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Bethune-Hill v. Virginia State Board of Elections

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

February 14, 2019

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

          MEMORANDUM OPINION

          BARBARA MILANO KEENAN, CIRCUIT JUDGE:

         In June 2018, on remand from the Supreme Court of the United States, we held that eleven majority-minority Virginia House of Delegates districts were racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Bethune-Hill v. Va. State Bd. of Elections, 326 F.Supp.3d 128 (E.D. Va. 2018) (Bethune II). We ordered the Virginia General Assembly to adopt a new redistricting plan by October 30, 2018 to remedy the identified constitutional violations. Id. at 181. Although several plans were introduced in the Virginia House of Delegates, the legislature failed to enact any of the proposals submitted for its consideration. As a result, we appointed Dr. Bernard Grofman[1] as a special master to assist us in preparing a remedial plan. We also instructed the parties and any interested non-parties to file proposed plans for consideration by the special master and by this court.

         The Virginia Department of Elections and its officials (collectively, the state defendants) have ceased defending the composition of the eleven unconstitutional districts. The House of Delegates and the Speaker of the House, who intervened in this action (the intervenors) and took primary responsibility at trial for defending the existing eleven challenged districts, see Bethune II, 326 F.Supp.3d at 139, filed an appeal to the Supreme Court. On November 13, 2018, the Supreme Court agreed to hear oral argument in the intervenors' appeal, postponing the question of jurisdiction until consideration of the case on the merits. See Va. House of Delegates v. Bethune-Hill, No. 18-281, 139 S.Ct. 481 (2018) (mem.). The Supreme Court also ordered that the parties file briefs on the question whether the intervenors have standing to appeal our decision. Id. The Supreme Court has not yet heard argument in that appeal.[2]

         The parties and the interested non-parties now have submitted a total of seven proposed plans for our consideration in this remedial phase of the litigation. Dr. Grofman has filed his final report, in which he evaluated these plans and offered several alternative remedial plans. We also have received extensive briefing from the parties and the interested non-parties, and we have heard testimony from Dr. Grofman and oral argument from counsel.

         Upon consideration of all the proposed remedial plans, as well as the special master's recommendations, we conclude that a map composed of four of the special master's regional proposals remedies the constitutional deficiencies identified in our prior opinion, complies with traditional districting criteria, defers to the priorities of the legislature, and does not undermine minorities' rights under the Voting Rights Act of 1965, 52 U.S.C. § 10101 et seq. (VRA). We therefore direct that the state defendants implement the Final Remedial Plan included in docket entry number 355 for use in the 2019 Virginia House of Delegates elections.

         I.

         The facts of this case are set forth in detail in our liability-phase opinion in Bethune II, 326 F.Supp.3d 128. Accordingly, we recount only briefly the procedural history of the case before the present remedial phase of this litigation.

         The plaintiffs are Virginia registered voters living in twelve Virginia House of Delegates districts (the challenged districts). Id. at 136, 139. The plaintiffs alleged that during the 2011 redistricting cycle, their House districts were drawn primarily on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 136-37. After a July 2015 bench trial, a divided panel of this court concluded that the legislature did not rely predominantly on race in drawing eleven of the twelve districts. See Bethune-Hill v. Va. State Bd. of Elections, 141 F.Supp.3d 505, 510-11 (E.D. Va. 2015) (Bethune I). With respect to the twelfth district, District 75, we concluded that the legislature had used race as its predominant criterion, but that this use of race was narrowly tailored to achieve a compelling state interest. Id. at 511. On appeal, the Supreme Court reversed with respect to the eleven districts, instructing us to apply on remand a “holistic analysis” regarding the issue of racial predominance. Bethune-Hill v. Va. State Bd. of Elections, 137 S.Ct. 788, 800 (2017). The Supreme Court affirmed our conclusion that the composition of District 75 did not violate the Equal Protection Clause. Id. at 801-02.

         After extensive briefing on remand, we held a second trial in October 2017, at which both the plaintiffs and the intervenors introduced substantial new evidence. Bethune II, 326 F.Supp.3d at 140. In June 2018, we issued an opinion holding that the legislature had subordinated traditional districting criteria to race in its construction of the eleven remaining districts. See Id. at 173. In reaching this conclusion, we considered as an important, but not dispositive, factor that the legislature had applied a minimum 55% black voting age population (BVAP) requirement to all the remaining eleven challenged districts (the invalidated districts). Id. at 144-45, 174. As a result, the legislature had shifted substantial groups of voters in and out of those districts primarily on the basis of race, in derogation of traditional districting criteria. Id. at 146, 155-72, 174. We also held that the legislature failed to produce evidence to support its predominant use of race and, thus, that this use of race did not satisfy the required standard of strict scrutiny. Id. at 175-77. Judge Payne dissented because, in his view, the plaintiffs had not met their burden to prove the constitutional violations that they alleged. Id. at 181-227 (Payne, J., dissenting).

         We ordered the General Assembly to adopt a new redistricting plan to remedy the identified constitutional violations. Id. at 181 (majority opinion). When we were informed that the General Assembly would not be enacting a remedial plan, we appointed Dr. Grofman as special master to assist us in the map-drawing process.[3] Additionally, the plaintiffs submitted two proposed remedial plans; the intervenors submitted two proposals, both of which had been introduced in the House of Delegates but had not been enacted by the legislature; and the state defendants declined to submit a proposed plan. Interested non-party the Virginia State Conference of NAACP Branches (the NAACP) submitted one proposal, and student groups from the College of William & Mary, Marshall-Wythe School of Law, also interested non-parties, submitted two proposals.

         Dr. Grofman reviewed these seven proposed plans, submitted his report, and later filed four addenda to that report. In his report, detailed further below, Dr. Grofman declined to recommend any of the plans offered by the parties and the interested non- parties. Grofman Rep. App. A.[4] Instead, Dr. Grofman constructed alternative proposed remedial maps, which he presented in a regional “module” format. See infra p. 17.

         After receiving additional briefing, we held a hearing on January 10, 2019 to address the remedial plans submitted by the parties and the interested non-parties, and the special master's proposals. At the hearing, Dr. Grofman testified under oath in response to questioning by counsel for the plaintiffs, counsel for the intervenors, and the court. We also heard extensive argument from the parties and the NAACP. At the end of the hearing, we ordered Dr. Grofman to submit a final report incorporating the information from his original report and all four addenda. Upon review of the final report of the special master, we ordered Dr. Grofman to submit a Final Remedial Plan incorporating four specific modules offered in his report and encompassing all 100 House of Delegates districts. Dkt. No. 353. For the reasons set forth below, we now adopt the Final Remedial Plan filed by the special master on January 29, 2019. Dkt. No. 355.

         II.

         We begin by reviewing the criteria that we apply in our evaluation of the proposed remedial plans. We later discuss the extent to which the plans proposed by the special master and the other submitted plans are consistent with these redistricting goals.

         A.

         The foundational purpose of the 2011 redistricting in Virginia was to redistribute population among the 100 House of Delegates districts to achieve the constitutional requirement of equal population based on the results of the 2010 census. See Reynolds v. Sims, 377 U.S. 533, 568-69 (1964) (discussing equal population requirement for state legislative districts); see also Va. Const. art. 2, § 6 (Virginia constitutional requirement that “[e]very electoral district . . . give, as nearly as is practicable, representation in proportion to the population of the district”). As the Supreme Court has explained, “the requirement that districts have approximately equal populations is a background rule against which redistricting takes place.” Ala. Legislative Black Caucus v. Alabama, 135 S.Ct. 1257, 1271 (2015). Thus, our court-imposed plan also must satisfy the requirement of population equality.

         During the 2011 redistricting process, the legislature determined that each House of Delegates district must have 80, 000 residents, with a maximum population deviation of plus or minus one percent. Bethune II, 326 F.Supp.3d at 138. This population deviation allowance is narrower than that applied to the 2001 House of Delegates plan, see 1st Trial Tr. at 275, and falls well within the constitutional requirement for equal population in state legislative districts, see Evenwel v. Abbott, 136 S.Ct. 1120, 1124 (2016) (“Where the maximum population deviation between the largest and smallest district is less than 10%, the Court has held, a state or local legislative map presumptively complies with the one-person, one-vote rule.” (citing Brown v. Thomson, 462 U.S. 835, 842-43 (1983)).

         During the remedial phase of this litigation, the parties agreed that the one percent figure also should govern the population distribution in our court-imposed plan. We therefore ordered the special master to construct all districts in his proposed remedial plans with 80, 000 residents, with a maximum population deviation of plus or minus one percent. The special master's proposed plans, as well as those submitted by the parties and the interested non-parties, achieve this population-equality metric.

         B.

         In addition to the background principle of population equality, our chosen plan also must remedy the Equal Protection violations that we identified in the 2011 plan. As explained above, in Bethune II we concluded that the legislature had subordinated traditional districting criteria to racial considerations in the eleven invalidated districts, and had failed to show a “strong basis in evidence” for its race-based decisionmaking. See generally 326 F.Supp.3d at 138, 144-45, 155-74. To remedy these Equal Protection violations, we now draw a plan consistent with traditional districting criteria. See Personhuballah v. Alcorn, 155 F.Supp.3d 552, 561-62, 565 (E.D. Va. 2016) (explaining that the court-imposed remedial plan “remedies the [Equal Protection] violation . . . by drawing districts based on neutral, traditional criteria”). In Virginia, such traditional criteria include “the constitutional requirements of compactness and contiguity, respect for political subdivisions, and consideration of communities of interest.” Id. at 561 (citing Va. Const. art. 2, § 6 and Page v. Va. State Bd. of Elections, No. 3:13cv678, 2015 WL 3604029, at *10 (E.D. Va. June 5, 2015)). The House of Delegates similarly identified contiguity, compactness, and communities of interest to include “governmental jurisdictions, ” as criteria governing the 2011 redistricting process.[5] Pl. Ex. 16.

         Although we must ensure that our plan remedies the Equal Protection violations, we are mindful that redistricting “is primarily a matter for legislative consideration and determination.” White v. Weiser, 412 U.S. 783, 794 (1973). We are “guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.” Personhuballah, 155 F.Supp.3d at 563 (quoting Abrams v. Johnson, 521 U.S. 74, 79 (1997)). Thus, our role is a narrow one. Our modifications to the existing plan will be “limited to those necessary to cure any constitutional or statutory defect.” Upham v. Seamon, 456 U.S. 37, 43 (1982); see also Personhuballah, 155 F.Supp.3d at 563. Once “the racial gerrymanders at issue in this case [are] remedied, ” our role in Virginia's redistricting process is “at an end.” North Carolina v. Covington, 138 S.Ct. 2548, 2555 (2018) (per curiam).

         In the present case, the task of balancing these considerations is especially complex. The eleven invalidated districts are located in four distinct groupings, and some, but not all, of these groups of districts are adjacent to one another. The invalidated districts themselves frequently span multiple municipalities, and many cities and counties have been split between invalidated districts and surrounding non-challenged districts. In choosing a remedial plan, we endeavor to minimize the number of districts affected by our revisions, recognizing that districts immediately adjacent to the invalidated districts may be subject to significant changes. See Abrams, 521 U.S. at 86 (concluding that “substantial changes to the existing plan consistent with . . . traditional districting principles” was warranted, given that a “large geographic area of the state” was impacted by the constitutional violation).

         C.

         Finally, we also seek to ensure that in remedying the identified Equal Protection violations, we do not select a plan under which black voters' rights are diminished when compared with the unconstitutional 2011 plan. We thus consider compliance with Section 2 of the VRA as an “equitable factor” in our redistricting process, and will “implement a plan that complies with federal policy disfavoring discrimination against minority voters.”[6] See Personhuballah, 155 F.Supp.3d at 564; see also Abrams, 521 U.S. at 90 (noting that “[o]n its face, § 2 does not apply to a court-ordered remedial redistricting plan, ” but assuming without deciding that “courts should comply with [Section 2] when exercising their equitable powers to redistrict”). Section 2 prohibits “vote dilution, ” which occurs if election processes “are not equally open to participation by members of a [racial minority]” such that members of that minority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b); see also Personhuballah, 155 F.Supp.3d at 564-65 (describing factors to consider in a Section 2 analysis). Accordingly, in evaluating the proposed remedial plans, we will assess black voters' ability to elect their preferred candidates in the redrawn districts.

         With these principles in mind, we turn to identify the proposed plans that remedy the identified constitutional deficiencies while balancing these priorities that occasionally conflict with one another.

         III.

         A.

         i.

         We begin with general observations about the challenges inherent in this remedial process. As discussed above, the number of invalidated districts, and their proximity to and interconnectedness with one another, renders our task especially complex. A single change in one invalidated district will, at a minimum, impact an immediately adjacent district and could impact numerous other districts, both invalidated and non-challenged. We thus agree with Dr. Grofman's commonsense observation that, in practice, crafting a plan consistent with traditional districting criteria requires accepting certain tradeoffs among priorities. Grofman Rep. at 30. For example, the creation of a maximally compact district likely would require changing more boundaries than strictly necessary to remedy a particular Equal Protection violation.

         We also observe that an inevitable shift of black voters will result from remedying the specific Equal Protection violations we identified in the 2011 plan. In Bethune II, we found that the legislature had sorted black voters into the invalidated districts predominantly on the basis of their race, thereby creating in the invalidated districts BVAP levels much higher than necessary to comply with Section 5 of the VRA.[7] See 326 F.Supp.3d at 177-80. By reversing this violation and redrawing the districts according to neutral districting criteria, many black voters formerly subjected to race-based inclusion in the invalidated districts will be assigned to surrounding non-challenged districts. Accordingly, the BVAP in the invalidated districts will decrease under our remedial plan, and the BVAP of adjacent non-challenged districts will increase. See Grofman Rep. at 36. In our view, this effect is not evidence of race-based decisionmaking, but rather is a foreseeable and necessary result of a remedial plan that does not subordinate traditional districting factors to race. See Grofman Rep. at 158-59.

         ii.

         We turn to consider Dr. Grofman's methodology. Consistent with his task of drawing remedial districts according to traditional districting criteria, Dr. Grofman identified the following nine criteria governing his construction of the proposed remedial maps:

(1) population equality;
(2) avoiding dilution in the voting strength of minorities and avoiding retrogression in minority groups' opportunity to elect preferred candidates, in compliance with Section 2 of the VRA and the Equal Protection Clause;
(3) avoiding using race as a predominant ...

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