving
District 90, which we will reiterate briefly here. These
shifts ensured that either District 90 or another one of the
challenged districts in the area attained both population
equality and a minimum 55% BVAP. 2nd Trial Tr. at 265.
First,
District 90 lost the heavily white VTDs of Oaklette,
Tanglewood, Indian River, and Norfolk Highlands to District
77, forcing the shedding from District 77 of other areas with
significant white population. Pl. Ex. 63 at 106-07; Pl. Ex.
69 at 64-65; 2nd Trial Tr. at 266-68. The BVAP of District 90
would have dropped below 55% had District 90 retained the
white population contained in these VTDs. Pl. Ex. 69 at 67.
Second,
although the Brambleton VTD previously had been located
wholly within District 90, the VTD was split in the 2011 plan
between Districts 90 and 89. Pl. Ex. 71 at 12-13 ¶ 64.
The Brambleton VTD had a large overall population and a 96%
BVAP, without which District 89 could not have reached the
55% BVAP threshold. Pl. Ex. 71 at 12-13 ¶ 64. Overall,
by transferring 4, 000 people from District 90 to District
89, including a portion of Brambleton and a neighboring
overwhelmingly black VTD, District 89 gained population with
a 94.1% BVAP. Pl. Ex. 63 at 121-22; Pl. Ex. 71 at 44; DI Ex.
94 at 11-12.
Like
many other challenged districts, the legislature also split
VTDs between District 90 and non-challenged districts
precisely along racial lines. 2nd Trial Tr. at 264. In all
three such cases, the portion of the split VTD allocated to
District 90 had a higher BVAP than the portion allocated to a
neighboring non-challenged district. Pl. Ex. 71 at 54.
Notably, for example, the BVAP of the portion of the Aragona
VTD in District 90 was 61.6%, compared with the 19% BVAP in
the portion of Aragona assigned to non-challenged District
85. Pl. Ex. 71 at 54. Dr. Rodden's dot density maps
illustrate the specificity with which the Aragona, Shell, and
Reon VTDs were split to separate black and white populations.
Pl. Ex. 69 at 60-61; 2nd Trial Tr. at 263-64.
And
finally, we reject the intervenors' contention that any
lines in District 90 were drawn at the request of Howell, the
incumbent delegate. Although Howell was a member of the House
redistricting subcommittee, he testified at the second
trial[52] that he played a minimal role in the
2011 redistricting process. 2nd Trial Tr. at 82. Directly
contrary to Jones' testimony at the first trial, Howell
stated that he did not have “extensive input”
into the drawing of his or any other district, but instead
had a single discussion with Jones about District 90 only
after the map was drawn. 1st Trial Tr. at 338-39, 343; 2nd
Trial Tr. at 82-83. We credit Howell's testimony on this
point over Jones' account.
The
ripple effect of population and BVAP needs throughout South
Hampton Roads heavily influenced the drawing of District 90.
To ensure that District 90 and the other challenged districts
all could achieve the 55% BVAP threshold, District 90 was
required to incorporate population movements and split VTDs
that were configured on a racial basis. Although, like
District 92, District 90 appeared to comply with some
traditional districting criteria, we find that the
“actual considerations” the legislature used to
draw District 90 were based on race, not on traditional
districting goals. Bethune-Hill, 137 S.Ct. at 799.
Accordingly, we conclude that race was the predominant factor
in the drawing of District 90.
D.
Our
conclusion that race predominated in the construction of the
11 remaining challenged districts is not altered by the
intervenors' post hoc justifications. See Id.
(“The racial predominance inquiry concerns the actual
considerations that provided the essential basis for the
lines drawn, not post hoc justifications the legislature in
theory could have used but in reality did not.”
(emphasis omitted)). As discussed above, during the first
trial, the intervenors defended against the plaintiffs'
assertion of racial predominance by denying the use of a
fixed 55% BVAP target. See 1st Trial Tr. at 280-81,
406, 409. That issue has been decided against the intervenors
and is now settled. See Id. at 795-99;
supra pp. 17-18.
Bound
by the 55% BVAP requirement, the intervenors have not
produced a consistent theory otherwise to explain the
apparently race-based boundaries of the 11 remaining
challenged districts. The intervenors rely heavily on the
fact that many of the challenged districts were severely
underpopulated and required significant population shifts to
achieve equal population. See, e.g., 2nd Trial Tr.
at 476. The intervenors also contend that VTDs were split at
the end of the redistricting process for the purpose of
equalizing population. DI Post-Trial Br. at 13.
Although
the need for population redistribution in the challenged
districts was undisputed, the need for population
equalization does not explain why the legislature selected
certain boundary lines over others. The Supreme Court has
been very clear that
an equal population goal is not one factor among others to be
weighed against the use of race to determine whether race
“predominates.” Rather, it is part of the
redistricting background, taken as a given, when determining
whether race, or other factors, predominate in a
legislator's determination as to how equal
population objectives will be met.
Alabama, 135 S.Ct. at 1270. Accordingly, to
determine whether race predominated, we consider
“whether the legislature placed race above traditional
districting considerations in determining which
persons were placed in appropriately apportioned
districts.” Id. at 1271 (internal
quotation marks omitted). We therefore reject the
intervenors' reliance on population equalization as a
factor weighing against the use of race in the creation of
the challenged districts.
We
similarly reject the intervenors' claim, advanced at the
second trial, that “core retention”[53] was the
legislature's primary redistricting consideration.
See DI Post-Trial Br. at 18-19. Core retention is a
necessary feature of nearly every redistricting, unless a
district is moved entirely, because a new district
necessarily will involve at least some change to the original
geography. For example, a district with 90% core retention
still may have selected the remaining 10% of its population
based exclusively on race. Accordingly, core retention tells
us very little about “which voters the
legislature decides to choose” in shifting its
boundaries, and thus “is not directly relevant to the
origin of the new district inhabitants.”
Id.
E.
In
summary, after “exercis[ing] [the] extraordinary
caution” required of our predominance inquiry, we find
as a matter of fact that the legislature subordinated
traditional districting criteria to racial considerations.
Bethune-Hill, 137 S.Ct. at 797 (citation omitted);
see also Abbott, slip op. at 21. We therefore
conclude that race predominated in the construction of all
the 11 remaining challenged districts.
In
reaching this conclusion, we emphasize several salient
points. Critical to our analysis is our decision not to
credit Jones' testimony, and our determination that
Morgan's testimony was wholly lacking in credibility.
These adverse credibility findings are not limited to
particular assertions of these witnesses, but instead wholly
undermine the content of Jones' and Morgan's
testimony. As the dissent acknowledges, our credibility
findings are “outcome-determinative” in this
case. Dissent Op. at 94.
We
nevertheless recognize that race was not the only factor that
the legislature used in fashioning the challenged districts,
and that the legislature relied on traditional districting
criteria in making certain line-drawing decisions. However,
the existence of race-neutral explanations for specific
district lines is not dispositive of our predominance
inquiry, under which we apply a “holistic
analysis” to determine “the legislature's
predominant motive for the design of the district as a
whole.” Bethune-Hill, 137 S.Ct. at 800
(emphasis added). The Supreme Court has cautioned that
“any explanation for a particular portion of the lines
. . . must take account of the districtwide context.”
Id. And, as discussed above, the legislature may
achieve a legitimate districting goal while also
predominantly relying on race, as “actual
conflict” with traditional principles is not required
to prove predominance. Id. at 797-98.
As part
of our holistic analysis, we observe that the fates of the 11
remaining challenged districts in this case were inextricably
intertwined. Due to their starting population and BVAP, some
of the challenged districts were able to serve as
“donors” of BVAP and population to nearby
challenged districts. Other districts, faced with deficits in
these areas, received BVAP and population from other
districts in order to achieve a 55% BVAP. Sometimes, multiple
challenged districts in a region split areas with substantial
black populations in order to boost each district's BVAP.
See, e.g., Pl. Ex. 71 at 12-13 ¶ 64.
Conversely, challenged districts split predominantly white
areas so as to disperse the white population and not unduly
dilute the BVAP of a challenged district. See, e.g.,
Pl. Ex. 71 at 12 ¶ 62; 2nd Trial Tr. at 41-42, 59. In
light of this interconnectedness between districts, we have
considered the effects of racial maneuvers made in one
challenged district on other challenged districts in the
region.
Common
to all the challenged districts, however, was the
legislature's application of “an express racial
target” of 55% BVAP. Bethune-Hill, 137 S.Ct.
at 800. Although not dispositive to our predominance
determination, this fixed target is evidence of the
legislature's consideration of race. See id.;
Alabama, 135 S.Ct. at 1267 (explaining that when a
state legislature “expressly adopted and applied a
policy of prioritizing mechanical racial targets above all
other districting criteria, ” this use of a racial
target “provides evidence that race motivated the
drawing of particular lines”).
The
evidence presented at trial showed that this 55% BVAP
threshold had a predominating impact on the manner in which
lines were drawn in each of the challenged districts. In
general, the legislature was constrained in its ability to
achieve the 55% threshold while equalizing population in each
district, given the severe underpopulation of at least one
district in each region and the geographic dispersal of
high-BVAP areas. Accordingly, the legislature shifted huge
numbers of voters between districts, in some cases replacing
thousands of voters in adequately populated districts with
the same number of new voters. See Pl. Ex. 50 at
72-73. These population shifts frequently exhibited
“stark splits in the racial composition of populations
moved into and out of disparate parts of the district.”
Bethune-Hill, 137 S.Ct. at 800; see Pl. Ex.
50 at 77.
In
addition to these overall population figures, the legislature
also engaged in a distinct pattern of splitting VTDs to
divide concentrations of black and white voters, assigning
portions of VTDs with large concentrations of black voters to
challenged districts, and allocating heavily white areas to
neighboring non-challenged districts. We find entirely
lacking in credibility the intervenors' explanation that
these splits were made for any reason other than race. In our
view, the precision with which such splits separated
neighborhoods based on racial make-up, including dividing a
VTD down the middle of a street, speaks for itself.
See Pl. Ex. 69 at 38-39 & Figure 12, 47. Such a
precise racial segregation of voters was not the result of
happenstance.
To the
extent that the intervenors assert that partisan advantage
rather than race explains some of these VTD splits, we also
reject this argument. We again emphasize that we do not find
Morgan's explanations for his line-drawing decisions
credible. And critically, political party performance data
was not available to the map-drawers at the census
block level. Accordingly, if the legislature sought to
achieve partisan advantage by splitting VTDs, the legislature
did so by using race as a proxy for political affiliation.
Indeed, the intervenors' expert Dr. Katz explicitly
endorsed use of race, due to the correlation between race and
political preference, as the foundation for
“partisan” line-drawing decisions. See
supra note 24.
Moreover,
we credit Dr. Palmer's unequivocal conclusion that race
rather than party predominated in the challenged districts,
because “the effect of race is much larger than that of
party in the assignment of VTDs to challenged
districts.” Pl. Ex. 71 at 24 ¶¶ 123, 125. In
fact, Dr. Palmer discovered “no substantive effect of
Democratic vote share on the assignment of a VTD to a
challenged district.” Pl. Ex. 71 at 24 ¶ 123;
see also Pl. Ex. 71 at 63. Based on this evidence,
we hold that the legislature's reliance on race as a
proxy for political affiliation is subject to strict
scrutiny. Bush, 517 U.S. at 968-73 (principal
opinion of O'Connor, J.).
And
finally, the plaintiffs produced credible anecdotal evidence
corroborating the pattern of racial predominance illustrated
by the statistical data. Most notably, McClellan and McQuinn
testified unequivocally that certain changes to Districts 71
and 70 were made for the express purpose of increasing the
BVAP of District 71 to achieve the 55% threshold. 2nd Trial
Tr. at 36, 39, 103-04. Dance similarly testified that she
received certain predominantly black areas, including a
portion of the racially divided city of Hopewell, for the
purpose of increasing the BVAP of District 63. 2nd Trial Tr.
at 112, 116-17. This and similar testimony is “direct
evidence going to legislative purpose, ” showing
“that race was the predominant factor motivating the
legislature's decision to place a significant number of
voters within or without a particular district.”
Alabama, 135 S.Ct. at 1267 (quoting Miller,
515 U.S. at 916).
V.
Because
we conclude that the plaintiffs have established racial
predominance, we must evaluate whether the intervenors have
shown that the “districting legislation is narrowly
tailored to achieve a compelling interest.”
Bethune-Hill, 137 S.Ct. at 801 (quoting
Miller, 515 U.S. at 920). Assuming without deciding
that compliance with Section 5 of the VRA is a compelling
state interest, we consider whether the intervenors have met
their burden to show that the legislature had a “strong
basis in evidence” for its predominant use of race in
the challenged districts. Alabama, 135 S.Ct. at 1274
(citation omitted). In other words, the intervenors were
required to prove that the legislature had “good
reasons to believe” that its use of race was required
to comply with Section 5. Id. (citation and emphasis
omitted).
At the
time of the 2011 redistricting, Section 5 prohibited the
legislature “from adopting any districting change that
would ‘have the effect of diminishing the ability of
[members of a minority group] to elect their preferred
candidates of choice.'” Bethune-Hill, 137
S.Ct. at 801 (quoting 52 U.S.C. § 10304(b)). The
Department of Justice mandated that the legislature engage in
a “functional analysis of the electoral behavior within
the particular . . . election district” to determine
the proportion of black voters necessary to achieve Section 5
compliance in that district. Id. (quoting
Guidance Concerning Redistricting Under Section 5 of the
Voting Rights Act, 76 Fed. Reg. 7471 (2011)). With this
standard in mind, we turn to consider the evidence underlying
the legislature's decision to apply the 55% BVAP
requirement to the challenged districts.
As an
initial matter, we find that the legislature's
application of a single, “mechanically numerical”
55% BVAP requirement to all 12 challenged districts strongly
suggests that the legislature did not engage in narrow
tailoring. See Alabama, 135 S.Ct. at 1273. The 12
challenged districts were highly dissimilar in character,
spanning four large geographic regions of the state,
including varied urban, suburban, and rural areas. As
discussed further below, the 12 districts also exhibited
significant differences in Democratic voting strength,
electoral history, and the extent to which white and black
voters supported the same candidates. The legislature
nevertheless adopted an across-the-board BVAP threshold
irrespective of these defining differences.
After
the first trial, this Court found that the source of the 55%
threshold was “an analysis of [District] 75
itself.” Bethune-Hill, 141 F.Supp.3d at 558.
On appeal, the Supreme Court affirmed this Court's
conclusion that the intervenors adequately justified the use
of the 55% BVAP in District 75, based on Jones'
“functional analysis” of the conditions in that
district. See Bethune-Hill, 137 S.Ct. at 801-02. The
Supreme Court reiterated this Court's finding that the
55% figure was chosen “based largely on concerns
pertaining to the re-election of [the incumbent] in District
75.” Id. at 796 (brackets omitted) (quoting
141 F.Supp.3d at 522).
In
contrast to this “functional analysis” of
District 75, the intervenors produced no evidence at either
trial showing that the legislature engaged in an analysis of
any kind to determine the percentage of black voters
necessary to comply with Section 5 in the 11 remaining
challenged districts. Jones admitted as much, testifying
that, among other things, he did not compile recent election
results in all the challenged districts, 1st Trial Tr. at
453, did not consider that the majority-minority districts in
the 2011 state Senate map all had less than 55% BVAP, 1st
Trial Tr. at 468, did not examine other plans that were
precleared or rejected by the Department of Justice, 1st
Trial Tr. at 469, and did not conduct an analysis to
determine whether white and black voters tended to vote for
the same candidates, or exhibited polarized voting behavior,
in any of the challenged districts, 1st Trial Tr. at 469; 2nd
Trial Tr. at 570. Moreover, the intervenors did not produce a
single member of the black caucus at either trial to testify
that the 55% BVAP requirement was imposed to allow black
voters in those districts to elect a candidate of their
choice.[54]
Rather
than conducting an individualized assessment of each
district, Jones applied the 55% figure from District 75
across the board to all the challenged districts. 2nd Trial
Tr. at 566. In doing so, Jones conceded that he did not
compare the other districts with District 75 on factors
relevant to black voters' ability to elect their
preferred candidates. 2nd Trial Tr. at 566-68. Nor did Jones
consider whether the 11 other challenged districts shared a
feature of District 75 he deemed crucial to that
district's BVAP needs, namely, the presence of a
substantial non-voting prison population. 2nd Trial Tr. at
565-66, 569-70. Instead, Jones assumed that the BVAP required
in District 75 would be appropriate in all 12 challenged
districts. 2nd Trial Tr. at 566-68. This lack of an
...