United States District Court, E.D. Virginia, Richmond Division
BARBARA MILANO KEENAN, CIRCUIT JUDGE:
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 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
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
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.
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
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
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.
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).
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. 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.
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. Instead, Dr.
Grofman constructed alternative proposed remedial maps, which
he presented in a regional “module” format.
See infra p. 17.
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.
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
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
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,
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.
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. Pl. Ex. 16.
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).
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).
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.” 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.
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.
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.
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. 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.
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 ...