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
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, ___ U.S. ___, 137 S.Ct. 788, 197 L.Ed.2d 85 (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.
We begin with an overview of the procedural history of this case.
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.
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.
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, ___ U.S. ___, 136 S.Ct. 1301, 1307, 194 L.Ed.2d 497 (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, ___ U.S. ___, 135 S.Ct. 1257, 1272, 191 L.Ed.2d 314 (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
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).
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
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.
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, 115 S.Ct. 2475, 132 L.Ed.2d 762 (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, 115 S.Ct. 2475 (internal quotation marks omitted) (quoting Shaw v. Reno, 509 U.S. 630, 647, 113 S.Ct. 2816, 125 L.Ed.2d 511 (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, 116 S.Ct. 1941, 135 L.Ed.2d 248 (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. ___, ___, 138 S.Ct. 2305, 201 L.Ed.2d 714, 2018 WL 3096311 (U.S. June 25, 2018) (quoting Miller,
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, 115 S.Ct. 2475 (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, 116 S.Ct. 1894, 135 L.Ed.2d 207 (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, 116 S.Ct. 1894 (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, 264 Va. 447, 571 S.E.2d 100, 109-10
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,
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.
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.
In accordance with the Supreme Court's instruction that we employ
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:
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 194 ("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
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 196-97, 199-200. We therefore evaluate the evidentiary weight to accord the use of the 55% threshold in the context of the other evidence presented.
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.
At trial, Dr. Rodden was accepted as an expert in the field of "geo-spatial data analysis"
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.
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
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
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
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."
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
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.
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.
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
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,
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
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 182. 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
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.
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. 156-58, 160-62 (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.
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.
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.
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,
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
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.
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
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 p. 155. 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
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.
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. 157 (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
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.
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, 116 S.Ct. 1941 (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.
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.
Under the 2001 plan, District 74 included Charles City County, and portions of Henrico County, the city of Hopewell,
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. 149 (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.
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.
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, 115 S.Ct. 2475 (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.
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.
We begin with District 95, which contained portions of the cities of Hampton and Newport News under both the 2001 and 2011 plans.
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.
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
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, 115 S.Ct. 2475 (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.
We turn to consider 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
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.
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.
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
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.
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
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, 115 S.Ct. 2475 (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.
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.
In sum, after the 2011 redistricting, District 80 exhibited a shape that was bizarre on its face, experienced a significant reduction
We turn to consider 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.
In addition to Brambleton, District 89 received the predominantly black Berkley VTD from District 80. 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.
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.
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.
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
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, 115 S.Ct. 2475 (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.
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.
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
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.
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
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
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"
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, ___ U.S. at ___, 138 S.Ct. 2305, 2018 WL 3096311. 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'
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
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, 116 S.Ct. 1941 (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, 115 S.Ct. 2475).
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, 115 S.Ct. 2475). 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
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
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 individualized assessment is strong evidence that the legislature did not have "good reasons to believe" that the 55% BVAP threshold was required in the 11 remaining districts. See Alabama, 135 S.Ct. at 1274.
We further observe that District 75 differed in important ways from many of the other challenged districts. Notably, District 75 was located in the very rural Southside region of the state, and was the sole challenged district that shared a border with similar rural areas of North Carolina. See DI Ex. 94 at 7; 1st Trial Tr. at 319. Other than District 63, which bordered District 75 to the north, the remaining ten challenged districts were located in entirely different regions of the state. See DI Ex. 94. McClellan testified that District 71 and District 75 were not "remotely similar," pointing, among other things, to the fact that District 71 was a densely populated urban area in a city of more than 200,000 residents,
Additionally, based on an ecological inference analysis conducted by Dr. Palmer, we find as a matter of fact that a 55% BVAP was not required in any of the 11 remaining challenged districts for black voters to elect their preferred candidates.
First, the 12 challenged districts, including District 75, varied widely in the extent to which white voters supported Democratic candidates, the party overwhelmingly preferred by black voters. See Pl. Ex. 71 at 26 ¶ 136; 2nd Trial Tr. at 421. Notably, in District 75, only 16% of white voters supported Democratic candidates, an extremely high level of racially polarized voting. Pl. Ex. 71 at 26 ¶ 137, 66. The next lowest level of white Democratic support was 27% in District 63, more than ten percentage points higher than in District 75. Pl. Ex. 71 at 66. And in District 71, 70% of white voters supported Democratic candidates, a high level of voting cohesion between the two racial groups. Pl. Ex. 71 at 26 ¶ 137, 66. This data clearly showed that District 75 differed in important ways from the remainder of the challenged districts, and that District 75 required the highest BVAP level of any district.
Second, Dr. Palmer concluded unequivocally that a 55% BVAP was not needed in any of the 11 remaining challenged districts in order for black voters to be able to elect their preferred candidates. Pl. Ex. 71 at 27 ¶ 142; 2nd Trial Tr. at 429, 442. Indeed, even if the existing population deficits in these challenged districts had been remedied entirely with Republican voters, the Democratic vote share in each district still would well have exceeded 50%, with the lowest Democratic performance in District 63 (58%), and the highest in District 70 (79%). Pl. Ex. 71 at 67; 2nd Trial Tr. at 426-27.
Dr. Palmer also concluded, with 95% confidence, that a 55% BVAP in each of the 11 challenged districts would produce a Democratic vote share of at least 66.3% (in District 63), and as high as 83.7% (in District 71).
Our conclusion is not altered by the intervenors' argument that the 55% BVAP threshold was "close enough" to the BVAP required for each district to satisfy Section 5. In the intervenors' view, the Department of Justice's preclearance of the challenged districts itself establishes that this minimum BVAP was required under Section 5, thereby satisfying the intervenors' burden to show narrow tailoring. DI Post-Trial Br. at 34.
The intervenors misapprehend the posture of this case. Their burden to show narrow tailoring is not satisfied merely by invoking the legislature's prior obligation to obtain preclearance, or by satisfying the requirements imposed by the Department of Justice. See Miller, 515 U.S. at 922, 115 S.Ct. 2475 (explaining that the state does not have a compelling interest in "complying with whatever preclearance mandates the Justice Department issues," and holding that when a state relies on the Department of Justice's "determination that race-based districting is necessary to comply with the [VRA], the judiciary retains an independent obligation in adjudicating consequent equal protection challenges to ensure that the State's actions are narrowly tailored to achieve a compelling interest"). We do not require that the legislature "determine precisely what percent minority population § 5 demands," nor did Dr. Palmer attempt to ascertain such a figure. Alabama, 135 S.Ct. at 1273 (emphasis omitted); 2nd Trial Tr. at 429-30. Instead, we merely ask whether the legislature had "good reasons to believe" that its use of race was justified. Id. at 1274 (emphasis omitted). Selecting a BVAP figure entirely without evidentiary foundation plainly does not satisfy this burden.
For the same reasons, we reject the intervenors' contention that because "[n]o one" presented the legislature with evidence of white crossover voting at the time of redistricting, the map-drawers thought that a 55% BVAP minimum was required
Accordingly, we hold that the legislature did not have a "strong basis in evidence" for its use of the 55% BVAP threshold in the 11 remaining challenged districts. See id. In reaching this conclusion, we recognize the challenge the legislature faced in attempting to comply with both the VRA and the Equal Protection Clause. See Abbott, slip op. at 4, ___ U.S. at ___, 138 S.Ct. 2305, 2018 WL 3096311 (noting that "a legislature attempting to produce a lawful districting plan is vulnerable to competing hazards of liability" under the VRA and Equal Protection Clause) (citation and internal quotation marks omitted). We also appreciate the "delicate balancing of competing considerations" the legislature undoubtedly was required to do when drawing a 100-district plan, and the "serious intrusion" on local functions represented by our rejection of a state redistricting plan. Bethune-Hill, 137 S.Ct. at 797 (quoting Miller, 515 U.S. at 915, 115 S.Ct. 2475); Abbott, slip op. at 21, ___ U.S. at ___, 138 S.Ct. 2305, 2018 WL 3096311 (quoting Miller, 515 U.S. at 915, 115 S.Ct. 2475).
Here, however, the legislature did not undertake any individualized functional analysis in any of the 11 remaining challenged districts to provide "good reasons to believe" that the 55% threshold was appropriate. See Alabama, 135 S.Ct. at 1274. The legislature instead applied the 55% BVAP requirement from District 75 across the board to 11 greatly dissimilar districts, which black-preferred candidates would have won by significant margins with far lower BVAP percentages. We thus easily conclude that the intervenors have not satisfied their burden to show that the legislature's predominant use of race was narrowly tailored to achieve a compelling state interest.
The Equal Protection Clause ensures that states do not "engage[] 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." Miller, 515 U.S. at 911-12, 115 S.Ct. 2475 (internal quotation marks omitted) (quoting Shaw, 509 U.S. at 647, 113 S.Ct. 2816). Overwhelming evidence in this case shows that, contrary to this constitutional mandate, the state has sorted voters into districts based on the color of their skin. The legislature made no effort to determine whether the mechanical 55% racial threshold was required to comply with the VRA, and instead arbitrarily applied the same racial mandate to 12 vastly dissimilar districts. This predominant use of race and disregard of narrow tailoring principles plainly are at odds with the guarantees of the Equal Protection Clause.
It is so ORDERED.
Robert E. Payne, Senior District Judge, dissenting.
Although I respect the views of my good colleagues in the majority, I dissent because I understand the record quite differently.
First, I assess the credibility of the relevant witnesses differently. Second, I disagree with the majority's view as to whether the Court may consider evidence that a map drawer sought to equalize population. Third, I find the majority's "statewide evidence" to be of limited value. And, finally, I do not believe that Plaintiffs' District-specific evidence supports a finding of racial predominance by a preponderance of the evidence.
As the majority makes clear, the resolution of this case turns on credibility determinations which we, as the triers of fact, must reach respecting whether race was the predominant reason for the design of the eleven Districts at issue on remand. I cannot subscribe to the credibility assessments that animate the majority on that outcome-determinative issue.
The majority's conclusions as to whether race predominated in the Challenged Districts rely heavily on the fact that it declines to credit the testimony of Delegate Steven Christopher Jones and John Morgan. Maj. Op. at 174 ("Critical to our analysis is our decision not to credit Jones' testimony, and our determination that Morgan's testimony was wholly lacking in credibility."). As a result, the majority leaves no room to consider these witnesses' testimony. Maj. Op. at 174 ("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.").
I respectfully disagree with those credibility assessments and affirmatively find that the testimony of both Jones and Morgan was credible and supported by the record as a whole. Jones and Morgan were vitally important witnesses with critical first-hand knowledge of the 2011 redistricting process. As the majority observes, Jones was "the primary architect of the 2011 plan." Maj. Op. at 137. And, Morgan, who was hired to assist drawing District lines, was labeled "the finish carpenter" and "played a substantial role in constructing the 2011 plan." Maj. Op. at 151; 2nd Trial Tr. at 519, 593. That role included using mapping "software to draw district lines" and, "in most circumstances," splitting the Voting Tabulation Districts ("VTDs") in the Challenged Districts
With respect to Jones, the majority first determines that no aspect of his testimony was credible because, in the trial on remand, "Jones had a murky recollection regarding several important topics on which he previously had testified." Maj. Op. at 152. But, memories fade with time. I therefore cannot ascribe weight to the fact that Jones' recollection was more "murky" at the second trial (in 2017) than at the first trial (in 2015). Moreover, I find that Jones gave quite clear testimony at both trials as to the reasons for the District lines, the critical issue in the case.
The majority also is of the view that Jones' testimony was not credible because "the testimony of multiple, credible witnesses at the second trial directly undermined much of Jones' prior key testimony" and Jones could not account for these "material inconsistencies." Maj. Op. at 152, 153. I cannot subscribe to this view, either. The examples of "multiple, credible witnesses" principally relied on for the majority view are Delegates Algie Howell and Matthew James. Maj. Op. at 152-53. These witnesses were members of the House of Delegates who, at the second trial, contradicted Jones' testimony, at the first trial, that they had given significant input into the redistricting plan. Maj. Op. at 152-53; 2nd Trial Tr. at 71-74, 82-84; 1st Trial Tr. at 339, 348-49. And, they offered, for the first time six years after the fact, recollections of conversations which the majority finds dispositive of Jones' credibility. Maj. Op. at 152-54, 152 n.27;
As an initial matter, I cannot accept on principle these long-delayed views of what happened in 2011. These witnesses could have testified in the first trial to correct any statements that they believed misrepresented their roles in the redistricting process. They did not then come forward to say that Jones was wrong. Moreover, during the redistricting debates, Delegate Lionell Spruill Sr. openly lauded Jones on the House of Delegates floor for answering the concerns of "mostly every member of the Black Caucus," and no delegate stood to refute that praise.
Additionally, my conclusions as to the frailty of human memory apply with equal force to every delegate who testified at the second trial. Therefore, I am far more inclined to believe Jones' detailed and "voluminous testimony at the first trial explaining many of his line-drawing decisions,"
Finally, the witnesses cited by the majority did not undermine any "key testimony" by given Jones. As detailed in my discussion of Districts 80 and 90,
With respect to Morgan, the majority considers his testimony unreliable for five reasons. First, it does so because his testimony included "purportedly race-neutral explanations for several [district] boundaries that appeared facially suspicious." Maj. Op. at 151. I cannot discern what explanations are thought to be suspicious, but, for reasons explained below in the District-by-District analysis, I think that the record reflects well-documented race-neutral explanations for how all the Challenged Districts were drawn.
Second, the majority says that "[t]he intervenors' belated reliance on Morgan's testimony [he did not testify at the first trial] strongly suggests an attempt at post hoc rationalization." Maj. Op. at 151. If that is a valid point as to Morgan, it would be equally valid to discredit the belated testimony of the delegates on whom the majority relies to discount Jones' testimony. But, unlike the situation with those delegates (who could have offered their refuting testimony at the first trial), Morgan's testimony was offered in direct response to the Supreme Court's clarification of the relevant legal standard (which was necessarily unavailable at the time of the first trial).
Fourth, the majority finds Morgan's testimony to be incredible because his "contention, that the precision with which [VTD] splits divided white and black areas was mere happenstance, simply is not credible." Maj. Op. at 151. But, many splits did not divide primarily African-American and white areas "with precision."
Fifth, the majority rejects Morgan's testimony because it believes that he utilized race as a proxy for politics. It observes:
Maj. Op. at 152 (citations omitted).
This reasoning, however, is faulty because nothing in the record indicates that Morgan relied on race as a proxy in splitting the VTDs cited by the majority in the District (95) on which the credibility determination is based. This matter is addressed in greater detail in the discussion of District 95,
Consequently, I conclude that the majority's justifications for discrediting Morgan's testimony are unfounded. And, in my opinion, Morgan's explanations were highly credible, given his clear and articulate testimony as well as his prodigious knowledge and recollection of the redistricting process.
The majority opinion finds credible several of the delegates who testified on behalf of Plaintiffs (Delegates Jennifer McClellan, Delores McQuinn, Rosalyn Dance, Matthew James, and Algie Howell). Maj. Op. at 152, 154, 156, 159, 166, 172. The majority's finding of racial predominance heavily relies on these witnesses' accounts.
Throughout this opinion, I often refuse to accept these witnesses' testimony on grounds specific to each delegate or to a group of delegates. I write separately here, however, to raise a point that leads me to question the credibility of all of the aforementioned delegates.
Each of these delegates voted for the 2011 redistricting plan. 2nd Trial Tr. at 51, 65, 77, 85, 108, 110; 1st Trial Tr. at 63, 88. In so doing, they publicly approved of the plan. And, more importantly, they exercised the authority vested in them by their elected office to write HB 5005 into the law of the Commonwealth of Virginia and to subject its citizens to its terms.
The delegates here, however, have now all aligned themselves with challengers to HB 5005, who oppose the plan on the ground that it violates the Constitution of the United States. If the delegates actually believed that to be the case, the time to have acted was at the time of the vote, not now. The fact that these legislators have come lately into court in support of a challenge to the plan shows either that they were willing to vote for a plan that they believed to be unconstitutional when they voted for it or that they thought the plan was lawful at the time and are now
That conclusion is underscored by the fact that Spruill and Dance lauded HB 5001 (HB 5005's predecessor) on the House of Delegates floor during the redistricting floor debates.
The majority opinion determines that expert Dr. Jonathan Rodden offered credible testimony. Maj. Op. at 145-46. I disagree.
First, Dr. Rodden was more an advocate for Plaintiffs than the disinterested expert that Plaintiffs would have us find.
Second, Dr. Rodden offered legal and factual conclusions beyond his expertise, including by speculating about the motivations of the legislature.
Third, Dr. Rodden's theory of racial predominance was equivocal and inconsistent. In his report, Dr. Rodden suggested that his inquiry revealed that the legislature relied heavily on race in designing the Challenged Districts because of constraints imposed by the 55% BVAP target.
That same equivocation was reflected in Dr. Rodden's descriptions of specific Districts. For example, as to Districts 95 and 92, Dr. Rodden's report stated:
Pl. Ex. 69 at 46, 48-49;
2nd Trial Tr. at 244. Furthermore, he agreed that "it would be possible to draw two majority minority districts [Districts 92 and 95] without going that far north" and that "there was no need to split any of [the VTDs in the northern portion of District 95] to maintain a 55 percent [BVAP] in that district." 2nd Trial Tr. at 340-41, 343.
In short, Dr. Rodden was unable to provide a consistent theory of racial predominance (or of the importance of the 55% BVAP target). His expert report differed markedly from his trial testimony, both with respect to his overall theory as well as to his descriptions of individual Districts. Such an expert is neither helpful to the trier of fact nor entitled to belief.
Finally, and relatedly, Dr. Rodden overstated the points for which he advocated and minimized or set aside contrary evidence. As exemplified above, Dr. Rodden exaggerated the extent to which Districts 92 and 95 were constrained by the 55% BVAP target in his report. He similarly did so with respect to District 63.
For the foregoing reasons, I find that Dr. Rodden's testimony was so lacking in credibility that it does not support the heavy, indeed dispositive, weight afforded it by the majority.
The majority determines that Plaintiffs' experts Dr. Maxwell Palmer and Dr. Stephen Ansolabehere were credible, whereas Intervenors' expert Dr. Jonathan Katz was not credible. Maj. Op. at 145-46, 145 n.14, 149-51. In my view, none of the statistical evidence offered by these experts is compelling,
Courts are not particularly well equipped to assess complex statistical analyses. Judges typically are not professional statisticians. And, as Dr. Rodden recognized, "there are often occasions in the courts where opposing expert witnesses will attempt to obfuscate even the most solid statistical facts with jargon and dubious alternative statistical specifications." Pl. Ex. 70 at 9 n.1. I agree with that proposition and, hence, when complex statistical evidence is in conflict such that nuanced changes in methodology alter the relevant conclusions, the evidence is of minimal utility.
Here, we have such a situation. As the majority opinion clearly demonstrates, different statistical experts have reached different results (as to the importance of race in the assignment of locations to the Challenged Districts) based on different statistical models and methodologies. Maj. Op. at 149-51. And, each side's expert(s) considered alternative approaches to be inferior.
Moreover, statistical evidence is also only of modest usefulness because, as Dr. Katz observed, statistical models "are a [sic] best crude approximations about how legal, demographic, political, and geographical constraints affect the inclusion (or exclusion) of a VTD into a particular legislative district." DI Ex. 101 at 10. The Court recognized this in its previous opinion:
Notwithstanding my reservations respecting the statistical evidence in this case, it is my opinion that, among the statistical experts, Dr. Katz's findings were the most reliable. This is because the Court previously found that Dr. Katz's methodology was comparably reliable, that finding was not appealed, and, in any case, the Supreme Court found no error in the Court's credibility assessments. It is therefore
My view as to Dr. Katz is underscored by the fact that he offered reasonable responses to Dr. Palmer's critiques of his analysis (and gave good cause to question reliance on Dr. Palmer's approach and conclusions). As the majority observes in concluding that Dr. Katz's methodology was unreliable, Dr. Palmer claimed: (1) that Dr. Katz failed to weight each VTD by total population; and (2) that Dr. Katz's method of accounting for the distance between VTDs and the Challenged Districts "was flawed because it considered the distance from each VTD to
In sum, the statistical evidence in this case is of limited persuasive value. However,
Before addressing the evidence, there is one overarching point worth noting. The majority, relying on
In
That holding does not, however, support the proposition that the need to equalize population can offer no insights into the motivations of the legislature. Where, for example, a map drawer explains that the
That point is of great significance here. Morgan testified that
The majority maintains that "the overall racial disparities in population movement, and the splits of VTDs and geographies along racial lines" as well as "Dr. Palmer's conclusion that race predominated over party in predicting the likelihood that a VTD would be assigned to a challenged district" constitute strong statewide evidence of racial predominance. Maj. Op. at 154. In my opinion, however, the statewide evidence on which the majority's conclusion is based is not compelling.
First, I do not view the statistical evidence as particularly helpful. Second, I adopt Dr. Katz's determination that race and party "were a statistical tie" in terms of their ability to predict which VTDs were placed within the Challenged Districts.
I disagree with the majority's assessment of the District-specific evidence. For the reasons set forth below, I conclude that Plaintiffs have not proved, by a preponderance of the evidence, that race predominated in any of the Challenged Districts.
The majority initially supports its finding of racial predominance by observing that District 71 faced low BVAP (46.3%) and population numbers and, accordingly, Jones conceded that the 55% BVAP rule affected the way that the District was drawn. Maj. Op. at 155. Although it is true that Jones agreed that "part of the reason that [District 71] moved to the east [rather than to the west] was to increase [BVAP]" and that the 55% BVAP rule affected the District lines, those statements have only
To that point, the majority, I think, neglects to consider the legislature's
The majority next points to overall population movements in District 71. Maj. Op. at 155. Specifically, it notes that "more than 11,000 people with a 21.3% BVAP were moved
However, these population shifts offer few insights into racial predominance here. First, as the Court previously concluded (and as discussed in greater detail in the analysis of District 70), mere numerical population shifts are not concerning.
The majority then emphasizes specific line-drawing decisions as evidence of racial predominance: (1) the transfer VTDs 701, 702, and part of 703 from District 70 to District 71 and the shift of VTD 604 from District 74 to District 71; (2) the transfer of VTDs Summit Court, Hilliard, and Stratford Hall from District 71 to District 72 and the move of Ratcliffe from District 74 to District 71; (3) the movement of VTD
As to the first cited decision, the majority argues that VTDs 701, 702, 703, and 604 were heavily populated and had substantial BVAP. Maj. Op. at 155. And, it claims that McQuinn objected to the transfer of VTDs 701, 702, and 703, resided nearby, and had long represented those areas; nevertheless, she resigned herself to the fact that she would have to lose those VTDs to support District 71's BVAP, and the changes were made over her objection. Maj. Op. at 155. Finally, the majority repeats its assertion that Jones conceded that the District's eastward shift was impacted by the 55% BVAP target. Maj. Op. at 155.
As an initial matter, the fact that these VTDs had substantial population and BVAP says little about racial
With respect to VTDs 701, 702, and 703, the majority correctly notes McQuinn's testimony.
McQuinn
Accordingly, Jones did not make these transfers over McQuinn's objections or in contravention of his understanding of that area's communities of interest. Rather, from his perspective (informed by meeting with McQuinn), VTDs 701 and 702 (as well as the District 71 portion of VTD 703, assuming for the moment that he was involved in splitting that VTD) were some of the few VTDs unencumbered by other constraints and that could be moved freely without compromising the legislature's varied goals for District 71.
Now, it is true that both Jones and Morgan acknowledged that VTDs 701 and 702 were moved from District 70 to District 71 to increase District 71's BVAP. 2nd Trial Tr. at 538, 737. However, the record clearly shows that this goal was not pursued single-mindedly and that there were other important race-neutral objectives involved in designing that region. For example, one of Jones' goals was to make District 71 more Richmond-centric. 2nd
Similarly, the legislature wished to avoid pairing incumbents.
As to VTD 703, Morgan testified that
I acknowledge that McClellan countered Morgan's testimony, representing that she was involved in the VTD 703 split and that VTD 703 "needed to be split" to satisfy the 55% BVAP and population equality targets. 2nd Trial Tr. at 950-51. But, her assertion is demonstrably false. The legislature could have allocated the entirety of VTD 703 to District 70 while satisfying
In light of this analysis, I cannot conclude that the split of VTD 703 is probative of racial predominance. Morgan indicated that he split VTD 703 on a non-racial basis. And, given that the split was not required to comply with the 55% BVAP target, I simply cannot credit McClellan's testimony, and her testimony is critical to a finding that the split was racially motivated. Furthermore, the split does not
As to VTD 604, the record does not, I think, permit a finding that its addition to District 71 was primarily racial. The majority seems to base its contrary view only on the fact that VTD 604 had high BVAP. Maj. Op. at 155. But, incorporating VTD 604 patently aligned District 71 with the Richmond border and made the District more Richmond-centric, in line with one of Jones' goals.
In sum, as to VTDs 701, 702, 703, and 604, it is clear that, although race played some role, other significant factors impacted the drawing of the District lines. It is far from apparent that race was primary.
The second decision cited by the majority involves the addition of the predominantly African-American Ratcliffe VTD to District 71 and the removal of the largely white Summit Court, Hilliard, and Stratford Hall VTDs. Maj. Op. at 155. The majority argues that this decision evinces racial predominance because Jones removed VTDs in Henrico County that were predominantly white in order to make District 71 Richmond-centric but then added a VTD in Henrico County that was predominantly African-American. Maj. Op. at 155.
The majority's analysis, however, misses the mark because it evaluates that decision in a vacuum without considering the varied objectives and constraints of the legislature. When these are taken into account, it is clear that race was but one of several factors influencing the decision at issue.
As an initial matter, as suggested by the majority opinion, the removal of Summit Court, Hilliard, and Stratford Hall served numerous race-neutral goals. As both Jones and Morgan testified, the transfer was intended to make District 71 more Richmond-centric; and, it did so by eliminating from District 71 three VTDs in Henrico County. 2nd Trial Tr. at 490, 530-31, 697; 1st Trial Tr. at 305;
It is true that adding Ratcliffe to District 71 incorporated a new Henrico County VTD, thereby somewhat undercutting the goal of Richmond-centrism.
Indeed, all that the second cited decision really teaches is that it is possible for a legislature to balance and realize a variety of goals. By acting as it did, the legislature largely achieved its objectives of: (1) avoiding the pairing of incumbents; (2) supporting legislator preferences and political goals; (3) rendering District 71 Richmond-centric; (4) meeting District 72's needs; and (5) maintaining 55% BVAP. On this record, I do not think that it can be found, by a preponderance of the evidence, that race was the predominant reason.
As to the third cited decision, the removal of VTD 207, the majority primarily highlights the testimony of McClellan. It claims that McClellan opposed losing VTD 207 and splitting the Fan Neighborhood. Maj. Op. at 156. And, it notes that McClellan testified that, when she approached Jones with her concerns, he said that he would be open to changes so long as they complied with the 55% BVAP and population equality targets. Maj. Op. at 156. Further, it observes that McClellan tried to draw maps that included VTD 207 in District 71 but that she could not do so without reducing her BVAP below 55%. Maj. Op. at 155-56. Finally, it maintains that VTD 207 had been in District 71 for at least 20 years, that it was heavily Democratic and supportive of McClellan, that it had low BVAP, that transferring it split the Fan neighborhood, and that it was shifted to District 68, which was more suburban and represented by a Republican delegate, Loupassi. Maj. Op. at 155-56.
The Court, however, previously addressed the precise issues raised by the majority. It found:
In addition to the evidence on which that finding was based, Jones attested that Loupassi "was concerned about getting too much of Chesterfield" and "wanted more voters in the Richmond city area which would have been more favorable to him." 1st Trial Tr. at 307. And, he explained that Loupassi's desires prevailed because "he is a Republican member of the majority party."
Morgan corroborated Jones' testimony (albeit with less detail). He stated that VTD 207 was moved because "unlike the previous Republican delegate, Delegate Marrs, who was from Chesterfield, Delegate Loupassi is from Richmond." 2nd Trial Tr. at 702-03.
Additionally, it is hard to imagine that the transfer of VTD 207 was animated predominantly by race, given that it was replaced by VTD 204, which had a similar demographic composition to VTD 207.
In a footnote, the majority reaches the opposite conclusion, suggesting that the swap of VTD 207 for 204 was racially motivated because the transfer of equivalent numbers of people was not necessary for population equalization and, "[w]ithout this swap, the BVAP of District 71 would have dipped below 55%." Maj. Op. at 156 n.32. But, as set forth above, there were plainly race-neutral reasons for transferring out VTD 207 (and therefore for moving in a similar number of people). And, although switching VTDs 207 and 204 was
Relatedly, given that VTD 207 could easily have been drawn into District 71 while maintaining 55% BVAP, I find McClellan's assertion that she was
In short, as to the removal of VTD 207, there is evidence in the record that race was involved. However, that evidence is largely incredible, and there is substantial reliable evidence that the primary considerations were politics and legislator preferences. And, moving VTD 207 to District 68 was not necessary to ensure 55% BVAP in District 71, which is further proof that race-neutral factors played a more important role than race. Hence, I do not view the decision as strong evidence of racial predominance.
As to the fourth cited decision, the split of VTD 505, the majority again highlights the testimony of McClellan (and cites some circumstantial evidence supporting her testimony). Maj. Op. at 156. It indicates that McClellan and Carr were unable to keep VTD 505 whole while maintaining 55% BVAP in Districts 69 and 71, so they agreed to split VTD 505 between these Districts.
As an initial matter, Morgan provided a different explanation. He attested that he drew the VTD 505 line as he did because "Delegate Jones and [he] received input from the registrar of Richmond," "[t]here were many changes that were made between the vetoed bill and the enacted plan in the Richmond area," and Morgan "was brought back in ... to make changes such as that." 2nd Trial Tr. at 702. Although that testimony was somewhat vague, it means either that he split VTD 505 based on input from the Richmond registrar or that he did so on his own, in which case race was not considered.
More importantly, however, as with VTDs 703 and 207, I am highly skeptical of
That testimony should be considered in perspective of the clear record that there were numerous alternative configurations that would have permitted VTD 505 to move entirely into District 71. The portion of VTD 505 in District 69 had a population of 1,245, a VAP of =1,177, and a BVAP of 60.
Based on that analysis (and as with VTDs 207 and 703), I cannot credit McClellan's testimony or believe that the VTD 505 split was racially motivated. That view is underscored by the fact that Plaintiffs did not call Carr to corroborate McClellan's testimony. And, Morgan suggested that the split was due to non-racial reasons. Furthermore, as with VTD 703, the split does not appear racial; it simply divided two predominantly white populations. Pl. Ex. 69 at 18. Finally, even if race were a considered, it was clearly a minimal factor, given that splitting VTD 505 was one of several options available to the legislature sufficient to meet 55% BVAP.
In sum, Plaintiffs' evidence merely shows that race played a role in the design of District 71.
The majority treats District 70 as a BVAP "donor" District, and it points to its "donation" of VTDs 701, 702, part of 703, 811, and 903. Maj. Op. at 157. It highlights the facts that District 70 shifted nearly 26,000 people in and out; that "[t]he BVAP of areas moved out of District 70 was more than 16 percentage points higher than the
First, as set forth in the discussion of District 71, the transfer of VTDs 701, 702, and part of VTD 703 does not support a finding of racial predominance. Even if those VTDs
Second, it is, I think, not accurate to consider the VTD transfers from District 70 to District 69 to be primarily BVAP donations. Although those transfers included VTDs 811, 903, and part of 609, which were predominantly African-American, they also included VTDs 402 and 508, which were heavily white. DI Ex. 92 at 5; DI Ex. 94 at 3. And, VTDs 402, 508, and 609 were added "to bring District 69 up to the James River," which associated District 69's border with a geographic boundary, made the District more compact, and "enhanced the district's alignment with a distinct political subdivision and community of interest" (Richmond).
The majority's theory to explain this is that,
Moreover, race-neutral reasons justified the transfer of VTDs 811 and 903. Morgan testified that the Richmond-area Districts, including District 69, were underpopulated, whereas the surrounding Districts (including in Chesterfield County) were overpopulated. 2nd Trial Tr. at 690-91. This issue was corrected "by bringing the Chesterfield population into District 70," i.e., by adding to that District the VTDs of Southside, Meadowbrook, Falling Creek, and Chippenham.
Finally, the majority depends entirely on Dr. Rodden's analysis to support its conclusion that VTDs 811 and 903 were moved for racial purposes.
In addition to the boundaries described above, many other of the District 70 lines were set for largely non-racial purposes.
For example, the record indicates that the Belmont VTD was transferred from District 69 to District 70 to support District 69's eastward shift from Chesterfield County toward Richmond and the James River.
Additionally, District 70 retained its "northern turret," including the VTDs of Central Gardens, Masonic, part of 703, 705, and Montrose because: (1) McQuinn lived at the bottom of the turret; and (2) she wanted to retain the more northern VTDs. 2nd Trial Tr. at 537-38; 1st Trial Tr. at 311;
Furthermore, Dorey was divided between Districts 70 and 61 in a "typical equal population split." 2nd Trial Tr. at 629-30, 708, 714-15, 731-32. For such splits, Morgan did not consider race.
The majority also points to evidence of generalized population shifts. Maj. Op. at
The majority's principal point is "nearly 26,000 people were moved out of District 70, and a different 26,000 were moved in." Maj. Op. at 157. But, the Court's previous opinion addressed that issue:
As set out above, the majority also notes an overall decrease in District 70's BVAP and a BVAP disparity between areas shifted into and out of the District. Maj. Op. at 157. However, this offers few insights into racial predominance in light of the foregoing analysis of specific District line decisions.
In sum, although race influenced the design of District 70, the record shows that non-racial motives also played a significant role. Based on the record as a whole, I cannot find, by a preponderance of the evidence, that, among these motives, race was "the legislature's predominant motive for the design of the district as a whole," especially given that "courts must `exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.'"
The majority holds that race predominated based on the characteristics of the areas moved into and out of District 69. Maj. Op. at 157-59. Of course, reliance on such circumstantial evidence is permissible. But, that reliance requires making inferences as to motive, and I respectfully submit that the inferences drawn by the majority are insufficient to establish racial predominance by a preponderance of the evidence.
The majority first highlights the fact that District 69 lost two largely white VTDs to District 27 to the west, notwithstanding that District 27 was overpopulated. Maj. Op. at 158. However, as discussed in the analysis of District 70, District 69 underwent an eastward shift out of Chesterfield County and toward Richmond and the James River, which rendered District 69 more compact, aligned it with a geographic boundary, and made it more Richmond-centric. Retaining District 69's western VTDs would have undermined that exercise.
The majority also notes that District 69 gained VTDs from District 70 even though District 70 was already at population. Maj. Op. at 158. But, those VTD transfers have race-neutral explanations, as discussed in the analysis of District 70. Again, those explanations are at least as likely as race to have motivated the legislature.
The majority additionally takes the view that, "[i]n 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." Maj. Op. at 158. Those VTDs are 410 and Davis. Pl. Ex. 71 at 53.
As to VTD 410, it was split: (1) to equalize population; and (2) because some portion of VTD 410 needed to remain in District 68 to ensure its contiguity.
As to Davis, we know little about that split.
Finally, the majority points to the split of VTD 505. Maj. Op. at 158. For the reasons set forth in the discussion of District 71, however, that split is not supportive of a finding of racial predominance.
Moreover, the record shows that other segments of District 69's lines were clearly
In short, the majority, as urged by Plaintiffs, primarily infers from circumstantial evidence that race was the legislature's predominant consideration.
The majority concludes that race predominated as to District 63 because the District's design was based largely on the BVAP and population needs of District 75, where it is established that race predominated. Maj. Op. at 159-60. Although it is true that the configuration of District 75 affected the boundaries of District 63, that is not a sufficient ground to support a conclusion of racial predominance, in perspective of the record taken as a whole. The decision to split Dinwiddie County between Districts 75 and 63 was previously determined to have had a racial purpose. Maj. Op. at 159-60;
The majority focuses little on the legislative intent underlying the split of Dinwiddie County. Rather, the majority mainly highlights the fact that the Court previously deemed this split to be "avowedly racial." Maj. Op. at 159. But, as just noted, the Court's previous opinion did not hold that the split of Dinwiddie County was sufficient, alone, to establish racial predominance.
Indeed, the only decisional aspect of the split of Dinwiddie County that the majority specifically discusses is the "oddly shaped `hook' around New Hope." Maj. Op. at 160 n.35. It does not characterize that hook as racially motivated. Maj. Op. at 160 n.35. Instead, it merely points to an inconsistency between the testimony of Delegate Dance (of District 63) and Jones and to the fact that Jones "equivocated" as to the reason for the hook at the second trial. Maj. Op. at 160 n.35. This perceived "equivocation" consisted entirely of Jones stating: "My memory — of course, you have to — you know, I probably talked to 70 plus members in the whole process in a very compressed timeline. I thought that initially
Jones otherwise offered clear testimony as to the creation of the hook, however. He testified, for instance that the reason for the hook was that Dance requested that the New Hope VTD, which borders the hook, remain in her District. 2nd Trial Tr. at 492-95; 1st Trial Tr. at 325-27. According to him, New Hope originally was not going to be in District 63 at all, but Dance had worked very hard and so New Hope was added to it. 2nd Trial Tr. at 495. Morgan largely confirmed that statement. 2nd Trial Tr. at 713-14. The "hook," therefore, was simply what remained in District 75 after New Hope was added to District 63. 2nd Trial Tr. at 495.
Jones believed that this "remainder" was designed to draw a potential primary challenger out of District 63. 1st Trial Tr. at 326. He explained that the area "was negotiated between Delegate Dance, Delegate Tyler, and [him]," that "the boundary, from [Jones'] perspective, really wasn't a highest priority," and that otherwise he "would never have drawn" the hook. 2nd Trial Tr. at 492-95; 1st Trial Tr. at 325-26. That was corroborated by Morgan, who stated that the area including and near the hook: "was negotiated between Delegate Dance, Delegate Jones, and Delegate Tyler. Once that boundary was negotiated, it was not changed." 2nd Trial Tr. at 714.
It is true, as the majority notes, that Dance testified at the second trial that she did not request the hook or have a primary challenger who lived there. Maj. Op. at 160 n.35; 2nd Trial Tr. at 118. However, I credit Jones' testimony at the first trial over Dance's testimony at the second, given that memories fade and that Dance did not testify to that effect in the first trial. Furthermore, Jones' testimony confirms that, at minimum, he did not demand or impose the hook shape to ensure compliance with the 55% BVAP target. Rather, he perceived it to be the result of political negotiations. Even if Jones were mistaken, a mistaken political justification is still non-racial.
The majority attempts to show that race predominated by tying the split of Dinwiddie County to the addition of areas of Hopewell and Prince George County to District 63. Maj. Op. at 159-60. It points to Dance's testimony that District 63 incorporated these areas to increase its BVAP after losing BVAP to District 75. Maj. Op. at 159. But, Dance's testimony was addressed in the Court's previous opinion:
Those findings, to which I fully subscribe again, are well supported by the record. Jones testified that his motivation for moving portions of Hopewell into District 63 from District 74 was to correct a crossing of the James River Tidal Estuary in District 74. 2nd Trial Tr. at 480-81, 543-44;
A few other points respecting Hopewell are worth noting. First, if there is a correlation between race and politics, it is not surprising that a split of Hopewell along party lines would also appear racial.
Finally, the majority underscores VTD splits in District 63 as evidence of racial predominance. Maj. Op. at 160. Specifically, it points to the split of Ward 7 in Hopewell, and it notes a pattern of allocating more BVAP to District 63 than to non-Challenged Districts in split VTDs. Maj. Op. at 160.
The other VTD splits between District 63 and non-Challenged Districts occurred in the Rives, Jefferson Park, and Courts Building VTDs. Pl. Ex. 71 at 52. As to Rives, Morgan attested that it was split among Districts 62, 63, and 64 to balance population in light of difficult census block geography and because that was an area where different geographic regions merged. 2nd Trial Tr. at 745.
In short, the only confirmed racial motive in designing District 63 involved the split of Dinwiddie County. However, other motives clearly influenced District 63 as a whole, including fixing a river crossing, political considerations, and incumbent requests. On this record, it is not shown which of these factors predominated, and Plaintiffs have not met their burden to prove, by a preponderance of the evidence, that race was the predominant reason for drawing District 63 as it was drawn. See Pl. Post-Trial Br. at 28-30.
The majority takes the view that "[D]istrict 74 served as a `donor' district to surrounding challenged districts that needed an influx of BVAP to reach the 55% BVAP threshold." Maj. Op. at 161. I cannot agree.
The majority first points to the facts that: (1) "16,414 people were moved out of District 74, and 15,855 were moved [in]"; and (2) "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%." Maj. Op. at 161. The fact that people were moved into and out of a District does not, on its own, establish anything.
The majority then moves on to address specific changes in the District lines. In particular, it emphasizes the move of: (1) the Ratcliffe VTD from District 74 to District 71; and (2) portions of Hopewell from District 74 to District 63. Maj. Op. at 161-62.
The significance of the portions of Hopewell that were transferred from District 74 to District 63 is addressed in the analysis of District 63. In brief, however, that alteration was intended to correct a river crossing while minimizing political impact, and it does not suggest racial predominance. And, it is worth repeating that transferring Hopewell to District 63 was not even necessary for that District to achieve 55% BVAP. 2nd Trial Tr. at 215, 712, 753. That evidence, taken together, I think undermines the theory that District 74 "served as a `donor' district to surrounding challenged districts that
Finally, the majority highlights the fact that, "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." Maj. Op. at 161-62. Those VTDs are Moody, Brookland, and Belmont. Pl. Ex. 71 at 53.
Morgan explained that the Belmont split was intended to allow Canterbury, "a strong Republican-performing precinct," to transfer to District 72. 2nd Trial Tr. at 696. Canterbury was on the far side of Belmont from District 72, so at least some of Belmont needed to go to District 72 to permit the transfer.
Morgan also confirmed that a river formed part of the boundary between Districts 74 and 72 in the area where these VTDs were split because that "had a better impact on compactness for District 72, which was one of the least compact districts in the entire plan." 2nd Trial Tr. at 696-97. The issue of District 72's compactness was important enough that it was the topic of specific discussions between Morgan and Jones.
The river boundary between Districts 72 and 74 ended at the Moody-Brookland border. DI Ex. 91 at 143-44. At that point, the District 74 line followed State Road 73 for a time before splitting Brookland at its narrowest point and then continuing upwards along VTD boundary lines. DI Ex. 91 at 143-44. Thus, the "river"/compactness justification applies to Belmont and Moody but not the Brookland VTD. As to that VTD, Morgan testified that it was split for population equalization. 2nd Trial Tr. at 740. Given that the other VTDs were split along a river boundary for specific reasons, it was reasonable to split a third VTD between Districts 74 and 72 at a geographically convenient point to equalize population.
Further, Jones was not involved in splitting these three VTDs. 2nd Trial Tr. at 496-97, 697. That means that they were split by Morgan in a race-blind manner. 2nd Trial Tr. at 668, 714-15. Hence, because the splits were largely for compactness and political purposes and
Additionally, other aspects of District 74's lines were clearly non-racial. For instance, Morgan testified that VTDs Nine Mile, Chickahominy, and Antioch were added to District 74's northwestern appendage to "round[] out the district up to the county line," i.e., "to bring the northern fragment of Henrico County into District 74 away from District 97 which was
Likewise, District 74
In sum, the record, viewed as a whole, does not show that race was the predominant motive in designing District 74. Thus, Plaintiffs have not met their burden to prove that it was.
The majority mainly emphasizes the addition of a narrow appendage to the northwest of District 95 as the driver for its conclusion that race predominated in the drawing of District 95. Maj. Op. at 163. It claims that this appendage caused a significant reduction in compactness and split five VTDs (and did so such that the portions allocated to District 95 had greater BVAP). Maj. Op. at 163. It adopts Dr. Rodden's opinion that the VTDs at the top of the appendage, Jenkins, Denbigh, Epes, and Reservoir, were split precisely along racial lines. Maj. Op. at 163. And, the majority asserts that Dr. Palmer found strong positive correlations between race and the likelihood of inclusion in District 95. Maj. Op. at 163-64. The majority also rejects Morgan's explanation for the VTD splits and determines that because "only population, race, and ethnicity data were available at the census block level," the VTD splits must have been racial. Maj. Op. at 164, 164 n.42. Finally, the majority contends that District 95 used its new appendage to transfer BVAP to District 92 so that District 92 could meet the population equality and 55% BVAP targets. Maj. Op. at 164. And, it did so, transferring over 18,000 people into District 92, notwithstanding that District 95 had a population deficit of 12,000 people. Maj. Op. at 164.
Here too, as with several other Districts, the majority's conclusions are based on inferences from circumstantial evidence, and, of course, it is permissible to make decisions on the basis of circumstantial evidence. However, I find that these inferences are insufficient to establish racial predominance in light of the voluminous direct evidence of race-neutral intent.
Morgan and Jones made clear that VTDs from Hampton (Kraft, Forrest, Mallory, and Wythe) were transferred from District 95 to District 92 in order to reduce District 95's footprint in Hampton.
To make those VTD transfers to District 92 feasible, "District 95 need[ed] to gain population," which it did "by stretching north towards where the surplus was." 2nd Trial Tr. at 680. But, the manner in which it did so was intended largely to accomplish political goals. Specifically, the northern appendage was primarily designed: (1) to remove Democratic VTDs (Reservoir and Epes) from District 93 to make it more of a swing District; and (2) to draw the District 93 incumbent, Delegate Robin Abbott, out of her District without pairing her with the District 95 incumbent, Delegate Mamye BaCotes. 2nd Trial Tr. at 508-10, 562, 675-78, 757-60; 1st Trial Tr. at 371-73. Additionally, as the Court previously found, "[a]ccording to Delegate Jones, the district's movement north follows heavily Democratic precincts and then narrowly jumps through two Republican precincts in order to capture another strongly Democratic voting area at its northernmost tip."
To accomplish the first goal while also complying with population requirements, it was necessary to split the VTDs leading up to Reservoir and Epes (including Jenkins, Denbigh, and Epes). 2nd Trial Tr. at 678, 757-59. Reservoir, in turn, was split among Districts 93, 94, and 95 to account for the difficult census geography of Reservoir while also removing as much of Reservoir from District 93 as possible. 2nd Trial Tr. at 639-40, 677-79, 759-60.
This exercise in no way required Morgan to rely on racial data or to use racial data at the census block level as a proxy for politics because his goal was to "tak[e] as much as possible of Epes and Reservoir out of 93." 2nd Trial Tr. at 679. And, indeed, he succeeded, having removed all of Epes and most of Reservoir from District 93. 2nd Trial Tr. at 679.
To accomplish the second goal, it was necessary to maneuver the northern appendage around Abbot's residence, which was in Deer Park.
In light of these race-neutral explanations for District 95's shape, the inferences relied upon by the majority are not persuasive that race primarily animated the design of District 95. True, District 95's compactness fell, but it did so primarily for political reasons. True, there were several VTD splits, but most were necessary to extract Epes and Reservoir from District 93 while complying with population requirements. True, the northern VTD splits appear to encompass African-American populations, but that is irrelevant if the person splitting the VTDs did not consider
Plaintiffs point to some additional direct evidence. Specifically, they highlight the following statement by Jones made during the redistricting floor debates:
That statement does not alter my assessment of District 95, however. First, it was in response to a question as to why District 93 (and others) had lost BVAP (in HB 5001). Pl. Ex. 35 at 152-53. Jones' answer therefore would not have addressed the race-neutral motivations for the changes to Districts 92 and 95. Second, it is undisputed that the 55% BVAP target existed and hence in some way influenced the design of the Districts. Indeed, Jones testified that, as with every Challenged District, he considered race in drawing District 95. 1st Trial Tr. at 372;
The record, as a whole, respecting District 95 shows that Plaintiffs have not met their burden to prove that race predominated in the design that District.
The majority's holding as to District 92 is entirely based on the view that "the construction of District 92 was `intimately
As discussed in assessing District 95, that District was designed largely to achieve political goals. And, the shift of VTDs from District 95 to District 92 was intended to reduce District 95's footprint in Hampton. That same reasoning puts me at odds with the majority's views of District 92.
Additionally, District 92 was not otherwise heavily influenced by racial considerations. First, as with District 95, Morgan and Dr. Rodden testified that the 55% BVAP target was not a significant constraint on the District 92 boundaries. 2nd Trial Tr. at 244, 681-82. Indeed, according to Morgan, adding the Bryan VTD to District 92, one of the "heavily white precincts" into which District 92 could have expanded, would not have reduced BVAP below 55%.
In my view, the record refutes a finding that District 92 was drawn predominantly for racial reasons. At a minimum, the record, viewed as a whole, establishes that Plaintiffs have not met their burden of proof as to District 92.
For its finding as to District 80, the majority makes the following points: (1) 22,000 people were moved out of District 80 and 32,000 were moved in; (2) white residents were moved from District 80 to District 79 at three times the rate African-American residents, with 29.4% BVAP in the transferred population; (3) District 80 became less compact and ultimately resembled a sideways "S"; (4) this sideways "S" was created by adding a western appendage to the District (which included a new water crossing and ran through several municipalities), and that decision was racially motivated because it incorporated one primarily white VTD (Thirty-Four) to reach three largely African-American VTDs (Thirty-Eight, Taylor Road, and Yeats); and (5) although only one populated VTD was split, that split was made along racial lines. Maj. Op. at 166-67.
To me, however, those points do not support an inference of a predominantly racial motive by a preponderance of the evidence. That is because the record shows otherwise by direct, credible evidence.
As an initial matter, I find here (as elsewhere) that the generalized population data are not compelling. As discussed above, mere population shifts, standing alone, do not indicate racial predominance and are not even a surprising phenomenon.
District 80's western appendage consisted entirely of VTDs brought in from District 79. DI Ex. 94 at 10. Jones made clear that the reason he transferred those VTDs was to benefit (and satisfy the requests of) the incumbent in District 79, Delegate Johnny Joannou, who was a very conservative Democrat.
Jones also described other constraints that influenced the western segment of District 80. First, he did not want to cross the James River (Tidal Estuary) and was otherwise limited by the North Carolina border and the ocean.
Jones expressly denied that he "excluded" predominantly African-American regions in drawing the western portion of District 80. 2nd Trial Tr. at 554. Rather, "[a]ll [he] did was take the current configuration of 79th on the western edge and use that for the 80th." 2nd Trial Tr. at 554. His testimony is supported by the record just discussed.
Morgan added another, similar reason for the design of the western segment. He explained that District 79 was certain to be paired with portions of Norfolk during the redistricting process. 2nd Trial Tr. at 655. However, Morgan "had concerns that ... taking population away from Johnny Joannou in Portsmouth and putting population
The design of District 80's eastern portion likewise was driven by non-racial reasons. As discussed in greater detail in the analysis of District 77, Jones and Morgan attested that the Johnson Park VTD was transferred from District 80 to District 77 as part of a series of requests made by Delegate Spruill of District 80 "for compactness, contiguity, community of interests, and the like." 2nd Trial Tr. at 497-98, 550, 652, 657; 1st Trial Tr. at 334-37. And, Morgan testified that the Berkley, Old Dominion, Taylor Elementary School, and Hunton Y VTDs were transferred from District 80 to District 89 to "reduce[] the footprint of District 80" in Norfolk.
There are certain changes to District 80 about which the record shows little, i.e., the shift of VTD Eleven into District 80 from District 79 and the shift of most of VTD Nine and all of VTD Seven into District 79 from District 80.
Any claim that race predominated as to District 80 as a whole (as opposed to just with respect to VTDs Seven, Nine, and Eleven) raises a host of similar questions. Indeed, if race were truly the predominant consideration in the drawing of District 80, why build a long, narrow corridor made up of two heavily white VTDs to reach two predominantly African-American and two predominantly white VTDs far to the west (and thus create an appendage with a total BVAP of 49.3%)?
These questions indicate that it was profoundly unlikely that the legislature drew District 80's lines predominantly on the basis of race. They reveal that the legislature bypassed several simple avenues available to it to raise District 80's BVAP. And, they undercut the theory that District 80's western appendage was racially motivated, given that the appendage comprised four predominantly white VTDs and two predominantly African-American VTDs and that it avoided incorporating adjacent VTDs with more BVAP.
Moreover, many of these questions indicate the importance of race-neutral motivations in designing District 80. For example, the answer as to why create the western appendage is that doing so benefitted Joannou. 500, 503, 553, 647-49, 651, 655-66. Likewise, the answer to any of the questions that ask, in essence, why not incorporate from District 79 more VTDs from Portsmouth or cede to District 79 more VTDs from elsewhere, is that it would have hurt Joannou. 2nd Trial Tr. at 647-48, 652-53, 655-56. And, the answer as to why not cede VTD Thirty-Two to District 76 is that doing so would have paired James with Jones, and Jones wished to avoid pairing incumbents (presumably
In short, the foregoing analysis reveals that District 80 was designed primarily with race-neutral considerations in mind. The record shows that straightforward methods of raising District 80's BVAP were either bypassed or actively sacrificed to race-neutral motives.
The majority also rejects Jones' testimony at the first trial that Delegate James, the District 80 incumbent, gave input into the District 80 lines. Maj. Op. at 167-68. However, the
1st Trial Tr. at 348-49. James' contradiction came years after the fact during the second trial, and I cannot credit it for the reasons explained above.
In sum, there is significant direct evidence of race-neutral motives for District 80's design. Measured against this evidence, a finding of racial predominance based on the inferences drawn by the majority, I respectfully submit, is in error. Here too, then, I would find that Plaintiffs have not met their burden of proof, considering the record as a whole and the District as a whole.
The majority's finding of racial predominance first relies on Dr. Palmer's conclusion that "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." Maj. Op. at 168. However, I do not view that evidence as compelling, given the significant statistical flaws in Dr. Palmer's census block analysis, discussed above, and considering the following discussion.
The majority next points to the manner in which VTDs were transferred or split as evidence of racial predominance. Maj. Op. at 168-69. For analytical clarity, I will address whole VTD shifts first and then move on to VTD splits.
The majority highlights the transfer of the heavily African-American Berkley VTD into District 89 from District 80 (which added a water crossing) as a predicate for a finding of racial motive. Maj. Op. at 168. However, as discussed in the analysis of District 80, Berkley was moved to District 89: (1) to reduce the footprint of District 80 in Norfolk; and (2) because the District 89 incumbent, Alexander, owned a funeral home there. As mentioned in a footnote to that analysis, moreover, Norfolk
The majority additionally observes that, "[i]n 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." Maj. Op. at 168. The VTDs split between District 89 and non-Challenged Districts include Titustown Center, Zion Grace, and Granby. Pl. Ex. 71 at 54. As to Granby, the majority asserts that the legislature split it "with minute precision" by "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." Maj. Op. at 169.
With respect to Titustown Center and Zion Grace, there is very little evidence as to why those VTDs were split. Given that Morgan was the one who split VTDs "in
With respect to Granby, there is some complexity in the record. At the first trial, Jones testified that his "recollection" was that he split Granby to comply with a request by Alexander to include one of his funeral homes in his District. 1st Trial Tr. at 345-46. At the second trial, however, Jones clarified that he had been mistaken and that he, in fact, had nothing to do with splitting that VTD. 2nd Trial Tr. at 504-05, 555-58. He indicated that he had confused the funeral home owned by Alexander in the Berkley VTD with another funeral home owned by him in Suburban Park. 2nd Trial Tr. at 504-05, 555-58.
Morgan stated that he split the Granby VTD for population equalization purposes and that the odd shape of the split was a function of the underlying census block geography.
Moreover, Granby was split in such a way as to exclude a large African-American population in its northeastern corner (and near the District 89 border). Pl. Ex. 69 at 58. If the Granby split were racially motivated, one must ask why that VTD was split in such a manner? And, the portion of Granby excluded from District 89 had roughly the same population as but more BVAP than the District 89 portion of the Zion Grace VTD. Pl. Ex. 71 at 54.
Finally, the majority notes that the Brambleton VTD was split between Districts 89 and 90 so as to allow District 89 to achieve 55% BVAP (and that, without this split, District 89 would not have met
In sum, Plaintiffs have not carried their burden to prove that race predominated in the design of District 89.
The majority's view as to District 77 is based on several points. I conclude that these points are not sufficient to support a finding of racial predominance.
The majority's first point to support a finding that race predominated in District 77 is that the District retained its general shape in HB 5005 and, in the benchmark plan: (1) had an odd shape and a low compactness score; and (2) "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.'" Maj. Op. at 169 (citations omitted). The majority depends entirely on Dr. Rodden for the second set of points.
As noted throughout this opinion, low compactness or a bizarre shape only matter for our purposes if race was the predominant motive.
The majority additionally observes that 18,000 people were moved out of and 21,000 people were moved into District 77, notwithstanding the fact that District 77 only needed 3,000 people to satisfy its equal population goal. Maj. Op. at 169. It also highlights Dr. Palmer's finding of a correlation between BVAP and the likelihood that a census block would be assigned to District 77. Maj. Op. at 170. As discussed above, however, numerical population shifts alone are of little help in ascertaining racial predominance here. And, for the reasons discussed earlier in this opinion, I do not find Dr. Palmer's census block evidence persuasive.
The majority then asserts: (1) "four largely white Chesapeake VTDs in District 90 were transferred to District 77, namely, Oaklette, Tanglewood, Indian River, and Norfolk Highlands"; (2) "[t]his removal of white residents from District 90 was necessary for that district to attain a 55% BVAP"; (3) "[t]o 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," which constricted the "already-narrow corridor linking the Chesapeake and Suffolk portions of the district ... to a half-mile in width" (such that "no east-west roads within District 77 connected the eastern and western parts of the district"); and (4) "District 77 needed to retain the high BVAP Suffolk VTDs of Southside, Hollywood, and White Marsh to achieve a 55% BVAP." Maj. Op. at 170. These points, I respectfully submit, do not establish racial predominance, by a preponderance of the evidence, when they are considered along with the race-neutral reasons in the record for the design of District 77.
First, Oaklette, Tanglewood, Indian River, and Norfolk Highlands, which were on the eastern side of District 77, were added at the request of Delegate Spruill: (1) to reunite the old city of South Norfolk ("Old South Norfolk"); and (2) because Spruill lived in the area and wanted his neighborhood to be placed in his District. 2nd Trial Tr. at 497-98, 550; 1st Trial Tr. at 334-37; DI Ex. 94 at 9.
The majority declines to credit Jones' contention that Spruill requested the VTDs added to the eastern portion of District 77 on the grounds that: (1) Intervenors did not call Spruill to corroborate Jones' testimony; and (2) Old South Norfolk was not reunited because "District 77
As to the first point, the burden to establish racial motive is on Plaintiffs so the failure to call Spruill counts against them, not Intervenors. I therefore credit Jones' explanation because Plaintiffs' evidence does not undermine it (and because I find Jones to be credible generally). And, Morgan corroborated that Spruill wanted those VTDs. Moreover, logic and common sense support that Spruill would have made these requests; and it is doubtful that the plan would have drawn Spruill's full-throated support had the District not met with his approval.
As to the second point, even if Westover were technically part of Old South Norfolk, that does not affect the conclusion that Jones'
Second, the fact that removing Oaklette, Tanglewood, Norfolk Highlands, and Indian River from District 90 was necessary for it to have 55% BVAP does not establish racial predominance as to District 77.
Third, as noted above, the majority also contends that race predominated in District 77 because, in its view, the District lost four largely white VTDs (Westover, Geneva Park, River Walk, and E.W. Chittum School) to compensate for the low-BVAP VTDs added at Spruill's request,
As to the majority's fourth point, that "District 77 needed to retain the high BVAP Suffolk VTDs of Southside, Hollywood, and White Marsh to achieve a 55% BVAP," that may well be true.
Moreover, the only
The final point raised by the majority is that, "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." Maj. Op. at 171. These VTDs include Lakeside and John F. Kennedy. Pl. Ex. 71 at 54. As just noted, however, the record does not support a finding that the Lakeside split was racially motivated. And, the John F. Kennedy split was not changed in HB 5005, so we really know nothing about that split.
There is one additional point, not mentioned by the majority, worth raising here. Jones testified that Spruill requested that his District meet the 55% BVAP target, which he, a leader of the Black Legislative Caucus, felt was important for all the Challenged Districts.
In sum, many of District 77's lines were patently not racially motivated. Others, the record reveals fairly little about. We do have some indication that race played a role in the design of the District, but that is undisputed as to every District and, as the Supreme Court has held, insufficient, on its own, to support a finding of racial predominance. In short, on this record, it is not really possible to make a finding about the role that race played in the construction of District 77 as compared with race-neutral considerations. And, therefore, Plaintiffs have not met their burden to prove, by a preponderance of the evidence, that race was the predominant reason for the design of District 77.
The majority first emphasizes the fact that 18,000 people were moved out of District 90, whereas 28,000 were moved into the District. Maj. Op. at 171. Again, that tells us very little.
The majority also bases its predominance finding on the four VTDs transferred from District 90 to District 77 (Oaklette, Tanglewood, Indian River, and Norfolk Highlands). Maj. Op. at 171. It maintains that District 90's BVAP would have dropped below 55% had it retained these VTDs. Maj. Op. at 171. But, as set forth in the discussion of District 77, even if that were true, it is apparent that neutral considerations were heavily involved in the decision to move those VTDs.
The majority then notes the split of the Brambleton VTD between Districts 89 and 90 and the fact that the split was necessary for District 89 to achieve 55% BVAP. Maj. Op. 171-72. However, as explained in the discussion of District 89, I do not find the Brambleton split to be persuasive evidence of racial predominance.
The majority next observes that, among VTDs split between District 90 and non-Challenged Districts, "the portion of the split VTD allocated to District 90 had a higher BVAP than the portion allocated to a neighboring non-challenged district." Maj. Op. at 172. These VTDs include Aragona, Shell, and Reon. Pl. Ex. 71 at 54.
Morgan
In addition, Morgan provided non-racial explanations for the configuration of District 90 as a whole. First, he testified that the shift of VTDs to District 77 created a variety of population pressures, which were addressed "by getting more population in Norfolk on the north and in Virginia Beach on the east and the south." 2nd Trial Tr. at 660. Consequently, Sherry Park, College Park, Reon, Shell, Davis Corner, and Aragona were added because: "the area of Chesapeake was removed, and District 90 was already in Virginia Beach. So additional population was taken from Virginia Beach." 2nd Trial Tr. at 660.
Second, Morgan attested that District 85 had taken "democratic performing precincts away from District 21" to benefit the District 21 incumbent, Delegate Run Villanueva. 2nd Trial Tr. at 660-61. Hence, Sherry Park, College Park, and Reon, which were Democratic, were moved from District 85 to District 90 to compensate. 2nd Trial Tr. at 661-62.
On the record taken as a whole, Plaintiffs have not met their burden on District 90 because the record shows that it is just as likely that non-racial factors predominated in drawing the District as it is that race was the predominant factor.
For the foregoing reasons, I find that Plaintiffs' evidence is insufficient to establish, by a preponderance of the evidence, racial predominance in the drawing of the Challenged Districts. Consequently, I dissent.
For the reasons set forth in the Memorandum Opinion issued herein (ECF No. 234), it is hereby ORDERED that:
It is so ORDERED.
As previously discussed, using race as a proxy for political party affiliation constitutes the use of race, not party, in a predominance analysis. Legislators may not assume that an individual voter will vote a particular way based exclusively on her race without justifying that highly suspect race-based assumption. For this additional reason, we decline to credit Dr. Katz's testimony.
In light of this lack of clarity, we do not credit the contention that Loupassi requested that VTD 207 be moved into District 68. Although he may have had certain business interests in the area, Loupassi never represented the neighborhood as a delegate or as a former member of the city council, and the VTD typically voted 75% to 80% Democratic, including in favor of McClellan. Pl. Ex. 69 at 19; 1st Trial Tr. at 39; 2nd Trial Tr. at 488-89.
To the extent that Jones relied on Spruill's views to justify the 55% BVAP threshold, we again emphasize that the intervenors declined to call Spruill as a witness at either trial. Spruill's support of a high BVAP could well have been motivated by an interest in incumbency protection, rather than a good-faith attempt to comply with the VRA. See Pl. Ex. 35 at 141-48. And, in any event, the personal opinion of a single delegate cannot constitute the "strong basis in evidence" necessary to satisfy strict scrutiny in 12 districts. See Alabama, 135 S.Ct. at 1274.
Moreover, in general, Dr. Hood offered vague, unsubstantiated challenges to Dr. Palmer's conclusions. Most notably, Dr. Hood criticized Dr. Palmer's analysis on the basis that "an estimate produced by a statistical model is accompanied by a degree or range of uncertainty." DI Ex. 103 at 9. Contrary to this insinuation, Dr. Palmer expressly included confidence intervals in all of his statistical estimates. Pl. Ex. 71 at 68; Pl. Ex. 72 at 15. And ironically, Dr. Hood's own ecological inference results included no such measures of uncertainty. DI Ex. 103 at 7-8.
Dr. Hood also hypothesized that BVAP may drop over time in a challenged district, supporting this supposition with a single statistic about a decrease in BVAP in District 71 between 2012 and 2015. DI Ex. 103 at 111. He provided no analysis of the likelihood or extent of a decrease in BVAP expected at the time of the 2011 redistricting, or that the map-drawers employed such reasoning in 2011. Pl. Ex. 72 at 16 ¶ 42; DI Ex. 103 at 11.
First, although "using race as a proxy for political party affiliation constitutes the use of
Second, the purpose of Dr. Katz's acknowledgment of this correlation was not to question the applicable legal doctrine but rather to,
The majority also concludes that "because this Court unanimously agreed to allow the presentation of new evidence, the Court also reopened the question of the credibility of the witnesses who testified at the second trial." Maj. Op. at 145 n.13. However, although the Court did reopen the record, it never rendered a decision as to what findings were actually open to reconsideration.
Second, it is helpful to consider the following District-specific evidence in perspective of the fact that Virginia underwent major population shifts in the decade before the 2011 redistricting. As Dr. Hofeller explained, "Virginia had experienced significant population growth over the previous decade which caused significant overpopulation of individual districts in Northern Virginia and underpopulation on the southeastern portion of the state including the Richmond and Tidewater areas." Pl. Ex. 102 at 3. The underpopulated regions included the Challenged Districts.
These population shifts greatly affected the 2011 redistricting process and, according to Jones, "rippled through the whole plan." 2nd Trial Tr. at 476-78. Indeed, in the final map, three entire Districts were moved "from Hampton Roads, south side and southwest" to the Northern Virginia area.
I mention these demographic trends not to suggest that population equality pressures were the predominant motivation of the legislature. Indeed, it is legally impossible for that to be the case.
That movement also would not have risked District 74's BVAP and population targets. Reducing District 74's BVAP by 175 would have yielded a population of 79,419 and BVAP of 57.1%.
That change would not have imperiled District 74's target numbers, either. Reducing District 74's BVAP by 250 would have left District 74 with a population of 79,344 and a BVAP of 57.1%.
District 71 could also have remained at 55% BVAP and within population by ceding 200 non-BVAP.
The input from Howell that Jones described, moreover, was vague and did not offer insights into the construction of any specific District lines. 1st Trial Tr. at 339, 343. Hence, the extent of Howell's input is largely irrelevant.
