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Bethune-Hill v. Virginia State Board of Elections

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

June 26, 2018

GOLDEN BETHUNE-HILL, et al., Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.

          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 ...


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