Bethune-Hill et al v. Virginia State Board of Elections et al, No. 3:2014cv00852 - Document 108 (E.D. Va. 2015)

Court Description: MEMORANDUM OPINION. Signed by 3 Panel Judge 4 circ Barbara Milano Keenan on 10/22/2015. Memorandum Opinion electronically sent to all counsel of record. (sbea, )

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Bethune-Hill et al v. Virginia State Board of Elections et al IN THE UNITED Doc. 108 J STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA OCT 2 2 2015 Richmond Division CLERK, U.S. DISTRICT COURT RICHMOND. VA GOLDEN BETHUNE-HILL, Plaintiffs, Civil Action V. VIRGINIA STATE ELECTIONS, ^ No. 3:14cv852 BOARD OF al., Defendants. MEMORANDUM OPINION ROBERT E. PAYNE, This case Virginia Senior District Judge: challenges House of Districts") as racial Protection Clause Constitution of decision following a presented oral constitutionality Delegates districts gerrymanders of the the the United in States. (the violation Fourteenth of "Challenged of Amendment The case twelve is the Equal to the ripe for four-day bench trial at which the parties testimony and offered numerous exhibits. Our findings of fact are based on our assessment of the record and are grounded in our determinations respecting the credibility of the witnesses. Our conclusions of law presented by the parties. that is the burden it address In of the several particular, the we Plaintiffs legal have to issues determined prove by a Dockets.Justia.com preponderance of the evidence that race was factor motivating the decision to place a voters within each of or without those subordinated race-neutral and the particular districts, considerations when standard a record, House District 75, the we Virginia's in that, General as to racial Based on this concluded that, to Assembly principles the district. have predominate significant number of district districting forming the except legal as to Plaintiffs have not carried that burden and that race was not shown to have been the predominant factor in the creation of eleven of the twelve Challenged Districts. We the are satisfied that creation of House race was District the 75. predominant However, we factor have in also concluded that, in using race, the General Assembly was pursuing a compelling state interest, namely, actual federal antidiscrimination law, and that, General Assembly used a achieve that In the review the provide a race in manner in compliance with the process, narrowly the tailored to interest. Memorandum procedural brief Opinion that background overview of of the follows, the law case the in relating Court will Section to I; racial gerrymandering claims in Section II; and set out its findings on the factual background of the case in Section III. IV, In Section the Court will articulate its understanding of the relevant legal framework for evaluating racial gerrymandering (or "racial 2 sorting") claims, applicability, set out additional factual findings of general and conduct a district-specific district-by-district analysis with factual findings and district-specific application of the relevant legal framework. I. PROCEDURAL BACKGROUND In the Assembly wake sought of to the 2010 redraw the Virginia House of Delegates ("Senate"). census, legislative {"House") legislation electoral culture Virginia districts General for the and the Senate, of Virginia The task of redistricting is one that carries great political and legal consequence. such the shapes districts; of the more it In a representative democracy, than shapes representatives the the abstract character, themselves. On boundaries of conduct, and its face, the legislation recites a singularly tedious list of precincts and counties. But in application, few pieces of legislation have a more profound impact on the function of government and whether it acts as "the faithful Justice James Wilson, L.L.D. 433 echo of the voices of the people." The Works of the Honourable James Wilson, (Bird Wilson, ed.. The Lorenzo Press 1804). The political significance of redistricting is matched only by its legal legislation complexity. must traverse Those a constitutional and statutory demands shepherding precarious that are redistricting path often between in tension with one another and provide opaque interpretive standards rather than clear rules. As to the 2011 redistricting, effort in the House. Delegate Chris Jones led this Delegate Jones played an instrumental role in the 2001 redistricting process and drew upon that experience to lead the 2011 redistricting efforts. Pis.' 48:21; Because Virginia was Trial Tr. 272:24-274:7 (Jones). Ex. 35 at 46:18a covered jurisdiction under Section 4 of the Voting Rights Act of 1965 ("VRA") prepared, Section at and 5 of the was time the therefore the VRA,^ redistricting subject (Docket No. to 83), legislation the it was requirements was of necessary to ensure that the plan did not result in a "retrogression in the position of racial minorities with respect to their effective exercise of 425 U.S. the 125, statutory electoral 141 franchise." (1976). command. Delegate Beer v. United States, In an attempt to comply with this Jones crafted a plan containing twelve majority-minority House Districts ("HDs" or "Districts"}.^ These are the Challenged Districts: 77, 80, 89, 90, ^ See 52 92, HDs 63, 69, 70, 71, 74, 75, and 95. U.S.C. § 10303(b) (formerly cited as 42 U.S.C. § 1973b(b)). ^ "Majority-minority" districts are those with a racial or ethnic minority population above 50% of the district's total population. On the of December 22, Virginia State Elections, capacities Districts 2014, Board and Plaintiffs of various Elections, members ("Defendants"), were Protection racial Clause declaratory and implementing or alleging the injunctive relief conducting twelve United of the in Virginia in violation of the and Equal seeking Defendants elections States official Challenged Amendment 1.)^ Department their the prohibiting further (Docket No. Complaint against that Fourteenth Challenged Districts. citizens the thereof gerrymanders of filed a based from on the The Plaintiffs are and the Commonwealth of Virginia who are lawfully registered voters in the Commonwealth and each of Districts. whom resides in (Docket No. 83.) one of the twelve Challenged The Plaintiffs requested that the case be heard by a three-judge district court pursuant to 28 U.S.C. the § 2284(a) on the grounds that the action "challeng[es] constitutionality of the statewide legislative body." apportionment (Docket No. 1.) of . . . [a] That request was granted by the Chief Judge of the United States Court of Appeals for the Fourth Circuit. (Docket No 11.) The Virginia House of Delegates and the Virginia House of Delegates Speaker William Howell ("Intervenors") moved to ^ Plaintiffs filed a Corrected Amended Complaint on June 16, 2015 after one of the original plaintiffs (Docket Nos. 66 & 71.) changed residences. intervene in granted. the case. (Docket No. (Docket No. 12.) Because motion was 26.) A four-day bench trial began on July 7, 99-102.) That the Defendants are 2015. (Docket Nos. "administrative agencies that implement elections" but "do not draw the districts," Trial Tr. 12:14-25 Intervenors (Defendants), Intervenors' arguments at the close of the case, id. For reference, referred to as II. the the burden the of allowed but of carry Defendants litigation ease to the Defendants and the joined the at 830:2-3. Intervenors will be Intervenors. BASIC OVERVIEW OP RACIAL GERRYMANDERING CLAIMS Before substance proceeding of constitutional this and to the facts litigation, statutory gerrymandering claims a of the brief requirements is appropriate. case and the overview of the pertinent to racial As noted above, these commands often cut counter to each other and require legislators to balance competing considerations. Tracing their evolution is therefore useful as a predicate for the decision that follows. The Supreme Court has long observed that the right to vote is "fundamental" Yick Wo V. Sims, because Hopkins, the Court 118 it U.S. is "preservative 356, recognized that 370 (1886). "the right of In all rights." Reynolds v. of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by 6 wholly prohibiting the free exercise of the franchise" and held that the malapportionment of state legislative bodies in derogation of the "one person, one vote" principle violates the Equal Protection Clause. 377 U.S. 533, right 555 (1964). Because legislation affecting the to vote "strike[s] at the heart of representative government," id., the "Constitution leaves no room for classification of people in a way that unnecessarily abridges this right," id. at 560, and grants every citizen "an inalienable right to full and effective participation in the political processes of his State's legislative bodies," id. at 564. The decision in Reynolds only required state legislatures to comply with the equal population standard, but its language would come Fortson v. to stand Dorsey, for the something more. Court suggested The that next a year, in "constituency apportionment scheme" may not "comport with the dictates of the Equal Protection Clause" if it "would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Fortson, 379 U.S. 433, 438-39 (1965). With the Supreme Court first recognized that redistricting legislation may offend Equal Protection Clause principles when it distinguishes between voters on a racial basis. Over types of Amendment: time, racial (1) the Supreme Court gerrymandering claims of has claims racial vote come to under recognize the dilution, two Fourteenth where the redistricting legislation is "conceived purposeful devic[e] to further minimizing, canceling out or racial elements U.S. 613, claims 617 of "though (1982) racial sorting, understood as anything where on districts by voting strength 649 the sufficient 630, redistricting face, than on I), the its other separation lacks 509 U.S. the [a] Lodge, an basis of to (2) legislation, rationally effort of 458 (internal quotation marks omitted); and neutral different diluting as discrimination racial operated in the voting population," Rogers v. race into or cannot be separate voters race, justification," Shaw and v. that Reno the (Shaw (1993) . A. Racial Vote Dilution and the Fourteenth Amendment The Supreme Court for unconstitutional 412 U.S. 755 first racial (1973). There, struck down a districting scheme vote dilution in White v. Regester, the Court stated: The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election participation that did were not equally the group members its by had less other residents in in open opportunity the district participate in the political processes to elect legislators of their choice. 412 U.S. at 765-66. claim required a At the time, to question - than to and it was unclear whether such a showing of discriminatory intent or could be maintained based solely on discriminatory effect. Several years later, in City of Mobile v. Bolden, the Court 8 suggested in a plurality opinion that both discriminatory intent and discriminatory effect were required to establish a unconstitutional racial vote dilution. 446 U.S. 55, claim of 66 (1980). That holding was reaffirmed by a majority of the Court in Rogers V. Lodge, 458 U.S. 613 (1982). Writing for the majority, Justice White confirmed that "a showing of discriminatory intent has long been required in all types charging racial discrimination." Therefore, in a of equal protection cases Rogers, 458 U.S. at 617. constitutional racial vote dilution case, the plaintiff must show that the State has placed a burden upon the right to vote by intentionally establishing or maintaining devices or procedures that cause minority citizens to have less opportunity than other citizens to participate in the political processes and to elect legislators of their choice. This dilutes the minority voter's ability to exercise the "full and effective" right to vote. B. Racial Sorting and the Fourteenth Amendment The sorting other claim strand such of as "racial the one gerrymandering" presented in - this a case "analytically distinct" from a vote dilution claim. Johnson, 515 claim alleges device U.S. that 900, 911 the (1995). State has "Whereas enacted a a . - is Miller v. vote . racial . dilution purposeful ^to minimize or cancel out the voting potential of racial or ethnic minorities,' . . . the essence of (a racial sorting claim] is that the State has used race as a basis for separating voters into districts." In Shaw legislative 1, the Id. (internal citations omitted). Supreme districts. Court 509 U.S. "Rorshach ink-blot test" or a faced at two patently 635. One "bug splattered on a bizarre resembled a windshield," while the other was "even more unusually shaped": [The district] is approximately 160 miles long and, for much of its length, no wider than the snakelike financial 1-85 corridor. It winds in fashion through tobacco country, centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods. Northbound and southbound drivers on 1-85 sometimes separate "trade" districts districts in find one when themselves county, they enter only the in to next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that "if you drove down the interstate with both car doors open, you'd kill most of the people in the district." Id. at 635-36 omitted). (citations and some internal quotation marks Although the text of the legislation was facially neutral, the Court found that "it rationally can be viewed only as an effort to segregate the races for purposes of without regard for traditional districting principles." 642. 10 voting, Id. at For that reason, of rather than requiring discriminatory the purpose plaintiffs and to present evidence discriminatory effect, the Supreme Court treated the legislation as tantamount to a suspect facial classification and employed strict scrutiny. Id. at 642-43 suspect ("Express because, racial absent classifications searching simply no way of determining what or ^remedial' and what illegitimate politics. . notions . Amendment . of racial Accordingly, among are inquiry, in inferiority there is ^benign' fact motivated by or simple racial we have held that the Fourteenth state legislation citizens immediately classifications are classifications requires distinguishes judicial are because of that expressly their race to be narrowly tailored to further a compelling governmental interest. These principles apply not only to legislation that, on although race neutral, grounds other than Heights v. Metro. Hous. are, race.'") on their face, (quoting statutes 'unexplainable Vill. Dev. Corp., 429 U.S. 252 contains 'rare' explicit racial distinctions, but also to those that of Arlington (1977)). In order to prove a racial sorting claim, a plaintiff must show that neutral the legislature districting "subordinated" principles in traditional crafting the district's boundaries: The plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more 11 race- direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional raceneutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Miller, 515 standard U.S. is "a at 916 demanding (emphasis one." added). Indeed, This the threshold Plaintiffs must overcome a presumption that the legislature acted correctly and in good faith. State has Id. relied on Thus, race the plaintiff "must show that the in substantial and traditional districting practices." J., disregard of customary Id. at 928 (O'Connor, concurring). If the plaintiff makes the requisite showing, the State must demonstrate that the redistricting legislation is narrowly tailored to advance a compelling state interest. In redistricting cases where the State claims a compelling interest in compliance with the VRA, had a "strong basis based districting. 135 S. must Ct. have the legislature must show that it in evidence" to support its use of race- Alabama Legislative Black Caucus v. Alabama, 1257, 1274 (2015). "good reasons to In other words, believe" that its the legislature use of racial classifications was "required" by the VRA, "even if a court does 12 not find that the actions compliance" after the fact. were necessary for statutory Id. at 1274. C. The Voting Rights Act In addition redistricting to these legislation must constitutional imperatives, also comply with the VRA. "The Voting Rights Act was designed by Congress to banish the blight of racial discrimination Katzenbach, Ala. V. 383 Holder, Congress' 301, 133 S. voting[.]" 308 Ct. (1966) 2612 South Carolina 133 S. adopting plans Section 2 or - Ct. at that (2013). 2619-21, would in covered of the v. abrogated by Shelby Cnty., Enacted pursuant enforcement powers under the Fifteenth Amendment, Shelby Cnty., from U.S. in the result VRA prohibits in jurisdictions vote - to see states dilution under retrogression under Section 5.'' Section electoral 2 practice or VRA prohibits procedure that the imposition "results in a of any denial or abridgement of the right of any citizen . . . to vote on account of race violation or color occurs . when, . . ." 52 based on U.S.C. the § 10301(a). totality of A § 2 circumstances. In Shelby County, the Supreme Court struck down the coverage formula in Section 4, thereby drawing into question the status of covered jurisdictions' Section 5 compliance obligations until such time that Congress enacts a new coverage formula. 133 S. Ct. at 2631. At the time the redistricting plan at issue was developed and enacted, however, compliance with Section 5 was still a necessary consideration in Virginia's districting process. See Alabama, 135 S. Ct. at 1263. 13 the political process results in minority "members hav[ing] opportunity than other members less of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. effect" prove language § 10301(b). from Regester discriminatory created a statutory plaintiffs who racial vote Shaw I, intent be dilution dilution of a required test" otherwise under 509 U.S. at 641 and omitting as "results might Voting Rights Act By adopting the "discriminatory the unable Equal ("In 1982, to prohibit that any by Lodge, could to requirement be [Congress] Congress brought bring a Protection voting by claim of Clause. See amended § 2 of the legislation that results minority group's to strength, in the regardless of the legislature's intent."). In order to prove a § 2 violation, a plaintiff must satisfy three bloc prerequisites: voting. demonstrate compactness, "First, that it the is political minority group sufficiently large cohesiveness, must and be able and to geographically compact to constitute a majority in a single-member district." Thornburg minority v. Ginqles, group cohesive." Id. must at 478 be 51. U.S. able to "Third, 30, 50 show (1986). that it "Second, is the minority must the politically be able to demonstrate that the white majority votes sufficiently as a bloc to enable it - in the absence of special circumstances, the minority candidate running unopposed 14 such as usually to defeat the minority's preferred candidate." are often Once referred these to Id. collectively prerequisites have These final as "racial been two factors polarization." satisfied, the court evaluates the plaintiff's evidence based on the totality of the circumstances. with a The totality of circumstances must be considered focus on whether the minority denied "equal political opportunity." U.S. 997, 1014 group in "natural number floor" of based districts maintain an of on wherein "equal representatives sufficiently 514 (1994). With respect to redistricting legislation, a was De Grandy, Johnson v. question the State's members political and demographics a minority for group opportunity" their choice." large of § 2 establishes to the must "elect Where a minority group is geographically compact to constitute a numerical majority in a hypothetical district, § 2 requires the creation of a district wherein members of that group maintain the equal ability to elect representatives of their choice. Bartlett v. Strickland, 556 U.S. 1, 13 (2009). Proving See this hypothetical requires the plaintiffs to present an alternative redistricting plan. See Reno v. U.S. ("Because the very concept of vote dilution 471, implies 480 - and, 'undiluted' measured, (1997) indeed, Bossier Parish Sch. necessitates — the Bd., existence of 520 an practice against which the fact of dilution may be a § 2 plaintiff must 15 also postulate a reasonable alternative voting practice to serve as the the other hand, purpose" as benchmark 'undiluted' voting practice."). Section 5 of the changes with "any changes that VRA, diminish race, color, or on discriminatory the language ability minority preferred candidates of choice." 2621. Sections application. 2 and Section specified by Congress procedures.'" Beer, 5 5 well citizens, status, on "to Shelby County, "differ applies and of forbids in only certain as account 133 S. of their Ct. purpose, at and jurisdictions ^only to proposed changes in voting Holder v. Hall, 512 U.S. 874, 883 (1994) 425 U.S. at 138) voting elect structure, in voting {quoting (emphasis added). Section 5 was enacted as "a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down." Beer, 425 U.S. at 140. By requiring that proposed changes be approved in advance. Congress sought " ^to shift the advantage of time perpetrators of the evil to its victim,' and by inertia from the 'freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.'" pp. 57-58 (1970)). Id. (quoting H.R. Rep. No. 94-196, The purpose of this approach was to ensure that "no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with 16 respect to their effective exercise of the electoral franchise." Holder, 512 U.S. at 883. "Retrogression, by definition, requires a comparison jurisdiction's new voting plan with its existing plan. of a It also necessarily implies that the jurisdiction's existing plan is the benchmark against which Reno, 520 U.S. measured." of § 2 standard ensuring equal of the at creates § 5 existing benchmark plan. ^effect' 478. ability a of voting Unlike the to elect, "relative is "natural floor" the floor" changes retrogression based upon the Under § 5, the State must ensure that the new plan does not "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" by diminishing the ability of minority voters to elect their preferred candidates of choice as compared to the State's existing plan. Therein lies the command (the VRA), rub.^ To comply with federal statutory the State must consider and account for race in drawing legislative districts in order to craft a compliant plan. State However, to avoid violating the federal constitution, the must not subordinate traditional, neutral principles to racial considerations in drawing district boundaries. ^ Apologies William to Shakespeare, Shakespeare Hamlet, Act there's the rub."). 17 for 3, the misquotation. Scene 1, 3:66 See ("[A]y, And, "one in at the same time, person, one Reynolds v. constitutional Sims. redistricting predominance vote" That, principle inquiry, constitutional central to of to as federal the the State must also comply with the course, be is makes requirement a specified traditional as part clear. But that, process as not weighed Alabama redistricting requirement of and of the it is necessity, that is a is highly instrumental in the drawing of district boundaries. It is within the context of this legal framework that the Virginia General Assembly sought to design and enact a compliant redistricting resolution of plan. this And these principles are central to the case. Before proceeding to the facts of the case, the Court feels it necessary to pause and recognize that Delegate Jones, members of the redistricting committee, and other legislators involved in of the benefit crafting of either and amendment the Supreme HB Court's 5005 did guidance not in have the the recent Alabama decision or the guidance provided in the opinion entered here today. record, Based on the evidence and testimony provided in the the Court believes that all of the legislators involved proceeded in a good faith attempt to constitutional and statutory demands, the time. 18 comply with all relevant as they understood them at Ill. Factual Background A. The 2011 Redistricting Process The before first the steps in the United States redistricting process Census Bureau released and demographic data. Trial Tr. 273:11 (Jones). 2010, Cole Delegate subconunittee of and Elections throughout the Mark announced the House of had scheduled Commonwealth redistricting process. that began its series to solicit (Docket No. 85.) of the six input population On August 23, redistricting Delegates Committee on a well Privileges public into hearings the House These public hearings were held between September 8, 2010 and December 17, 2010. Trial Tr. 273:14-19 McDonnell signed creating the (Jones). Id.; Following these hearings. Governor Executive Order "Independent 31 Bipartisan on January Advisory 10, 2011, Redistricting Commission" ("Governor's Commission") to develop plan proposals, review public input, and analyze stakeholders in the voting public. recommendations from (Docket No. 85.) Redistricting began in earnest in February 2011 when the 2010 census data was released via Public Law 94-171.® 276:4-21 (Jones). Privileges On March and Elections 25, 2011, adopted a e other the House Trial Tr. Committee resolution setting out on the The initial data released on February 3, 2011 contained an error. A corrected data set was provided a few weeks later. Trial Tr. 276:4-21 (Jones). 19 criteria that the committee redistricting plans. Pis.' established six criteria, would Ex. 48 at follow 6. in The reviewing House Committee which were as follows: I. Population Equality: The population of legislative districts shall be determined solely according to the enumeration established by the 2010 federal census. The population of each district shall be as nearly equal to the population of every other district as practicable. Population deviations in House of Delegates districts should be within plus-or-minus one percent. II. Voting Rights Act: in accordance States and Districts shall be drawn with the the laws of Commonwealth the of United Virginia including compliance with protections against the unwarranted retrogression or dilution of racial or ethnic minority voting strength. be Nothing in these guidelines shall construed to require or permit any districting policy or action that is contrary to the United States Constitution or the Voting Rights Act of 1965. III. Contiguity and Compactness: Districts shall be comprised of contiguous territory including adjoining insular territory. Contiguity by water is sufficient. Districts shall be contiguous and compact in accordance with the Constitution of Virginia as interpreted by the Virginia Supreme Court in 506 the cases (1992) of Jamerson and Wilkins v. v. Womack, West, 244 Va. 264 Va. 447 (2002) . IV. Single-Member Districts: All districts be single-member districts. V. Communities based on of Interest: legislative Districts consideration shall shall of be the varied factors that can create or contribute to communities of interest. These factors 20 may include, among others, economic factors, social factors, cultural factors, geographic factors, governmental jurisdictions and service delivery areas, political beliefs, voting trends, and incumbency considerations. . . . Local government jurisdiction and precinct lines may reflect communities of interest to be balanced, but they are entitled to no greater weight as a matter of state policy than other identifiable communities of interest. VI. Priority: All of the foregoing criteria shall be considered in the districting process, but population equality among districts and compliance with federal and state constitutional requirements and the Voting Rights Act of 1965 shall be given priority in the event of conflict among the criteria. Where the application of any of the foregoing criteria may cause a violation of applicable federal or state law, there may be such deviation from the criteria as is necessary, but no more than is necessary, to avoid such violation. Pis.' Ex. 16. criteria cycle, These criteria were substantially similar to the adopted by the committee with two exceptions. in Ints.' the Ex. 2001 27. redistricting First, the 2001 criteria had permitted a population deviation of "plus-or-minus two percent," stated vote was rather altered [standard] 275:10-19 include Virginia a in (Jones). citation in Wilkins than to one better the percent, "approximate Virginia the to decision v. Compactness" criterion. West as 2001 part criteria of of Id. at 275:13-15. 21 the Delegate the the Jones one-person-one- constitution." Second, the which were Supreme Trial Tr. updated to Court of "Contiguity and B. The 55% Black Voting Age Population Floor At the Challenged ranging below the Districts from 4 6.3% 55%. believed the time 2001 All that the redistricting had to black 62.7%. others were twelve redistricting process voting-age began, populations twelve ("BVAP") Three of the districts had BVAPs above 55%. Several "ability-to-elect" plan the (or legislators districts "Benchmark Plan") found in needed to contain a BVAP of at least 55% in the 2011 redistricting plan to avoid "unwarranted retrogression" under Section 5 of the VRA and to comply with Criterion II of their own redistricting rules. The existence of a fixed racial threshold can have profound consequences for the Court's predominance and narrow tailoring inquiries in a racial sorting claim, so a substantial amount of time at trial was devoted to questions related to this factual topic. However, the most important question - whether such a figure was used in drawing the Challenged Districts disputed. was not Rather, the parties disputed whether the 55% BVAP was an aspiration or a target or a rule. In the end, it is not relevant whether the 55% BVAP was a rule or a target because all the parties figure whether was agree used the in and the Court finds - that the structuring the districts redistricting plan 22 satisfied and 55% BVAP in assessing constitutional standards and the VRA, and whether the plan would be precleared by the Department of Justice At trial, dominated included two additional questions regarding the 55% figure the or ("DOJ") discussion. excluded census process as First, those who whether identified the BVAP themselves figure in ethnically Hispanic and racially black. the And second, what the source of the 55% BVAP figure was. The parties hotly debated whether the appropriate measure of BVAP used in the redistricting process did or did not include individuals who identified ^ Plaintiffs as introduced a e-mail communications rather than HB 5005. racially black and ethnically fair amount of evidence, such as and floor debate, pertaining to HB 5001 For some purposes, such as whether the drafters employed a 55% rule during redistricting, the evidence pertaining to HB 5001 is equally relevant to HB 5005. See Ints.' Ex. 7 at 3-8 ("[MR. ARMSTRONG:] In order for me not to have to go through the extensive dialogue we did here the other day on HB 5001, I would ask the gentleman would . . . his answers to my questions per HB 5001 essentially be applicable to HB 5005? I [MR. JONES]: Mr. Speaker, I would say to the gentleman would believe that will be correct. . . . [MR. ARMSTRONG]: I thank the gentleman for allowing me to streamline the questions."). For other purposes, such as whether the 55% threshold impacted a particular boundary, the evidence pertaining to HB 5001 cannot necessarily be applied to HB 5005. Compare Pis.' Ex. 30 at 1 (e-mail from Delegate McClellan to Richmond Registrar Kirk Showalter regarding HB 5001, stating "[T]he changes we discussed . . . would have pushed the [BVAP] in the 71st District down to 54.8%. The target criteria was 55%, so the change can't be made.") with Ints.' Ex. 7 at 2-3 (floor testimony from Delegate Jones regarding HB 5005, stating, "There was a request made by the registrar of Richmond City working with the gentlewoman from Richmond to make some adjustments to those boundaries, and we did split a precinct in anticipation of moving a polling place this fall for the upcoming elections."). 23 Hispanic in the census data. dispute was that, black population if black count, The supposed importance of this Hispanics three of the were excluded Enacted from the Plan's majority- minority districts would actually contain a BVAP percentage just shy of 55%. Trial (Intervenors). finding That, Tr. 280:24-281:10 (Jones); according to Intervenors, that there was not a 55% BVAP floor 862:4-7 would support a in deciding on the twelve Challenged Districts. The the record shows 55% BVAP floor that delegates attempting to comply with submitted their proposed changes using data that included black Hispanics in the BVAP count. 33 at 46; (Dance); Ints.' claimed figure this Trial Tr. 40:10-25 Pre-Trial Brief at 8. to personally excluding was not delegates, (McClellan); that black Hispanics, a id. believe distinction at that 427:1-428:16 Trial Tr. Although the Trial he See Pis.' use 286:8-16 discussed & 490:2-4, 68:23-69:2 Delegate Jones DOJ would Tr. Ex. with and he a BVAP (Jones), any other repeatedly asserted on the House floor that all majority-minority districts in the proposed legislation had a BVAP of 55% or higher. Ex. 35 at 42, 66, 108. its preclearance Virginia, in represent that all least BVAP. be 55% the case. Moreover, Delegate Jones "assumed" that submissions to the 12 majority-minority districts Trial Tr. Pis.' Ex. 447:6-8 48 at 24 Pis.' (Jones). 11 ("All This 12 DOJ, would contained at turned out black to majority districts were maintained . . . with greater than 55% black VAP a range of 55.2% to 60.7%."). - At the trial, Division show that of The spreadsheet population by race, at 13. a Services Hispanics in each column, by ethnicity, relied on Legislative including erroneous. and, Intervenors in spreadsheet ("DLS") the contains in BVAP rows an attempt count of data contains metrics such as the racial and ethnic would be by district racial population by percentage, adding to total population, and ethnic population by percentage. After prepared by population Pis.' population Ex. 60 totals column by column, the Intervenors dramatically revealed that the number exceeded that of the district's total population. Tr. on 282:10-286:7 (Jones). the part of the measures a data are But this exercise Intervenors, not not meant to be added in reflects an error DLS. different variable than race, Because ethnicity the racial and ethnic the first removes the ethnicity column from the count that Hispanic their figure individuals respective is Hispanics racial corrected. who are black population of any columns), That racially count does black because race are then not, place. one already counted total however, so would in population imply excluded that from the undercount the number of black individuals in the BVAP percentage. 25 If (on the assumption the should be to do Trial The census need record only to shows has craft that the redistricting ethnic implications majority-Hispanic plus-Hispanic" (or data by the in states or districts "coalition") provided majority-"black- districts. In that may states such as Virginia, on the other hand, black Hispanics would count towards the total black purposes. That Id. numbers to be responses races (for which example, alternatively to the Pis.' Ex. 9 at category." 7472-7473). to situations "black-plus-Hispanic," individuals would avoid district.® as either counting Trial Tr. those where in the Latino who category (Ansolabehere). and {admittedly one list be the Reg. Vol. approach would case counting black or Hispanic in those individuals 9, presumably be majorityHispanic alternating (Ansolabehere). race (Feb. black twice as allocated 27 the more race minority "alternating" district or their will and (76 Fed. which 757:1-12 retrogression DOJ's responses 4-5 This for "If there are significant Latinos Latino applies with report American), at district & 752:17-754:17 consistent Black/African 2011) a guidance on this question: of minority of at 747:14-749:12 appears confusing) population in fashion the Thus, same the Court finds that the proper count includes black Hispanics within the BVAP percentage of each majority-minority district. This method ® The Court recognizes that "Hispanic" and "Latino" are not interchangeable designations but has unfortunate conflation by the record. 26 been forced into this of counting results in a BVAP above 55% for all twelve majority- minority districts, Regardless, heat than were ranging from 55.2% to 60.7%. this light. minute, debate The and - like the actual both first differences parties - in generated more BVAP eventually percentages agreed that distinction was not one of great legal significance. 816:5-9 (Plaintiffs) calculate[d] ... what we call it. was or 53 that or 54 way, ("The it (Intervenors) is 55 ("Do numbers is isn't or 56, whether believe the reality in [these are] and whether that and difference meaningful how you measure matter.") See id. at and i t doesn't matter racial target, doesn't I significant a between simply irrelevant, They used a just in distinction the this id. at way or 862:8-11 between actual difference one way or it these reality? the two No, other, it let's be candid."). Unlike question legal the two i.e., - first the source significance. Delegate Dance questions, of the 55% on Testimony testified the this that her answer rule - to can question the third carry great is a understanding muddle. came from Delegate Jones and that the 55% figure was necessary in order to achieve from DOJ the approval, House understanding, least voting id. floor see Pis.' at 70:18-23 appears Ex. to represent 33 at 45 African-Americans[.]"). 27 (Dance), but it her as speech her own ("[W]e need 55 percent at Delegate McClellan understood the committee's adopted criteria to require "each of the majority-minority districts . . . population of at least (McClellan), and "[t]hrough conversations 55 to have a black voting-age percent," testified that she with came her understanding came 90-2, Ex. B at "as far as 57:5-8), [he] Delegate 98:1-2 Jones from Tr. this understanding Jones and 424:1-4 Delegate Spruill, {Docket No. the number was almost pulled out of (Armstrong). initially (Jones) indicated to us testified candidate of (55% their BVAP they that with Delegate Tyler testified that the figure drawn from the public hearings held with the community. at 33:1-4 and Delegate Armstrong testified that, could tell, thin air," Trial Tr. to Delegate Legislative Services," id. at 33:6-8. that Trial felt choice"); "is what would allow id. at the 429:8-9 See id. community them to ("That testimony that we heard during the public hearings."). was had elect the was the Although this testimony is consistent with his prior statements from the House floor, support it. see Pis.' Ex. At trial, Delegate Jones admitted that he had not read the transcripts 35 at 72, the trial record does not from every hearing and could not single instance of a member of the public requesting a level. Trial Tr. 442:18-443:9 (Jones). Moreover, recall a 55% BVAP most of these hearings were transcribed and submitted as evidence. A review of the public hearing transcripts from the Fall of 2010 fails to 28 reveal any mention of the 55% figure. See Pis.' Exs. 3-6, 55% figure came from Ints.' Ex. 1.® Delegate Jones also claimed that the "Delegate or two Dance, othe[r] Trial Tr. Dance, and . 431:4-7 Tyler, questioning, that and Delegate Tyler, . . African-American (Jones). and Delegate Spruill, members of and one the This was then narrowed to Delegates Spruill. Id. at 490:5-13. After further the 55% figure appears to have come from feedback Delegate Spruill received from various groups in Virginia from concerns that Delegate her seat in HD 75 with a 495:1. In discussing Delegate Jones Tyler would be unable to hold lower BVAP percentage. Delegate McClellan's indicated that, while Id. seat, at 494 : 6- by contrast. "no one" was leaving the BVAP percentage in HD 71 at 46%, comfortable "they felt that we needed to have a performing majority-minority district, the House." members that I spoke to, they north of 50 percent minimum." Based forth on below, the finds that it needed to be Id. at 293:6-16 {emphasis added). foregoing the Court felt and from testimony, - based on and the the evidence record set presented - that the 55% BVAP floor was based largely on concerns pertaining ® There is, admittedly, one comment made regarding the maintenance of 55 percent voting strength during a public hearing held on April 4, 2011, Pis.' Ex. 31 at 20, but this was the same day that the Joint Committee reported out a substitute for HE 5001, floor was (Docket No. 85 at 3) . in effect well before this 29 In other words, the lone comment was offered. 55% to the re-election received from of Delegate Delegate Tyler Spruill Delegates Dance and Tyler. in and, HD 75 to and on lesser a feedback extent. That figure was then applied across the board to all twelve of the Challenged Districts. C. The Passage and Enactment of HB 5005 During the redistricting process, the General Assembly initially considered three plans: HB 5001, HB 5002, and HB 5003. HB 5001 was HB 5002 the plan and HB designed and proposed by 5003, on the other hand, Delegate Jones. were designed by university students and proposed by other members of the House of Delegates. Jones, HB contained 5002 Id. at paired 376:24-378:9. According somewhere between six majority-minority population deviation. Id. at 40 districts, and and 378:10-379:4. to 48 Delegate incumbents, had over HB 5003, a 9% on the other hand, paired somewhere between 32-34 incumbents, contained nine or ten majority-minority districts, the population deviation criteria. and also did not meet Id. at 379:8-17. The Governor's Commission also designed two plans that contained 13 and 14 majority-minority districts, plans were never formally respectively; however, introduced or proposed. those Id. at 379:18-380:11. Once the House was married with ready for had the passage coalesced Senate's and 5001 and the redistricting plan, the bill was enactment. 30 around On HB April 12, 2011, plan the Virginia General Assembly passed HB 5001. (Docket Based largely upon objections to the Senate plan, Governor Ints.' plan Ex. Robert Ex. McDonnell 10. After and more HB 5001 relatively minor substantial 48 at 10, vetoed revisions three revisions House Senate plan. to the to later. the Pis.' the legislature passed HB 5005, comply Commonwealth with then its obligations submitted the the DOJ for preclearance. June 17, 2011, which was signed (Docket No. under Enacted 2011, (Docket Plan the (or VRA, the "the Plan") to Id. The DOJ precleared the Plan on 83), and the first election under the new districts was held on November 8, 2011, (Docket No. 85). ANALYSIS The questions deceptive in questions project Supreme that this considerations traditional a racial simplicity limits but sorting profound has federal we identify as in the crafted field: to of how about identity Court navigating in claim in are their Resting at the crossroads of race, politics, and constitutional vital raised their implications. the days 83). To IV. 83.) then-Virginia by the Governor and enacted into law on April 29, No. No. the halls an of over criteria. 31 the the raises and how legislature. not (i.e., to this allow we The standard must If claim citizens interpretive legislature predominate redistricting power, for racial subordinate) results from attempted compliance with the VRA, the State must show a "strong basis in evidence" that its use of race was necessary to comply with a constitutional reading of the statute. What this standard provides in conceptual it lacks in practical guidance. to signal through when a it may precinct be or grace, however, For legislators, it does little constitutionally permissible move a boundary line to to cut alter the demographic composition of a district for purposes of complying with similarly provides that an can mandatory enticingly drive up federal vague the cost standard of State's redistricting endeavor. 74, 118 (1997) {Stevens, law. For and litigators, invites conducting and (unable to the See Abrams v. Johnson, 521 U.S. J., refer, litigation defending dissenting) ("Any plan will generate potentially injured plaintiffs, judges it say, to intent, redistricting . dilution, . . [a]nd shape, or some other limiting principle) will find it difficult to dismiss those claims[.]"). amount And for courts, of discretion in repeatedly admonished "represents most of vital local a field functions." it provides an uncomfortable that a the serious Miller, 515 Supreme Court intrusion U.S. at has on the 915. By asking courts attempting to identify predominance to engage in a searching factual inquiry applying strict scrutiny test gives the judicial and comprehensive balancing before and to justify strict scrutiny branch 32 the relatively broad power the to strike down or in how guidance uphold legislative to so, do districts notwithstanding without much exhortations to exercise "extraordinary caution" to the contrary. Therefore, the to sharpen the requisite burden redistricting passage legislation between redistricting, understands is it judicial inquiry, satisfied, has and successfully constitutional is appropriate the predominance and to proceed as a matter of law. to to ensure that to assess navigated and the narrow unconstitutional articulate strict whether how scrutiny the Court inquiries are The statewide and district-by- district evidence then will be assessed within that framework. A. The Racial Sorting Framework The essence of the racial sorting analysis is quite easy to articulate and comprehend. considerations First, courts examine whether racial predominated over - or "subordinated" traditional redistricting criteria. If a court so finds, the court applies Second, whether the strict scrutiny. legislature had a strong then the court examines basis in believing federal law required its use of race, evidence for assuming this is the basis upon which the State seeks to justify its decision. But, details. as this case The parties demonstrates, actually have regarding the "subordination" test. 33 the devil is in the proposed conflicting rules And each believes that the Supreme Court's recent Alabama decision reinforces its position. But both cannot be right, and we think that neither is. The Plaintiffs' case and our colleague's dissent revolve chiefly around the evidence that legislators employed a 55% BVAP floor when crafting Plaintiffs' important 105) . the theory, "race criterion." In other Challenged predominates Pis.' words, Districts. Post-Trial subordination if it Brief at "does According is 4 not conflict with ^traditional' districting criteria." Thus, rule: the Plaintiffs, the drafters' verboten and standard. the dissent, most (Docket require No. open Id. at 5. propose a per se use of the 55% BVAP floor in districting is automatically This, the Alabama like the to satisfies the Plaintiffs argue, Miller's predominance is the central thrust of case: This case boils down to a very simple proposition: May Virginia's General Assembly utilize a fixed numerical racial threshold in establishing district lines . . The answer to this question has been addressed and definitively settled by the United States Supreme Court in its recent Alabama decision which unambiguously condemned the use of racial thresholds in redistricting[.] Trial Tr. 811:1-10 Despite its (Plaintiffs). tempting simplicity Court must reject this proposal. condemned the use of unwritten 34 and visceral appeal, the Although the Alabama decision racial thresholds, it did not establish a per se predominance rule. In Alabama, the Court accepted the lower court's finding that legislators had employed BVAP percentage Alabama, 135 S. floors in Ct. 1271 creating the technical adviser, maintain redistricting existing district, that a racial insofar thresholds at as case constituted to predominated. the ("The plan believed, in and in each If predominance per See charge told redistricting percentages of their goal was to majority-minority the se, use then of those there would the Supreme Court to have remanded district the considerable Court evidence court to impact district's] boundaries." State] prioritizing districting evidence that on the determine out this that goal drawing Id. whether race of at "[t]here had a mechanical at 1271 (emphasis and applied racial (save targets one-person, [was] direct least adopted expressly criteria pointed that significant some of added). a above [the "That policy all one-vote) and of other provides race motivated the drawing of particular lines in multiple districts in the State." The legislators primary for districts. Id. at 1272. Rather, [the challenged feasible."). have been little reason the the Alabama case could not Id. at 1267 be BVAP floors constitutes evidence of predominance. But, we do not 35 clearer (emphasis added). that use of racial albeit significant evidence read Alabama to hold that use of a BVAP merely floor because satisfies the the floor Plaintiffs' was prioritized districting criteria" in "importance." of the racial district. floor This is its demands predominance Rather, impact "actual "above on all other the significance the conflict burden creation between of the traditional redistricting criteria and race that leads to the subordination of the per former, force criteria rather than a results have State Bd. been in the conclusion subordinated of Elections, (E.D. Va. 2015) merely hypothetical conflict that (Payne, No. J., to - and the rationale race." 3:13CV678, the Page 2015 WL Virginia 3604029, for - the Shaw claim. at *27 The district despite any express textual classification by race in the statute - "it rationally be viewed only as an effort to segregate the races for purposes of voting, principles." treated v. one must remember the origin boundaries in Shaw were so outlandish that - [could] traditional dissenting). To understand why this is so, of that the without Shaw I, regard 509 U.S. legislation as for at 642. though it traditional districting In response, had employed the Court a facial classification and subjected the legislation to strict scrutiny rather than requiring the plaintiffs to prove both discriminatory purpose and discriminatory effect. In Shaw, "balkanization" the and Court compared "political the apartheid" 36 districts and to racial cautioned that such districts threaten expressive harm - i.e., the stigmatization of individuals "by reason of their membership in a racial well as group" and the incitement representative harm - of i.e., "racial the hostility" threat that - as elected officials would begin to "believe that their primary obligation is to represent only the members their constituency as whole." Unlike however, the producing fact, in racial Supreme evidence come {observing its and did pass. See in racial vote not group, 643, political such to that Id. at 657, Court that of vote dilution charge Rogers, dilution than 648. effects 458 case cases, plaintiffs discriminatory e.g., rather U.S. that with had, at in 625-27 "[e]xtensive evidence was cited by the District Court to support its finding that and elected officials insensitive increases the to of the needs likelihood (1986) individual County of that equally open to blacks"); 32 Burke the Davis v. the have been black community, political Bandemer, unresponsive process 478 U.S. which was not 109, 131- (observing in political vote dilution case that "ta]n or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district" Court "cannot presume in such a situation, to the contrary, and that the without actual proof that the candidate elected will entirely ignore 37 the interests of those voters") is not necessary racial in a racial classifications are (emphasis added). sorting claim because immediately subjected to strict scrutiny. Shaw I, Such evidence "[e]xpress suspect" and 509 U.S. at 642. are This is similarly true for the functional equivalents of express racial classifications: race" or statutes "unexplainable on grounds other than statutes discrimination." that See id. are at an "obvious pretext for racial 643-44. No sooner had the inlc dried on the Supreme Court's opinion in Shaw, What than it was if the faced with a district's slightly different question. boundaries are not "bizarre" or "irrational," but still reflect a clear manifestation of racial classification? In Miller, the Court recognized that represented an "analytically distinct" claim, 515 U.S. but Shaw "require[d] decided Court] further necessary 915. the that to the to litigation consider sustain this before the equal it requirements protection of at 911, the challenge," [the proof id. at Rather than abandoning the claim's animating principles, Court altered the threshold showing and clarified that parties bringing a racial sorting claim are "neither confined in their proof to evidence regarding the district's geometry and makeup nor required to make a threshold showing of bizarreness." Id. 38 The those district found in challenged Shaw, but, in Miller "when its was shape not as as considered [was] bizarre in conjunction with its racial and population densities," it became "exceedingly obvious" bridges" "a in that deliberate into the district." Id. the district attempt at 917. to employed bring There, "narrow black land populations the district's various spindly appendages contained nearly 80% of the district's total black population. Id. These facially evident neutral districting conventions could only be basis of race. found in Id. at 918-19.^° Miller still lawmakers' clear raise intent explained on the specter to of "us[e] race districts kind assumptions "demeaning the notion In Miller, and Chatham Equal that the Protection members Clause of expressive as Id. at 911. reflect the or on the face of the law, separating voters into districts." necessarily from Thus, districts such as the one representative harms and still manifest, the deviations the of a basis for Moreover, these "very stereotypical forbids;" defined namely, racial the groups the State conceded that "portions of Effingham Counties" would not have been added "but for the need to include additional black population;" that "a substantial reason for [the district's precinct splits] was the objective of increasing the black population of that district;" and that the addition of the district itself was "the product of a desire by the General Assembly to create a majority black district". Furthermore, "Georgia's Attorney General objected to the Justice Department's demand for three majority-black districts on the ground that to do so the State would have to 'violate all reasonable standards of compactness and contiguity.'" 515 U.S. at 918-19. 39 ascribe to certain ^minority views' those of other citizens." However, when Id. racial at that must be different from 914. considerations compromise of neutral districting norms, sorting claim evaporates. do not entail the basis for a Traditional, neutral the racial districting principles reflect certain judgments about voters, but these are the same as opposed to judgments that animate all geographic - proportional - representation systems: each the other in something in same communities, common, representation as a than racial or political - districts are subject theoretical or districting criteria mooring of equivalence distinct" forcing latent facial is to strict conflict the to defined warrants geographical scrutiny because between unlash classification plaintiffs that cities have their - rather unit. would of and holding that otherwise reasonably neutral forfeited, nature counties, something reasonably More importantly, that those who live near it is claim prove the the race and Shaw claim jurisprudence. unclear should of why not expressive a traditional from If this the the legal "analytically unravel or merely entirely, representative harms postulated in Shaw. Admittedly, one. The the issue presented in this case is a difficult Supreme Court reserved 40 from the very outset the question of whether the intentional use of a 50% BVAP threshold was sufficient to sustain a racial sorting claim: It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether "the intentional creation of majority-minority districts, without more," always gives rise to an equal protection claim. Shaw I, V. 958 509 U.S. at 649. Although the principal opinion in Bush Vera attempted to put this question to rest, (1996) ("Strict intentional (principal scrutiny creation opinion), does of Justice not apply 517 U.S. ... majority-minority Kennedy expressed 952, to all districts.") some doubts in his concurring opinion: I join the plurality opinion, but the statements in . . . the opinion that strict scrutiny would not apply to all cases of intentional creation of majority-minority districts require comment. I do not consider these position on predominant dicta to commit me to any the question whether race whenever a State, is in redistricting, foreordains that one race be the majority in a certain number of districts or in a certain part of the State. Id. at 996 (Kennedy, J., concurring) (internal citation omitted). Based on the Supreme the Court now appears whether BVAP Court's recent to be divided, thresholds alone 41 are or at decision least sufficient in Alabama, equivocal, to on constitute predominance. Compare Alabama, 135 S. Ct. at 1267 (noting that the prioritization of "mechanical racial targets above all other districting criteria" predominated) Perry only with League (LULAC) , 548 U.S. provides evidence that Roberts, the 399, Justice intentional race of United Latin American Citizens 517 (2006) (Scalia, J., in the judgment in part and dissenting in part, Justice that Thomas, use of a and 50% concurring joined by Chief Justice BVAP v. Alito) threshold (arguing necessarily means race predominated). Although the unwritten use of a racial floor by legislators may seem repugnant predominance at proposed first by blush, the the Plaintiffs quite serious repercussions." interpretation and the dissent of has If the use of a BVAP threshold - any BVAP threshold - is sufficient to trigger strict scrutiny in the absence through the principles, - of a facial manifestation subordination of fundamentally, Amendment's " issues the lines traditional themselves redistricting then the constitutionality of the Voting Rights Act as applied to redistricting - More in Equal the would be drawn compatibility Protection Clause of and into question. the Fourteenth the Fifteenth The dissent contends that we need not grapple with the that follow because we are faced with a "more narrow question." See post at 163-64. But incrementalism does not demand that the Court ignore the clear consequences of two different judicial constructions when weighing which to adopt. If one sets us on a path to constitutional conflict and one avoids that path, we think that the latter is to be preferred. 42 Amendment's The Court Supreme Enforcement does not Court Plaintiffs' believe precedent view of the its purpose: their face, that - racial be the either drawn strike requires and, down question. Constitution or - or those that permits therefore, sorting claim extends to into the does not any further than districts that, on reflect racial classifications. Moreover, racial might predominance believe that original Clause the Plaintiffs do not take umbrage at the use of targets, so long as preserving minority voters' those targets serve ability to elect. observed that, in order to be narrowly tailored, must ask what only purposeful "[E]ven if extent § 1 of must the we preserve [Fifteenth] discrimination, the prior ends of Quoting from the Alabama decision during their closing statement, "to the the Plaintiffs the legislature existing minority Amendment prohibits decisions of th[e] [Supreme] Court foreclose any argument that Congress may not, pursuant to § 2, outlaw voting practices that are discriminatory in effect." (1980). City of The Rome v. United States, ability-to-elect standard, 446 U.S. which 156, 173 inherently utilizes racial floors in its redistricting applications, would seem to provide just such a necessary and proper statutory prophylaxis. See id. at 175, 177. No one doubts that redistricting legislation can threaten the right to vote on account of race in defiance of the Fifteenth Amendment's guarantee, see Gomillion v. Lightfoot, 364 U.S. 339, 346-48 (1960), or that the VRA protects against this threat of deprivation, see Allen v. State Board of Elections, 393 U.S. 544, 569 (1969). And, of course, "no one doubts" that "voting discrimination s t i l l exists." Shelby County, 133 S. Ct. at 2619. Therefore, unless the Enforcement Clause is to be read with a rigidity alien to all other positive grants of legislative power, then the use of racial targets by states acting under congressional mandate would not - by itself - seem an appropriate per se trigger for strict scrutiny. 43 percentages in order to maintain the minorities' to elect the (Plaintiffs) inquiry occurs candidate after the finding again choice." 135 targets race then the are it smuggled one threaten S. Trial Ct. at Tr. is If of But, hard the justified only targets inquiry into foundations 819:23-820:1 1274). adequately predominant. subordination, Plaintiffs have not would its (quoting Alabama, into whether constitute of present ability to themselves see how the next. the This the VRA by making all its redistricting applications subject to strict scrutiny^^ and set up a Equal potential conflict between the Protection Enforcement Clause and Fifteenth Amendment's Clause. After this journey, we thus arrive back where we started: Miller's predominance test. Plaintiffs' the Fourteenth Amendment's burden as In Miller, the Court described the follows: The plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated Plaintiffs have occasionally flirted with this notion: "The Shaw cases . . . prohibit all unjustified race-based redistricting, whatever form it may take." Pis.' Post-Trial Reply at 6. That said, counsel for Plaintiffs has claimed that there must be a floor of "50 percent plus one" under Section 2 of the VRA. Trial Tr. 842:17-19 44 (Plaintiffs). traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial 515 U.S. at considerations. 916 (emphasis added). Plaintiffs would prefer we stop reading Miller at this exact punctuation mark. that formulation, proved racial used a 55% BVAP leads where neutral floor. Court must and are Id. upon very follow: the argue proof next "Where that they these in Miller or other for to have legislators sentence basis subordinated that under race- redistricting race, a State can district has been gerrymandered on racial {quoting The Court's the are not claim that a plausibly merely But considerations lines.'" added). could predominance this legislation, 'defeat a they And, Shaw I, 509 U.S. quotation of Shaw in at this 647) {emphasis instance rather clearly reflects its intention: [T]raditional districting principles such as compactness, contiguity, and respect for political subdivisions . . . are important . . . because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. . . Put differently, we believe that reapportionment is one appearances do matter. area Shaw I, 509 U.S. at 647 (emphasis added). in which Therefore, we rely on the principal opinion in Bush, which stated that the "neglect of traditional districting criteria" 45 is "necessary, [but] not sufficient" for strict scrutiny to apply. Bush, 517 U.S. at 962 (principal opinion) (emphasis added); accord Miller, 515 U.S. at 928 concurring) (O'Connor, J., plaintiff must show that the ("To invoke strict scrutiny, State has relied on race a in substantial disregard of customary and traditional districting practices."). Our dissenting colleague advocates a different reading of predominance. The dissent views the 55% BVAP floor as a "filter through which all line-drawing decisions had to pass" and argues that this "racial traditional neutral,' filter criteria that otherwise . . would . been (emphasis added). 'race- Post at 164. filter is employed. [55% because BVAP] when districts," the this legislators "was "intentionally sufficient to was a predominant factor in its redistricting." at 999-1000 {Thomas, J., Post The dissent takes the view that the "application of strict scrutiny in this suit was never a question" all "a legislative district necessarily is ^because of race'" when such a at 167-68 rendered have tainted by and subordinated to race." According to the dissent, crafted necessarily concurring in the show Bush, close created that race 517 U.S. judgment). We respectfully decline to adopt this reading of predominance. First, the dissent's interpretation echoes was rejected by the principal opinion in Bush v. 46 the Vera. view that See id. at 962 (principal opinion). In his separate Bush concurrence. Justice Thomas wrote: In my view, [the intentional creation of a 50% district] BVAP means that the legislature affirmatively undertakes to create a majority-minority district that would not have use of racial words, existed but for the express classifications in other that a majority-minority district is created "because of," and not merely "in spite of," racial demographics. When that occurs, traditional race-neutral districting principles are necessarily subordinated (and race necessarily predominates) , and legislature has classified persons on the the basis of race. The resulting redistricting must be viewed as a racial gerrymander. Id. at 1001 citations (Thomas, omitted) J., concurring in the judgment) (emphasis added). Although (internal Justice Thomas recognized that this question was "expressly reserved" in Shaw 1, he believed that subsequent cases." Justice decision (1995), in as the Court it in Id. at 999. Thomas Adarand had "effectively resolved first pointed Constructors, evidence that to Inc. "all the v. Supreme Pena, 515 governmental classifications must be strictly scrutinized." Id. Court's U.S. 200 racial at 999-1000. But this presumes what must in fact be proven: that the Virginia legislature's facially neutral redistricting legislation was the legal equivalent of a facially racial classification. Predominance is itself the arbiter of this legal equivalency. 47 In Adarand, providing the question was whether a contracting clause "financial controlled by individuals' incentive[s] 'socially . . . and the violates to hire economically equal federal federal individuals Native and other minorities[.]'" Americans, Id. dissent retreads Richmond v. Croson Adarand, the expressly at 204. In 515 U.S. the clause Mt]he contractor shall presume that socially and Americans, The of and expressly "require[d] economically disadvantaged Hispanic component law required the use of the clause in most agency contracts, to state that disadvantaged protection the Fifth Amendment's Due Process Clause." that case, subcontractors J.A. Croson requiring Asian Black Americans, Pacific Americans, at 205. this Co., Court include path 488 was contractors U.S. faced to by citing with City of (1989). 469 to As in city ordinance a subcontract at least 30% of their work on city contracts to "Minority Business Enterprises" owned and controlled by "[c]itizens of the United States who are Blacks, Spanish-speaking, Aleuts." Croson, 488 U.S. Orientals, Indians, Eskimos, or at 477-78. We have no doubt that strict scrutiny is applied to all express help racial light classifications, our path to but neither Adarand interpreting nor predominance. Croson Adarand itself explicitly disclaimed any application to facially neutral legislation, stating that "this 48 case concerns only classifications based explicitly on the additional facially race difficulties neutral, posed result in race, and presents none of by laws that, racially although disproportionate impact and are motivated by a racially discriminatory purpose." Adarand, 515 U.S. at 213 (emphasis added). Justice Thomas next pointed to Miller and argued that the State's "concession districts was that sufficient it to intentionally show that race motivating factor in its redistricting." (Thomas, relies when J., concurring upon Miller a to legislature in the argue is demands accidentally cannot be the judgment). that strict "motivated impossible. wander into was Bush, We compliance a by," [50% BVAP] predominant, 517 U.S. The at 1000 dissent scrutiny "conscious of," race in its districting. this created is rather also warranted than merely See post at 156. cannot with ask the But legislators VRA, and to Miller read to invoke strict scrutiny whenever legislators intentionally create a district with a predetermined BVAP floor. In Miller, there was considerable evidence showing "that the General Assembly was motivated by a predominant, overriding desire to assign black populations to the Eleventh District and thereby permit the creation of a third majority-black district." 515 U.S. voters on criteria, at 917. the that It was the State's overriding assignment of basis made of race, the rather third 49 than other districting majority-minority district constitutionally offensive. that the intentional constituted If Miller stood for the proposition creation "predominance," of a then 50% all BVAP three district majority-minority districts would have constituted racial gerrymanders. the opinion focused on the Eleventh alone District, Instead, which was a geographic "monstrosity" and required the State to add lengthy appendages, split precincts, and abandon standards of compactness and contiguity." The Miller "statutes are Protection decision subject Clause classifications, face, U.S. to not but does, strict just also when when, they are motivated by a at 913. But it is of course, they Miller's race 917-19. recognize under contain though reasonable Id. at 909, scrutiny racial "all that the Equal express neutral racial on their purpose or object." subordination test 515 itself that mans the floodgates to ensure that the predominance exception to traditional the facial standing facially rule neutral classification that Equal statutes jurisprudence does Protection Clause usually require not claims plaintiffs swamp against to prove discriminatory purpose and discriminatory effect. Subordination in the enacted subordination of hypothetical plans) that reflects neutral conventions on plan (rather than is required because a map its face eliminates the assumption of expressive and representative harm found in Shaw I without necessarily imposing 50 any other constitutionally cognizable harms in its stead. The Supreme Court recognized as much in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) . In Bakke, the Supreme Court struck down a higher education admissions program that reserved a specific number of seats for minority applicants. See 438 U.S. at 275. this it scheme was that "prefer[red] the The problem with designated minority groups at the expense of other individuals who [were] foreclosed from seats [.)" As competition for the 16 at 305 {opinion of Powell, Justice individual Powell wrote, opportunities "[w]hen or a benefits J.) admissions (emphasis added). classification denies enjoyed by others because of his race or ethnic background, suspect." special totally an solely it must be regarded as Id. Justice Powell contrasted this holding with the Supreme Court's holding the previous year in United Jewish Organizations v. Carey (UJO) , 430 U.S. 144 (1977). In the State of New York had redrawn its voting districts "to enhance the electoral power of of the U.S. certain [DOJ] at affirmed ^nonwhite' voters" and "meet [the] under § 5 of the Voting Rights Act [. ]" 304-05 the distinguishable (opinion plan. "as of Powell, According a case in to J.) . The Justice which the objections Bakke, Supreme Powell, remedy 438 Court UJO for was an administrative finding of discrimination encompassed measures to 51 improve the previously participate, without other from group disadvantaged excluding enjoyment group's individuals of the ability belonging relevant reflects added). When traditional, a legislature neutral, crafts districting to any opportunity meaningful participation in the electoral process." (emphasis to - Id. at 305 a plan conventions that and does not intentionally dilute any group's meaningful participation in the electoral process, offense to be found. See UJO, 430 there no The use of a U.S. reapportionment is at cannot 162 violate constitutionally cognizable quota does not change this. (principal the opinion) Fourteenth or ("[^J Fifteenth Amendment merely because a State uses specific numerical quotas in establishing a certain number of black majority districts. Our cases under [Section] 5 stand for at least this much.")." From this vantage, the second problem with the dissent's reading comes into view: an interpretation of predominance that ignores "discriminatory effect" and deploys strict scrutiny when a neutral statute is adopted "because of" race-based motives would allow claims to proceed on "racial purpose" alone. Such Justice Powell also emphasized that Congress has "special competence . . . to make findings with respect to the effects of identified past discrimination" and special "discretionary authority to take appropriate remedial measures." Bakke, 438 U.S. at 302 n.41 (opinion of Powell, J.). This too distinguishes the case at hand from those cases wherein a school or municipality, acting on its own impulse, quota. 52 employs a racial an interpretation raises vexatious justiciability and balance of powers questions. A redistricting motivations of the plan men the "solely it" the "of regardless of its voted . . would presumably be valid as soon . for because legislature or relevant governing body repassed it different 25 down who facial content or effect as struck reasons." See Palmer v. (1971). That is because legislative content of the content of the motivations of showing "purpose of entire discriminatory only" equal the 403 offense enactment legislators. an Thompson, but U.S. is only 217, not in for 224- in the the mental Although divining the amalgamated legislature effect may further protection be tolerable girds claim would the when a inquiry, a courts to require rest judgment upon the thoughts of a coequal branch alone. We decline to take that path. As Chief Justice Burger once wrote, The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth 'logical' extension occurs. Each step, when taken, appeared a reasonable preceded result is seriously step it, in relation although one that considered the would in the to that aggregate never first which or have end been instance. This kind of gestative propensity calls for the 'line drawing' familiar in the judicial, as in the legislative process: not beyond.' 53 'thus far but United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 127 (1973). logical step The dissent's in the "predominance" test. interpretation might evolution of the equal be a protection But we think it would be one step too far. Predominance requires that racial considerations manifest in the enacted plan itself through the actual subordination of other districting criteria. examining the That determination cannot be made without respective roles of both race and the other redistricting factors in the actual plan before the Court. For the foregoing reasons, we reject the invitation to read the unwritten use of a 55% BVAP floor as a per se satisfaction of the course, predominance evidence examining Cromartie and 517 U.S. 50% a thresholds that districting II), racial 532 U.S. is sorting when from principles. 234, 254 See (2001) Easley v. (noting that racial threshold was "significant" evidence in Page, (1996), with Of deviations exhibit claim. significant still 2015 WL 3604029 at *35 (noting the significance in Shaw v. 899 districts neutral Miller) ; dissenting) such in districts (Cromartie the use of a Bush of those traditional, inquiry 50% of a BVAP (Payne, Hunt J., (Shaw II), concession by the State to create two thresholds) . Shaw II, for example, recognized that racial deviations from neutral principles cannot be saved by U.S. at later resort to non-racial 907. 54 explanations. See 517 According to the dissent, predominance whenever Shaw II non-racial compels a finding of factors "consistent with the racial objective." district at issue in Shaw II are only considered Post at 158. was "highly But the irregular and geographically non-compact by any objective standard that can be conceived." Shaw II, II was faced such as Court goals - advanced was not despite joined read a the at 905-06. situation wherein balance qualitative a Simply put, - could some situation wherein "race-neutral" still predominance the Shaw of be partially race, but it racial districting goals conflict with neutral districting criteria whatsoever. Moreover, Vera, with partisan faced with posed 517 U.S. the the author principal of opinion Shaw II, issued Chief the Justice same day harmony. Rehnquist The explicitly Bush opinion rejected joined the Bush v. and should - suggesting that these two opinions can - in Rehnquist, be by in Chief interpretation Justice that the dissent now attributes to his opinion in Shaw II. We adopt a reading consistent with Shaw II, as evidenced by our finding of racial predominance district predominantly on the basis in of HD 75. A State race and then cannot insulate such racial line drawing by pointing to other non-racial goals advanced by the racial sort. Alabama, holds that like its racial predecessors thresholds 55 in the constitute Shaw-Miller line, evidence, not dispositive proof/ of racial predominance. If the thresholds employed by the legislators crafting the bill do not manifest in the formation of the enacted district, then there is no facial classification equivalent upon which to rest Shaw's were not enough, "analytically distinct" framework. If one strict predominance rule Intervenors advance a counter-theory that they claim is derived from Alabama. As the Intervenors stated during their closing argument: "tT]he question you must answer to get to strict scrutiny . . . is whether the use of race resulted in any district which violated Virginia law or traditional redistricting criteria of the state, or, as the state did here, their specifically adopted criteria." Trial Tr. 16:8-13 attention to a "talk[ed] so it Intervenors drew the passage in the Alabama decision where about guidelines, (Intervenors). [the State] transgressing its own state criteria." Id. the Court its own at 853:15-854:9. did: There is considerable evidence that racial thresholds] had a direct significant least some impact of on the District 26's Transgressing their drawing [the and of boundaries. own at . . redistricting guidelines, the drafters split seven precincts between the majority-black District 26 and the majority-white District 25, with the population in those precincts clearly divided on racial lines. 56 Court's state And Alabama, 135 S. Ct. at 1272 (emphasis added). But, as is clear from the cited passage, the drafters' transgression of their own redistricting guidelines - like their informal use of a racial threshold - is evidence of predominance, not dispositive proof. That is because ^'subordination" is not the same as a or "transgression." degree to Subordination determine whether requires non-racial a "violation" balancing criteria or of racial criteria predominated. For example, "transgression" Compactness, no it is of difficult "compactness" like temperature, professional consensus More Trial Tr. importantly, about what would degree what even of a entail. and there is departure (from is enough to say a district is 716:15-18 the understand falls along a range, any of more than twenty measures) "not compact." to (Hofeller). "traditional" criteria discussed in the Shaw-Miller cases are informed by, but not defined by, state law. Rendering the predominance inquiry subject to state law would make 15 One the of existence Intervenors' of a federal experts, for constitutional example, found claim "no issues" with every last one of the Challenged Districts, Trial Tr. 708:15-709:21 (Hofeller), despite testifying that there is no professional consensus on what is and is not compact. Id. at 716:10-18. Meanwhile, Plaintiffs' expert found some of the districts "not compact" based upon a .20 Reock "rule of thumb," Pis.' Ex. 50 at 18, that other experts disputed as having any meaningful basis. Trial Tr. 716:5-25 (Hofeller). 57 dependent upon an individual state's resolutions/ statutes, or constitution. The determinative individualized whether districting traditional, districting question not requirements neutral criteria is have *11 ("To establish show that that been the race from, its own predominance State do so stated analysis, in but order every to constitute Alabama make does out a other not to 2015 WL 3604029 Plaintiffs disregarded can and but "subordinated" A State's violation of, criteria State's "violated," See Page, predominated. a criteria generally legislature districting principle."). are districting racial considerations on the whole. at whether need traditional or departure evidence in the that require racial not the sorting claim. Intervenors' proposed interpretation is, accordingly, rejected. 1. As Predominance Analysis common courtesy holds, one should not shoot suggestion without offering an approach to replace it. down a Although "predominance," "subordination," "dilution," and "retrogression" are all standards not amenable to hard rules or safe harbors, the Court does have an obligation to the parties to explain its reasoning as clearly and definitively as possible. Therefore, the Court will walk through each of the steps of the analytical framework that it has applied to arrive at its conclusions with respect to the Challenged Districts. 58 A racial sorting claim is "one area in which appearances do matter." exhibit Shaw doctrine's U.S. evaluate 509 "substantial districting 515 I, U.S. at 928 each 647. disregard practices" central at in to with (O'Connor, Challenged of order concern Because customary animate and the must traditional racial sorting Miller, concurring), District district classification, facial J., a the Court will for "subordination" in three the district basis steps. First, its the compliance including, and Court with will review traditional, but not limited to, adherence to boundaries neutral by the districting compactness, provided on criteria, contiguity, political of nesting, subdivisions and natural geographic features. Second, the Court will examine those aspects of the Challenged District that appear to constitute "deviations" from neutral criteria. These may be particular, the district's boundary, or - on occasion - may seem facially questionable. and testimony ascertain the determining provided, the underlying the neutral criteria, reasons it will be the district itself Based on the evidence submitted Court rationale for isolated areas along will for deviations necessary examine those from the record deviations. the to In traditional to determine whether a deviation was caused in part or entirely by the need to comply 59 with the one-person, one-vote precepts*® or by political circumstances such as protection of incumbents. Third, and the Court determine will whether weigh racial the totality of the considerations evidence qualitatively subordinated all other non-racial districting criteria, a. A racial Neutrality sorting claim requires State subordinated traditional, racial districting Traditional compactness, contiguity, communities "defined by 515 U.S. at 916; Shaw neutrally advance than responsiveness, - to racial principles find that actual considerations. include, I, shared 509 U.S. inter interests." at 647. inherent in a system of accountability, the and other non- alia, respect for political subdivisions, the values proportional Court neutral criteria, criteria districting the See Miller, These conventions geographic - representation, familiarity, and ease rather such of as access, ease of administration, and political engagement. The specific traditional criteria outlined in Miller and Shaw are not constitutionally required. See Shaw I, 509 U.S. at 647; 735, Gaffnev ("[C]ompactness v. Cumminqs, or Of course, goals 412 attractiveness U.S. has 752 never n.l8 been (1973) held to evidence of compliance with equal population is not weighed against evidence of racial consideration, but it may be important in determining why a district appears to deviate from neutral criteria. 60 constitute an independent federal constitutional requirement for state legislative districts."). Rather, these criteria are important because they reflect the neutrality that is central to a redistricting statute that complies with the Equal Protection Clause. Reynolds, 377 U.S. at 558.^"' Traditional, neutral conventions are important to evaluate in a racial gerrymandering claim "because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines." Shaw I, Of course, districting states may principles, thereto would defeat a districting 509 U.S. at 647 also claim be of for redistricting neutral a to State's considered an "evolved renders purposes Bush, these is develop objective the 517 U.S. guiding that they neutral adherence factor Existing over new consistent gerrymandering. political process" itself. What continue and conventions dissenting). (emphasis added). to help traditional years at through the 1073 (Souter, J., principles observe important and advance democratic values. "[T]he concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation .... Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment." 61 The its fact face that a does not, district deviates however, racially motivated. also be used to demonstrating criteria Other, defeat that that those deviations claim of racial district's are attributable to gerrymandering deviations from race-neutral motives. S. Ct. at During the face - first stage whether examines the raises basis of it appears traditional, of about (such as to the See Alabama, predominance redistricting questions individualized criteria whether neutral 1270. Court or by Chief among these are political and incumbency considerations. 135 were non-racial districting criteria may a the mean from neutral criteria on be the legislation use race, of - on its or incumbency) explainable geographic the discriminatory, politics, predominantly neutral, inquiry, criteria on the (such as compactness, contiguity, or respect for political subdivisions}. In reviewing the Challenged Districts, the Court will consider neutral criteria in the following manner: i. As Justice "geographical facilitates Compactness Stevens stated compactness political serves organization, constituent representation." in Karcher independent 725, Daggett, values; it campaigning, electoral 462 U.S. v. and 756 (1983) (Stevens, J., concurring). Although "non-compact" districts may sometimes be necessary serve to these values 62 - such as when a "major transport corridor might representative departures amiss." travel at 758, universal districting. are a the travel district" signal that time - for a "drastic something may be All of surprisingly a ethereal its principle guiding given for acceptance as the expert testimony provided reveals one how to measure (Katz) . minimum[ize] around is deep conceptual dilemma: result, . n.20. compactness seemingly . from compactness Id. Yet, to . no one can agree what it is or, it. See, e.g.. Trial Tr. There are "at least 20" measures, as a 535:19-536:8 not one of which can claim any greater legitimacy than its peers. Id. at 555:16-17. The Reock test measures geographical dispersion and therefore is sensitive to Id. at and its 136:13-23 scoring punishes (Ansolabehere). - elongated districts. The Polsby-Popper measures perimeter dispersion and therefore is test sensitive to - and its scoring punishes - oddly shaped district boundaries with large numbers of indentations. test looks at "a normalized Id. Meanwhile, the Schwartzberg standard deviation of the distance from every point to the center of the district," id. at 558:4-7 (Katz), and inertia" or the the "how district," scientist variants has of Boyce-Clark far id. is at quipped "the the test measures farthest voter 537:12-538:6. that all of intraocular test": 63 One these "people the from "center the notable measures look at of center of political are just distric[t] maps, they figure out which districts they think look ugly, then they choose their eyeball See also the view of id. at compactness measure the mapping." 697:20-698:9 measurement of compactness Id. (Hofeller) . . which at comports 542:14-24 (noting that and with (Katz). "the main . while you are drawing a map is to look at the shapes of districts, so-called eyeball test"). But compactness is not important for its own sake. compactness is important because geographic representation. corridor" district that discussed driving might time). irregular 538:14-19 or reflected lines, id. (Katz); Polsby-Popper test, values Justice Stevens by of that measure adheres (such to 559:18-21 (Katz); identifiable geographic features, (Hofeller), might fare its purposes in a another district would at 687:1-4 neutral criteria, by a easily certain but would serve Meanwhile, county (Hofeller), be serves Therefore, the "major transportation poorly on the Reock metric, manner it Rather, as highly 687:1-4 id. at score poorly on the but would enhance the values served by those as discussed below. these other not a judicial concern. Nor so much neutral does as its a criteria district's "relative" is If the price of advancing compactness, "absolute" score. The then compactness Court's the score cost is matter examination of a district's compactness measure may be informed by the average in the State (which is important 64 to take account of a State's inalterable features), Virginia's irregular features), may be see Ints.' shape, Ex. county 14 at 12 and lines, informed by the average (discussing geographic in the nation (which is important to take account where a State's own averages may be far above or far below the national average), 3604029 at *33 ("A highly compact see Page, district in a 2015 WL state that adheres closely to compactness principles may be both the least compact in the state and among the most compact in the nation.") (Payne, J., averages dissenting), (which compactness 560:2-10 over (Katz) compactness state"). is and may important several it "in These are all to informed account districting (noting measures be is "perfectly two that historical for cycles), comparing factors by trends Trial see in Tr. reasonable" maps for courts must to the use same consider when evaluating this criterion. In short, scores in a evaluative vacuum, tools "absolute" State's in adherence the attributable but the that to definitions key to is does not predominance compactness, compactness rather, the Court would be remiss to "relative" its own (although whether something render them inquiry. constitutional these may be compactness such useless The compactness, meaningful, 65 look at compactness key or or is even not a statutory illuminating); deviations as as other are neutral criteria or a legitimate use of non-neutral criteria.^® Hofeller stated at trial, echoing Justice Stevens' sage advice, compactness is "more like a flag than a conclusion." 684:17-18 As Dr. Trial Tr. (Hofeller). ii. Contiguity, like Contiguity compactness, serves important democratic purposes, binding geographic communities together and helping to enable effective representation. the Virginia constitution's division by water, this In upholding a district under contiguity provision despite its the Supreme Court of Virginia reflected upon raison d'etre: Although the record shows that travel between [some] precincts and the remainder of the district requires travel through another district, there is nothing in this record showing that such access is unreasonable, unduly burdensome, or adversely impacts the ability of residents to secure meaningful representation of their interests or effective communication with their elected representative. Wilkins court V. West, reminded, principles are required,' but 264 Va. 447, "contiguity 465-66 and other (Va. 2002). traditional As the Page districting ^important not because they are constitutionally rather ^because they are objective factors' Virginia's constitutional compactness requirement only demands that districts not be "clearly erroneous, arbitrary, or wholly unwarranted." Wilkins v. West, 264 Va. 447, 465-66 (Va, 2002). That standard informs the Court's inquiry, but does not resolve it. 66 courts may consider in assessing racial gerrymandering claims." 2015 WL 3604029 a t *11. A district split by water has not "violated" contiguity for the purposes of a racial sorting claim any more than a district connected by a See Shaw I, that single point on land has "respected" contiguity. 509 U.S. case at 636 "remain[ed] {noting that one of the districts in contiguous only because it intersect[ed] at a single point with two other districts before crossing over them"). As with compactness, contiguity admits of degrees. Districts that are not divided by water are more contiguous than those that are, water crossing districts because such are as a not. is determinative, understanding between - that it and districts that are at bridge Land - least are more contiguity but because it connected by a contiguous is than important not reflects the common that bodies of water may mark the natural divide communities of interest or constitute barriers to the effective function of democratic activities.^® Of course, adherence lie to across outward deviations from land contiguity may also reflect other rivers from the neutral or districting around central harbors focal point criteria. and, of Many indeed, the cities are community: built the As one Norfolk resident put it during the legislature's public hearings: "Please deep six this specious concept of contiguity by water. To put [these communities] in the same district . . . is patently ridiculous." Pis.' Ex. 3 at 36:8-11. 67 waterfront. In such cases, a body of water that "divides" community may actually be the primary factor that unites it. Other words, a a In "deviation" from "contiguity" standards may be an attempt to respect a distinct community of interest or political subdivision. like The compactness, subordination simply a of factor contiguity that conventions the Court must is, consider in conducting its predominance analysis. iii. A common respect for and F o l i t i c a l Subdivisions significant political subdivisions, "Subdivision boundaries Residents political counties neutral of often develop tend units a districting criterion is such as counties or cities. to remain such as community stable townships, of interest, over time. cities, and particularly when the subdivision plays an important role in the provision of governmental services." concurring). facilitate and Moreover, are districts As Justice that administratively confuse the voters."); Powell at 758 enhance democratic administrative ("[L]egislative 462 U.S. (Stevens, J., adherence to subdivision boundaries can civic engagement, increase boundaries Karcher, id. accountability, convenience. do not convenient at 787 n.3 See cross and (Powell, subdivision less J., likely to dissenting). once wrote: Most voters know what city and county they live in, but fewer are likely to know what [legislative] district they live in if the 68 id. districts split counties and cities. If a voter knows his [legislative] district, he is more likely to know who his representative is. This presumably would lead to more informed voting. It also is likely to lead to a representative who knows the needs of his district and is more responsive to them. Id. at 787 n.3 (Powell, J., dissenting) (internal citations and quotation marks omitted). When a artificial with, legislative unit the voters J., from, is and communities cannot cannot (Powell, divorced various legislators district represent exercise the dissenting). "nothing indeed often established their ballot more in in the constituents than conflict State," properly intelligently. Id. an at and 787 A report produced by the Governor's Commission distilled the overarching themes that were repeatedly voiced during its public As the Commission noted, jurisdictions the who drew difficulties to hold the that forums around the Commonwealth. "the splitting of municipal and county ire of citizens, citizens accountable, should coordinate or from have and lead the who in who . . knowing among who several representation county interests in the General Assembly." . of pointed out to contact, legislators local city and Pis.' Ex. 23 at 8. In evaluating whether neutral criteria were subordinated, legislature's an important adherence reference to city point 69 and for county boundaries courts a provides undertaking the predominance analysis. often will, to need comply neutral to neutral federal- criterion precinct explain or criteria can - may, and subdivision borders population the Court will look to whether such method often legislature state-mandated boundaries, the the from political In such situations, boundaries, helps course, deviate with constraints. another to Of as or of compactness, communities of departure. In a form for "backstop" when one criterion cannot be fully satisfied, geographic interest - this manner, one another thus ensuring that neutral criteria are still predominating in the balance. Iv. Geographic may also be districting mark the features, used to a point as a of In distinct ranges boundary these geographic communities reference many mountains neutral Oftentimes, of representatives. such provide process. boundaries provide Natural Geography for cases, of voters, these or rivers, during indicators interest or candidates, natural the boundaries can and may already constitute the basis for governmental subdivision lines. See, e.g., "[m]any Ints.' county Ex. lines 14 follow at 12 (noting riverbeds, and that, the in Virginia, State's western boundary runs along 400 miles of mountain ridges and rivers"). Over similar time, role. generate distinct artificial Major geography transportation communities of 70 may also come thoroughfares to may play a slowly interest on either side of the divide, for or the marker may be voters, candidates, used as and a useful representatives understand their own district's boundaries. factors to consider, reference especially when point seeking to These are important adherence to traditional subdivision lines is not possible. V. Nesting districts within voters refers of the each Nesting to lower district readily the chamber of of to practice the corresponding representatives, foster voter (Powell, may J., a a House two or more legislature wholly chamber. "By voting permitting districts and nested plan can be expected to Bandemer, concurring in part, in putting state their participation." result the upper identify of 478 dissenting district U.S. at 179 in part). boundary n.l8 Nesting that appears inexplicable by neutral criteria until the corresponding Senate district is laid atop. vi. Precincts and Precincts Voting Tabulation Districts ("VTDs") are often the smallest objectively identifiable geographic groupings that may legislators occasionally use to organize correspond to identifiable communities "governmental jurisdictions" 234:11-16 (Ansolabehere); legislative towns, of neighborhoods, interest, in 605:4 71 their districts. own (Hood). but they right. In or They other are not Trial Tr. Virginia, VTDs generally correspond to voting precincts. Id. at 253:14-17 (Ansolabehere). Given their small boundaries alone will neutral criteria. together into short, This a is because could precinct easily or little be VTD democratic splitting any strung regard subdivisions, advancing avoid can having political criteria district with VTDs formations contiguity, neutral compliance rarely be sufficient to show adherence to grotesque compactness, important size, or for other values. VTDs but In remain highly suspicious on its face. For provide these a flag same for reasons, further of several VTDs in a however, inquiry. VTD The splits will often unexplained splitting single district can call into question the criteria guiding that district's construction. vii. Among concept traditional, of enigmatic. often respecting On the considered principles. the interest" may involve neutral districting "communities one On the Communities of I n t e r e s t hand, of interest" respect for such light of the guiding other hand, defining straddling the discriminatory criteria. principles, fence For example, some is the the most communities other is neutral "communities of between neutral and communities of interest may be defined by relatively objective factors, such as service delivery transit areas, media markets, 72 or major lines. Similarly, as communities may be somewhat objectively characterized rural, suburban, criteria, or and (principal opinion) "major upon rely upon "urban largely unavailable and the it. See (discounting can be lines" to the factors Bush, valid "shared because neutral not U.S. that media the legislature did 517 argument character," transportation created" These assuming that legislators actually have access to this information relied urban. possess 953 legislature sources," "supporting before at the "the and data were district same was degree of correlation to district lines that racial data exhibit"). The "communities neutral, however, "religious" into a considers of individualized qualification that for . . . 515 U.S. delineation, it interest is metric important when the This districting 916. defined the have boundaries to or morph Miller Court's principles include by actual be shared to this elusive demonstrable cannot less "social," tendency To give effect to becomes "cultural," explains communities at criterion interest. traditional interests." shared one when interest" communities more "respect of evidence explained on of an objective or neutral basis. viii. State Criteria For the reasons discussed above, a plaintiff does not need to prove that a State "violated" its own districting criteria in order to prove predominance. A State's 73 deviation from its own constitutional, statutory, or adopted criteria does, however, constitute evidence that is probative of subordination. b. If the Deviations Challenged Districts, Challenged Districts, consistent application of the appear or inexplicable traditional, Court will examine the Deviations from neutral criteria of individual for signal parts of the reference by neutral basis potential subordination and lay the claim; namely, significant to the principles, those the foundation then departures. presence for the of sorting that the districts reflect racial classifications voters and do not constitute neutral, geographic representative units. The Supreme Court has cited several sources of direct and circumstantial evidence that courts can rely upon in identifying racial deviations, including: [S]tatements by legislators indicating that race was a predominant factor in redistricting; evidence that race or percentage of race within a district was the single redistricting criterion that could not be compromised; . . . use of land bridges in a deliberate attempt to bring African-American population into a district; and creation of districts that exhibit disregard for city limits, local election precincts, and voting tabulation districts. Page, 2015 WL 3604029, at *7 Because traditional, democratic values and (internal citations omitted). neutral principles advance fundamental neutral state 74 interests, districts that substantially disregard these disruption 517 U.S. of traditional 974 (principal principles forms of can "caus[e] opinion). In Bush severe activity." political a Bush, v. Vera, Justice O'Connor described the impact that such districts can have: Campaigners seeking to visit their constituents "had to carry a map to identify the district borders lines, would because move from so block often to the block"; voters "did not know the candidates running for office" because they did not know which district they lived in. In light of [the State's] requirement that voting be arranged by precinct, with each precinct representing a community that shares local, state, and federal representatives, administrative it headaches for also created local election officials[.] Id. at 974. Such complaints have been echoed by local election officials in Virginia who "end up taking the brunt of complaints from voters who old precinct, can't why they holders on the ballot, a relative who lives understand why can't find any they of can't their vote in current their office and why they are in the same district as nowhere near them[.]" Pis.' Ex. 26 at 17:6-18. Of does course, not satisfy "subordination" traditional, the presence of the inquiry "substantial disregard" districting of any identified deviations deviations predominance requires neutral identifiable - criteria. and whether 75 The it is alone because for substantiality sufficient to support a finding of predominance - is examined when the Court weighs the evidence as a whole in the final stage. In reviewing consider the evidence deviations. bearing Deviations considerations, following: but on may Districts, be equality, and incumbency. the legislators' attributed legislators population preference, Challenged will bases for any number to typically race, Court rely political the of upon the affiliation or The Court will evaluate these bases for deviation in the following manner: i, "[A]n equal Population population redistricting background, whether race, or other determination as to met." Alabama, population is goal considered However, population 135 the is in not the appear to deviate is as a at ... a 1270. balancing relevant given, population traditional to is predominate equal Ct. requirement goals taken factors, how S. goal that comply to part when in a legislator's achievement redistricting determines with assessing from neutral criteria. This a will of factor be the that predominance. federally why the determining objectives Thus, of imposed district may is particularly true where the census data shows significant losses or gains of population in certain geographic areas of a State. The Court's analysis does not change just because the State has decided to adopt a lower percentage deviation threshold than 76 constitutionally "a more required. rigorous In Alabama, deviation standard the than our found necessary under the Constitution." as here, BVAP it seems targets that and a "[c]ompliance ±1% population to create stringent Brown V. districts[.]" districts than the of Thomson462 U.S. deviations predominance from neutral inquiry . held 842 the (1983), have There, two rule goals" - - "posed the State's . . . efforts population" generally basis 1263. "legislative equal principles.^" examines . But approximately 835, at these . adopted precedents deviation Id. 5% deviation Id. with particular difficulties with respect to majority-minority legislature more permissible in cannot explain away Id. upon at which sorted into appropriately apportioned districts. 1270. voters Id. The were at 1271. Where apportionment by political subdivision must be sacrificed to equal population goals, for example, other neutral principles Nor can the fact that a benchmark district possesses "almost exactly the right amount of population," Trial Tr, 147:19-148:19, (Ansolabehere), taken alone, provide evidence that changes to the district were based on race. If adequately populated districts were presumptively required to stay the same, the remaining districts on the map would need to wrap around them in violation of neutral principles. Id. at 688:20689:10 (Hofeller) . Of course, if a district exhibits unexplained deviations from neutral principles and the population changes for that district reflect "remarkable feats" of racial math, then this would constitute strong evidence that race predominated in the drawing of the district boundaries. See Alabama, 135 S. Ct. at 1271 {noting that "(o]f the 15,785 individuals that the new redistricting laws added to the population of [the district] , just 36 were white — a remarkable feat given the local demographics"). 77 such the as compactness slack. A therefore, and precinct substantial boundaries deviation from can often neutral only admits of answer by other, pick up principles, non-neutral criteria, such as race or political affiliation. ii. One explanation Racial Deviations for a district's districting criteria may be voters' consideration decisions support Clause. does a of race by on its not, claim Shaw I, of race. own, a economic status, variety of consciousness other does 646 discrimination."). prove that course, of if race It lead other districting districting the Equal Protection ("[T]he legislature always lines, factors. inevitably takes more predominated legislators' their just as use over of criteria, than race That race impermissible to sort and of race consideration of traditional entailed it must is it is aware religious and political persuasion, demographic not in under aware of race when i t draws district of age, neutral provide sufficient evidence to sorting at from The mere awareness or legislators racial 509 U.S. deviations the race to factors. Of subordination be adequately justified under the strict scrutiny regime. iii. Another P o l i t i c a l Deviations explanation for a district's neutral districting criteria may be voters' affiliations, and beliefs. As with race, 78 deviations political from opinions, the mere awareness or consideration of voters' political affiliation by legislators is both unavoidable and constitutionally permissible. U.S. at 753-54 political ("It would be idle, we think, consideration reapportionment plan is taken into fair' considerations - are apportionment."). political result to may consider. be from 135 S. . . and on more political the at and basis criterion Ct. a The districting legitimate Alabama, . different — a districting a fashioning Politics inseparable affiliation legislature .... Accordingly, in invalidate it. very essence of districting is to produce a ^politically 412 to contend that any account sufficient to Gaffney, 1270 for of the (citing Bush for the proposition that legislators may rely on "political affiliation" in districting); (principal opinion) Bush, 517 U.S. at 964-65 (citing Gaffney) However, deviations from neutral districting principles on the basis of political affiliation or preference may not always be constitutionally permissible. See Gaffney, 412 U.S. at 754 ("What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment."); LULAC, 548 U.S. at 413-14 (holding that political gerrymandering is unconstitutional) ; Arizona State Legislature V. Arizona Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015) (reaffirming that "partisan gerrymanders . . . are incompatible with democratic principles" and present justiciable claims) have this (internal brackets omitted). not raised Court *20 n.33 the need not issue consider of As political it further. (Payne, J., dissenting). 79 in Page, the Plaintiffs gerrymandering, See 2015 WL and so 3604029 at The Intervenors Challenged have Districts raised the have argument political, that rather some than of the racial, justifications iv. Yet neutral In another would explanation districting Gaffney be v. Incxombency Deviations we the a may criteria Cummings, idle, for district's be incumbency Supreme think, to deviations Court considerations. observed contend that incumbents against one another or . . . Accordingly, a S. Ct. at legislators for the 1270 may political reapportionment make very difficult 412 U.S. the at 753- district's impact on an incumbent may be a legitimate criterion 135 "It Redistricting may pit election of the most experienced legislator." 54. that; any consideration taken into account in fashioning a plan is sufficient to invalidate it. from legislature to consider. (citing Bush consider for the "incumbency Alabama, proposition that protection' districting). See, e.g., Ints.' Pre-Trial Brief at 18 ("HD95 was crafted carefully to avoid taking HD94's Republican precincts and instead take Democratic-leaning population left behind by HD93 and reach into precincts surrounded by HD93 to dilute Democratic voting strength in that area."); id. at 25 ("The changes on the eastern border to HD75 were drawn to load heavily Republican precincts into the district of Democrat William Barlow (who subsequently lost to a Republican in the 2011 election by 10 percentage points)[.]"). 80 However, neutral always as with districting principles permissible. protection, at In least interest (principal "aim[s] as a the deviations incumbency Court limited purposes recognized form of (emphasis maintaining are not 'avoiding contests 517 U.S. added). existing from "incumbency legitimate state goal." opinion) at deviations, for Bush, in the between incumbent[s],' 964-65 political This relationships at state between incumbent congressmen and their constituents and preserv[es] the seniority the members of the State's delegation have achieved in the United 412 U.S. States House of 783, 792 (1973), of the Representatives," voters. province "[I]ncumbency districting, protection but can take various constituents." Here, but the Districts' As can experience forms, 548 does not at U.S. Intervenors allege See, that have e.g., motive of this plan[.]"). 304:6-21 to advised: factor incumbency drawing avoiding (Jones). Trial in protection of the Tr. 825:5-7 Challenged protection" (Intervenors) That's the predominate Some of these deviations district pairing Other many "incumbency ("This was an incumbent-protection plan. residences Court the 440-41. justifications. in invade legitimate that Weiser, not all of them in the interests of the deviations interest LULAC a teaches v. necessarily the be White lines between incumbents. deviations, 81 however, See, reflect an incumbents' e.g., reveal an id. at effort to fence in the incumbent's incumbent's detractors 325:19-326:23 or not issue. be decided See Weiser, That said, voters challengers. (Jones). Whether "incumbency protection" need preferred states here a 412 U.S. See, this latter legitimate because no or fence out the e.g., id. at definition of government one has interest presented that at 792. we share the dissent's concern over Intervenors' "implicit suggestion that approval by incumbent legislators" can somehow "rescue" Post at 168. Protection a from a We fully Clause individual voter, in plan are finding agree that intended to of racial predominance. "[t]he [VRA] protect the and the rights Equal of the not to promote the self-interest of incumbents majority-minority districts." Post at 168. And, to be clear, the framework we adopt today condones no such thing. For voters purpose added), example, into of a if legislators protecting the to "*pac[k]' majority-minority particular attempt district incumbent," at 169 for the {emphasis this would still constitute racial sorting regardless of the "goal" of incumbency protection, precisely what we the see post at 85-86. find occurred in HD 75, predominated accordingly. On post minority other hand, This is and we hold that race See post at 117-21. if legislators attempt to pack supporters into their districts or attempt to remove detractors or challengers, then i t could hardly be said that race drove the 82 districting deviation. This does not imply are inunune from constitutional challenge. Court has pairing only sanctioned prevention," challenge to definition the of the a state Plaintiffs Commonwealth's "incumbency that simply protection." actions Although the Supreme interest alleged such in did "incumbency not interest Thus, raise in we a any wider are in no position to decide that constitutional question. Simply put, if incumbency interests constitute the predominate criterion driving the construction of the district, then a claim of racial gerrymandering must fail. does face not a imply that similar claim of political gerrymandering would fate. c. The a That, however, final Weighing step in the predominance inquiry of a racial sorting claim involves the weighing of the evidence in toto to determine whether "predominate" over the legislature, the all other attributable districting criteria to race employed by including both neutral criteria and deviations attributable to predominance, the "subordinated" deviations non-racial or Plaintiffs exhibited motives. must show "substantial To that demonstrate the legislature disregard" for these Court "must other criteria. In be making sensitive to its predominance the complex determination, interplay of 83 the forces that enter a legislature's redistricting extraordinary caution." court review of calculus" Miller, districting 515 U.S. and 915-16. at legislation "exercise "Federal- represents intrusion on the most vital of local functions," the Plaintiffs' at 928 of a J. , concurring). legislature correctness and good faith, should balancing Miller, be 915, Id. at 915 noted, example, the entitled the redistricting to a presumption however, that rather challenged the predominance than quantitative. district employed however, id. the predominant, decision to at Appendix district B. Looking at court found that the . picture, . . the overriding factor explaining the General Assembly's attach to the [district] containing dense majority-black populations," In was but See id. complete "[r]ace In gangly the district's overall shape was not far from routine. 917; of (majority opinion). arms at various points to capture black population centers, at and and the burden is upon the plaintiff inquiry is qualitative for Therefore, are to dislodge that presumption. It at serious burden is understandably "a demanding one," id. (O'Connor, enactments id. a conducting the predominance various appendages Id. at 920. balancing, two particular issues warrant the Court's careful attention. i. Racial & Political Correlation Occasionally, a deviation may appear equally explainable by racial or political motivations. 84 Because the State is presumed to have acted lawfully and in provide evidence that race - good faith, the plaintiff rather than politics - the primary basis for the classification. represented Evidence may include the sources of data relied upon in drawing the district, of fixed floors, (or and "aspirational") statements from political legislators must or racial regarding the use targets the or relative priority of their racial and political goals. A political of race as a objective, basis for however, does classification not immunize because used as a proxy for political characteristics. 968 (principal opinion), even between race and political because "to the extent if a scrutiny is in operation." race is is a the used use cannot be 517 U.S. Bush, in preference that political characteristics, there race the at proven correlation state. as a This proxy is for racial stereotype requiring strict Id. This is consistent with the Supreme Court's holding in Hunt V. Cromartie (Cromartie I) . The lesson of Cromartie I was that a political classification would not be considered racial simply because 541, 542 the Democratic voters (1999) ("[A] to be black. 526 U.S. jurisdiction may engage in constitutional political gerrymandering, loyal happened even if it so happens that the most Democrats happen to be black Democrats and even if those responsible fact."). for The drawing lesson was the not district that 85 a are racial conscious of that classification would be considered political simply because black voters happened to be Democrats. In about act the latter individuals of using stereotype. scenario, based on race as a the the State color proxy still of that their makes skin. constitutes decisions It an is the offensive The fact that a stereotype might have some basis in fact - or is relied upon to achieve "non-racial" purposes - does not render i t any less offensive. Evidence of a racial argument that race, floor will also rather than politics, particular deviations lend support to the can be attributed for from neutral principles. Although such a floor will not result in per se predominance where a district is formed predominantly on can buttress reason for a a the basis plaintiff's of neutral argument deviation where race that criteria, race was and politics the its use primary would otherwise seem equally plausible. Lastly, statements districting goals may or the relative priority constitute evidence to support a of racial predominance. requirements about the Taken alone, acknowledgment of finding the parroting of federal that certain compliance obligations are "mandatory" or "nonnegotiable" does not lend any weight in the predominance balance. If it did, start an the However, predominance if evidence is balancing provided 86 at that the State would immediate disadvantage. demonstrates legislators held a false belief fixed BVAP floor then statements that - certain were by artificial necessary those to criteria comply particular with - such federal legislators as law, regarding compliance are relevant evidence in the predominance inquiry. ii. Core retention boundaries" - Core Retention - or values, electoral accountability, however, such not core inhabitants." district as increased and retention directly retention administrative enhanced voter ease, awareness be relevant used holds a special place and in That is because "core preservation Alabama, may to 135 to the S. origin Ct. insulate at the of the 1271. new the . . district Moreover, original . basis core for the boundaries. Thus, where district predecessor districts predominate, courts justification for Legislators' use the of lines or track where should the core path "core also original a examine lines similar retention" or retention certainly receive some degree of deference. a district Unlike the other neutral criteria identified above, predominance balance. is existing appears to be facially neutral and serves neutral political engagement. "respecting to seems the to underlying original district. principle But, their should the inquiry in racial sorting claim examines the basis upon which voters were placed "within or without a particular district." 87 Miller, 515 U.S. at 916. "That's neutral response, The all of Court the the way we've always done it" may be a but it is not a meaningful answer. applied evidence the the in foregoing record principles and in when weighing ascertaining whether voters were sorted into a district predominantly on the basis of their race. 2. Strict Scrutiny Analysis Having that the applied these Plaintiffs predominant in the met precepts their formation to the burden of to HD 75, evidence, prove making apply strict scrutiny as to that district. scrutiny, found race was necessary survive to strict the redistricting statute must be narrowly tailored to a compelling state interest. familiar that it To we test takes on a In the redistricting context, somewhat different appearance, this which the Court will now examine. a. In prior deciding, can this cases, that suit, compelling opinion) results the compliance constitute a U.S. at 915 Compelling Interest with Court federal compelling state ("We assume, that Supreme interest[.]"); with Bush, assumed, without antidiscrimination interest. arguendo, compliance has See Shaw laws II, 517 for the purpose of resolving § 2 517 [of U.S. the at VRA] 977 could be a (principal ("[W]e assume without deciding that compliance with the test [of the VRA] . . 88 , can be a compelling state interest."). Various members of the Court their separate views on the matter. {O'Connor, J., concurring) compelling interest have See Bush, ("In my view in complying with . . the . also 517 in J., part, concurring in the joined Justice Alito) by ("I Chief at 990 results test [of 548 U.S. the at 517 judgment in part and dissenting Justice would hold U.S. the States have a VRA] as this Court has interpreted it."); LULAC, (Scalia, expressed Roberts, that Justice compliance Voting Rights Act can be [a compelling state] Thomas, with § 5 of and the interest."). This already complex posture was rendered even less certain by the Court VRA, recent struck down but 2631. "issue[d] the in Shelby coverage County. formula no holding on § 5 There, the under Section itself[.] Supreme 4 of 133 S. Ct. the at The Supreme Court did not help matters in Alabama when it stated, Holder, "[W]e do not here decide whether, continued interest[.]" Here, both decision compliance 135 S. Ct. at 1274 § 5 remains a compelling (internal citation omitted). the Intervenors claim compelling interests founded on Section 2 and Section 5 compliance with the VRA was a enactment, the Court finds Scalia his LULAC opinion in with given Shelby County v. Justice Scalia wrote, Roberts, Justice Thomas, in of VRA. To resolve whether compelling interest at the time of the a the rationale offered convincing. passage joined and Justice Alito: 89 As by to by Justice Section Chief 5, Justice We long ago upheld the constitutionality of § 5 as a proper exercise of Congress's authority under § 2 of the Fifteenth Amendment to enforce that Amendment's prohibition on the denial or abridgment of the right to vote. If compliance with § 5 were not a compelling state interest, then a State could be placed in the impossible position of having to choose between compliance with § 5 and compliance with the Equal Protection Clause. 54 8 U.S. at 517 (Scalia, and dissenting in part, Thomas, find and this Justice J., joined by Chief Justice Roberts, Alito) reasoning concurring in the judgment in part (internal persuasive, citations with the Justice omitted). proviso that We the State's interest must be in actual compliance with the standards articulated in the federal This Supreme federal antidiscrimination law as interpreted by courts. distinction Court is an stipulated antidiscrimination laws important that cannot one. In "compliance justify Miller, with race-based the federal districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws." 515 This reasoning is persuasive with respect to Section 2 as well. See Bush, 517 U.S. at 990-92 (O'Connor, J., concurring) (noting that the Supreme Court has repeatedly enforced the obligations of § 2, lower courts have unanimously affirmed its constitutionality, and states would be "trapped between the competing hazards of liability" if § 2 were not a compelling interest). Because only a compelling interest in actual compliance with the non-retrogression standard of Section 5 is necessary to the resolution of this need not address Section 2 at length. 90 case, however, the Court U.S. at 921. That fundamental limitation remains applicable. drafting redistricting legislation, law that complies constitution. with Thus, compelling. If demands of a federal law and the state federal the goal of "actual compliance" is clearly the federal constitutional, both the State must pass a In State achieves statute, then there actual and the can be compliance federal little with statute is doubt that the itself the state law is similarly constitutional. The denial goal State under of also Section "defensive interest. has See, 5 an (or interest liability compliance," e.g., id. at compliance could often entail itself: subordinating districting criteria 921-27. a racial avoiding under however, This neutral preclearance Section is not a 2) . This compelling is because defensive violation of traditional, to in constitutional criteria considerations. See and law other Harris v. Arizona Indep. Redistricting Comm'n, 993 F. Supp. 2d 1042, 1054- 55 "[s]everal (D. Ariz. 2014) {noting preclearance process . that aspects of the , . may work together to . . . encourage a state that wants to obtain preclearance to overshoot the mark, particularly if it wants its first submission to be approved") . But Section 5 does not require - and cannot be read to require - states to subordinate traditional, neutral districting 91 principles to race in the redistricting process.The DOJ's own regulations Reg. state this 27 (Feb. Vol. explicitly. 9, Pis.' 2011) Ex. at 9 7472) retrogression under Section 5 does not require violate that Shaw v. finds Reno itself and related cases."). engaging in fulfill an interest in forfeit any credible interest in 4 (76 jurisdictions to racial compliance preventing Fed. ("[P]reventing Therefore, predominant defensive at will a state sorting to begin to retrogression and may be said to have adopted an interpretation of Section 5 that would itself render Section 5 unconstitutional as applied. In sum, we compliance with the hold that standards Virginia's of federal interest in actual antidiscrimination law - as the federal courts have interpreted them - was a compelling Nor does Section 2 require states to engage in such behavior. That is because Section 2 requires a plaintiff to first prove that the minority group was "geographically compact" and could have constituted a numerical majority in a hypothetical single-member district. See Shaw II, 517 U.S. 916; LULAC, 548 U.S. at 433; Bartlett, 556 U.S. at 26. at The conceptual difficulty with the compelling interest arises when the State attempts actual compliance but does not achieve actual compliance. But this is not a dispute about whether the interest is compelling; it is a dispute about whether the State's attempt was "narrowly tailored." If the State's goal was actual compliance with a proper reading of a constitutional compelling. federal Only the standard, federal courts then the interest is can ascertain whether the State "achieved" actual compliance with a constitutional reading of those statutes, so the State can only "attempt" actual compliance. 92 interest at the time the 2011 redistricting plan was designed and enacted. Apart from interest that is capable cycle. question, the is compelling at a of As that believes that an redistricting plan's inception sustaining the plan district the Court court in until the Alabama next stated, districting "We evaluate the plans in the light of the legal standard that governed the Legislature when i t acted, Supreme under [the of the [VRA]." 989 F. (three-judge court), later decision of the State] See Supp. 2d from Alabama 1227, future coverage Legislative 1307-08 vacated and remanded, Black (M.D. 135 S. Ct. Ala. 1257 Because the legislature possessed a compelling interest actual compliance interpreted enacted, to 5 exempted Alabama, V. (2015). in that section Caucus 2013) Court not based on a by the with federal federal antidiscrimination courts at the time the laws plan as was and because redistricting plans are inherently subject periodic revision on a reasonable, decennial basis, we conclude that the compelling interest underlying the statute at enactment remains a compelling interest during its effective duration. b. Narrow Tailoring The next question in the analytical calculus is whether the State's redistricting compelling interest. statute was "narrowly In particular, 93 tailored" to this the question is whether a State's "attempt" "reasonably at 911 Supreme actual necessary application of U.S. at compliance under a could constitutional [federal antidiscrimination] {citing Miller, Court explained 515 U.S. that be at narrow viewed as reading and Shaw II, 517 In Alabama, the laws." 921) . tailoring is satisfied if there is a "strong basis in evidence" for the predominant use of race in drawing a challenged district. 135 S. Ct. at 1274. The conceptual difficulty for the narrow-tailoring is this: if a finding of predominance subordinated other considerations, of the antidiscrimination subordinate other unconstitutional the interest racial standards reading of saves The answer criteria could a does the is have race require how race can to an statute by the State be State's this: not then federal that constitutional reading considerations, that gerrymander? and a means inquiry unconstitutional if the reasonably disregard been racial for viewed non- as not substantial, and the State shows a strong basis in evidence that its deviations with been the appeared federal considered necessary standard, reasonably then to the ensure actual district could necessary under a compliance still have constitutional reading of the statute. Therefore, "preponderance" apply a as the standard "sufficiency" finder during standard 94 of the fact, we predominance during the employ inquiry, narrow a but tailoring inquiry. this Justice Breyer's dissent in Abrams v. Johnson makes rationale clear: This legal distinction - between whether a plan really violates § 2 or might well violate § 2 - may seem technical. But it is not. A legal rule that permits legislatures to take account of race only when § 2 really requires them to do so is a rule that shifts the power to redistrict from legislatures to federal courts (for only the latter can say what § 2 really requires) . A rule that rests upon a reasonable view of the evidence (i.e., that permits the legislature to use race if it has a "strong basis" for believing i t necessary to do so) is a rule that leaves at least a modicum of discretionary (race-related) redistricting authority in the hands of legislators. 521 U.S. court at 114 was endeavor, the already J., dissenting). required to In Abrams, undertake the a federal districting so Justice Breyer's dissent was unavailing. lower court majority-black principles, opinion). (Breyer, decided that district it declined it could not create without to subordinating do Id. so. at 84-85 Because a second neutral (majority This does not mean, however, that a court reviewing a State's plan cannot long as legislature had a the accept the State's alternate strong basis judgment, for believing so its plan was compliant. Therefore, for predominance, matter of fact, the criteria. narrow For the inquiry is whether, as a State substantially disregarded non-racial tailoring, 95 the inquiry is whether the state had good reason to believe that its actions were required for actual compliance with the non-dilution or non-retrogression standard. is Because substantial disregard of non-racial criteria not required standard, this under inquiry a constitutional necessarily reading entails also of either asking whether the State had good reason to believe that its own departure from non-racial c r i t e r i a was not substantial. Because the standards tension, standards of non-dilution of and the racial sorting claim and the non-retrogression twin demands" and provide a the State's objectively reasonable efforts. 990 (O'Connor, J., concurring). reasonably the in avoid legislature had dilution a Bush, fairway for 517 U.S. at There may be a variety of plans reasonably respect traditional, If stand the Court must recognize that the State is attempting to "toil with the[se] that often and retrogression and also neutral districting principles. strong basis in evidence for its districting decision and reasonable individuals could have come to a different conclusion, then the court should accept that reasonable judgment during the narrow tailoring stage. Thus, the question a court must ask at the narrow-tailoring stage is whether the legislature has shown reasons" to evidence for necessary believe to - believing achieve i.e., - that that actual 96 it its had that it had "good a actions compliance strong were with basis in reasonably federal antidiscrimination standards of those standards. Or, based on a constitutional reading could a reasonable legislator have come to the conclusion that the challenged district violated neither federal law nor any constitutional limitations upon that federal law. This formulation Intervenors proposed inquiries. had a also explains seemingly 'strong different basis in evidence Districts needed to for meet BVAP target to avoid retrogression." Intervenors question is criteria." Both the Plaintiffs narrow argued at much that "how Trial Tr. of these trial exceed Pis.' that district 855:20-21 inquiries believing that all or [it] of the predetermined Post-Trial Brief at the narrow violates (Intervenors) are a and tailoring Plaintiffs argue that the State "must show that Challenged 28. why tailoring the state's (emphasis added). necessary, but neither is sufficient. The narrow tailoring inquiry asks whether "the legislature ha[d] a 'strong basis in evidence' based) choice that it has made." This standard . . . in support of the Alabama, 135 S. Ct. at 1274. does not demand that a State's actions actually be necessary to achieve a compelling state interest in order to be constitutionally valid. And legislators evidence order have to good required, may to have use comply a racial with reasons even if a to a basis in classifications strong in statute believe when such court does not 97 (race- they use is find that the actions compliance. Id. were (emphasis added). this necessary for statutory With respect to Section 5, for example, inquiry into whether the "race-based choice" had a basis in and because - evidence" a reaches both the does not require subordination - standard of retrogression interpretation constitutional of retrogression the standard of subordination. With respect to subordination, that the extent of a not irrelevant "exhibit[s] [the VRA] opinion) a to of narrow racial could justify." (emphasis ("[C]ompliance tailoring inquiry" manipulation Bush, added). with the Supreme Court has noted State's disregard of neutral criteria "is the level "strong 517 U.S. Accord that at exceeds 980-81 it what (principal 515 U.S. antidiscrimination federal Miller, when laws at 921 cannot justify race-based districting where the challenged district was not reasonably necessary under a application of those laws."). that a district compliance standard with entails is a constitutional In other words, narrowly tailored constitutional showing that to an reading the reading part of showing interest of the district and is in actual retrogression one that a reasonable legislator could believe entailed only reasonable and minor deviations from neutral districting conventions. Nor is "strong basis an inquiry into in evidence" whether that 98 its the actions State were possessed a necessary to "prevent retrogression" limited to the BVAP percentages in the Benchmark Plan's Congress amended decision in existing majority-minority Section Georgia v. 5, it rejected Ashcroft, 539 districts. the U.S. "adopted the views of the dissent." 68-69, 461 Alabama, (citing H.R. Rep. No. 109-478, pp. Supreme Court's (2003), 135 S. Ct. and When n. 183 and at 1273 (2006)). The dissent "made clear that courts should not mechanically rely upon numerical percentages but significant circumstances." U.S. no at 493, argument particular 498 (Souter, that dissenting) (noting simple of alone a J., decrease dispositive the in about of all (citing Ashcroft, 1273 "locks Ashcroft, that at take 539 dissenting)}. retrogression district. fact Id. should 539 entire Thus, in" U.S. the at Court [BVAP] in whether account a there can be BVAP 498 each (Souter, agrees some of that districts proposed J., "the is plan not is retrogressive") . The retrogression standard also does not specific number of majority-minority districts. "lock in" a See id. at 492 ("I agree with the Court that reducing the number of majority- minority districts within a State would not necessarily amount to retrogression barring preclearance under § 5 of the Voting Rights Act of 1965."); Texas v. United States, 831 F. Supp. 2d 244, 260 suggested (D.D.C. that 2011) the ("[T]he Supreme Court inquiry required 99 by . . Section . has never 5 can be satisfied by districts. is a examining In fact, complex create within the the same deviations from A of majority-minority the Court has acknowledged that the inquiry State, number Section at number This holds true but as a matter of logic. performing U.S. the undertaking."). legal principle, changes only 5 of it simply neutral may must districting only as not be feasible districts also avoid criteria. to because unreasonable See Miller, 515 910. retrogression significant retaining candidate analysis circumstances," Section of 5's choice," See 52 U.S.C. § 10304(b) that Alabama, Ashcroft, This mandate adopting changes must is S. account Ct. reference 529 now "take 135 "anchoring dissenting). U.S. part at of at 1273, to all while electing 493 the of {Souter, statute a J., itself. (prohibiting covered jurisdictions from "ha[ve] the purpose of or will have the effect of diminishing the ability of any [minority] citizens . . to elect their preferred candidates of choice[.]"). 'ability to elect' Supp. a Based on demographic majority-minority districts not is the statutory watchword." . "Clearly, Texas, 831 F. 2d at 260. Therefore, strong basis in once a court finds evidence standard legislature had good reasons employed in the district - for that race predominated, the asks the not only believing the BVAP percentage as v/ell as the district 100 whether itself - was necessary to avoid retrogression, is one that a reasonable but also whether the district legislator could respected neutral districting principles. reminded: may district, Ct. at of be unclear; claims and, about with they often require voting respect behavior; to any subordination This as applies well. tailoring" to In inquiry reasonable the state context permits of the the particular judges may disagree about the proper outcome." 1273. "narrow controverted generally As the Alabama Court "The standards of § 5 are complex; evaluation evidence believe 135 S. judgments about redistricting, State to the overshoot the bull's-eye, so long as it hits the target. The sorting foregoing claim legal provides framework the for guidepost analyzing for the a racial statewide and district-by-district findings that follow. B. Evidence Of General Application To All Districts "A racial boundaries of gerrymandering individual "district-by-district" However, across the all districts" basis. Plaintiffs districts. claim . and Alabama, provided Therefore, . some the . must 135 applies be S. the proven Ct. evidence Court to will on at that a 1265. applied assess that evidence before proceeding to its district-by-district analysis. Id. ("Voters, of course, can present statewide evidence in order to prove racial gerrymandering in a particular district."). like fashion, the Commonwealth's 101 evidence may apply In across districts. credibility with the Our determinations record First, findings as a on the and how evidence are particular based evidence on our squares whole. the Intervenors frequently discussed the substantial population changes experienced on both a the Challenged Districts. 19-20 (Docket No. 104). See, e.g., statewide level and in Ints.' Post-Trial Brief at That evidence has a role to play in the predominance analysis, but it is a limited one. As the Supreme Court held in Alabama, goal is not use of race Ct. at one among others to be weighed against the to determine whether race 1270.^® background, factor Instead, "it taken as a given, other factors, "an equal population is ^predominates.'" part of the 135 S. redistricting when determining whether race, or predominate in a legislator's determination as to how equal population objectives will be met." Id. The predominance question "concerns which voters the legislature decides to choose[.]" Alabama, 135 S. Ct. at 1271. That is because, like compliance with the VRA, it is a "demand" that the State does not have the option of ignoring. See Page, 2015 WL 3604029 at *26 (Payne, J., dissenting). "Indeed, in light of the Constitution's demands, that role may often prove ^predominant' in the ordinary sense of that word. But, . . . gerrymandering ^predominance' in claim is special. the context of It is not about a racial whether a legislature believes that [a goal] takes ultimate priority." Alabama, 135 S. Ct. at 1270-71; accord Page, 2015 WL 3604029 at *26 (Payne, J., dissenting) {"[T]here is a difference between a State's 'paramount concern' with complying with federal law and a State's use of [a factor] as a ^predominant criterion' for allocating voters between districts."). 102 Although the equal population goal is not a traditional factor to be considered in the balance in deciding predominance, its "background" role is nonetheless important in assessing why certain redistricting actions were taken. losses in population affect where in a pertinent cannot - to which neutral gains or State new districts must be created or where old districts cannot is For example, stand. redistricting That, criteria in turn, can or be fully satisfied. Second, in Section for III the reasons provided in the factual discussion above, the Court finds that a 55% BVAP floor was employed by Delegate Jones and the other legislators who hand - in believed crafting this the Challenged necessary to Districts. avoid Those retrogression had a delegates under federal law, and we do not doubt the sincerity of their belief.^® Third, the Plaintiffs' testified about his particular. Dr. expert. Dr. Stephen Ansolabehere, analysis of VTDs in the Commonwealth. Ansolabehere used statistical models In to examine the movement of VTDs into and out of the Challenged Districts The quota . . dissent . believes raises even that more Virginia's serious "one-size-fits-all concerns" than the mechanical racial targets in Alabama because the Alabama legislature "sought to maintain preexisting racial percentages specific to each district with the aim of avoiding retrogression[.]" Post at 162-63. But, the legislators in Alabama mistakenly believed that any decrease in existing BVAP percentages would constitute retrogression. Any patina of district-specific treatment was no more than the residue of this misconception. 103 and opined whether, in his view, those predominantly "racial" or "political." movements See id. were at 14 9:19-152:6 (Ansolabehere). With respect to Dr. Ansolabehere's analysis regarding race and politics as "predictors" of the likelihood of inclusion of VTDs the in one initial of technical concerns about his views Challenged concerns Districts, and more to the reasons for Court fundamental the method employed that as the cause us has both substantive not VTD placement. to credit First, even though Dr. Ansolabehere's analysis provides a "regional" control to avoid examining VTDs that could not have feasibly found their way into the (Ansolabehere) , region region could en contiguity does to and not the conventions, (Katz) a Districts, considered route that district" that be 514:23-515:13 assumes Challenged VTD that account to "hop" target see id. (noting "can be "doing for at whether a over another district in at that the same VTD in violation of assigned by VTD that the analysis analysis] 163:19-25 in 503:9-504:3 independently [the id. (Katz) and incorrectly to a given subregions doesn't solve that problem").^® Admittedly, Dr. Katz's approach - which includes a variable for distance from the center of the target district is, by his own description, "not a perfect fix" and a sort of "crude or poor approximation." Trial Tr. 504:18-24 (Katz). Nonetheless, it offers a more reliable approach to the issue than Dr. Ansolabehere's analysis. 104 More versus fundamentally, politics" consider the however. miss opinions extent to Dr. the mark the boundaries which Ansolabehere's because "race they do not themselves are justifiable by neutral criteria or any other motivation besides race or political disposition. not, for example, cultural factors, and consider The models "economic geographic factors, service delivery areas." Id. that he employed do factors, social factors, governmental jurisdictions at 230:14-21 (Ansolabehere). If a district is intentionally designed as a performing district for Section 5 purposes, movement of even a to VTDs race into or statistically composition that there should be little surprise that the of the out of the significant population. "predominated" for district degree This the - does purposes is correlated with not the mean, of a racial - racial however, sorting claim. The predominance question requires an inquiry into whether the movement of other criteria 857 F. 156 Supp. (2012). just does Dr. not VTDs factors determining and out in the process. 2d 553, Dr. 565 provide - (D.S.C. including whether a - district's 105 district v. sum, analysis, aff'd, the 133 S. most into this analysis, steady subordinated South Carolina, for insights correlation party a Backus 2012), any specific partial of See Ansolabehere's Ansolabehere's other into can be deviations part, inquiry. which holds considered from Ct. in neutral criteria may be more 157:24-158:5 assessing reasons attributable (Ansolabehere), - not for refuting using reliable, Dr. susceptible can testimony Katz's the being least with respect that to crude, included at considered in neutral limitation the be id. provides from statistical significance of the racial at or politics, only admittedly for to it race deviations approximation equally - particular Moreover, but to in principles. but that every non-racial nonetheless VTDs are not district, the justification disappears, question of whether race politics is a more significant predicator of VTD placement. Ints.' Ex. 16 at ("Statistically Ansolabehere's 21, Table 1; are a these analysis on Trial Tr. 505:22-510:25 tie."). On the VTD issue is not or See (Katz) balance. Dr. reliable proof on the predominance issue. Lastly, the Court finds that some "statewide" compactness information is useful as a point of comparison for the districtby-district Challenged average analysis set Districts, Polsby-Popper out the in Section average Score Reock was Schwartzberg score was 2.365.^° IV.C. score .192, Pis.' Ex. below. and was In .320, the the the average 51 at 12, Table 2.^^ Dr. Katz utilized a modified Boyce-Clark measure in his analysis. Trial Tr. 537:2-4 (Katz). The Court declines to analyze the districts separately using this measure. Dr. Katz appeared to employ the Boyce-Clark measure simply to prove the more academic point that there is no agreed-upon standard and that different measures can lead 106 to different outcomes. Id. at In the .360, Non-Challenged the average Districts, Id. the districts. Challenged the "top 721:8-12 Reock .243, score was and the average Under the Reock and Polsby- higher scores represent more compact districts. Id. Of Districts lowest Reock scores in Id. Under the Schwartzberg measure, compact average Polsby-Popper Score was Schwartzberg score was 2.128. Popper measures, the 50" - - are and with the the 100 in five lower scores represent more House the districts, "bottom 50" - seven of with the of the Challenged Districts are highest Reock scores. Trial Tr. (Hofeller). With these generally applicable findings in mind, the Court now advances to the requisite district-by-district analysis. so doing, the analysis is guided by the legal principles and the framework outlined in Section C. As have IV.A. above. District-by-District Analysis with the generally our district-by-district we In based on our applicable analysis examination factual itself of the is a record findings factual as a above, one whole that and on our assessment of the credibility of the witnesses. 540:19-542:9 (Katz). This point is not disputed. None of the experts disputed the compactness calculations provided by the Plaintiffs. However, the Court reiterates that compactness is "more of a flag than a conclusion" and rejects the suggestion by Dr. Ansolabehere that districts under .20 on the Reock scale are presumptively "non-compact." See ante at 57 n.l5. 107 1. D i s t r i c t 63 HD 63 is represented by redistricting contained of in the all Dinwiddie-Greensville then-Delegate process. of Chesterfield. Plan, found Under Dinwiddie Pis.' Rosalyn Ex, the and 50 at Dance Benchmark Table during and the was 2011 Plan, the district City, Petersburg 69, area and part 1. of Under the Enacted the district now contains all of Petersburg City and parts Chesterfield, Dinwiddie, Hopewell, and Prince George. Id. This increased the number of county and city splits from 1 to 4 and increased the number of split VTDs 50 at 69-70, percentage Tables of 80.2, 1, 2.^^ Ints.' HD Ex. 14 from 0 63 at has 83, to 8. a and Pis.' core is Ex. retention contiguous by land. On its chopping face, Dinwiddie the County district tends to until through it Dr. cuts district in is half, unusually the southern follow precinct boundaries Dinwiddie Ansolabehere and Dr. precinct Hood come This is because Dr. After border from west along of the to east Interstate to different conclusions regarding the number of VTD splits. 15 at 6 n.5. shaped. 85. statewide See Ints.' Ex. Hood counts the number of VTDs that are split, whereas Dr. Ansolabehere counts the number of splits in VTDs. The latter method accounts for VTDs that are split multiple times. We are not convinced that Dr. Ansolabehere's approach is entirely sound. See Pis.' Ex. 51 at 15 n.3. But, because Dr. Hood only provides statewide splits data, the Court will rely upon Dr. Ansolabehere's district-bydistrict splits data, thereby giving Plaintiffs the benefit of the doubt. The Court expresses no opinion regarding the appropriate counting measure. 108 After that, the New Hope. around configuration district line After around a constricts, brief Petersburg return City, the carving to a out a rather district hook normal narrows to avoid the Jefferson Park area and the homes of Delegates Cox and Ingram. It George, into James River. then continues various parts See Pis.' Ex. in of a narrow Hopewell, 66 at 1; form and Ints.' through Prince terminates Ex. at 94 at 1. The district had Reock and Polsby-Popper scores of .48 under scores of the .25 15, Table 9. of any Benchmark and district Ex. The criteria under and the experienced Enacted a Plan. steep Ints.' . 61 and drop Ex. 15 to at This marks the largest Reock compactness reduction (Ansolabehere) . Pis.' .16 Plan the in the The Enacted district's Plan. Trial Schwartzberg Tr. score is 140:7-9 2.506. 51 at 11, Table 1. district's begin with deviations the from splitting of split appears to be avowedly racial. neutral Dinwiddie redistricting County. This Delegate Dance testified that the southern half of Dinwiddie "went to Delegate Tyler to try to get her number 55 percent." Trial Tr. are two sub-deviations: . . . [o]f African-American voters up to 80:11-17 (1) (Dance). Within this deviation the splitting of Dinwiddie precinct; and (2) the hook that wraps around New Hope precinct. The Dinwiddie precinct is split along 1-85, but this is not listed among the redistricting criteria, 109 which undermines its explanatory value as a S. Ct. at 1271-72. districting criterion. See Alabama, Although established transit corridors may split areas into "communities of interest" over time, no evidence that this precinct is comprised communities on either side of the highway. the artificial border provided by 1-85 On may 135 there was of distinct the other hand, provide a clear boundary to voters and candidates alike that reside in Dinwiddie precinct and wish to know their House district. In the absence of any further explanation by the Intervenors or the Plaintiffs, however, for this the Court declines to identify any particular rationale "sub-deviation," meaning that the Plaintiffs have not carried their burden of attributing it to race. The other "sub-deviation" - decidedly not racial. finds that the prevention" and the hook around New Hope - After reviewing the evidence, purpose for "incumbency this deviation protection." was This 325:24-25 (Jones). Delegate Jones testified accounted for "the bulk of the splits in id. at 326:18-19, tremendous had "challenger that [the 75th] was Trial Tr. the cutout district," that New Hope was retained in HD 63 because "a amount constituents the Court deviation negotiated between Delegates Dance, Tyler, and Jones. is of family" [Delegate there, id. Dance's] at employees 326:5-10, and or that Delegate Dance had "a potential primary opponent she wanted to draw out of her district," id. 110 at 326:11-12; accord id. at 858:4-7 {Intervenors); Ints.' Pre-Trial Brief at looks like the hook is reaching for something, 20. So, if it that's because it is: a potential threat to the incumbent. Thus, at this point configuration of HD 63 the was record is that one reason for racial and one reason was the purely political. The other component of HD 63's north and east from U.S. 4 60 to unusual the James shape River is in its a reach way that runs through both Prince George County and the City of Hopewell. In so doing, localities splits a this in component of district from the number of VTDs. at 79:23-80:3 (Dance). HD Trial 63 three Tr. increases to the five, 140:16 number and it of also (Ansolabehere); id. According to Delegate Dance's testimony, "that's what it took to get [Delegate Tyler] strength of African-American voters." Id. to the 55 percent at 81:15-18 (Dance). Not only did this help satisfy the 55% threshold in District 75, it also helped maintain population in District Prince George then . . . ... However, other criteria, water record in . . . [a]nd concentration of African-Americans shows the in (Dance). that the eastern both neutral and political. crossing African-American Delegate Dance "picked up parts of at 81:21-83:6 the substantial to get more African-Americans picked up the Hopewell[.]" the 63. a Benchmark 111 HD border advanced In order to unwind 74, Delegate Jones decided to move precincts in Hopewell City out of HD 74 and into HD 63. Thus, adherence 465 to HD 63's eastern contiguity configuration conventions. See Wilkins, precincts eastern in HD 63 boundary detriment Ints.' 63's HD 264 74's Va. at (examining whether HD 74's water continuity was permissible under the Constitution of Virginia). the improved Ex. unusual avoids of 92 rather than solving Republican at 2. shape Thus, can HD be Moreover, 62 the or HD 64, water districts it either that on a the District's crossing on appears explained by placing these this problem side. aspect neutral, to See of racial, HD and political basis. It is the considerations neutral Plaintiffs' subordinated criteria provided thus and far is other burden all to show other non-racial in equipoise, that the criteria, criteria. and the The racial including evidence Plaintiffs have not yet satisfied their burden on the predominance issue. Plaintiffs rely complete their task. on testimony To begin. in compactness scores but, flag the than a conclusion. Dr. of Dr. Ansolabehere to Ansolabehere notes the drop as discussed above, that is more of a If compactness has been sacrificed to enhance contiguity or serve political ends, then race alone has not subordinated this criterion. Dr. Ansolabehere also analyzed VTD movements above, account for but, other as discussed criteria that 112 may be that analysis shaping the fails to district, such as incumbency considerations in nearby districts. of VTD splits. incumbency Finally, or solving contiguity issues Dr. Ansolabehere notes the number But the majority of splits are attributable to considerations rather than race. Moreover, splits appear to be attributable to Delegate Jones' some twin aims of solving the water crossing and limiting population deviations to ±1%. to In sum, be we find Dr. Ansolabehere's testimony on each point unconvincing. Plaintiffs dislodge in Thus, their his obligation the presumption of evidence to lawful prove did not help predominance action to which the and to the General Assembly's redistricting plan is entitled. Based have on not the record, satisfied considerations districting the subordinated criteria basis of the record, in finds that burden their Court to prove all the other formation the Court holds, neutral of HD the Plaintiffs that and 63. racial race-neutral And, on as a matter of fact, the that race did not predominate in the drawing of HD 63. 2. D i s t r i c t 75 HD 75 is represented found by in Delegate redistricting process. contained all of Sussex and parts of Brunswick, and Southampton. the Pis.' Dinwiddie-Greensville Roslyn Under the County, Tyler Benchmark Greensville, Franklin City, Ex. 50 113 at during area and the was 2011 Plan, the district and Emporia City Isle of Wight, Lunenberg, 69, Table 1. Under the Enacted Plan, Greensville Isle the district and of Wight, parts of Lunenberg, now contains all of Emporia City and Brunswick, Dinwiddie, Southampton, Surry, Franklin City, and Sussex. Id. This increased the number of county and city splits from 5 to 8 and increased the number of split VTDs from 4 to 13. 50 at 69-70, of 78.64, Ints.' On despite Pis.' Tables 1, its Ex. 2. HD 75 has a 14 at 83, face, the Ex. 66 at 6. The Ex. core retention percentage and is contiguous by land. district its odd tendency to Pis.' appears leak across district had relatively compact, county and city lines. Reock and Polsby-Popper scores of .42 and .22 under the Benchmark Plan, which shifted to scores .41 .19 Ints.' of 15, Table 9. Ex. 51 at under the Enacted Plan. Ex. The district's Schwartzberg score is 2.282. 11, compactness Trial Tr. and Table remained 141:4-5 1. "about Although the the same (Ansolabehere), district's between the 15 at Pis.' technical two plans," Delegate Tyler testified that her district has "[v]ery irregular borders" and is "not an easy district to follow," (Docket No. 90-2, Ex. B, 23:2-7). A review of HD 75's boundaries suggests that she is right. Although the district has a clear southern border, no solace population because her equality district and VRA borders compliance, just mandatory; they admit no variation. are a nullity in the predominance 114 North Carolina. state borders As such, balance. that provides Unlike are not state borders The only other county boundaries bordering seemingly Mecklenburg, counties. Pis.' addition of Ex. the Nottoway, 66 at at 6. are Prince those George, Notable in this district's Brunswick County whole. 94 respected lower left Trial Tr. and is which (Jones); the makes Ints.' Ex. 7. Delegate Dance testified that the creation of HD 75 us a little trouble to try to get to the 55 percent." 741:1-15 (Dance). "required herself some To drastic testified that get to the 55% BVAP, maneuvering[.]" she "was Id. concerned the the "gave Trial Tr. district Delegate about number of black people in my district." B, Suffolk regard, corner, 323:8-10 segments Tyler decrease (Docket No. 90-2, in Ex. 88:15-16.) Although the irregularity of the district boundaries can be seen to buttress "drastic floor, the maneuvering" the district's in appears choice to be Tyler's] percent." order to comply irregular borders." Dinwiddie County was population. the go case north, number Id. . . at Trial the 55% BVAP was Tr. 323:2-4 was 115 Jones "to (Dance). (Jones). That underpopulated. try [o]f African-Americans 80:11-17 Delegate for split because the district because HD 75 however, . with have offered their own explanations "very need of to in Intervenors testified that was Delegate Dance's testimony that HD 75 required to get voters The [Delegate up to Therefore, 55 while underpopulation may help explain the changes to the district, it cannot be weighed against race in the predominance analysis. The district's irregular eastern and western borders can be also attributed to race because, moving coherently to the Americans, 55 "east according [or] to Delegate Dance, west would have been Euro- and she needed some African Americans to get to that percent." Id. at 80:21-24 (Dance). Delegate Jones' testimony did not contradict that assessment. Delegate Jones testified that many of the changes, swapping out the Franklin City, done on Tyler See the did id. and Dendron precincts, splitting and excluding the Berlin and Ivor precincts were basis not at Wakefield such as of a receive "member many 323:11-16; request" votes 324:12-16; in or those because Delegate precincts. (Jones). 325:1-5 removed Delegate Jones accepted these changes even though adherence to political subdivisions process. whole not See until Dendron] and id. . out."); been compactness . at . 323:11-16 she rather to than "member answers, because I requests" the that subordinated had we two swap other in the counties [Wakefield and {"I would have never done that had i t jurisdictional boundaries as changes be {"[W]e requested 325:14-16 requested would I wanted could(.]"). or relevant racial or political? 116 to split as few But attributing the performance question: concerns was the begs, request Like in HD 63, the evidence admits of both a racial purpose and a political purpose. testified that For instance, Delegate Jones himself Delegate Tyler's request to swap Wakefield and Dendron was based on "real concerns" stemming from the fact that she "didn't break 51 percent" in a general election race "with a Caucasian" and that she "won by less than 300 votes" in a "five- way race in a primary with two Caucasians." (Jones). That bespeaks an effort to both protect the incumbent and prevent retrogression. "[S]he Id. at 323:19-324:3 was worried Similarly, about too low Delegate Jones testified: of a black voting-age population for her to be able to be successful in an election." Id. at 322:10-12. incumbent while This also too reflects preserving an effort minority to protect voters' ability the to elect their candidate of choice. Unlike in HD 63, the basis Trial upon Brief which relies however, voters upon here there is no ambiguity about were the sorted. overlapping Intervenors' racial purposes to argue that race did not "predominate." the Intervenors, Delegate crystal clear her view that time blacks purpose vote 90-2, Ex. B, Ints.' Mw]hat Democratic,' of ensuring elected.'" Tyler's 55 and percent deposition that 'in to Post-Trial Brief at 30-31 117 and political According to testimony "made I'm saying is most of the BVAP was 62:17-25 & 63:19-23). Post- [her] help mind, Democrats the be (citing Docket No. But, attributing a political purpose to somehow or justification for - render it a non-racial the 55% BVAP floor does not classification. changes were made to comply with Section 5, performance, or protect the made based on voters' Weighing record, all the changes were and testimony provided principles Jones, objective Achieving a 55% reflected Delegate Jones, impact BVAP on on still the on the that racial considerations subordinated and other in the creation of HD 75. Delegates overriding the enhance Democratic was Tyler, to and achieve floor required face of would not the for Dance, a 55% non-racial The testimony three delegates primarily responsible district, is evidence districting districting criteria from the the the skin color. the Court finds traditional incumbent, Whether shaping shows BVAP that in the HD 75. "drastic maneuvering" district and, the that according to otherwise have been undertaken due to traditional county boundaries. Delegate Tyler herself found the boundaries "very irregular," worried about her ability to cover her district with ease, and was "concern[ed] about the decrease in number of black people in [her] district." Intervenors attempt to explain the boundary deviations by ascribing a political purpose to them. successful. 75, race was As in Bush, used by But that attempt is not the record shows that, Delegate Tyler herself in building HD as a proxy for Democratic voters in an effort to protect her own position as an 118 incumbent at the expense of traditional districting principles. 517 U.S. voters at 972-73 by (principal opinion). political affiliation When a legislator sorts or performance, then deviation from neutral principles is a political one. a legislator sorts voters by the deviation is a racial one. of was that race, Cromartie a for that a racial because using Cromartie political the race deviation black as I, a proxy 526 U.S. would voters be happened for But, when purpose, As explained above, deviation considered racial simply because the to be black. whatever the the would then lesson not be Democratic voters happened at 542. The lesson was considered to political be political Democrats. affiliation, simply That an not is approach that is prohibited. As to HD 75, to Dr. the Plaintiffs have proved Ansolabehere's criterion leading forming HD 75. to testimony) the Moreover, that disregard race of (without reference was the neutral predominate conventions in to the extent that political interests See Bush, 517 U.S. at 968-73 (principal opinion) ("If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification . . , But, to the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation. . . . the fact that racial data were used in complex ways, and for multiple objectives, does not mean that race did not predominate over other considerations. The record discloses intensive and pervasive use of race both as a proxy to protect the political fortunes of adjacent incumbents, and for its own sake in maximizing the minority population of [the District]."). 119 were considered and achieved, it appears were secondary to, and only satisfied by, BVAP II, that floor. addressed Shaw these 517 interests U.S. at does not 907 in those criteria adherence to the 55% ("That any the way legislature refute the fact that race was the legislature's predominant consideration.").^'' Based on the was the foregoing analysis, predominate configuration decision is scrutiny, of criterion HD 75; subject the to driving and, To the that race formation the scrutiny. show that finds the therefore, strict Intervenors must the Court and legislature's survive strict legislature had a "strong basis in evidence" for its racial districting decisions. The that, First, Court finds that accordingly, HD Delegate Jones' environs) reflected 75 this burden survives has the determination an been satisfied Plaintiffs' that "ability-to-elect" HD 75 district and challenge. (or its requiring protection against retrogression was a reasonable determination. As Plaintiffs The themselves dissent point argues out, that HD 75 our appeared to interpretation be a of predominance will allow legislators to "mask" racial sorting and only permit plaintiffs to challenge districts that "manifest extreme line-drawing unexplainable on race-neutral grounds, like the district at issue in Shaw I." Post at 158, 166. Our holding with respect to HD 75 should put these fears to rest. The boundaries of HD 75 not only simultaneously advance racial and non-racial goals, but they are hardly egregious or "extreme." the actual predominance That has not prevented us from carefully examining basis upon which voters were sorted and finding satisfied where subordinated in fact. 120 non-racial criteria were performing ability-to-elect redistricting efforts. Pis.' Ex. 50 at 85, district Pis.' before the State's Post-Trial Brief at 33-34 Table 14). Therefore, {citing retaining this ability to elect reasonably can be viewed as necessary to ensure actual compliance with the federal non-retrogression standard. Next, as to HD 75, the 55% BVAP floor is grounded in a "strong basis in evidence" because the primary source of the 55% BVAP threshold appears to have been an analysis of HD 75 itself. For example, Delegate Jones testified that he did not feel a 52% BVAP threshold on . . for Tr. example, 430:2-9 "real concerns." met with . districts Delegate and . . the (Jones). Id. at would be as [minority voters] for her district." These were "probably she felt election close (Jones). half it acceptable "based had done using the Tyler Tyler general 323:19-324:3 Tyler configure her district for all . the functional analysis that I primary, Trial across races, in 2005." prompting Delegate Jones a dozen needed to be times to configured to elect a candidate of their choice Id. at 322:6-12 (Jones) The Court does not suggest that those designing redistricting plans can always just add more BVAP every time a meaningful challenger appears. Like Section 2, Section 5 does not "guarantee minority voters an electoral advantage," Bartlett, 556 U.S. at 20, it only requires that the system not effect a retrogression in minority voters' effective electoral franchise. Interpreting the VRA to allow more than this would render it an instrument in service of the same discriminatory practices it was designed to eliminate. This would be contrary to the plain language of the Fifteenth 121 Amendment itself, let Delegate 467:7-11 Jones (Jones), examined an particularly concerned, Delegate Jones Id. at the kinds "[i]n id. knowledge 464:7-465:5; of issue considered relied upon his about the of that whether rates which at 463:12-16 in the prison (Jones). ability id. Tyler at was In addition. population electoral and history. These are precisely are to 75, Delegate the district's legislators HD (Jones). district's 458:18-459:18 evidence determining turnout encouraged elect to use in the exists benchmark plan and whether it continues in the proposed plan[.]" Pis.' Ex. 9 at 3 ("[E]lection jurisdiction, (76 Fed. history voter Reg. and Vol. 27 (Feb. voting registration and 9, patterns turnout 2011) at 7471) within the information, and other similar information are very important to an assessment of the actual effect of a redistricting plan.").^® alone the precepts of equal protection. Where an application of the VRA cannot reasonably be said to have gone beyond the "remedial," however, it is this Court's duty to uphold it. Delegate Jones primarily testified about the 2005 election. See, e.g.. Trial Tr. 458:15-459:18 (Jones). There were more recent elections in 2007 and 2009, but Delegate Tyler ran unopposed in those elections. See Pis.' Ex. 50 at 85, Table 14. The dissent suggests that these unopposed races "cas[t] significant doubt" on the contention that a 55% BVAP level remained necessary to prevent retrogression. Post at 173. But short of hiring a statistical analyst, it's hard to see how much useful information can be gleaned from the uncontested races. Should legislators have lowered the target by 1%, 2%, or 3%? Any preference for a 53% target instead of a 55% target would seem to rest upon speculation, not a stronger basis in evidence. 122 Plaintiffs dispute the need for raising the BVAP percentage in HD 75, arguing Section 5 district that the Ex. 50 strengthens at the 85, Pis.' 55.4%. Intervenors' Id. redistricting, already at 14). Here, that hand. Under the evidence performing 34. Considering the into (citing argument only Benchmark Under the Enacted Plan, Plan, BVAP in HD 75 intricacies of the new HD 75 could effectively be considered to have the "same" BVAP level as the old HD 75. the a Post-Trial Brief at 33-34 Table BVAP in HD 75 was 55.3%, was was for minority-preferred candidates going the 2011 redistricting. Pis.' district relied upon by Delegate And, Jones, considering it appears abundantly clear that he had "good reasons" for holding the BVAP in HD 75 just above 55% to ensure that the district remained a performing Section 5 district for minority-preferred candidates, as Plaintiffs' themselves suggest. Alabama, 135 S. Ct. at 1274. Nor does the 55% floor appear unreasonable when subjected to expert review. Plaintiffs' 75 "exhibit high rates of majorities of Whites own expert noted that HD 63 and [racial] vote in the polarization because large opposite way as large majorities of African Americans." Pis.' Ex. 50 at 51, 84, Table 14. observing that Intervenors' expert agreed, the 2011 2013 elections held in HD 75 were racially polarized. Ex. 16 at 24, Table 4. and Ints.' Dr. Ansolabehere ultimately opined that a 55% BVAP threshold was not necessary in HD 75, Pis.' Ex. 50 at 123 55, but ex post statistical analyses cannot upset the State's ex ante judgment so long as that decision was "reasonably necessary" based on strong evidence.In this case, based. "good Alabama, 135 reasons" necessary to retrogress to in HD maintaining prevent a actual preclearance), at that minority and a the Simply 55% there were threshold BVAP voting Court put, was influence will not did upset not that Id. at 1274. that legislators had good reason to believe 55% BVAP level retrogression and 1273. that 75, The Court finds Ct. believe ensure reasonable judgment. that S. it was so that in {and this was HD 75 not was just achieved necessary to by deviations from traditional redistricting criteria to attain reasonable (judged by a The Court does not credit the racial polarization analysis conducted by Dr. Ansolabehere. His analysis drew from on-year statewide elections data (rather than off-year House of Delegates elections data). Trial Tr. 516:7-25 (Katz). We find that the use of the wrong elections led to unreliable results. Dr. Ansolabehere also relied on an ecological regression analysis (rather than an ecological inference analysis), which "doesn't make use of all . . . available information" and results in "blatantly incorrect answers." Id. at 521:10-14. As Dr. Katz testified, ecological regression "was great technology in 1950" when it was developed, but "[t]he world has come a long way in those intervening six decades." Id. at 519:11-22. too makes Dr. Ansolabehere's testimony unreliable. The Plaintiffs offered Dr. racial polarization as pertinent even though it would This Ansolabehere's testimony on to the predominance analysis (were the Court to accept it as reliable - which it does not) be more probative of the narrow tailoring analysis. But, either way, his testimony on racial polarization is flawed and cannot be credited. 124 sufficiency standard). basis in evidence" configuration Because the State has provided a "strong for of HD constitutional muster its use of race-based districting in its 75, the under Court the holds Equal that HD 75 passes Protection Clause of the Fourteenth Amendment. 3. D i s t r i c t 69 HD 69^® is found in the Richmond area and was represented by Delegate Betsy Carr during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district contains parts of Chesterfield and Richmond City. Pis.' at 69, Table 1. remained the Ex. 50 Although the number of county and city splits same, redistricting increased the number of split In Wilkins, the Supreme Court of Virginia found that race did not predominate over other districting criteria under Virginia's state constitution in Districts 69, 70, 71, 77, 80, 89, and 90. 264 Va. at 477-79. This Court finds the rationale and outcome stated in Wilkins, with respect to these districts, informative but not determinative. First, perhaps the simplest explanation is that the 2011 map is not the 2001 map, several similarities notwithstanding. Second, the Wilkins court observed that the "trial court did not reference any specific evidence or make any specific findings for any of these districts to support a conclusion that race was the predominant factor in creating each district." Id. at 477. That is precisely the analysis this Court undertakes today. Third, the Wilkins court included population and core retention among the balancing criteria, which are either verboten or called into question by the Alabama decision. Compare id. at 478 with Alabama, 135 S. Ct. at 1270, 1271. Finally, there was no evidence before the Wilkins court suggesting the use of a racial floor in the subject districts. 125 VTDs from 2 to 4. Pis.' Ex. 50 at 69-70, has a core retention percentage of 74.7. On its compact of the James scores increased Ints.' is the swath south of Popper face, Ex. Richmond of to district .37 of .20 .52 under and 15 at 15, Table 9. 1.712. Pis.' testified, Ex. the to Fan The district and scores Ints.' appears below River. 51 Tables .34 Reock Benchmark a and to at 11, Table 1. As and Polsby- Plan, which Plan. Delegate district's face to have enhanced the {Jones), which appears alignment distinct political subdivision and community of interest, at Jones the changes from the Benchmark Plan made the district on 94 the The district's Schwartzberg score 309:1 Ex. large, Enacted the more "Richmond centric," Trial Tr. its HD 69 Ex. 14 at 83. District under 2. reflect had the 1, with a Ints.' 2. The Plaintiffs recognize that HD 69 has become more compact and retained its "core," but argue that the district has become more compact communities Post-Trial "only at the Reply by incorporating outskirts at 15. of the heavily benchmark Delegate McClellan African-American district." also trial that HD 69 had to satisfy the 55% BVAP floor, Delegate Jones. Trial Tr. largely irrelevant. consideration traditional, of 29:5-13 (Jones). Pis.' testified at according to But all of this is The question is whether the Commonwealth's race neutral or a criteria. 126 racial floor Plaintiffs have subordinated offered no evidence to show subordination, relying instead on the erroneous view that proof of a 55% BVAP floor would be sufficient to carry their burden. As explained previously, it is not. With respect to potential deviations from neutral criteria, i t should be noted that HD 69 is not contiguous by land. Ex. 94 at 2. However, crossings, id., Plaintiffs to distinct show no that communities community of provided any representation such, and interest. district evidence the has district interest that been this multiple provided the than by the combines two one Plaintiffs split for communities on either side of river uniting improperly rather Moreover, evidence contains has have not diminished the James. As there is no evidence that contiguity was "subordinated" to non-neutral criteria. In short, the Plaintiffs have failed to carry their burden of proof with respect matter of fact, HD of the Ints.' to HD 69,^® and the Court holds, as a that race did not predominate in the drawing of 69. If anything, HD 69 seems to reflect the kind of district might well be amenable to resolution on a motion for that summary judgment based on a more structured understanding of the predominance inquiry, as provided above. See Abrams, 521 U.S. at 118 (Stevens, J., dissenting) {"Any redistricting plan will generate potentially injured plaintiffs, . . . [a]nd judges (unable to refer, say, to intent, dilution, shape, or some other limiting principle) will find it difficult to dismiss those claims[.]"). 127 4. D i s t r i c t HD 70 70 is found in the Richmond area and was represented by Delegate Delores McQuinn during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, contains parts Pis.' Ex. city splits of Chesterfield, 50 at 69, Table 1. remained the Henrico, 2. Ex. HD 70 has a 14 at On the 3, face, perhaps district. City, same, redistricting most precinct Reock Pis.' Ex. the with HD district the 70 of the exception straddles Ints.' Polsby-Popper of the the therein Ex. scores 94 of district its became more Ex. "turret" drawn at .47 Ints.' Plan. 15 at 15, slightly more convoluted and and intersection Enacted of 67.31. coherent which shifted to scores of some the 50 at 69-70, Tables and Henrico County, boundaries and VTD lines, and appears Benchmark Plan, the increased core retention percentage of Chesterfield County, with City. Ints.' 83. its compact, Richmond Although the number of county and number of split VTDs from 2 to 3. 1, and the district Table 3. top Ex. 66 at basis The district and .14 of Richmond the under of had the .40 and .19 under the 9. elongated, irregular In other words, but also boundaries process. The district's Schwartzberg score is 2.290. 51 at 11, Table 1. 128 on of Pis.' on generally removed in the Pis.' Ex. As the Plaintiffs contend, the redistricting "pull[ed] the district substantially out of the city of Richmond and pull[ed] it into the Trial Tr. Chesterfield area 142:7-10 and deeper (Ansolabehere). disregard for core retention, 16, this "core is precisely the retention" nature, arguments involves completely the abandoned Pis.' Post-Trial Reply at reason the Court above. changing its Henrico County." Plaintiffs believe that this shows a but into cautioned about Redistricting, of prior map by If districts. and started its a from very state scratch, a hypothetical new "HD 70" might bear no resemblance whatsoever to the benchmark "HD suspicious. 70," but Moreover, that such would a not - taken hypothetical alone would - be entail "removing" the entire population of HD 70 and then "adding" that entire number back. Again, nothing about that would be inherently suspicious. The question is whether the boundaries - the boundaries neutral that - criteria. HD represent 70's supports has] Here, suburban Trial Tr. that justifiable overall and to cede more 71. are they by reference are. Delegate configuration interests - or the changes to was point. at traditional, Jones altered testified to better where population had expanded - Richmond-centered population 310:18-311:21 to (Jones). 142:11-20 substantially shifted from being 129 . The to HD Plaintiffs' (Ansolabehere) . . [a] 69 and HD case ("[HD 70 plurality urban district to being a plurality suburban district."). These represent objectively identifiable conununities of interest. Plaintiffs before added the 26,000 the discussed that and district." presumptively need See (Jones). Nor particularly shift ante is at wrap 77 the shocking. locations, then it General about around Assembly 26,000 Reply people in 16. As at districts then them all (in were the other substantial in order to achieve population accord substitution a under-populated populated n.20; If "the untouched, disregard of neutral principles) equality. not Post-Trial remain to was but properly to 70 removed Pis.' if required would HD process, people above, districts argue redistricting about redrawing also properly will Trial in Tr. 310:7-311:2 population populated necessarily numbers district "remove" a must large amount of people from its old location and "add" the same amount from i t s new location. That result seems With respect to deviations, by the James, 3. And - but contains a like HD 69 - HD 70 - rather obvious. like HD 69 - river crossing. Plaintiffs have is divided Ints.' offered no Ex. 94 at evidence to suggest that this has had any effect on representation or local communities of interest. As such, there is no evidence that contiguity was "subordinated" to non-neutral criteria. The only facially odd deviation sits atop the northern edge of the district. This "turret" 130 appears to deviate from districting Richmond norms, City especially lines. insofar However, as Intervenors non-racial explanation for this deviation: incumbent, lives there. not there, lived District in the I pokes offered have of simple, Delegate McQuinn, actually Richmond across a As Delegate Jones testified: could city it had because all I the "[H]ad she of could the have 71st taken these couple of precincts and there wouldn't have been any going into the Radcliffe Tr. 311:3-17 In precinct in Henrico County for 71." Trial (Jones). weighing the evidence, the Court recognizes that Delegate McClellan testified that HD 70 was drawn to comply with the 55% BVAP legislature's floor, id. pursuit of at this 29:5-13 goal (McClellan), is not the that traditional, deviation HD 70 is neutral largely districting therefrom is pairing prevention." explained criteria, explainable As a result, by on the the "predominate" criterion employed unless i t subordinates all others. finds but The Court reference and that basis of this Court holds, the to only "incumbent as a matter of fact, that race did not predominate in the drawing of HD 70. 5. D i s t r i c t 71 HD 71 is found in the Richmond area and was represented by Delegate Jennifer McClellan process. Under both the during Benchmark the Plan and 2011 the redistricting Enacted the district contains parts of Henrico and Richmond City. 131 Plan, Pis.' Ex. 50 at splits 69, Table 1. Although the number of county and city remained the same, redistricting increased the number of split VTDs from 1 to 3. Pis.' 71 percentage has a core retention Ex. 50 at 69-70, of 78.31, Tables 1, Ints.' 2. Ex. HD 14 at 83, and is contiguous by land. On its face, generally follows had Reock and Benchmark the district normal which the Enacted Plan. Ints.' remains scores increased Ex. Schwartzberg score is 2.045. district quite compact districting conventions. Polsby-Popper Plan, appears bounded to to of .24 scores The district and of .19 .33 15 at 15, 51 at 11, the Ex. south by the under and Table 9. Pis.' and .24 the under The district's Table 1. James River The - a natural geographic boundary - and became "more Richmond centric" with thanks the 2011 redistricting Court, Hilliard, edge. Trial Tr. The and 305:2-7 district Richmond's Stratford Hall precinct in removal precincts includes and the continues eastern Henrico Fan, up district contains the majority of the one the from of Summit its western east through (Jones). itself downtown, to to moves Church North Side, County. Id. Hill. The and contains at 24:22-25:1 (McClellan). The only facially eastern border. the 701, 702, Here, evident deviations are along HD 71's the district's one Henrico precinct and and 706 VTDs seem to 132 form a set of "horns" on the eastern side of the district. 94 at Ex. 66 at 4; Ints.' Ex. 4. In that examining the these the argued deviations, northern-most Ratcliffe precinct, to See Pis.' boundaries that horn should adheres to VTDs 701 and "heavily African 43:15-18 (McClellan). the 701, 702 American" The 702, and testified were and bear noted of included "very Plaintiffs because densely as the have they were populated." Id. Plaintiffs have not discussed whether that districting decisions Plaintiffs be boundaries 706. Ratcliffe was added to capture black voters. McClellan first whereas the two other horns appear to adhere of VTDs it the 55% to HD 71, burden of id. Although Delegate BVAP rule 29:5-13 showing affected the (McClellan), that the the decision subordinated neutral criteria in the process. Plaintiffs have not offered a As Delegate McQuinn lives of VTDs 703 and 705. of the have Delegate Jones far more convincing reason for HD 71's eastern horns. discussed above. McQuinn] satisfied that burden. not lived 71st taken Ex. [in Richmond], District these Ints.' in couple the of 94 at right on the border 4. "[H]ad [Delegate I could have actually had all city of precincts Richmond and because there I wouldn't could have been any going into the Radcliffe precinct in Henrico County for 71." Trial Tr. 311:3-17 (Jones). 133 Plaintiffs also noted previously wholly within ("That was densely split so populated, neighborhood."). from neutral that and I principles, that got a of Id. at the decision 505, potion got constitutes to split split was (McClellan) which the such as compactness. this which 42:20-43:4 Carr] VTD split the VTD VCU [Delegate Although demonstrated split HD 71. other neutral principles, not the is very Oregon Hill a deviation 505 advanced Plaintiffs have "subordinated" such neutral principles. Delegate McClellan also spoke extensively about the removal of precinct neighborhood. the 207 Id. from at her district, 39:14-20 Fan neighborhood where I which split the Fan ("207 and 208 are a majority of live, and 207 was taken out[.]"). Precinct 207 had "highly democratic voter turnout," and Delegate McClellan had "quite a base there[.]" But this split neutral principles does on not its appear face. Id. at 39:21-24. to substantially disregard A local resident might why the Fan straddled two House districts, the map would see that precinct 207 was wonder but any observer of removed and replaced As Delegate with precinct 204, making the district more compact. Nor does that swap appear obviously racial. McClellan testified, precinct 204 is "demographically similar to 207 that racially." she Id. couldn't at keep 42:17-20. "any Delegate McClellan testified portion 134 of 207" because it would "push 55% the [BVAP] BVAP goal principles below could on the 55 be percent," achieved whole, it id. at without does 40:1-9, but subordinating not matter what if the neutral Delegate McClellan's personal preferences were. And here, her personal preferences with those of another legislator: to Delegate Jones, strong Id. Delegate Loupassi. conflict According former ward abutted precinct 207 where he support, district." in Delegate Loupassi used to be on the Richmond City Council and his had appeared at so he "wanted 305:15-307:12 that (Jones). precinct in his Delegate McClellan argued that adding precinct 207 to Delegate Loupassi's district "didn't help him" (McClellan), has "a because he is a Republican, id. 42:2-11 but Delegate Jones testified that Delegate Loupassi broad base of support from the democratic side aisle" and had a personal "community of interest" partisan - connection to the area, There at is a difference id. at 485:7-14 between pruning the political thicket and striding headlong into it. of the rather than (Jones). edges of the By verifying a district's overall compliance with neutral criteria that do not discriminate between individualized constitutional citizens based characteristics, duty Equal to ascertain Protection on the their Court whether Clause. or fulfills state Court other its legislation violates the however, become embroiled in a credibility dispute between two 135 The race should not, legislators, unnecessary drawing especially when to of find the substantially principles, that neutral district these principles that is criteria not for 71 neutral the subordinated to issue predominated HD traditional, sufficient "factual" Court in does is the not districting to find that race. The existence of a 55% BVAP floor does not disturb that fact.''" Therefore, the Court holds, were that boundaries. disregard and resolving as a matter of fact, that race did not predominate in the drawing of HD 71. 6. D i s t r i c t 74 HD 74 is found in the Richmond area and was represented by Delegate Joseph Morrissey during the 2011 redistricting process. Under the Benchmark Plan, City and parts of Henrico, the district contained all of Charles Hopewell City, and Richmond City well as part of Prince George containing no population). Ex. 50 at 69, Table 1. Under the Enacted Plan, (as Pis.' the district now contains all of Charles City and parts of Henrico and Richmond City. Id. " This decreased the number of county and city splits The Plaintiffs also observe that a request from the Richmond Registrar was denied in HB 5001, and it is alleged that this change was rejected because the BVAP in HD 71 would have dropped to 54.8%. Pis.' Ex. 30. This provides strong evidence that a firm 55% BVAP rule was employed, as this Court has already held. See ante at 23 n.7. But that finding does not imply that race "predominated" over neutral criteria in the drawing of HB 5005, especially because that particular "deviation" See Ints.' appears Ex. 7 at to have been 2-3. 136 addressed in HB 5005 itself. from 4 to 2, Pis.' Ex. with the number of split VTDs 50 at 69-70, percentage of 80.08, Tables 1, Ints.' 2. Ex. HD 74 14 at 83, remaining the same. has a core retention and is contiguous by land. On its face, the ax-shaped district arouses some suspicion. The "blade" of the ax encompasses all eastern "handle" is curious. Popper scores remained of almost .16 identical the Enacted Plan. Schwartzberg and Ints.' score is but the The district had Reock and Polsby- .10 - of Charles City, under with Ex. the scores 15 at 15, 2.839, Benchmark of .16 and Table 9. Pis.' Ex. These low scores reflect the district's 51 Plan, which .12 under - The district's at 11, Table 1. substantially elongated shape. Despite its elongation, however, unreasonable as it first appears. tracks the Henrico county line, entirely Jones' retained revision county lines within "put some more district is not while the lower edge is almost the County. upper edge In fact. to Delegate track good Republican precincts Henrico in that the gentleman in the 97th did not want to lose[.]" Tr. 317:13-17 neutral Ints.' (Jones). metrics Ex. 14 at over 60. The the as The north edge of the handle Henrico permitting the district last three In particular, 137 has also districting there Trial improved cycles. on See the 2011 plan removed the water crossing discussed in Wilkins v. 465-66; Trial Tr. 316:15-25 West. See 264 Va. at (Jones). The Intervenors also noted that the BVAP percentage in the district had been lowered substantially from the Benchmark Plan. See Trial Tr. 313:3-315:6; Pis.' Ex. 50 at that the BVAP percentage dropped does not, that race was not the predominate district's construction. black population ceded 72. But taken alone, criterion HD 74 went to fact indicate influencing As the Plaintiffs observe, from the the much of the other Challenged Districts, such as HD 63 and HD 71. See Pis.' Post-Trial Reply at dilution 17. Unlike predominance in a racial inquiry does not vote necessarily claim, concern a racial itself with whether the BVAP went up or down. A district formed primarily to employ eject black voters would the same racial classification as a district formed primarily to include black voters. In the end, however, the primary objection to this district amounts to a criticism that the district is too long. But predominance is not merely a beauty contest centered on Reock- style compactness. earn high marks Although this district certainly does not in a qualitative predominance analysis, the Plaintiffs have failed to demonstrate that neutral criteria were substantially district disregarded contains all in the of Charles 138 formation of City for and, HD 74. most The of its length, has readily shifting of black improved HD 74's identifiable population compliance boundaries. into HD with 63 Moreover, and neutral HD 71 the largely criteria, such as contiguity and compactness. Moreover, shape retention district has 1991. since the Trial Tr. alone district, but cannot it be is used worth retained roughly 315:19-318:25 to save holding an in the otherwise the relationships and communities election of delegates." On the whole, of interest Court finds that the Core offensive balance Wilkins, 264 Va. at 466, the long (Jones). familiarity of the boundaries has "allow[ed for the] of same if the development relative to 476. Plaintiffs have failed to meet the predominance inquiry's "demanding burden" to show that racial considerations subordinated both neutral criteria and other race-neutral explanations in the formation of HD 74. Therefore, the Court holds, as a matter of fact, that race did not predominate in the drawing of HD 74. 7. D i s t r i c t 77 HD 77 is found in the Portsmouth area and was represented by Delegate process. Lionel Under both Spruill the during Benchmark the Plan and 2011 redistricting the Enacted the district contains parts of Chesapeake and Suffolk. Ex. 50 at 69, Table 1. Plan, Pis.' The number of county and city splits remained the same, and the number of split VTDs decreased from 4 139 to 3. Pis.' Ex. 50 at 69-70, retention percentage of 74.4. At first suspect. glance, However, this Tables Ints.' jagged 1, 2. HD 77 on the and elongated upon closer inspection, lower side boundaries and precincts elongated. The district of that a core Ex. 14 at 83. is while many curious the district are themselves had Reock and district the top-right corner of the district hews to strange county lines, features has track natural rather water jagged and Polsby-Popper scores of .18 and .17 under the Benchmark Plan, which shifted to scores of .19 and .15 under the Enacted Plan. Ints.' 9. Ex. 15 at 15, The district's Schwartzberg score is 2.542. 11, Table 1. Table Pis.' Ex. 51 at With respect to neutral criteria, it appears that compliance therewith could still result in an inherently oddlyshaped district, but the record lacks guidance in this regard. The record is similarly unclear and incomplete respecting deviations from traditional criteria. The district's large western chunk is admittedly attributable to a single precinct, but that does not answer why that whole half of the district is thrust so far into HD 76 as to nearly sever it in half. Ex. 91 at 152. As Delegate Jones observed, Ints.' the 76th and 77th districts share the most geographical boundary area on the map. Trial Tr. 334:2-4 Based on the Plaintiffs, the (Jones). alternative see, e.g., districting plans Pis.' 140 Ex. 23 at 40, referenced by it appears that it was possible districts leap. So floor at in to this was create region this or was this same without deviation (in which case, 15, the resorting necessary deviation motivated this overall structure performing reach to this the by 55% desire remove see Ints.' to to district Ex. the considerations performance might predominate. might predominate, or These are all questions burden of answering. The Court is that not (in "knock-on" predominate, racial 92 92 at 14? effects of avoiding pairing incumbents in this region? incumbency BVAP Ex. a attributable westward see Ints.' from Delegate Jones' which case politics might predominate), is of to race might predominate), Democrat performing precincts Or, number If so, political considerations might Plaintiffs bore the in a position to guess based on the skimpy evidence submitted. But, strange the 2001 record design does was show that somewhat the district's ameliorated in already- HB 5005 moving the "Airport District" precinct from HD 77 to HD 7 6, at 336:7-12 (Jones), and "reuniting" the id. Norfolk" at Delegate Spruill's request, "old city of at 334:8-10 by id. South (Jones), which allowed segments of the new district to more closely track county boundaries changes also primarily Trial Tr. and water boundaries. served Republican, 336:7-12 political so this (Jones), Pis.' ends. The transfer whereas 141 Ex. Airport helped the at "old 7. These District Delegate city of is Jones, South Norfolk" surrounds Delegate Spruill's residence, as politically Although the contained Norfolk advantageous for neighborhoods meaningful Highlands, him as added black around River, Ints.' and Ex. id. Delegate populations, Indian majority-white precincts. well, which was seen at Spruill Tanglewood, Johnson 336:1-4. Park also Oaklette, were all 92 at 15. The Court also observes that the district is not contiguous by land and does not its Pis.' Ex. offered no bounds, Plaintiffs see have appear to possess 66 at 7; a water crossing within Ints.' substantive Ex. evidence 94 on at 9, but whether this deviation relates in any way to the attainment of the district's BVAP level, 50 at which is 58.8% in the Executed Plan, see Pis.' Ex. 72. Based on the testimony, cannot ascertain from the evidence, record and arguments, whether race, the Court politics, or other criteria predominated in the formation of HD 77. Frankly, if has the meaning, presumption it is simply point floor, evidence of correctness applicable to the racial that race to prove based explanation to this threshold's of score in show and The attainment predominated. if faith instance. correlation, how, good at and of a There all, the any Plaintiffs 55% BVAP low compactness is the no evidence- racial floor impacted the boundaries of HD 77 or why voters were placed there 142 in the redistricting process. The Plaintiffs cannot hand the Court a stone and expect back a sculpture. It is at districting composition least as factors of HD likely that for account 77 as it politics the is that and traditional configuration race was and responsible. Because the Plaintiffs have failed to provide evidence as to the ways in which racial considerations might have had a "direct and significant impact" on the District's formation, that the Plaintiffs have required to show that failed to meet the race predominated in the Court finds burden of proof the construction of HD 77. 8. D i s t r i c t 80 HD 80 is found in the Portsmouth area and was represented by Delegate Matthew James during the 2011 redistricting process. Under the Chesapeake, 1. Benchmark Norfolk, Plan, Norfolk, district and Portsmouth. Under the Enacted Plan, Chesapeake, the Pis.' contained Ex. parts 50 at 69, of Table the district now contains parts of Portsmouth, and Suffolk. Id. This increased the number of county and city splits from 3 to 4 but decreased the number of split VTDs from 2 to 1. 69-70, 59.94. At Tables 1, Ints.' trial, honestly that Ex. 2. Pis.' Ex. 50 at HD 80 has a core retention percentage of 14 at 83. Intervenors stated, this district looks 143 "I a think little it's fair irregular." to say Trial Tr. 349:3-5 little bit (Intervenors) . of an But "a little understatement." The irregular" district is is "a quite unusually configured. The district had Reock and Polsby-Popper scores .26 of .39 experienced a and under substantial the Enacted Plan. drop to Ints.' Ex. Pis.' Because Ex. the scores of identify what identify what split by makes little is now a "deviation" twice without any rational 66 at 8; (14.9%), high (48.8%)." district's racial around as a because it such attainment explanation considerations of as that the is hard to The district is crossing enabling on either occasion. that BVAP and Post-Trial it is hard See 94 at 10. low (8.3%), precincts Pis.' Ex. correctly note Churchland BVAP detailed Ints.' Plaintiffs way sense To begin, apparent Pis.' its under the Court will move directly to ascertaining to stay within the district "winds .11 the highest of all the Challenged residents The and which The district's is now the core of the district. water Ex. .26 Table 9. the predominant purpose of the deviations. to Plan, 51 at 11, Table 1. district geographical unit, Benchmark 15 at 15, Schwartzberg score is 3.054 Districts. the HD 80's precincts Fellowship Yeates Brief 19. BVAP floor, might lead subordinated 144 all the like and border Silverwood (14.2%) (56.3%) at western to capture Taylor Road Considering this is Court others. the to In the kind find this of that case, however, other the Plaintiffs' "dominant and racial explanation controlling" must contend considerations: with incumbency protection as well as geographic features and a naval base. In addition to the constraints the Atlantic Ocean, and the imposed by the James River, Norfolk naval base, the district needed to retain the residence of Delegate James while avoiding the residences of Delegate Johnny Joannou (HD 89). Ints.' Post-Trial Brief at and relatively simple - problem was "a loss Delegate Kenneth Alexander 34. of The general population" boundaries to "from capture problem in the the far Alexander, Ints.' and Ex. 350:23-24 the back Trial more Joannou, proximity. and oceanfront population. became Trial Tr. area complex, Jones (Jones), . . to however, live 79) in and move western 349:6-11 all 94 at 10. need . Tr. (HD sufficient number of neck of the ... district Delegates relatively close To avoid pairing incumbents, residents resulting Thus, the map needed to "roll the to make before This the westward shift of the districts in the distortion found here. around Suffolk" (Jones). had to wrap around the residences of the incumbents, population district to because then- sure in his leaping Delegate district" further Joannou and narrow the out westward avoid Delegate Joannou while capturing Delegate James. 350:10-20. 145 had a Id. to at That explanation subordinated, but it addresses does not why neutral provide the criteria basis were upon voters were sorted into the corresponding districts. which "Incumbent pairing prevention" may have resulted in "population rolls," but an equal population goal itself is not part of the predominance balance. whether Alabama, the 135 S. legislature districting considerations placed appropriately in Ct. at placed in 1271 ("[Predominance race determining apportioned above which asks] traditional persons districts.") were (internal quotation marks omitted). "Incumbency protection," on the other hand, explanation 80. for the amalgamation of precincts does provide an selected As the Intervenors explained: Although HD80 could have been drawn to take territory from Delegate Jones - HD7 6 represented by the precincts there were Republican strongholds, and neither Jones nor HDBO's representative, Democrat Matthew James, wanted that trade. Drawing HD80 into the former territory of HD79 gave those Democratic-leaning precincts to James, and not Jones. This arrangement made HD80 less compact than i t would have been had i t taken territory from Jones, but it was politically preferable. HD80 was also drawn to protect other incumbents, Johnny Joannou (HD79) and Kenneth Alexander {HD89), who resided near the borders they shared with HD80, making it impossible for HDBO to take territory to the north and northeast without pairing incumbents. 146 for HD Ints.' Pre-Trial appears just as Brief at 16-17. likely that Based precincts highly Democratic and avoided for Ints.' Ex. 92 being highly Caucasian, Democrats political at 16, id. happen at to the be finds, black the Court of neutral in as districting 80 was being see does being "the not transformed highly most mean into a loyal that a racial at 551. that the that Plaintiffs racial criteria and have not considerations other non-racial Although the existence of the BVAP floor of a matter of "dominant and controlling" HD for it including incumbent pairing prevention and favor a finds for because Democrats" demonstrating incumbency protection. weighs selected avoided just 526 U.S. districting criteria, Court And, Cromartie I, subordinated itself and thereby burden record, being highly Republican, is On the whole, carried 17. gerrymander gerrymander. were this as it is that precincts were selected for African-American see on incumbency racial fact, predominance that the qualitatively - - finding, the factor dictating the protection, and construction of that race did not predominate in the drawing of HD 80. 9. D i s t r i c t 89 HD 89 is found in the Norfolk area and was represented by then-Delegate process. Kenneth Under both Alexander the during Benchmark Plan the and 2011 the the district is contained wholly within Norfolk. 147 redistricting Enacted Pis.' Plan, Ex. 50 at 69, Table 1. There were no county or city splits and number of split VTDs remained the same under both plans. Ex. 50 at 69-70, Tables percentage of 76.86. On its generally had Reock face, follows and 1, Ints.' the 2. Ex. HD appears lines Polsby-Popper has a core Pis.' retention 14 at 84. district precinct 89 the reasonably within scores Norfolk. of .58 and compact and The district .31 under the Benchmark Plan, which dropped to scores of .40 and .20 under the Enacted Ints.' Plan. Ex. 15 Schwartzberg score is 2.263. Although the at 15, Table 9. district is at 9; Ints.' Ex. 94 at 11. Tr. for the district's 144:9-145:1 not contiguous by Ints.' Ex. In 94 at close Delegate explained, relative drop to the border, Alexander. Virginia legislators," does Ex. 66 in compactness. Trial The added precinct - Berkley - Delegate Alexander's 92 at 19, but is residence, see "pipe" to its owned by 11. addition, northernmost it One of these crossings is largely to (Ansolabehere). relatively land, See Pis.' contains a high BVAP percentage, see Ints.' Ex. also district's Pis.' Ex. 51 at 11, Table 1. contain water crossings within the district. blame The many district which includes Trial state of added Tr. a a funeral 345:1-5. legislators whom small regularly As are Delegate "part-time interact constituents in their professional capacities. 148 home with Jones citizen their Id. at 346:2-18. As such, having a business within the district enables incumbents to more readily engage with their constituents. Weighing all evidence, it appears that a couple of small deviations possibly could be attributable either to racial or to incumbency considerations, predominantly Therefore, attributable but to the district's traditional, composition neutral is principles. the Court holds that the Plaintiffs did not carry the burden of proving that race predominated in the drawing of HD 89. 10. D i s t r i c t 90 HD 90 is found in the Norfolk area and was represented by Delegate Algie process. Under the Benchmark Plan, of Chesapeake, Howell, Norfolk, Under the Jr. during the 1. Enacted parts of Norfolk and Virginia redistricting the district contained parts and Virginia Beach. Table 2011 Plan, the Beach. Pis.' Ex. district Id. This 50 at 69, now contains decreased the number of county and city splits from 3 to 2 and the number of split VTDs remained the same. 2. 14 Pis.' Ex. 50 at 69-70, HD 90 has a core retention percentage of 63.21. at Tables 1, Ints.' Ex. 84. On its face, compact Popper the district appears to represent a reasonably geographic scores of unit. .35 shifted to scores of and The .24 .46 and district under the had Reock Benchmark and Plan, .20 under the Enacted Plan. 149 Polsbywhich Ints.' Ex. 15 2.221. at 15, Pis.' Apart Table Ex. 9. The 51 at 11, from the district's Ex. traditional, district's 66 at however, 10; neutral Ints.' two must be "political Chesapeake. Virginia Id. Beach 12. context. southern the Virginia these by removing line on Pis.' "deviations," the 2011 compliance with appendage county See Specifically, district's criterion the tracks Moreover, Even at improved the And, is HD 90 seems to largely comply conventions. in subdivisions" into 94 viewed redistricting plan extensions districting Ex. score Table 1. Beach and lack of land contiguity, with Schwartzberg a segment from reaches that its the into western border. one of the district's jumps across water connects parts of Norfolk. simultaneously Id. serves As to such, unite this a land-contiguity failure political subdivision and community of interest. On the record predominate. Virginia exhibit Beach a Even submitted, if were the enough "substantial neutral criteria southern appendage for district the disregard" for neutral appear reaching as a to into whole to principles, it hardly appears that this offending piece of land could be viewed as racially driven. contains district. some of the See Ints.' In fact, lowest Ex. that segment of Virginia BVAP percentages 92 at 21. Therefore, in the Beach entire the Court holds that the Plaintiffs did not carry the burden to prove that race 150 predominated satisfies in the 55% 11. HD 92 Delegate the drawing BVAP of HD 90, notwithstanding D i s t r i c t 92 is found Jeion in Ward the Hampton area during the 2011 contained wholly within Hampton. 1. The district redistricting contains lowered the from 3 to 0. and was represented by redistricting Pis.' Ex. no Pis.' county On the whole, of a 50 at 69-70, districting Popper scores increased that principles. of to .28 scores of .15 .34 Ints.' Ex. 15 at 15, Table 9. is 1.970. Pis.' Ex. 51 at 11, 50 at more 356:13-20 Moreover, the compact, (Jones), under most waterfront follows of and the in the district 2. HD 92 has a Ex. 14 at 84. with had the .26 traditional, Reock and Benchmark under the downtown eliminated of the Hampton boundary, neutral Polsby- Plan, which Enacted Plan, Table 1. district's much and The district's Schwartzberg score reunified and Table splits, As a result of the 2011 redistricting process, became 69, it hard to imagine a better district and process. the district city Tables 1, complies The and or Ints.' the Court finds district Ex. number of split VTDs core retention percentage of 77.27. example it floor. Under both the Benchmark Plan and the Enacted Plan, is that the all southern district's the district Hampton, Trial precinct border is western Tr. splits. marked by border now making it easily identifiable to 151 voters. the See Pis.' district crossings district holds, Ex. is to not voters traversing as a matter of fact, not race - by to Ex. land, travel other 94 at 13. it contains between districts. parts Id. that traditional, Although water of The the Court neutral criteria - predominated in the construction of HD 92. 12. HD 95 Delegate Ints.' contiguous allow without 66 at 11; D i s t r i c t 95 is found Mamye in BaCote the Hampton area and was during redistricting the 2011 represented by Under both the Benchmark Plan and the Enacted Plan, contains parts of Hampton and Newport News. Pis.' process. the district Ex. 50 at 69, Table 1. Although the number of county and city splits remained the same, redistricting increased the number of split VTDs from 1 to 6. Pis.' retention Ex. 50 at percentage of 69-70, Tables 1, 62.15, Ints.' 2. HD 95 has a Ex. 14 at 84, core and is contiguous by land. Their proximity little in common. encompassing from any northwest, the HD From bottom to top, full observable a notwithstanding, width neutral of Newport criteria. 92 and HD 95 share the district begins by News As but the soon departs district moves sliver attributable to the River precinct extends into HD 94 before the district works its way entirely over into Hampton City. There it remains for a period before extending briefly back into Newport News via the South Morrison precinct. 152 After retreating back into water and York County, Hampton City the district then which it weaves around before running up through the middle of Newport News in a narrow spike. Ex. 66 at 12; neutral Ints.' explanation informed. The hits Ex. for 94 the district at 14. route had See Pis.' If there is any reasonably followed, Reock and this Court was Polsby-Popper not scores of .43 and .28 under the Benchmark Plan, which dropped to scores of .14 and .14 under the Enacted Plan. 9. Ints.' Ex. 15 at 15, Table This rendered HD 95 the least compact district on the map under the Reock metric. See Ints.' Ex. 14 The district's Schwartzberg score is 2.657. Table at 76-78, Pis.' Ex. Table 9. 51 at 11, 1. Rather neutral than attempting criteria, the to explain Intervenors the themselves district through acknowledge that the construction of the district was "significantly political." Trial Tr. 359:6-8 (Jones). According to Delegate Jones, the district's movement north follows heavily Democratic precincts and two then narrowly jumps through Republican precincts in order to capture another strongly Democratic voting area at its northernmost tip. Id^ at 369:1-4; Ints.' Ex. 92 at 24. Moreover, the district's eastward "zig" followed by its westward "zag" managed to avoid including the residence of Delegate Robin Abbott in HD 95. female Democratic See Ints.' Ex. 94 at 14. incumbents and, 153 in This avoided pairing conjunction with the partisan maneuvering heavily Republican As Intervenors above, placed swing seat. explained: Delegate Trial Tr. "HD95 was Abbott in a 369:6-372:12 more (Jones). crafted carefully to avoid taking HD94's Republican precincts and instead take Democraticleaning population left behind by HD93 and reach into precincts surrounded by HD93 to dilute Democratic voting strength in that area." Ints.' The Pre-Trial Court finds Brief at that 18. explanation persuasive. is a correlation between race and party, Plaintiffs sorted to dislodge predominantly than race. data as well the legislature] evidence the Jones racial closing argument: voters on Delegate as the basis data. that political As the there the burden is upon the showing had access Where to voters preference political were rather performance Intervenors asked during "[I]f race was the principal factor, why [did pass by all these areas which have more black [in the southern part of the peninsula and] go up there [to the northern tip of the district]? . . . We don't hear any analysis from the other contradictory testimony." the evidence submitted, performance data) has side on Trial Tr. political been controlling consideration boundaries. As a result, shown that point. advantage to guiding no (Intervenors). 827:6-19 There's On (based on partisan have been the district's the Court holds, the dominant unorthodox as a matter of fact, that race did not predominate in the construction of HD 95. 154 and V, CONCLUSION For the foregoing reasons, twelve Challenged Districts the Court holds that each of the withstands under the Equal Protection Clause, for the It Defendants is and the constitutional scrutiny and judgment will be entered Intervenor-Defendants. so ORDERED. /s/ /s/ Robert E. Payne Senior U.S. District Judge Gerald Bruce Lee U.S. District Judge Richmond, Virginia Date: October 22, 2015 BARBARA MILANO KEENAN, Today, the despite mechanical court upholds use the Supreme of racial Court's targets clear in racial legislative districts. based on quota to twelve warning against redistricting, the Virginia General Assembly's one-size-fits-all districts Circuit Judge, dissenting: this application of a highly dissimilar This quota was used to assign voters to the color of their skin without the constitutional protection afforded by strict scrutiny. I recognize that the legislature in this case did not have the benefit of the Supreme Court's decision in Alabama, 155 and I do not doubt that individual legislators acted in good faith in the redistricting process. enactment vote, has Nevertheless, affected Virginia the resulting citizens' legislative fundamental in violation of the Equal Protection Clause. right to Accordingly, I would invalidate Virginia's 2011 redistricting plan. I. Redistricting "consciousness of decisions race," are Bush v. (principal opinion of O'Connor, necessarily Clause, result see However, in Miller when considerations, Vera, J.), Johnson, 517 U.S. of 515 is inherently the asserting made 952, Equal U.S. 900, with 958 a (1996) suspect Protection 916 "motivated" satisfy the rigorous 515 U.S. always and such awareness does not violation legislature this Miller, A plaintiff v. a classification must scrutiny. a almost system (1995). by racial of racial requirements of strict at 916. a race-based equal protection claim in a redistricting case has the burden of proving "that race was the predominant place a factor motivating the legislature's decision to significant particular predominance district." test, a number Id. of voters (emphasis plaintiff must show within or added). that without Under this "the legislature subordinated traditional race-neutral districting principles . . to racial considerations." Id.; 156 see also a Ala. . Legislative Black Caucus v. Alabama, 'predominance' decides to question choose, predominantly doing when legislature has customary Ct. 1257, which specifically race as so." "relied and S. concerns and uses factors 135 opposed race traditional ("[T]he the legislature whether the legislature in in (2015) voters to (emphasis on 1271 other, 'traditional' original)). substantial districting When disregard principles," traditional principles have been subordinated to race. 515 U.S. at 928 Strict factor scrutiny that neutral (O'Connor, J,, is districting explained, when "[r]ace was was As factors race accorded factors. traditional have the considered made." also Shaw Page 3604029, v. v. at "only after Hunt, 517 Va. *7 Bd. (E.D. redistricting plan may criteria, that plan of Va. the U.S. such Miller, Elections, June reflect 5, race- Court has to race could race-neutral criteria decision (1996) No. see 2015 WL while Thus, subject been II); 3:13cv678, 2015). remains had (Shaw certain traditional nevertheless over State's view, race-based 907 predominant subordinated in the 899, the Supreme been the criterion that, was priority not be compromised," and when traditional, were of concurring). required when categorically a a districting to strict scrutiny when those criteria have been subordinated to a process that has sorted voters primarily by race. 157 Contrary to the majority's view, does not require boundaries be in Maj. criteria. Op. correlates partisan that with the use of "conflict" at 36. other preference, race with districting interest. See Bush, 517 U.S. conclusion logically follows, frequently will be in in district traditional districting voter often considerations, protection, at drawing inquiry the race of a In fact, incumbency not this predominance 964 and including communities (principal opinion). therefore, "conflict" that with racial these of The sorting and other districting criteria. Because such racial sorting, the test Under for that districting criteria can be used to mask courts must carefully examine the evidence under predominance test, race articulated necessarily in Miller and predominates Shaw when II. the legislature has subordinated traditional districting criteria to racial goals, such as when criterion and other factors with the racial objective. race is the single immutable are considered only when consistent Shaw II, 517 U.S. at 907. II. This case predominance, in presents which criterion employed in be compromised. a the a textbook uniform racial example quota redistricting process of was racial the only that could not This one-size-fits-all quota automatically made 158 racial sorting Although faith, a a priority legislature over is any entitled other to districting a presumption factor. of good this presumption must yield when the evidence shows that citizens have been assigned based on their race. WL 3604029, at *8 to legislative districts 515 U.S. 915-16; See Miller, at primarily Page, 2015 ("[T]he good faith of the legislature does not excuse or cure the constitutional violation of separating voters according disagree to race." with quota merely hold that the is {citation majority's conclusion "evidence" of existence the omitted)). of For that predominance, such a this a reason, uniform and widely I racial instead applied would quota establishes predominance as a matter of law. A. I first semantical observe debate "aspirational that while whether target" or the parties the a 55% "rule," BVAP the have engaged in a threshold evidence was presented an at trial clearly established that the legislature employed the 55% BVAP figure as a delegates fixed, testified non-negotiable quota. regarding mandatory nature of the quota." Trial Tr. McClellan); at 70 Trial (Sen. Tr. at their PI. Ex. Dance); 92 (Del, Trial Three individual understanding of the 33 at 45 {Sen. Dance); Tr. Armstrong). at 29-30 And, {Del. despite Delegates Dance and Armstrong no longer serve in the House of Delegates, though Dance currently serves as a senator in the Virginia Senate. Trial Tr. at 65, 90. 159 Delegate merely plan Jones' an trial testimony "aspirational during the . House . of . that rule the of Delegates 55% BVAP floor was he promoted thumb," figure the debates as having achieved a 55% minimum BVAP for all majority-minority districts. Trial Tr. at 491; legislators' operated fact 15 a that, satisfied at Ex. subjective as challenged PI. 35 at 42, 66, understanding mandatory floor the plan, the 2011 districts 55% converged BVAP floor. Pi. was BVAP toward in 50 108, the 113. 55% most of while at 72 by the each Table The figure corroborated 55% Ex. 72, that further in the 70, the twelve district 4; DI Ex. 14. B. The "disregard of individual rights" is the "fatal flaw" in such V. race-based Bakke, also City (1989) classifications. 438 U.S. of 265, Richmond (opinion of 320 v. (1978) J.A. O'Connor, Regents the Univ. of (opinion of Powell, Croson J.) of Co., 488 (explaining J.) ; the see 469, U.S. that Cal. 493 "rights created by the first section of the Fourteenth Amendment are, its terms, guaranteed to the individual. are personal 22 rights." (1948))). the color by The rights established (quoting Shelley v. Kraemer, 334 U.S. 1, By assigning voters to certain districts based on of their skin, states risk "engag[ing] in the offensive and demeaning assumption that voters of a particular race, because of their race, 160 think alike, share the same political interests, polls." U.S. Miller, 630, omitted). racial and will prefer the same candidates at the 515 647 U.S. (1993) Quotas 911-12 (Shaw are stereotypes, at (quoting I) ) (internal especially because they Shaw v. quotation pernicious threaten Reno, Here, (opinion of O'Connor, marks embodiments citizens' of "'personal rights' to be treated with equal dignity and respect."''^ 488 U.S. at 493 509 Croson, J.). the plan contravened the rights of individual voters by applying a one-size-fits-all racial quota for black voters in twelve highly characteristics quota thus is a dissimilar of the districts, voters or of without their regard communities. to the The 55% classic example of race-based stereotyping and unequal treatment prohibited by the Equal Protection Clause. The Supreme Court's standing. See skepticism of generally Croson, aside program for whether U.S. construction contracts); (higher education admissions). decide 488 racial use of a However, 469 is long (minority Bakke, 438 U.S. set265 the Court has yet to one-size-fits-all legislative redistricting plan or, quotas racial in particular, quota in a use of such a Because individual voters suffer the harm alleged in a racial sorting claim, I disagree with the majority's contention that "intentional[] dilut[ion] [of a] group's meaningful participation in the electoral process" is required to sustain an equal protection challenge like the one the plaintiffs have raised in this case. Maj. Op. at 52 (emphasis omitted). See Miller, 515 U.S. at 911-13. 161 quota of well exceeding 50%, establishes predominance as a matter law under Miller. The Court mechanical in recently racial has targets redistricting. cautioned above all Alabama, against "prioritizing other districting criteria" 135 S. Ct. at 1267, 1272-73. Although the Court in Alabama did not decide whether the use of a racial quota predominance, well exceeding the Court made 50%, clear targets" are highly suspicious. (discussing racial analysis). After several errors in the that itself, such can establish "mechanical racial Id. at 1267; see id. at 1272-73 targets issuing of as part this of narrow admonishment district court's and tailoring identifying analysis, the Court ultimately remanded the case to the district court to reconsider the question of predominance."^ The uniform racial Id. at 1270-74. quota employed in the present case is more suspicious on its face than the racial thresholds at issue in Alabama. The legislature in Alabama preexisting racial percentages specific sought to each the aim of avoiding retrogression under Section 5. In contrast, I the racial disagree with quota the used in majority's the to maintain district with Id. at 1263. present case was conclusion that the Supreme Court in Alabama would not have remanded the case if the use of racial thresholds in that case constituted predominance as a matter of law. See Maj. Op. at 35. Appellate courts frequently remand issues to trial courts for reconsideration when a trial court initially has analysis. 162 employed an incorrect legal applied indiscriminately to all twelve districts irrespective of the particular characteristics of those districts. plan's one-size-fits-all concerns that the quota thus legislature's raises The Virginia even districting more serious decisions were driven primarily by race. In view of the Virginia legislature's application of a single racial quota to numerous districts in the case before us, this court is not presented with the question particular fixed BVAP percentage would trigger if to single district. is strict scrutiny applied decide whether legislature See a Bush, intentionally creates 517 U.S. at 998 the question); Alabama, the absence of proof Latin (Scalia, in part) J., Am. that Citizens a scrutiny court asked to required every time a majority-minority district. J., concurring) at 1272 (reserving {declining to decide districting even in principles triggers strict scrutiny"); League of v. Perry, 548 U.S. 399, 517 (2006) judgment in part and dissenting legislature majority-minority district, a this traditional concurring in the ("[W]hen a strict use of race in redistricting, were subordinated to race, United is (Kennedy, 135 S. Ct. whether "the intentional Nor whether intentionally creates a race is necessarily its predominant motivation and strict scrutiny is therefore triggered."). Instead, the more narrow question before this court is whether strict scrutiny is required when a uniform racial quota 163 of 55% has been applied legislative districts Here, because see that traditional solely insofar as floor, by Shaw a 517 in drawing twelve are highly dissimilar in character. districting they did not II, legislature U.S. criteria interfere at 907, with the were this quota considered 55% minimum operated as a filter through which all line-drawing decisions had to pass.''^ Such a the racial filter necessarily had a discriminatory effect on configuration traditional neutral" U.S. the at of criteria 916 basis been that tainted by and districts, otherwise because would subordinated to it have race. rendered been all "race- See Miller, 515 (holding that when "race-neutral considerations are for redistricting subordinated to race, has the a legislation, State can defeat a gerrymandered on quotation marks omitted)). racial lines" and are claim that a (citation not district and internal Under these circumstances, although I therefore disagree with the majority's contention that this question was answered by the principal opinion in Bush and by the majority in Shaw II. Maj. Op. at 46, 55. Neither Bush nor Shaw II presented the unique factual circumstances at issue in this case, namely, the application of an across-the-board 55% racial quota to twelve variable districts. Although the majority is correct that the district at issue in Shaw II exhibited more facial irregularities than the districts here, such distinctions do not preclude application of relevant principles from the case. Shaw II, 517 U.S. at 905-06. Maj. Op. at 55. As the Court noted in Shaw II, the fact that a legislature is able to achieve certain traditional districting goals in a race-based plan "does not in any way refute the fact that race was the legislature's predominant consideration." Shaw II, 517 U.S. at 907. 164 a legislature criteria, may race-neutral impossible and Therefore, I a take matter all into application decisions law under of those necessarily are Miller legislative drawing of would scrutiny of traditional districting criteria becomes affected by race. would hold that the plaintiffs have established as of apply account strict each of that the in race predominated in challenged districts, examining the the and I constitutionality those d i s t r i c t s . III. In accepts doing stark the so, plaintiffs the drawing effectively alternative drawn contrast, use the to of majority show of that would burden, places the racial unwarranted quota had lines. showing how lines the 55% far exceeds burden The plaintiffs the analysis quota. identifiable imposing without however, an the map predominance suspicious district require legislative majority's facially particular differently onerous this the on required have an been Such showing on thus present could quota. the effects majority to In an for establishing predominance.^® I further observe that the plaintiffs presented testimony from Delegate McClellan that she did not propose certain desired changes to the plan because the resulting lines would not comply with the 55% quota. Trial Tr. at 41. 165 Additionally, under the majority's test, visual inspection of a district would be fatal to an equal protection claim if the district's criteria, boundaries appear to be consistent majority's analysis, actual future traditional irrespective of direct evidence that the line-drawing was racially motivated at the outset. in with as a result of the and its requirement that the use of race be "conflict" plaintiffs Thus, with traditional asserting a racial districting sorting criteria, claim will restricted to challenging districts that manifest extreme drawing unexplainable on race-neutral grounds, at issue As that in Shaw the is Supreme by above, the being sorted Miller, racial that of Court in the has shape Equal into purpose districts state is not harm at 911-15 of emphasized, Protection constitutional 515 U.S. criteria, actually the like the district results a district constitutional Clause. based on Rather, from the harm as stated individual voters color of their skin. (explaining that it is "the presumed action, "conflict" majority's however, the not its [is] the constitutional violation"). race line- I. bizarre prohibited be with predominance stark By requiring that use traditional test often identify constitutionally suspect racial sorting. 166 manifestation, redistricting will fail to IV. In reviewing a whether such a as there plan complies with traditional and evidence racially motivated 509 U.S. of at 647 contiguity, serve to defeat but in evidence shape, that a principles, rationale 913. that race was claim in drawing Here, fact for the factors, evaluating decision that its "may own be face of motivation the majority by the and not dominant has direct of is not a been circumstantial other districting and controlling Miller, relies use that legislative district is lines." overwhelming, evidenced See factors on 515 U.S. shape and traditional districting factors to uphold the 2011 plan, the whether making. district persuasive sake, legislature's the a When a its district however, when "they are objective gerrymandered on racial lines"). bizarre districting (traditional districting factors are not constitutionally required, may courts typically examine compactness is Shaw I, redistricting plan, evidence of one-size-fits-all at other even in racial racial quota. The Bush. inquiry majority's In as boundaries analysis Cromartie requiring were drawn II, the plaintiffs "because other districting criteria. 257 (2001) Court of aided described to show race Easley v. (emphasis omitted). Cromartie the that rather a II and predominance a than Cromartie, However, 167 by district's because 532 U.S. of" 234, legislative district necessarily is crafted "because of race" when a the single filter through which all racial quota is line-drawing decisions are made. Similarly, the " [s]ignificant . convey message . predominantly opinion). caused manifests . cause that import racial itself any observer. from Bush, of odd But the present resulted in "convey[ed] be, the message also disagree approval districts by somehow predominance. Protection Clause individual voter, (principal The when racial that are harm sorting visible to In harm, use of because political a racial that identity is, quota methodology or should Id. the rescues Voting are 980 be, district that is odd in shape. intervenors' the implicit suggestion legislators incumbent The should not that with they harm is constitutional the as obvious. boundaries legislature's predominantly racial." I that case, or incidence of constitutional limited to the presence of a the is that districting insofar at apparent district explained is, U.S. language is harm identity 517 this Bush traditional political stereotyping in in constitutional racial." The by opinion deviations principles the principal in challenged plan Rights intended to from Act a finding (VRA) protect the the and of the rights racial Equal of the not to promote the self-interest of incumbents in majority-minority districts. See League of United Latin Am. 168 Citizens, means 548 U.S. excluding at some 440-41 voters ("If . from . . the incumbency district simply they are likely to vote against the officeholder, to benefit the officeholder, contrary, immunizing them overwhelmingly in representatives' not incumbents safe the from protection because the change is voters."). challenge districts To could and the entrench undermine accountability to their constituents. the One can easily imagine how such entrenchment could harm minority voters by discouraging challengers from running and by preventing voters from electing a new candidate who better represents their interests. "Packing" majority-minority minority district for voters the into purpose incumbent also can reduce minority voters' a of particular protecting the ability to influence elections in nearby districts.''^ A fact true that, predominance at the time challenged districts Ex. 15 at 13-14 analysis of the also 2010 already had a & Table 8; PI. Ex. is not census, nine BVAP of 50 at affected 55% 9 5 of the by twelve or higher. 17, 72 the Table DI 4. Even assuming that such figures could protect the configuration I recognize that the plaintiffs in this case do not raise a vote dilution claim under Section 2 of the VE^A, but instead bring an "analytically distinct" racial sorting claim under the Equal Protection Clause. See Miller, 515 U.S. at 911 (citing Shaw I, 509 U.S. at 652) . I note the potential detrimental effects of the plan only to highlight that a so-called "benign" racial quota, ostensibly intended to benefit minority voters, may in fact have the opposite effect. 169 of those nine districts in the 2011 plan, the three remaining districts still would be subject to strict scrutiny. given the significant challenged the districts, population our legislature decide[d] inquiry deficits must in on focus most "which Ct. at 1271 decision to preexisting {emphasis move 55% in original). certain BVAP of the voters to choose" when moving voters between districts in order to achieve population equality. S. Moreover, voters floor in Here, in the order the new Alabama, 135 legislature's to plan maintain is still a a "mechanically numerical" method of redistricting that is subject to strict scrutiny. I See id. at 1273. therefore conclude that the majority's approach effectively and improperly places on plaintiffs asserting racial predominance Supreme will in Court. be redistricting Under required to motivation through districting the presented never when direct the plaintiffs now with plaintiffs evidence by evidence conflict" such assigned analysis, circumstantial "actual dispositive burden majority's show criteria, a that of racial traditional already the have legislature assigned race a priority over all other districting factors. V. Even upon applying its the majority concludes that heightened predominance race was the predominant 170 standard, factor in the drawing of District majority's test, the 75. I would hold that, under same conclusion of predominance holds the true for neighboring District 63 as well. As a a result of the "drastic maneuvering" 55% BVAP in District District 63 majority agrees Maj. at 109. Op. District were portions of a shifted was into "avowedly District county previously in 75, racial." a Trial move Tr. that the 74, 80; at The plan compensated for this loss of BVAP in 63 by adding to the district new areas with high BVAP concentrations. 2011 75, required to reach plan. Trial Tr. District compactness and 63 an counties, 2, Table 71 DI Ex. Table implementation of the Due to the changes in the experienced increase and VTDs. 70 at 81-83. in a the 15 at 3. This 55% racial startling number of 15 Table 9; and other quota reduction split PI. Ex. evidence had a cities, 50 at 7, showed marked in that impact on the configuration of both Districts 63 and 75. VI. I can further survive conclude the test that of none of the strict challenged scrutiny, districts because the legislature's use of the 55% quota was not narrowly tailored to achieve a districts. compelling See state Miller, 515 interest U.S. at in any 920. of the Evidence tailoring in this case is practically non-existent. 171 challenged of narrow Assuming that compliance with the VE^A is a compelling state interest, attempts at such compliance "cannot justify race-based districting necessary federal where under law. (principal the a challenged district constitutional Id. at opinion). 921; reading see Thus, was also narrow and not application" Bush, 517 tailoring reasonably U.S. of at that requires 977 the legislature have a "strong basis in evidence" for its race-based decision, racial that is, "good classification reasons was evidence any of had supporting the figure. District only 75. "functional need evidence Delegate of election results in 2005, population in imposition of a 458-59, Jones' and, for articulating analysis" 462-67, that application the VRA. 55% BVAP in original source suggestive Jones of a Delegate Jones even 443, Delegate of the 55% 490-95. of any testified Tyler's tailoring that he primary involved conducted and a general and considered the significant prison district, PI. with chosen In fact, the 431, 55% racial 494; comply the the intervenors presented virtually no Trial Tr. at 429, The to that (emphasis omitted). the challenged districts. difficulty believe" required Alabama, 135 S, Ct. at 1274 In the present case, to Ex. which floor. 40 at together Trial 39 Tr. (Del. supported at 323-24, Tyler). the 430, However, statements were merely general and conclusory in nature therefore, fell far short of demonstrating a "strong basis 172 in evidence" did the for 2005 but casting 75 candidate required Jones Tyler occur ran significant District was 2011 onward. application elections redistricting, since, the so at See PI. of six Ex. racial years unopposed doubt on competitive least a a prior in the Jones' that a BVAP 55% quota. to Not to two only the 2011 elections contention that minority-preferred be 50 at 85 Table 14. re-elected And, from critically, failed to provide any explanation of how his "functional" review led him to conclude that a 55% BVAP was required in District 75 to ensure compliance with the VRA. The evidence supporting the use of the 55% racial quota in the remaining challenged districts was even weaker. The House of Delegates did not conduct an analysis regarding the extent of racially polarized voting in any of these districts. at 4 69. Trial Tr. Although Delegate Jones stated that he was aware of low registration rates among black voters, he also admitted that he did not review voter registration figures when drawing the plan. Trial Tr. at 4 62-64. in most Nor did he examine minority turnout rates of the challenged districts, districts, congressional maps, or consider state Senate or other maps that had been pre- cleared or rejected by the Department of Justice. 462-69. And, in attempting BVAP quota in District 63, was a primary" in which to Trial Tr. justify imposition of the Jones stated that he "tthought] Delegate 173 Dance ran as an at 55% there independent, which results results led Trial Tr. he him reviewed, to select at 4 66-68. but 55% a he did BVAP not specify threshold in how those District 63. Such unsubstantiated and general comments plainly do not constitute the strong basis in evidence required to satisfy strict scrutiny. Finally, favor of I do not either testimony/® think that party, is the outcome of this case, dependent on any of the in expert However, I pause to note that I find the testimony offered by Dr. Katz to be singularly unpersuasive on the issue of narrow tailoring. Dr. Katz admitted that he provided only a "crude" analysis of the likelihood that a candidate preferred by minority voters would be elected. to Dr. Katz, this "crude" Trial Tr. method at 531. demonstrated that According a 55% correlates with an 80% chance of electing a black candidate. Ex. 16 at 18-19; Trial Tr. Dr. First, Katz' it crude DI at 532. analysis underrepresents BVAP the exhibits likelihood two that glaring the flaws. preferred candidate of minority voters would be elected by evaluating only the likely success of black candidates, when minority voters had I agree with the majority's criticism that Dr. Ansolabehere did not consider any factors other than race and politics as predictors of VTD inclusion in the challenged districts. Maj. Op. at 105. Nevertheless, my conclusion, that the legislature's use of the 55% racial quota per se establishes predominance opinions as a matter regarding VTD of law, movement predominance analysis. 174 renders Dr. superfluous Ansolabehere's to a proper elected non-minority districts. Trial delegates Tr. at 532-34, more fundamentally. Dr. Katz' does the success not guarantee race in a voters given election. do not "have in 549-51, of the 769-71. challenged Second, and analysis is flawed because the VRA of Rather, less certain a candidate of a particular the VRA ensures that minority opportunity than other members of the electorate to participate in the political process and to elect representatives retain their candidates.''® Citizens, 135 S. For these to evidence" their existing Ct. at choice," ability 52 U.S.C. 548 U.S. Alabama, fails of 428 reasons, that for using challenged districts. to that elect minority their voters preferred § 10301(b); League of United Latin Am. (VRA Section 2); at 1272 show and I the the 52 U.S.C. § 10304(b); (VRA Section 5). would find legislature 55% had racial Accordingly, that I the a quota would record "strong utterly basis in in any of the hold that all the districts fail the test of strict scrutiny. Although my conclusions do not depend on the testimony of Dr. Ansolabehere, I am not persuaded by the majority's dismissal of Dr. Ansolabehere's racial polarization analysis. See Maj. Op. at 124 n.37. In particular, I credit Dr. Ansolabehere's conclusion that none of the challenged districts required a 55% BVAP in order to ensure minority voters' opportunity to elect their preferred candidate. Trial Tr. at 203. 175 VII. The promise of the Equal Protection Clause is the guarantee of true equality under the protection of governmental racial our citizens entity. quota principle in supporting its in The this the law, irrespective Virginia case absence race-based enforced by our courts a this strong decision. Virginia's 2011 redistricting plan. core basis Thus, Barbara Milano Keenan U.S. Circuit Judge Date: October 22, 2015 176 of any use of the I constitutional in would evidence invalidate I respectfully dissent. /s/ Richmond, Virginia power the the legislature's violated of of for

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