Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 1 of 173 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALABAMA LEGISLATIVE ) BLACK CAUCUS, et al., ) ) Plaintiffs, ) ) CASE NO. 2:12-CV-691 v. ) (Three-Judge Court) ) THE STATE OF ALABAMA, et al., ) ) Defendants. ) __________________________________ ) ) ALABAMA DEMOCRATIC ) CONFERENCE, et al., ) ) Plaintiffs, ) ) CASE NO. 2:12-CV-1081 v. ) (Three-Judge Court) ) THE STATE OF ALABAMA, et al., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER Before PRYOR, Circuit Judge, WATKINS, Chief District Judge, and THOMPSON, District Judge. PRYOR, Circuit Judge: “There’s no perfect reapportionment plan. A reapportionment plan depends on what the drafter wants to get, and he can draw them many, many, many ways.” Dr. Joe Reed, Chairman, Alabama Democratic Conference. (Trial Tr. vol. 2, 155, Aug. 9, 2013). Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 2 of 173 The Constitution of Alabama of 1901 requires the Alabama Legislature to redistrict itself following each decennial census of the United States, Ala. Const. Art. IX, §§ 199–200, but for a half century—from 1911 to 1961—the Legislature failed to fulfill that duty. Then the Supreme Court of the United States ruled that this abdication could be tolerated no longer, and it affirmed the judgment of this Court that the Alabama Legislature had to be apportioned after each census based on the principle of one person, one vote. Reynolds v. Sims, 377 U.S. 533, 568, 586, 84 S. Ct. 1362, 1385, 1394 (1964). The Supreme Court explained, “[T]he basic principle of representative government remains, and must remain, unchanged—the weight of a citizen’s vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.” Id. at 567, 84 S. Ct. at 1384. After the decision in Reynolds v. Sims, the Legislature struggled to redistrict itself and to satisfy the requirements of the federal Constitution. When the Alabama Legislature failed to perform its duty to redistrict itself after the 1970 Census, this Court adopted new district lines to protect the rights of the voters under the Fourteenth Amendment. Sims v. Amos, 336 F. Supp. 924 (M.D. Ala. 1972). In the 1980s, the Legislature successfully redistricted itself only after it twice failed to obtain administrative preclearance of its first redistricting plans, under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, and this Court then ordered Alabama to hold a special election using the new districts, Burton v. Hobbie, 561 F. Supp. 1029, 2 Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 3 of 173 1035 (M.D. Ala. 1983). In the 1990s, the Legislature again failed to redistrict itself, and new districts were adopted instead by the Alabama judiciary. See Brooks v. Hobbie, 631 So. 2d 883, 884 (Ala. 1993). After the 2000 and 2010 Censuses, the Legislature finally fulfilled its responsibility to redistrict itself without any federal or judicial interference. See Montiel v. Davis, 215 F. Supp. 2d 1279, 1281–82 (S.D. Ala. 2002). Both times, the Senate adopted a redistricting plan for itself, and the House adopted a plan for itself. Each chamber then, in turn, passed the plan adopted by the other chamber. And each time, the governor signed the redistricting acts, and the state attorney general then obtained administrative preclearance of the acts as required by the Voting Rights Act. As the Legislature complied with Reynolds v. Sims and the Voting Rights Act, black voters enjoyed increasing success in electing their preferred candidates for the Alabama Legislature. In 1970, voters elected to the House of Representatives Fred Gray and Thomas Reed, the first two black legislators since Reconstruction. (Ex. SDX 448, 15). After the 1980 Census, voters elected 17 black candidates to the House and three black candidates to the Senate. Id. After the 1990 Census, voters elected 27 black candidates to the House and 8 black candidates to the Senate. Id. After the 2000 Census, the Legislature adopted a redistricting plan that maintained 27 majority-black House districts and 8 majority-black Senate districts. Because most of the majority-black districts were substantially underpopulated, the Legislature redrew the districts by shifting more black voters into the majority-black districts to maintain 3 Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 4 of 173 the same relative percentages of black voters in those districts. (Ex. CE 30; Ex. CE 32; Ex. APX 4; Ex. CE 34). Legislative redistricting regularly provokes partisan controversies. In the 1990s, Republicans filed lawsuits to challenge the districts adopted by the Alabama judiciary and favored by the Democrats, but those lawsuits failed. Brooks, 631 So. 2d 883; Sinkfield v. Kelley, 531 U.S. 28, 121 S. Ct. 446 (2000). After the 2000 Census, the Democrat-controlled Legislature adopted districts that favored its partisan interests. Montiel, 215 F. Supp. 2d at 1283. Republicans again challenged the districts in litigation, but their lawsuits failed. See Gustafson v. Johns, 434 F. Supp. 2d 1246, 1248– 49 (S.D. Ala. 2006); Montiel, 215 F. Supp. 2d at 1281–82. When Republicans challenged the district lines adopted after the 2000 Census, they targeted the systematic underpopulation of the majority-black districts, but State officials and Democratic leaders successfully defended the population deviations as “the product of the Democratic Legislators’ partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities.” Montiel, 215 F. Supp. 2d at 1283. State officials and Democratic leaders presented “abundant evidence . that black voters and Democratic voters in Alabama are highly correlated.” Id. After the Republicans’ complaint of racial gerrymandering failed, they filed another complaint that challenged the population deviations as an unlawful partisan gerrymander, but that complaint failed because it was barred by res judicata. Gustafson, 434 F. Supp. 2d at 1255–67. In a filing in the Supreme Court of 4 Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 5 of 173 the United States, the Democratic leadership of the Legislature openly touted the districts adopted in 2001 as a lawful partisan gerrymander that enabled black legislators to serve in positions of unprecedented leadership. (Ex. SDX 448.) The partisan gerrymander that protected Democratic control of the Legislature collapsed in 2010 when Republicans gained supermajority control of both houses of the Legislature, which then adopted new redistricting acts based on the 2010 Census. 2010 Ala. Acts No. 602 (House plan); id. No. 603 (Senate plan). The Republican- controlled Legislature adopted district lines with smaller deviations in population equality, which upended the partisan gerrymander adopted by the Democrat- controlled Legislature after the 2000 Census. Not surprisingly, that result did not sit well with the Democratic leaders who filed these complaints. As a result, we must be careful not to take one side in a partisan battle masquerading as a legal controversy; our task is to evaluate whether the new redistricting Acts violate the Constitution or federal law. In these consolidated actions, Alabama has now come full circle. In the first civil action, several plaintiffs—the Alabama Legislative Black Caucus, Bobby Singleton, the Alabama Association of Black County Officials, Fred Armstead, George Bowman, Rhondel Rhone, Albert F. Turner Jr., and Jiles Williams Jr.— complain that the purpose and effect of the new districts is to dilute and isolate the strength of black voters, in violation of section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. In the second civil action, several other 5 Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 6 of 173 plaintiffs—the Alabama Democratic Conference, Demetrius Newton, Framon Weaver Sr., Stacey Stallworth, Rosa Toussaint, and Lynn Pettway—complain that the purpose and effect of the new districts is to dilute the opportunities for minority voters to participate in the political process and that the new districts are products of racial gerrymandering. The plaintiffs in these actions, in contrast with the plaintiffs in Reynolds, complain that the Legislature redistricted itself based on too little deviation in population equality and paid too little attention to considerations of where voters live based on the jurisdictional lines of counties and other subdivisions. They also complain that the Legislature diluted the voting strength of black voters by moving them into underpopulated majority-black districts, even though the Democratic majority of the Legislature employed the same technique ten years earlier to maintain the same relative percentages of black voters in those districts. For the reasons explained in this memorandum opinion and order, we reject these complaints. We DISMISS the claims of racial gerrymandering filed by the Democratic Conference plaintiffs because they lack standing to maintain those claims; in the alternative, we GRANT judgment in favor of the State defendants on the claims of racial gerrymandering filed by the Democratic Conference plaintiffs. We DISMISS as not justiciable the claim of vote dilution based on the local House delegation in Jefferson County; in the alternative, we GRANT judgment in favor of the State defendants on the claim of vote dilution based on the local House delegation 6 Case 2:12-cv-00691-WKW-MHT-WHP Document 203 Filed 12/20/13 Page 7 of 173 in Jefferson County. We GRANT judgment in favor of the State defendants on the remaining claims in both actions. I. BACKGROUND We divide our discussion of the background in two parts.