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Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VII. Election Law In This Section:

New Case: 15-680 Bethune-Hill v. Virginia State Board of Elections p. 377

Synopsis and Questions Presented p. 377

“SUPREME COURT WILL WEIGH IN ON WHETHER VA. DISTRICTS ARE RACIALLY p. 435. GERRYMANDERED” Robert Barnes & Laura Vozzella

“HOW RACIAL GERRYMANDERING DEPRIVES BLACK PEOPLE OF POLITICAL POWER” p. 438p Kim Soffen .

“COURT REOPENS RACE AND DEATH PENALTY ISSUES” p. 441p. Lyle Denniston

“VIRGINIA HOUSE DISTRICTS UPHELD” p. 443p. Travis Fain

New Case: 15-1262 McCrory v. Harris p. 446

Synopsis and Questions Presented p. 447

“SUPREME COURT TO REVIEW WHETHER NORTH CAROLINA RELIED TOO p. 478 HEAVILY ON RACE IN REDISTRICTING” Jonathan Drew

“NORTH CAROLINA REDISTRICTING DELAY DENIED” p. 480 Lyle Denniston “NORTH CAROLINA'S CONGRESSIONAL PRIMARIES ARE A MESS BECAUSE p. 482 OF THESE MAPS” Tom Bullock

Looking Ahead: Voter Identification p. 484

“SUPREME COURT BLOCKS NORTH CAROLINA FROM RESTORING STRICT p. 485 VOTING LAW” Adam Liptak

“ELECTION LITIGATION 2016: WHERE THINGS STAND” p. 488 Rick Hasen

“AS NOVEMBER APPROACHES, COURTS DEAL SERIES OF BLOWS TO VOTER p. 490 ID LAWS” Camila Domonoske

“APPEALS COURT STRIKES DOWN TEXAS VOTER ID LAW” p. 494 Richard Wolf

“APPEALS COURT UPHOLDS WISCONSIN VOTER ID RULINGS” p. 496 Associated Press

“APPEALS COURT STRIKES DOWN NORTH CAROLINA’S VOTER-ID LAW” p. 497 Robert Barnes and Ann E. Marimow

“TEXAS TO APPEAL VOTER ID RULING TO SUPREME COURT” p. 501 Reid Wilson

“NORTH CAROLINA ASKS SUPREME COURT TO REINSTATE VOTER ID LAW” p. 502 Josh Gerstein

Bethune-Hill v. Virginia State Board of Elections

15-680

Ruling Below: Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (E.D. Va. 2015)

The plaintiffs challenged the constitutionality of twelve different House of Delegates districts in Virginia, on the grounds that they were unlawfully racially gerrymandered, violating the Equal Protection Amendment.

The District Court held that the use of the 55% black voting-age population floor did not satisfy the requirement of racial predominance in the drawing of the district and did not trigger strict scrutiny as a result. Thus, the holding stated that the plaintiffs failed to show that race was the predominant factor in eleven of the twelve districts. The holding also stated that, although race was the predominant factor in the twelfth district, it was narrowly tailored, designed to comply with federal anti-discrimination law.

Question Presented: Whether the use of race must result in “actual conflict” with traditional districting criteria for race to be considered predominant;

Whether the use of a black population voting floor should have amounted to racial predominance and triggered strict scrutiny;

Whether the court below erred by disregarding the admitted use of race in drawing districts in favor of examining circumstantial evidence;

Whether racial motivations must outweigh all other criteria considered in order for race to be considered predominant;

Whether the use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest.

Golden BETHUNE–HILL, Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants..

United States District Court, Eastern District of Virginia

Decided on October 22, 2015

[Excerpt; some citations and footnotes omitted]

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ROBERT E. PAYNE, Senior District Judge: In the Memorandum Opinion that follows, the Court will review the procedural This case challenges the constitutionality of background of the case in Section I; provide twelve Virginia House of Delegates districts a brief overview of the law relating to racial (the “Challenged Districts”) as racial gerrymandering claims in Section II; and set gerrymanders in violation of the Equal out its findings on the factual background of Protection Clause of the Fourteenth the case in Section III. In Section IV, the Amendment to the Constitution of the United Court will articulate its understanding of the States. The case is ripe for decision following relevant legal framework for evaluating a four-day bench trial at which the parties racial gerrymandering (or “racial sorting”) presented oral testimony and offered claims, set out additional factual findings of numerous exhibits. Our findings of fact are general applicability, and conduct a district- based on our assessment of the record and are by-district analysis with district-specific grounded in our determinations respecting factual findings and district-specific the credibility of the witnesses. application of the relevant legal framework.

Our conclusions of law address the several I. PROCEDURAL BACKGROUND legal issues presented by the parties. In particular, we have determined that it is the In the wake of the 2010 census, the Virginia burden of the Plaintiffs to prove by a General Assembly sought to redraw the preponderance of the evidence that race was legislative districts for the Virginia House of the predominate factor motivating the Delegates (“House”) and the Senate of decision to place a significant number of Virginia (“Senate”). The task of redistricting voters within or without a particular district is one that carries great political and legal in that, as to each of those districts, Virginia's consequence. In a representative democracy, General Assembly subordinated race-neutral such legislation shapes more than the abstract districting principles to racial considerations boundaries of electoral districts; it shapes the when forming the district. Based on this legal character, conduct, and culture of the standard and the record, we have concluded representatives themselves. On its face, the that, except as to House District 75, the legislation recites a singularly tedious list of Plaintiffs have not carried that burden and precincts and counties. But in application, that race was not shown to have been the few pieces of legislation have a more predominant factor in the creation of eleven profound impact on the function of of the twelve Challenged Districts. government and whether it acts as “the faithful echo of the voices of the people.” We are satisfied that race was the predominant factor in the creation of House The political significance of redistricting is District 75. However, we have also matched only by its legal complexity. Those concluded that, in using race, the General shepherding redistricting legislation must Assembly was pursuing a compelling state traverse a precarious path between interest, namely, actual compliance with constitutional and statutory demands that are federal antidiscrimination law, and that, in often in tension with one another and provide the process, the General Assembly used race opaque interpretive standards rather than in a manner narrowly tailored to achieve that clear rules. interest.

378

As to the 2011 redistricting, Delegate Chris by the Chief Judge of the United States Court Jones led this effort in the House. Delegate of Appeals for the Fourth Circuit. Jones played an instrumental role in the 2001 redistricting process and drew upon that The Virginia House of Delegates and the experience to lead the 2011 redistricting Virginia House of Delegates Speaker efforts. Because Virginia was a covered William Howell (“Intervenors”) moved to jurisdiction under Section 4 of the Voting intervene in the case. That motion was Rights Act of 1965 (“VRA”) at the time the granted. redistricting legislation was prepared, and was therefore subject to the requirements of A four-day bench trial began on July 7, 2015. Section 5 of the VRA, it was necessary to Because the Defendants are “administrative ensure that the plan did not result in a agencies that implement elections” but “do “retrogression in the position of racial not draw the districts,” the Defendants minorities with respect to their effective allowed the Intervenors to carry the burden of exercise of the electoral franchise.” In an litigation but joined the Intervenors' attempt to comply with this statutory arguments at the close of the case. For ease of command, Delegate Jones crafted a plan reference, the Defendants and Intervenors containing twelve majority-minority House will be referred to as the Intervenors. Districts (“HDs” or “Districts”). These are the Challenged Districts: HDs 63, 69, 70, 71, II. BASIC OVERVIEW OF RACIAL 74, 75, 77, 80, 89, 90, 92, and 95. GERRYMANDERING CLAIMS

On December 22, 2014, Plaintiffs filed a Before proceeding to the facts of the case and Complaint against the Virginia State Board the substance of this litigation, a brief of Elections, the Virginia Department of overview of the constitutional and statutory Elections, and various members thereof in requirements pertinent to racial their official capacities (“Defendants”), gerrymandering claims is appropriate. As alleging that the Challenged Districts were noted above, these commands often cut racial gerrymanders in violation of the Equal counter to each other and require legislators Protection Clause of the Fourteenth to balance competing considerations. Tracing Amendment and seeking declaratory and their evolution is therefore useful as a injunctive relief prohibiting Defendants from predicate for the decision that follows. implementing or conducting further elections based on the Challenged Districts. The The Supreme Court has long observed that Plaintiffs are twelve citizens of the United the right to vote is “fundamental” because it States and the Commonwealth of Virginia is “preservative of all rights.” In Reynolds v. who are lawfully registered voters in the Sims, the Court recognized that “the right of Commonwealth and each of whom resides in suffrage can be denied by a debasement or one of the twelve Challenged Districts. The dilution of the weight of a citizen's vote just Plaintiffs requested that the case be heard by as effectively as by wholly prohibiting the a three-judge district court pursuant to 28 free exercise of the franchise” and held that U.S.C. § 2284(a) on the grounds that the the malapportionment of state legislative action “challeng[es] the constitutionality of bodies in derogation of the “one person, one the apportionment of ... [a] statewide vote” principle violates the Equal Protection legislative body.” That request was granted Clause. Because legislation affecting the right to vote “strike[s] at the heart of

379 representative government,” the The Supreme Court first struck down a “Constitution leaves no room for districting scheme for unconstitutional racial classification of people in a way that vote dilution in White v. Regester. There, the unnecessarily abridges this right,” and grants Court stated: every citizen “an inalienable right to full and effective participation in the political The plaintiffs' burden is to produce processes of his State's legislative bodies.” evidence to support findings that the political processes leading to The decision in Reynolds only required state nomination and election were not legislatures to comply with the equal equally open to participation by the population standard, but its language would group in question—that its members come to stand for something more. The next had less opportunity than did other year, in Fortson v. Dorsey, the Court residents in the district to participate suggested that a “constituency apportionment in the political processes and to elect scheme” may not “comport with the dictates legislators of their choice. of the Equal Protection Clause” if it “would operate to minimize or cancel out the voting At the time, it was unclear whether such a strength of racial or political elements of the claim required a showing of discriminatory voting population.” With Fortson, the intent or could be maintained based solely on Supreme Court first recognized that discriminatory effect. redistricting legislation may offend Equal Protection Clause principles when it Several years later, in City of Mobile v. distinguishes between voters on a racial Bolden, the Court suggested in a plurality basis. opinion that both discriminatory intent and discriminatory effect were required to Over time, the Supreme Court has come to establish a claim of unconstitutional racial recognize two types of racial gerrymandering vote dilution. That holding was reaffirmed by claims under the Fourteenth Amendment: (1) a majority of the Court in Rogers v. Lodge. claims of racial vote dilution, where the Writing for the majority, Justice White redistricting legislation is “conceived or confirmed that “a showing of discriminatory operated as [a] purposeful devic[e] to further intent has long been required in all types of racial discrimination by minimizing, equal protection cases charging racial canceling out or diluting the voting strength discrimination.” of racial elements in the voting population”; and (2) claims of racial sorting, where the Therefore, in a constitutional racial vote redistricting legislation, “though race neutral dilution case, the plaintiff must show that the on its face, rationally cannot be understood as State has placed a burden upon the right to anything other than an effort to separate vote by intentionally establishing or voters into different districts on the basis of maintaining devices or procedures that cause race, and that the separation lacks sufficient minority citizens to have less opportunity justification.” than other citizens to participate in the political processes and to elect legislators of A. Racial Vote Dilution and the their choice. This dilutes the minority voter's Fourteenth Amendment ability to exercise the “full and effective” right to vote.

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B. Racial Sorting and the Fourteenth Although the text of the legislation was Amendment facially neutral, the Court found that “it rationally can be viewed only as an effort to The other strand of “racial segregate the races for purposes of voting, gerrymandering”—a racial sorting claim without regard for traditional districting such as the one presented in this case—is principles.” “analytically distinct” from a vote dilution claim. “Whereas a vote dilution claim alleges For that reason, rather than requiring the that the State has enacted a ... purposeful plaintiffs to present evidence of device ‘to minimize or cancel out the voting discriminatory purpose and discriminatory potential of racial or ethnic minorities,’ ... the effect, the Supreme Court treated the essence of [a racial sorting claim] is that the legislation as tantamount to a suspect facial State has used race as a basis for separating classification and employed strict scrutiny. voters into districts.” In order to prove a racial sorting claim, a In Shaw I, the Supreme Court faced two plaintiff must show that the legislature patently bizarre legislative districts. One “subordinated” traditional race-neutral resembled a “Rorshach ink-blot test” or a districting principles in crafting the district's “bug splattered on a windshield,” while the boundaries: other was “even more unusually shaped”: The plaintiff's burden is to show, [The district] is approximately 160 either through circumstantial miles long and, for much of its length, evidence of a district's shape and no wider than the I–85 corridor. It demographics or more direct winds in snakelike fashion through evidence going to legislative purpose, tobacco country, financial centers, that race was the predominant factor and manufacturing areas until it motivating the legislature's decision gobbles in enough enclaves of black to place a significant number of neighborhoods. Northbound and voters within or without a particular southbound drivers on I–85 district. To make this showing, a sometimes find themselves in plaintiff must prove that the separate districts in one county, only legislature subordinated traditional to “trade” districts when they enter race-neutral districting principles, the next county. Of the 10 counties including but not limited to through which District 12 passes, 5 compactness, contiguity, and respect are cut into 3 different districts; even for political subdivisions or towns are divided. At one point the communities defined by actual shared district remains contiguous only interests, to racial considerations. because it intersects at a single point with two other districts before This threshold standard is “a demanding crossing over them. One state one.” Indeed, the Plaintiffs must overcome a legislator has remarked that “if you presumption that the legislature acted drove down the interstate with both correctly and in good faith. Thus, the plaintiff car doors open, you'd kill most of the “must show that the State has relied on race people in the district.” in substantial disregard of customary and traditional districting practices.”

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If the plaintiff makes the requisite showing, to bring a claim of racial vote dilution under the State must demonstrate that the the Equal Protection Clause. redistricting legislation is narrowly tailored In order to prove a § 2 violation, a plaintiff to advance a compelling state interest. In must satisfy three prerequisites: redistricting cases where the State claims a compactness, political cohesiveness, and compelling interest in compliance with the bloc voting. “First, the minority group must VRA, the legislature must show that it had a be able to demonstrate that it is sufficiently “strong basis in evidence” to support its use large and geographically compact to of race-based districting. In other words, the constitute a majority in a single-member legislature must have “good reasons to district.” “Second, the minority group must believe” that its use of racial classifications be able to show that it is politically cohesive.” was “required” by the VRA, “even if a court “Third, the minority must be able to does not find that the actions were necessary demonstrate that the white majority votes for statutory compliance” after the fact. sufficiently as a bloc to enable it—in the absence of special circumstances, such as the C. The Voting Rights Act minority candidate running unopposed— usually to defeat the minority's preferred In addition to these constitutional candidate.” These final two factors are often imperatives, redistricting legislation must referred to collectively as “racial also comply with the VRA. “The Voting polarization.” Once these prerequisites have Rights Act was designed by Congress to been satisfied, the court evaluates the banish the blight of racial discrimination in plaintiff's evidence based on the totality of voting [.]” Enacted pursuant to Congress' the circumstances. The totality of enforcement powers under the Fifteenth circumstances must be considered with a Amendment, the VRA prohibits states from focus on whether the minority group in adopting plans that would result in vote question was denied “equal political dilution under Section 2 or—in covered opportunity.” jurisdictions—retrogression under Section 5. With respect to redistricting legislation, § 2 Section 2 of the VRA prohibits the establishes a “natural floor” based on the imposition of any electoral practice or State's demographics for the number of procedure that “results in a denial or districts wherein members of a minority abridgement of the right of any citizen ... to group must maintain an “equal political vote on account of race or color....” A § 2 opportunity” to “elect representatives of their violation occurs when, based on the totality choice.” Where a minority group is of circumstances, the political process results sufficiently large and geographically in minority “members hav[ing] less compact to constitute a numerical majority in opportunity than other members of the a hypothetical district, § 2 requires the electorate to participate in the political creation of a district wherein members of that process and to elect representatives of their group maintain the equal ability to elect choice.” By adopting the “discriminatory representatives of their choice. Proving this effect” language from Regester and omitting hypothetical requires the plaintiffs to present any requirement to prove discriminatory an alternative redistricting plan. intent as required by Lodge, Congress created a statutory “results test” that could be brought Section 5 of the VRA, on the other hand, by plaintiffs who might be otherwise unable forbids voting changes with “any

382 discriminatory purpose” as well as voting Therein lies the rub. To comply with federal changes that diminish the ability of citizens, statutory command (the VRA), the State must on account of race, color, or language consider and account for race in drawing minority status, “to elect their preferred legislative districts in order to craft a candidates of choice.” Sections 2 and 5 compliant plan. However, to avoid violating “differ in structure, purpose, and application. the federal constitution, the State must not Section 5 applies only in certain jurisdictions subordinate traditional, neutral principles to specified by Congress and ‘only to proposed racial considerations in drawing district changes in voting procedures.’ ” boundaries.

Section 5 was enacted as “a response to a And, at the same time, the State must also common practice in some jurisdictions of comply with the “one person, one vote” staying one step ahead of the federal courts constitutional requirement as specified in by passing new discriminatory voting laws as Reynolds v. Sims. That, of course, is not a soon as the old ones had been struck down.” traditional redistricting principle to be By requiring that proposed changes be weighed as part of the predominance inquiry, approved in advance, Congress sought “ ‘to as Alabama makes clear. But it is a federal shift the advantage of time and inertia from constitutional requirement that, of necessity, the perpetrators of the evil to its victim,’ by is central to the redistricting process and that ‘freezing election procedures in the covered is highly instrumental in the drawing of areas unless the changes can be shown to be district boundaries. nondiscriminatory.’ ” The purpose of this approach was to ensure that “no voting- It is within the context of this legal procedure changes would be made that would framework that the Virginia General lead to a retrogression in the position of racial Assembly sought to design and enact a minorities with respect to their effective compliant redistricting plan. And these exercise of the electoral franchise.” principles are central to the resolution of this case. “Retrogression, by definition, requires a comparison of a jurisdiction's new voting Before proceeding to the facts of the case, the plan with its existing plan. It also necessarily Court feels it necessary to pause and implies that the jurisdiction's existing plan is recognize that Delegate Jones, members of the benchmark against which the ‘effect’ of the redistricting committee, and other voting changes is measured.” Unlike the legislators involved in the crafting and “natural floor” of § 2 ensuring equal ability amendment of HB 5005 did not have the to elect, the retrogression standard of § 5 benefit of either the Supreme Court's creates a “relative floor” based upon the guidance in the recent Alabama decision or existing benchmark plan. Under § 5, the State the guidance provided in the opinion entered must ensure that the new plan does not “lead here today. Based on the evidence and to a retrogression in the position of racial testimony provided in the record, the Court minorities with respect to their effective believes that all of the legislators involved exercise of the electoral franchise” by proceeded in a good faith attempt to comply diminishing the ability of minority voters to with all relevant constitutional and statutory elect their preferred candidates of choice as demands, as they understood them at the compared to the State's existing plan. time.

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III. Factual Background II. Voting Rights Act: Districts shall be drawn in accordance with the laws of the A. The 2011 Redistricting Process United States and the Commonwealth of Virginia including compliance with The first steps in the redistricting process protections against the unwarranted began well before the United States Census retrogression or dilution of racial or ethnic Bureau released its population and minority voting strength. Nothing in these demographic data. On August 23, 2010, guidelines shall be construed to require or Delegate Mark Cole announced that the permit any districting policy or action that is redistricting subcommittee of the House of contrary to the United States Constitution or Delegates Committee on Privileges and the Voting Rights Act of 1965. Elections had scheduled a series of six public hearings throughout the Commonwealth to III. Contiguity and Compactness: Districts solicit input into the House redistricting shall be comprised of contiguous territory process. These public hearings were held including adjoining insular territory. between September 8, 2010 and December Contiguity by water is sufficient. Districts 17, 2010. Following these hearings, shall be contiguous and compact in Governor McDonnell signed Executive accordance with the Constitution of Virginia Order 31 on January 10, 2011, creating the as interpreted by the Virginia Supreme Court “Independent Bipartisan Advisory in the cases of Jamerson v. Womack. Redistricting Commission” (“Governor's Commission”) to develop plan proposals, IV. Single–Member Districts: All districts review public input, and analyze shall be single-member districts. recommendations from other stakeholders in the voting public. V. Communities of Interest: Districts shall be based on legislative consideration of the Redistricting began in earnest in February varied factors that can create or contribute to 2011 when the 2010 census data was released communities of interest. These factors may via Public Law 94–171. On March 25, 2011, include, among others, economic factors, the House Committee on Privileges and social factors, cultural factors, geographic Elections adopted a resolution setting out the factors, governmental jurisdictions and criteria that the committee would follow in service delivery areas, political beliefs, reviewing redistricting plans. The House voting trends, and incumbency Committee established six criteria, which considerations.... Local government were as follows: jurisdiction and precinct lines may reflect communities of interest to be balanced, but I. Population Equality: The population of they are entitled to no greater weight as a legislative districts shall be determined solely matter of state policy than other identifiable according to the enumeration established by communities of interest. the 2010 federal census. The population of each district shall be as nearly equal to the VI. Priority: All of the foregoing criteria shall population of every other district as be considered in the districting process, but practicable. Population deviations in House population equality among districts and of Delegates districts should be within plus- compliance with federal and state or-minus one percent. constitutional requirements and the Voting Rights Act of 1965 shall be given priority in

384 the event of conflict among the criteria. However, the most important question— Where the application of any of the foregoing whether such a figure was used in drawing criteria may cause a violation of applicable the Challenged Districts—was not disputed. federal or state law, there may be such Rather, the parties disputed whether the 55% deviation from the criteria as is necessary, but BVAP was an aspiration or a target or a rule. no more than is necessary, to avoid such In the end, it is not relevant whether the 55% violation. BVAP was a rule or a target because all the parties agree—and the Court finds—that the These criteria were substantially similar to 55% BVAP figure was used in structuring the the criteria adopted by the committee in the districts and in assessing whether the 2001 redistricting cycle, with two exceptions. redistricting plan satisfied constitutional First, the 2001 criteria had permitted a standards and the VRA, and whether the plan population deviation of “plus-or-minus two would be precleared by the Department of percent,” rather than one percent, which Justice (“DOJ”). Delegate Jones stated was altered to better “approximate the one-person-one-vote At trial, two additional questions regarding [standard] in the Virginia constitution.” the 55% figure dominated the discussion. Second, the 2001 criteria were updated to First, whether the BVAP figure included or include a citation to the decision of the excluded those who identified themselves in Supreme Court of Virginia in Wilkins v. West the census process as ethnically Hispanic and as part of the “Contiguity and Compactness” racially black. And second, what the source criterion. of the 55% BVAP figure was.

B. The 55% Black Voting Age Population The parties hotly debated whether the Floor appropriate measure of BVAP used in the redistricting process did or did not include At the time the redistricting process began, individuals who identified as racially black the twelve Challenged Districts had black and ethnically Hispanic in the census data. voting-age populations (“BVAP”) ranging The supposed importance of this dispute was from 46.3% to 62.7%. Three of the districts that, if black Hispanics were excluded from had BVAPs below 55%. All others were the black population count, three of the above 55%. Several legislators believed that Enacted Plan's majority-minority districts the twelve “ability-to-elect” districts found in would actually contain a BVAP percentage the 2001 redistricting plan (or “Benchmark just shy of 55%. That, according to Plan”) needed to contain a BVAP of at least Intervenors, would support a finding that 55% in the 2011 redistricting plan to avoid there was not a 55% BVAP floor in deciding “unwarranted retrogression” under Section 5 on the twelve Challenged Districts. of the VRA and to comply with Criterion II of their own redistricting rules. The record shows that delegates attempting to comply with the 55% BVAP floor The existence of a fixed racial threshold can submitted their proposed changes using data have profound consequences for the Court's that included black Hispanics in the BVAP predominance and narrow tailoring inquiries count. Although Delegate Jones claimed to in a racial sorting claim, so a substantial personally believe that the DOJ would use a amount of time at trial was devoted to BVAP figure excluding black Hispanics, this questions related to this factual topic. was not a distinction that he discussed with

385 any other delegates, and he repeatedly other hand, black Hispanics would count asserted on the House floor that all majority- towards the total black population of a district minority districts in the proposed legislation for retrogression purposes. That appears to be had a BVAP of 55% or higher. Moreover, consistent with the DOJ's (admittedly Delegate Jones “assumed” that Virginia, in confusing) guidance on this question: “If its preclearance submissions to the DOJ, there are significant numbers of responses would represent that all 12 majority-minority which report Latino and one or more minority districts contained at least 55% BVAP. This races (for example, Latinos who list their race turned out to be the case. as Black/African American), those responses will be allocated alternatively to the Latino At trial, Intervenors relied on a spreadsheet category and the minority race category.” prepared by the Division of Legislative This “alternating” approach presumably Services (“DLS”) in an attempt to show that applies to situations where the district would including Hispanics in the BVAP count be majority-“black-plus-Hispanic,” in which would be erroneous. The spreadsheet case counting black Hispanic individuals as contains rows of data by district and, in each either black or Hispanic in alternating fashion column, contains metrics such as total would avoid counting those individuals twice population, population by race, racial in the same district. Thus, the Court finds that population by percentage, population by the proper count includes black Hispanics ethnicity, and ethnic population by within the BVAP percentage of each percentage. After adding the racial and ethnic majority-minority district. This method of population totals column by column, the counting results in a BVAP above 55% for all Intervenors dramatically revealed that the twelve majority-minority districts, ranging number exceeded that of the district's total from 55.2% to 60.7%. population. But this exercise reflects an error on the part of the Intervenors, not DLS. Regardless, this debate—like the first— Because ethnicity measures a different generated more heat than light. The actual variable than race, the racial and ethnic data differences in BVAP percentages were are not meant to be added in the first place. If minute, and both parties eventually agreed one removes the ethnicity column from the that the distinction was not one of great legal count (on the assumption that Hispanic significance. individuals of any race are already counted in their respective racial columns), then the total Unlike the first two questions, the answer to population figure is corrected. That does not, the third question—i.e., the source of the however, imply that Hispanics who are 55% rule—can carry great legal significance. racially black should be excluded from the Testimony on this question is a muddle. black population count because to do so Delegate Dance testified that her would undercount the number of black understanding came from Delegate Jones and individuals in the BVAP percentage. that the 55% figure was necessary in order to achieve DOJ approval, but her speech from The record shows that the ethnic data the House floor appears to represent it as her provided by the census only has redistricting own understanding. Delegate McClellan implications in states that may need to craft understood the committee's adopted criteria majority-Hispanic districts or majority- to require “each of the majority-minority “black-plus-Hispanic” (or “coalition”) districts ... to have a black voting-age districts. In states such as Virginia, on the population of at least 55 percent,” and

386 testified that she came to this understanding Based on the foregoing testimony, and the “[t]hrough conversations with Delegate evidence set forth below, the Court finds— Jones and with Legislative Services.” based on the record presented—that the 55% Delegate Tyler testified that her BVAP floor was based largely on concerns understanding came from Delegate Spruill, pertaining to the re-election of Delegate and Delegate Armstrong testified that, “as far Tyler in HD 75 and on feedback received as [he] could tell, the number was almost from Delegate Spruill and, to a lesser extent, pulled out of thin air.” Delegates Dance and Tyler. That figure was then applied across the board to all twelve of Delegate Jones initially testified that the the Challenged Districts. figure was drawn from the public hearings held with the community. Although this C. The Passage and Enactment of HB 5005 testimony is consistent with his prior statements from the House floor, the trial During the redistricting process, the General record does not support it. At trial, Delegate Assembly initially considered three plans: Jones admitted that he had not read the HB 5001, HB 5002, and HB 5003. HB 5001 transcripts from every hearing and could not was the plan designed and proposed by recall a single instance of a member of the Delegate Jones. HB 5002 and HB 5003, on public requesting a 55% BVAP level. the other hand, were designed by university Moreover, most of these hearings were students and proposed by other members of transcribed and submitted as evidence. A the House of Delegates. According to review of the public hearing transcripts from Delegate Jones, HB 5002 paired somewhere the Fall of 2010 fails to reveal any mention of between 40 and 48 incumbents, contained six the 55% figure. majority-minority districts, and had over a 9% population deviation. HB 5003, on the Delegate Jones also claimed that the 55% other hand, paired somewhere between 32– figure came from “Delegate Dance, and 34 incumbents, contained nine or ten Delegate Tyler, Delegate Spruill, and one or majority-minority districts, and also did not two othe[r] ... African–American members of meet the population deviation criteria. The the House.” This was then narrowed to Governor's Commission also designed two Delegates Dance, Tyler, and Spruill. After plans that contained 13 and 14 majority- further questioning, the 55% figure appears minority districts, respectively; however, to have come from feedback that Delegate those plans were never formally introduced Spruill received from various groups in or proposed. Virginia and from concerns that Delegate Tyler would be unable to hold her seat in HD Once the House had coalesced around HB 75 with a lower BVAP percentage. In 5001 and the plan was married with the discussing Delegate McClellan's seat, by Senate's redistricting plan, the bill was ready contrast, Delegate Jones indicated that, while for passage and enactment. On April 12, “no one” was comfortable leaving the BVAP 2011, the Virginia General Assembly passed percentage in HD 71 at 46%, “they felt that HB 5001. Based largely upon objections to we needed to have a performing majority- the Senate plan, then-Virginia Governor minority district, and from the members that Robert McDonnell vetoed HB 5001 three I spoke to, they felt that it needed to be north days later. After relatively minor revisions to of 50 percent minimum.” the House plan and more substantial revisions to the Senate plan, the legislature

387 passed HB 5005, which was signed by the has repeatedly admonished “represents a Governor and enacted into law on April 29, serious intrusion on the most vital of local 2011. functions.” By asking courts attempting to identify predominance to engage in a To comply with its obligations under the searching factual inquiry and comprehensive VRA, the Commonwealth then submitted the balancing before applying strict scrutiny— Enacted Plan (or “the Plan”) to the DOJ for and to justify strict scrutiny—the test gives preclearance. The DOJ precleared the Plan on the judicial branch the relatively broad power June 17, 2011, and the first election under the to strike down or uphold legislative districts new districts was held on November 8, 2011. without much guidance in how to do so, notwithstanding exhortations to exercise IV. ANALYSIS “extraordinary caution” to the contrary.

The questions raised in a racial sorting claim Therefore, to sharpen the judicial inquiry, to are deceptive in their simplicity but profound ensure that the requisite burden is satisfied, in their implications. Resting at the and to assess whether redistricting legislation crossroads of race, politics, and the has successfully navigated the narrow constitutional limits of federal power, the passage between constitutional and claim raises vital questions about how we unconstitutional redistricting, it is identify as citizens and how we project that appropriate to articulate how the Court identity in the halls of the legislature. The understands the predominance and strict Supreme Court has crafted an interpretive scrutiny inquiries are to proceed as a matter standard for navigating this field: the of law. The statewide and district-by-district legislature must not allow racial evidence then will be assessed within that considerations to predominate over (i.e., to framework. subordinate) traditional redistricting criteria. If this results from attempted compliance A. The Racial Sorting Framework with the VRA, the State must show a “strong basis in evidence” that its use of race was The essence of the racial sorting analysis is necessary to comply with a constitutional quite easy to articulate and comprehend. reading of the statute. First, courts examine whether racial considerations predominated over—or What this standard provides in conceptual “subordinated”—traditional redistricting grace, however, it lacks in practical guidance. criteria. If a court so finds, then the court For legislators, it does little to signal when it applies strict scrutiny. Second, the court may be constitutionally permissible to cut examines whether the legislature had a strong through a precinct or move a boundary line to basis in evidence for believing federal law alter the demographic composition of a required its use of race, assuming this is the district for purposes of complying with basis upon which the State seeks to justify its similarly mandatory federal law. For decision. litigators, it provides an enticingly vague standard and invites litigation that can drive But, as this case demonstrates, the devil is in up the cost of conducting and defending the the details. The parties actually have State's redistricting endeavor. And for courts, proposed conflicting rules regarding the it provides an uncomfortable amount of “subordination” test. And each believes that discretion in a field that the Supreme Court the Supreme Court's recent Alabama decision

388 reinforces its position. But both cannot be Rather, the Court pointed out that “[t]here right, and we think that neither is. [was] considerable evidence that this goal had a direct and significant impact on the The Plaintiffs' case and our colleague's drawing of at least some of [the district's] dissent revolve chiefly around the evidence boundaries.” “That [the State] expressly that legislators employed a 55% BVAP floor adopted and applied a policy of prioritizing when crafting the Challenged Districts. mechanical racial targets above all other According to Plaintiffs' theory, “race districting criteria (save one-person, one- predominates if it is the most important vote) provides evidence that race motivated criterion.” In other words, subordination the drawing of particular lines in multiple “does not require open conflict with districts in the State.” ‘traditional’ districting criteria.” The Alabama case could not be clearer that Thus, the Plaintiffs, like the dissent, propose use of racial BVAP floors constitutes a per se rule: the drafters' use of the 55% evidence—albeit significant evidence—of BVAP floor in districting is verboten and predominance. But, we do not read Alabama automatically satisfies Miller's predominance to hold that use of a BVAP floor satisfies the standard. This, the Plaintiffs argue, is the Plaintiffs' predominance burden merely central thrust of the Alabama case: because the floor was prioritized “above all other districting criteria” in “importance.” This case boils down to a very simple Rather, the significance of the racial floor is proposition: May Virginia's General its impact on the creation of the district. This Assembly utilize a fixed numerical demands “actual conflict between traditional racial threshold in establishing redistricting criteria and race that leads to the district lines.... The answer to this subordination of the former, rather than a question has been addressed and merely hypothetical conflict that per force definitively settled by the United results in the conclusion that the traditional States Supreme Court in its recent criteria have been subordinated to race.” Alabama decision which unambiguously condemned the use of To understand why this is so, one must racial thresholds in redistricting[.] remember the origin of—and the rationale for—the Shaw claim. The district boundaries Despite its tempting simplicity and visceral in Shaw were so outlandish that—despite any appeal, the Court must reject this proposal. express textual classification by race in the Although the Alabama decision condemned statute—“it rationally [could] be viewed only the use of unwritten racial thresholds, it did as an effort to segregate the races for not establish a per se predominance rule. In purposes of voting, without regard for Alabama, the Court accepted the lower traditional districting principles.” In court's finding that legislators had employed response, the Court treated the legislation as BVAP percentage floors in the challenged though it had employed a facial classification districts. If the use of those thresholds and subjected the legislation to strict scrutiny constituted predominance per se, then there rather than requiring the plaintiffs to prove would have been little reason for the Supreme both discriminatory purpose and Court to have remanded the case to the discriminatory effect. district court to determine whether race predominated.

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In Shaw, the Court compared the districts to required to make a threshold showing of racial “balkanization” and “political bizarreness.” apartheid” and cautioned that such districts threaten expressive harm—i.e., the The district challenged in Miller was not as stigmatization of individuals “by reason of bizarre as those found in Shaw, but, “when its their membership in a racial group” and the shape [was] considered in conjunction with incitement of “racial hostility”—as well as its racial and population densities,” it became representative harm—i.e., the threat that “exceedingly obvious” that the district elected officials would begin to “believe that employed “narrow land bridges” in “a their primary obligation is to represent only deliberate attempt to bring black populations the members of that group, rather than their into the district.” There, the district's various constituency as whole.” spindly appendages contained nearly 80% of the district's total black population. These Unlike in its racial and political vote dilution facially evident deviations from neutral cases, however, the Supreme Court did not districting conventions could only be charge plaintiffs with producing evidence explained on the basis of race. Thus, districts that such discriminatory effects had, in fact, such as the one found in Miller still raise the come to pass. Such evidence is not necessary specter of expressive or representative harms in a racial sorting claim because “[e]xpress and still manifest, on the face of the law, the racial classifications are immediately lawmakers' clear intent to “us[e] race as a suspect” and are subjected to strict scrutiny. basis for separating voters into districts.” This is similarly true for the functional Moreover, these districts necessarily reflect equivalents of express racial classifications: the kind of “very stereotypical assumptions statutes “unexplainable on grounds other than the Equal Protection Clause forbids;” race” or statutes that are an “obvious pretext namely, the “demeaning notion that members for racial discrimination.” of the defined racial groups ascribe to certain ‘minority views' that must be different from No sooner had the ink dried on the Supreme those of other citizens.” Court's opinion in Shaw, than it was faced with a slightly different question. What if the However, when racial considerations do not district's boundaries are not “bizarre” or entail the compromise of neutral districting “irrational,” but still reflect a clear norms, the basis for a racial sorting claim manifestation of racial classification? In evaporates. Traditional, neutral districting Miller, the Court recognized that Shaw principles reflect certain judgments about represented an “analytically distinct” claim, voters, but these are the same judgments that but decided that the litigation before it animate all geographic—as opposed to “require[d] [the Court] further to consider the proportional—representation systems: that requirements of the proof necessary to those who live near each other in the same sustain this equal protection challenge.” communities, counties, and cities have Rather than abandoning the claim's something in common, something that animating principles, the Court altered the warrants their representation as a reasonably threshold showing and clarified that parties defined geographical—rather than racial or bringing a racial sorting claim are “neither political—unit. confined in their proof to evidence regarding the district's geometry and makeup nor More importantly, holding that otherwise reasonably neutral districts are subject to

390 strict scrutiny because of a merely theoretical Based on the Supreme Court's recent decision or latent conflict between race and traditional in Alabama, the Court now appears to be districting criteria would unlash the Shaw divided, or at least equivocal, on whether claim from the mooring of facial BVAP thresholds alone are sufficient to classification jurisprudence. If this legal constitute predominance. equivalence is forfeited, it is unclear why the “analytically distinct” nature of the claim Although the unwritten use of a racial floor should not unravel entirely, forcing plaintiffs by legislators may seem repugnant at first to prove the expressive or representative blush, the interpretation of predominance harms postulated in Shaw. proposed by the Plaintiffs and the dissent has quite serious repercussions. If the use of a Admittedly, the issue presented in this case is BVAP threshold—any BVAP threshold—is a difficult one. The Supreme Court reserved sufficient to trigger strict scrutiny in the from the very outset the question of whether absence of a facial manifestation in the lines the intentional use of a 50% BVAP threshold themselves through the subordination of was sufficient to sustain a racial sorting traditional redistricting principles, then the claim: constitutionality of the Voting Rights Act— as applied to redistricting—would be drawn It is unnecessary for us to decide into question. More fundamentally, the whether or how a reapportionment compatibility of the Fourteenth Amendment's plan that, on its face, can be explained Equal Protection Clause and the Fifteenth in nonracial terms successfully could Amendment's Enforcement Clause might be be challenged. Thus, we express no drawn into question. The Court does not view as to whether “the intentional believe that the Constitution—or that creation of majority-minority Supreme Court precedent—either requires or districts, without more,” always gives permits the Plaintiffs' view of predominance rise to an equal protection claim. and, therefore, does not believe that the racial sorting claim extends any further than its Although the principal opinion in Bush v. original purpose: to strike down those Vera attempted to put this question to rest, districts that, on their face, reflect racial Justice Kennedy expressed some doubts in classifications. his concurring opinion: Moreover, the Plaintiffs do not take umbrage I join the plurality opinion, but the at the use of racial targets, so long as those statements in ... the opinion that strict targets serve the ends of preserving minority scrutiny would not apply to all cases voters' ability to elect. Quoting from the of intentional creation of majority- Alabama decision during their closing minority districts require comment. I statement, the Plaintiffs observed that, in do not consider these dicta to commit order to be narrowly tailored, the legislature me to any position on the question must ask “to what extent must we preserve whether race is predominant existing minority percentages in order to whenever a State, in redistricting, maintain the minorities' present ability to foreordains that one race be the elect the candidate of its choice.” But, the majority in a certain number of inquiry into whether the targets are districts or in a certain part of the adequately justified only occurs after finding State. race predominant. If targets themselves

391 constitute subordination, then it is hard to see claim that a district has been gerrymandered how the Plaintiffs have not smuggled one on racial lines.’ ” The Court's quotation of inquiry into the next. This would again Shaw in this instance rather clearly reflects its threaten the foundations of the VRA by intention: making all its redistricting applications subject to strict scrutiny and set up a potential [T]raditional districting principles conflict between the Fourteenth such as compactness, contiguity, and Amendment's Equal Protection Clause and respect for political subdivisions ... the Fifteenth Amendment's Enforcement are important ... because they are Clause. objective factors that may serve to defeat a claim that a district has been After this journey, we thus arrive back where gerrymandered on racial lines .... Put we started: Miller's predominance test. In differently, we believe that Miller, the Court described the Plaintiffs' reapportionment is one area in which burden as follows: appearances do matter.

The plaintiff's burden is to show, Therefore, we rely on the principal opinion in either through circumstantial Bush, which stated that the “neglect of evidence of a district's shape and traditional districting criteria” is “necessary, demographics or more direct [but] not sufficient” for strict scrutiny to evidence going to legislative purpose, apply. that race was the predominant factor motivating the legislature's decision Our dissenting colleague advocates a to place a significant number of different reading of predominance. The voters within or without a particular dissent views the 55% BVAP floor as a “filter district. To make this showing, a through which all line-drawing decisions had plaintiff must prove that the to pass” and argues that this “racial filter legislature subordinated traditional necessarily ... rendered all traditional criteria race-neutral districting principles, that otherwise would have been ‘race- including but not limited to neutral,’ tainted by and subordinated to race.” compactness, contiguity, and respect According to the dissent, “a legislative for political subdivisions or district necessarily is crafted ‘because of race communities defined by actual shared ’ ” when such a filter is employed. The interests, to racial considerations. dissent takes the view that the “application of strict scrutiny in this suit was never a close Plaintiffs would prefer we stop reading question” because when the legislators Miller at this exact punctuation mark. And, “intentionally created [55% BVAP] under that formulation, they could plausibly districts,” this “was sufficient to show that argue that they have proved racial race was a predominant factor in its predominance merely upon proof that redistricting.” We respectfully decline to legislators used a 55% BVAP floor. But the adopt this reading of predominance. very next sentence in Miller leads where this Court must follow: “Where these or other First, the dissent's interpretation echoes the race-neutral considerations are the basis for view that was rejected by the principal redistricting legislation, and are not opinion in Bush v. Vera. In his separate Bush subordinated to race, a State can ‘defeat a concurrence, Justice Thomas wrote:

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In my view, [the intentional creation disadvantaged individuals include Black of a 50% BVAP district] means that Americans, Hispanic Americans, Native the legislature affirmatively Americans, Asian Pacific Americans, and undertakes to create a majority- other minorities[.]’ ” minority district that would not have existed but for the express use of The dissent retreads this path by citing to City racial classifications—in other words, of Richmond v. J.A. Croson Co. As in that a majority-minority district is Adarand, the Croson Court was faced with a created “because of,” and not merely city ordinance expressly requiring “in spite of,” racial demographics. contractors to subcontract at least 30% of When that occurs, traditional race- their work on city contracts to “Minority neutral districting principles are Business Enterprises” owned and controlled necessarily subordinated (and race by “[c]itizens of the United States who are necessarily predominates), and the Blacks, Spanish-speaking, Orientals, Indians, legislature has classified persons on Eskimos, or Aleuts.” the basis of race. The resulting redistricting must be viewed as a We have no doubt that strict scrutiny is racial gerrymander. applied to all express racial classifications, but neither Adarand nor Croson help light Although Justice Thomas recognized that this our path to interpreting predominance. question was “expressly reserved” in Shaw I, Adarand itself explicitly disclaimed any he believed that the Court had “effectively application to facially neutral legislation, resolved it in subsequent cases.” stating that “this case concerns only classifications based explicitly on race, and Justice Thomas first pointed to the Supreme presents none of the additional difficulties Court's decision in Adarand Constructors, posed by laws that, although facially race Inc. v. Pena, as evidence that “all neutral, result in racially disproportionate governmental racial classifications must be impact and are motivated by a racially strictly scrutinized.” But this presumes what discriminatory purpose.” must in fact be proven: that the Virginia legislature's facially neutral redistricting Justice Thomas next pointed to Miller and legislation was the legal equivalent of a argued that the State's “concession that it facially racial classification. Predominance is intentionally created [50% BVAP] districts itself the arbiter of this legal equivalency. was sufficient to show that race was a predominant, motivating factor in its In Adarand, the question was whether a redistricting.” The dissent also relies upon contracting clause providing “financial Miller to argue that strict scrutiny is incentive[s] to hire subcontractors controlled warranted when a legislature is “motivated by ‘socially and economically disadvantaged by,” rather than merely “conscious of,” race individuals' ... violates the equal protection in its districting. But this demands the component of the Fifth Amendment's Due impossible. We cannot ask legislators to Process Clause.” In that case, federal law accidentally wander into compliance with the required the use of the clause in most federal VRA, and Miller cannot be read to invoke agency contracts, and expressly “require[d] strict scrutiny whenever legislators the clause to state that ‘[t]he contractor shall intentionally create a district with a presume that socially and economically predetermined BVAP floor.

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cognizable harms in its stead. The Supreme In Miller, there was considerable evidence Court recognized as much in Regents of the showing “that the General Assembly was Univ. of Cal. v. Bakke. motivated by a predominant, overriding desire to assign black populations to the In Bakke, the Supreme Court struck down a Eleventh District and thereby permit the higher education admissions program that creation of a third majority-black district.” It reserved a specific number of seats for was the State's overriding assignment of minority applicants. The problem with this voters on the basis of race, rather than other scheme was that it “prefer[red] the districting criteria, that made the third designated minority groups at the expense of majority-minority district constitutionally other individuals who [were] totally offensive. If Miller stood for the proposition foreclosed from competition for the 16 that the intentional creation of a 50% BVAP special admissions seats[.]” As Justice district alone constituted “predominance,” Powell wrote, “[w]hen a classification denies then all three majority-minority districts an individual opportunities or benefits would have constituted racial gerrymanders. enjoyed by others solely because of his race Instead, the opinion focused on the Eleventh or ethnic background, it must be regarded as District, which was a geographic suspect.” “monstrosity” and required the State to add lengthy appendages, split precincts, and Justice Powell contrasted this holding with abandon “all reasonable standards of the Supreme Court's holding the previous compactness and contiguity.” year in United Jewish Organizations v. Carey (UJO). In UJO, the State of New York had The Miller decision does, of course, redrawn its voting districts “to enhance the recognize that “statutes are subject to strict electoral power of certain ‘nonwhite’ voters” scrutiny under the Equal Protection Clause and “meet [the] objections of the [DOJ] under not just when they contain express racial § 5 of the Voting Rights Act [.]” The classifications, but also when, though race Supreme Court affirmed the plan. According neutral on their face, they are motivated by a to Justice Powell, UJO was distinguishable racial purpose or object.” But it is Miller's “as a case in which the remedy for an subordination test itself that mans the administrative finding of discrimination floodgates to ensure that the predominance encompassed measures to improve the exception to traditional facial classification previously disadvantaged group's ability to jurisprudence does not swamp the standing participate, without excluding individuals rule that Equal Protection Clause claims belonging to any other group from enjoyment against facially neutral statutes usually of the relevant opportunity—meaningful require plaintiffs to prove discriminatory participation in the electoral process.” When purpose and discriminatory effect. a legislature crafts a plan that reflects traditional, neutral, districting conventions Subordination in the enacted plan (rather than and does not intentionally dilute any group's subordination of hypothetical plans) is meaningful participation in the electoral required because a map that reflects neutral process, there is no constitutionally conventions on its face eliminates the cognizable offense to be found. The use of a assumption of expressive and representative quota does not change this. harm found in Shaw I without necessarily From this vantage, the second problem with imposing any other constitutionally the dissent's reading comes into view: an

394 interpretation of predominance that ignores be one step too far. Predominance requires “discriminatory effect” and deploys strict that racial considerations manifest in the scrutiny when a neutral statute is adopted enacted plan itself through the actual “because of” race-based motives would allow subordination of other districting criteria. claims to proceed on “racial purpose” alone. That determination cannot be made without Such an interpretation raises vexatious examining the respective roles of both race justiciability and balance of powers and the other redistricting factors in the actual questions. plan before the Court.

A redistricting plan struck down “solely For the foregoing reasons, we reject the because of the motivations of the men who invitation to read the unwritten use of a 55% voted for it” regardless “of its facial content BVAP floor as a per se satisfaction of the or effect ... would presumably be valid as predominance inquiry in a racial sorting soon as the legislature or relevant governing claim. Of course, evidence of such thresholds body repassed it for different reasons.” That is still significant when examining those is because the offense is not in the legislative districts that exhibit deviations from content of the enactment but only in the traditional, neutral districting principles. mental content of the legislators. Although Shaw II, for example, recognized that racial divining the amalgamated motivations of an deviations from neutral principles cannot be entire legislature may be tolerable when a saved by later resort to non-racial showing of discriminatory effect further girds explanations. the inquiry, a “purpose only” equal protection claim would require courts to rest judgment According to the dissent, Shaw II compels a upon the thoughts of a coequal branch alone. finding of predominance whenever non- We decline to take that path. As Chief Justice racial factors are only considered “consistent Burger once wrote, with the racial objective.” But the district at issue in Shaw II was “highly irregular and The seductive plausibility of single geographically non-compact by any steps in a chain of evolutionary objective standard that can be conceived.” development of a legal rule is often Simply put, the Shaw II Court was faced with not perceived until a third, fourth, or a situation wherein some “race-neutral” fifth ‘logical’ extension occurs. Each goals—such as partisan balance—could still step, when taken, appeared a be partially advanced despite the qualitative reasonable step in relation to that predominance of race, but it was not faced which preceded it, although the with a situation wherein racial districting aggregate or end result is one that goals posed no conflict with neutral would never have been seriously districting criteria whatsoever. considered in the first instance. This kind of gestative propensity calls for Moreover, the author of Shaw II, Chief the ‘line drawing’ familiar in the Justice Rehnquist, joined the principal judicial, as in the legislative process: opinion issued the same day in Bush v. Vera, ‘thus far but not beyond.’ suggesting that these two opinions can—and should—be read in harmony. The Bush The dissent's interpretation might be a logical opinion joined by Chief Justice Rehnquist step in the evolution of the equal protection explicitly rejected the interpretation that the “predominance” test. But we think it would

395 dissent now attributes to his opinion in Shaw own redistrictinq guidelines, the II. drafters split seven precincts between the majority-black District 26 and the We adopt a reading consistent with Shaw II, majority-white District 25, with the as evidenced by our finding of racial population in those precincts clearly predominance in HD 75. A State cannot divided on racial lines. district predominantly on the basis of race and then insulate such racial line drawing by But, as is clear from the cited passage, the pointing to other non-racial goals advanced drafters' transgression of their own by the racial sort. redistricting guidelines—like their informal use of a racial threshold—is evidence of Alabama, like its predecessors in the Shaw– predominance, not dispositive proof. That is Miller line, holds that racial thresholds because “subordination” is not the same as a constitute evidence, not dispositive proof, of “violation” or “transgression.” Subordination racial predominance. If the thresholds requires a balancing of degree to determine employed by the legislators crafting the bill whether non-racial criteria or racial criteria do not manifest in the formation of the predominated. enacted district, then there is no facial classification equivalent upon which to rest For example, it is difficult to understand what Shaw's “analytically distinct” framework. a “transgression” of “compactness” would even entail. Compactness, like temperature, If one strict predominance rule were not falls along a range, and there is no enough, Intervenors advance a counter- professional consensus about what degree of theory that they claim is derived from departure (from any of more than twenty Alabama. As the Intervenors stated during measures) is enough to say a district is “not their closing argument: compact.”

“[T]he question you must answer to More importantly, the “traditional” criteria get to strict scrutiny ... is whether the discussed in the Shaw–Miller cases are use of race resulted in any district informed by, but not defined by, state law. which violated Virginia law or Rendering the predominance inquiry subject traditional redistricting criteria of the to state law would make the existence of a state, or, as the state did here, their federal constitutional claim dependent upon specifically adopted criteria.” an individual state's resolutions, statutes, or constitution. Intervenors drew the Court's attention to a passage in the Alabama decision where the The determinative question is not whether a Court “talk[ed] about [the State] State's individualized districting transgressing its own state guidelines, its own requirements are “violated,” but whether state criteria.” And so it did: traditional, neutral districting criteria and other districting criteria have been generally There is considerable evidence that “subordinated” to racial considerations on the [the racial thresholds] had a direct and whole. A State's violation of, or departure significant impact on the drawing of from, its own stated criteria can constitute at least some of District 26's evidence in the predominance analysis, but boundaries .... Transgressing their Alabama does not require that the State do so

396 in order to make out a racial sorting claim. the record to ascertain the underlying Intervenors' proposed interpretation is, rationale for those deviations. In determining accordingly, rejected. the reasons for deviations from the traditional neutral criteria, it will be necessary to 1. Predominance Analysis determine whether a deviation was caused in part or entirely by the need to comply with As common courtesy holds, one should not the one-person, one-vote precepts16 or by shoot down a suggestion without offering an political circumstances such as protection of approach to replace it. Although incumbents. “predominance,” “subordination,” “dilution,” and “retrogression” are all Third, the Court will weigh the totality of the standards not amenable to hard rules or safe evidence and determine whether racial harbors, the Court does have an obligation to considerations qualitatively subordinated all the parties to explain its reasoning as clearly other non-racial districting criteria. and definitively as possible. Therefore, the Court will walk through each of the steps of a. Neutrality the analytical framework that it has applied to arrive at its conclusions with respect to the A racial sorting claim requires the Court find Challenged Districts. that the State subordinated traditional, neutral criteria, and other non-racial districting A racial sorting claim is “one area in which criteria to racial considerations. Traditional appearances do matter.” Because a district districting principles include, inter alia, must exhibit “substantial disregard of compactness, contiguity, respect for political customary and traditional districting subdivisions, and communities “defined by practices” in order to animate the racial actual shared interests.” These conventions sorting doctrine's central concern with facial neutrally advance the values inherent in a classification, the Court will evaluate each geographic—rather than proportional— Challenged District for “subordination” in system of representation, such as three steps. responsiveness, accountability, familiarity, ease of access, ease of administration, and First, the Court will review the district on the political engagement. basis of its compliance with traditional, neutral districting criteria, including, but not The specific traditional criteria outlined in limited to, compactness, contiguity, nesting, Miller and Shaw are not constitutionally and adherence to boundaries provided by required. Rather, these criteria are important political subdivisions and natural geographic because they reflect the neutrality that is features. central to a redistricting statute that complies with the Equal Protection Clause. Second, the Court will examine those aspects Traditional, neutral conventions are of the Challenged District that appear to important to evaluate in a racial constitute “deviations” from neutral criteria. gerrymandering claim “because they are These may be particular, isolated areas along objective factors that may serve to defeat a the district's boundary, or—on occasion—the claim that a district has been gerrymandered district itself may seem facially questionable. on racial lines.” Based on the evidence submitted and Of course, states may continue to develop testimony provided, the Court will examine new neutral districting principles, and a

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State's consistent adherence thereto would minimum[ize] travel time for a representative also be considered an objective factor to help to travel around the district”—“drastic defeat a claim of gerrymandering. Existing departures from compactness are a signal that traditional districting conventions “evolved something may be amiss.” over the years through the political process” itself. What renders these guiding principles Yet, compactness is surprisingly ethereal important for redistricting purposes is that given its seemingly universal acceptance as a they observe and advance neutral democratic guiding principle for districting. All of the values. expert testimony provided reveals one deep conceptual dilemma: no one can agree what The fact that a district deviates from neutral it is or, as a result, how to measure it. There criteria on its face does not, however, mean are “at least 20” measures, not one of which that those deviations were racially motivated. can claim any greater legitimacy than its Other, non-racial districting criteria may also peers. The Reock test measures geographical be used to defeat a claim of racial dispersion and therefore is sensitive to—and gerrymandering by demonstrating that the its scoring punishes—elongated districts. The district's deviations from neutral criteria are Polsby–Popper test measures perimeter attributable to race-neutral motives. Chief dispersion and therefore is sensitive to—and among these are political and incumbency its scoring punishes—oddly shaped district considerations. boundaries with large numbers of indentations. Meanwhile, the Schwartzberg During the first stage of the predominance test looks at “a normalized standard deviation inquiry, the Court examines whether the of the distance from every point to the center redistricting legislation—on its face—raises of the district,” and the Boyce–Clark test questions about the use of discriminatory, measures the “center of inertia” or “how far individualized criteria (such as race, politics, is the farthest voter from the center of the or incumbency) or whether it appears to be district.” One notable political scientist has predominantly explainable on the basis of quipped that all of these measures are just traditional, neutral, geographic criteria (such variants of “the intraocular test”: “people as compactness, contiguity, or respect for look at distric[t] maps, they figure out which political subdivisions). districts they think look ugly, and then they choose the compactness measure which In reviewing the Challenged Districts, the comports with their eyeball view of the Court will consider neutral criteria in the mapping.” following manner: But compactness is not important for its own i. Compactness sake. Rather, compactness is important because it serves certain values of geographic As Justice Stevens stated in Karcher v. representation. Therefore, the “major Daggett, “geographical compactness serves transportation corridor” district discussed by independent values; it facilitates political Justice Stevens would fare poorly on the organization, electoral campaigning, and Reock metric, but would serve its purposes in constituent representation.” Although “non- a manner that might be reflected by another compact” districts may sometimes be measure (such as driving time). Meanwhile, necessary to serve these values—such as a district that adheres to highly irregular when a “major transport corridor might ... county lines, or easily identifiable geographic

398 features, might score poorly on the Polsby– Contiguity, like compactness, serves Popper test, but would enhance the values important democratic purposes, binding served by those neutral criteria, as discussed geographic communities together and below. If the price of advancing these other helping to enable effective representation. In neutral criteria is compactness, then the cost upholding a district under the Virginia is not a judicial concern. constitution's contiguity provision despite its division by water, the Supreme Court of Nor does a district's “absolute” compactness Virginia reflected upon this raison d'être: score matter so much as its “relative” score. The Court's examination of a district's Although the record shows that travel compactness measure may be informed by between [some] precincts and the the average in the State (which is important remainder of the district requires to take account of a State's inalterable travel through another district, there features), may be informed by the average in is nothing in this record showing that the nation (which is important to take account such access is unreasonable, unduly where a State's own averages may be far burdensome, or adversely impacts the above or far below the national average), and ability of residents to secure may be informed by historical averages meaningful representation of their (which is important to account for trends in interests or effective communication compactness over several districting cycles), with their elected representative. (noting it is “perfectly reasonable” to use compactness measures “in comparing two As the Page court reminded, “contiguity and maps for the same state”). These are all other traditional districting principles are factors that courts must consider when ‘important not because they are evaluating this criterion. constitutionally required,’ but rather ‘because they are objective factors' courts may In short, the Court would be remiss to look at consider in assessing racial gerrymandering compactness scores in a vacuum, but that claims.” does not render them useless as evaluative tools in the predominance inquiry. The key is A district split by water has not “violated” not “absolute” compactness, “relative” contiguity for the purposes of a racial sorting compactness, or even a State's adherence to claim any more than a district connected by a its own constitutional or statutory single point on land has “respected” compactness definitions (although these may contiguity. As with compactness, contiguity be illuminating); rather, the key is whether admits of degrees. Districts that are not compactness deviations are attributable to divided by water are more contiguous than something meaningful, such as other neutral those that are, and districts that are at least criteria or a legitimate use of non-neutral connected by a water crossing—such as a criteria. As Dr. Hofeller stated at trial, bridge—are more contiguous than districts echoing Justice Stevens' sage advice, that are not. Land contiguity is important not compactness is “more like a flag than a because it is determinative, but because it conclusion.” reflects the common understanding that bodies of water may mark the natural divide ii. Contiguity between communities of interest or constitute barriers to the effective function of democratic activities.

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Of course, deviations from land contiguity When a legislative district is “nothing more may also reflect adherence to other neutral than an artificial unit divorced from, and districting criteria. Many cities lie across indeed often in conflict with, the various rivers or around harbors and, indeed, are built communities established in the State,” outward from the central focal point of the legislators cannot represent their constituents community: the waterfront. In such cases, a properly and voters cannot exercise the ballot body of water that “divides” a community intelligently. A report produced by the may actually be the primary factor that unites Governor's Commission distilled the it. In other words, a “deviation” from overarching themes that were repeatedly “contiguity” standards may be an attempt to voiced during its public forums from around respect a distinct community of interest or the Commonwealth. As the Commission political subdivision. The subordination of noted, “the splitting of municipal and county contiguity conventions is, like compactness, jurisdictions drew the ire of citizens, who ... simply a factor that the Court must consider pointed out the difficulties that citizens have in conducting its predominance analysis. in knowing who to contact, who to hold accountable, and who among several iii. Political Subdivisions legislators should coordinate or lead the representation of local city and county A common and significant neutral districting interests in the General Assembly.” criterion is respect for political subdivisions, such as counties or cities. “Subdivision In evaluating whether neutral criteria were boundaries tend to remain stable over time. subordinated, a legislature's adherence to city Residents of political units such as and county boundaries provides an important townships, cities, and counties often develop reference point for courts undertaking the a community of interest, particularly when predominance analysis. Of course, the the subdivision plays an important role in the legislature may, and often will, need to provision of governmental services.” deviate from political subdivision borders to Moreover, adherence to subdivision comply with federal- or state-mandated boundaries can facilitate civic engagement, population constraints. In such situations, the enhance democratic accountability, and Court will look to whether another neutral increase administrative convenience. As criterion—such as compactness, geographic Justice Powell once wrote: boundaries, precinct boundaries, or communities of interest—helps to explain the Most voters know what city and method of departure. In this manner, neutral county they live in, but fewer are criteria can often form a “backstop” for one likely to know what [legislative] another when one criterion cannot be fully district they live in if the districts split satisfied, thus ensuring that neutral criteria counties and cities. If a voter knows are still predominating in the balance. his [legislative] district, he is more likely to know who his representative iv. Natural Geography is. This presumably would lead to Geographic features, such as mountains more informed voting. It also is likely ranges or rivers, may also be used to provide to lead to a representative who knows a neutral boundary during the districting the needs of his district and is more process. Oftentimes, these geographic responsive to them. indicators mark the boundaries of distinct

400 communities of interest or can provide a be sufficient to show adherence to neutral point of reference for voters, candidates, and criteria. This is because VTDs can easily be representatives. In many cases, these natural strung together into grotesque formations boundaries may already constitute the basis having little regard for compactness, for governmental subdivision lines. contiguity, political subdivisions, or other important neutral criteria advancing Over time, artificial geography may also democratic values. In short, a district could come to play a similar role. Major avoid splitting any VTDs but remain highly transportation thoroughfares may slowly suspicious on its face. generate distinct communities of interest on either side of the divide, or the marker may For these same reasons, however, VTD splits be used as a useful reference point for voters, will often provide a flag for further *539 candidates, and representatives seeking to inquiry. The unexplained splitting of several understand their own district's boundaries. VTDs in a single district can call into These are important factors to consider, question the criteria guiding that district's especially when adherence to traditional construction. subdivision lines is not possible. vii. Communities of Interest v. Nesting Among traditional, neutral districting Nesting refers to the practice of putting two principles, the concept of respecting or more districts of the lower chamber of the “communities of interest” is the most state legislature wholly within each district of enigmatic. On the one hand, respect for such the upper chamber. “By permitting voters communities is often considered the guiding readily to identify their voting districts and light of the other neutral principles. On the corresponding representatives, a nested plan other hand, defining some “communities of can be expected to foster voter participation.” interest” may involve straddling the fence Nesting may result in a House district between neutral and discriminatory criteria. boundary that appears inexplicable by neutral For example, communities of interest may be criteria until the corresponding Senate district defined by relatively objective factors, such is laid atop. as service delivery areas, media markets, or major transit lines. Similarly, communities vi. Precincts may be somewhat objectively characterized as rural, suburban, or urban. These can be Precincts and Voting Tabulation Districts valid neutral criteria, assuming that (“VTDs”) are often the smallest objectively legislators actually have access to this identifiable geographic groupings that information and rely upon it. legislators use to organize legislative districts. They may occasionally correspond The “communities of interest” criterion to towns, neighborhoods, or other identifiable becomes less neutral, however, when one communities of interest, but they are not considers “cultural,” “social,” or “religious” “governmental jurisdictions” in their own communities of interest. This tendency to right. In Virginia, VTDs generally morph into a more individualized metric correspond to voting precincts. explains the Miller Court's qualification that Given their small size, compliance with traditional districting principles include precinct or VTD boundaries alone will rarely “respect for ... communities defined by actual

401 shared interests.” To give effect to this city limits, local election precincts, elusive delineation, it is important to have and voting tabulation districts. demonstrable evidence of shared interest when the boundaries cannot be explained on Because traditional, neutral principles an objective or neutral basis. advance fundamental democratic values and neutral state interests, districts that viii. State Criteria substantially disregard these principles can “caus[e] a severe disruption of traditional For the reasons discussed above, a plaintiff forms of political activity.” In Bush v. Vera, does not need to prove that a State “violated” Justice O'Connor described the impact that its own districting criteria in order to prove such districts can have: predominance. A State's deviation from its own constitutional, statutory, or adopted Campaigners seeking to visit their criteria does, however, constitute evidence constituents “had to carry a map to that is probative of subordination. identify the district lines, because so often the borders would move from b. Deviations block to block”; voters “did not know the candidates running for office” If the Challenged Districts, or significant because they did not know which parts of the Challenged Districts, appear district they lived in. In light of [the inexplicable by reference to the consistent State's] requirement that voting be application of traditional, neutral principles, arranged by precinct, with each then the Court will examine the basis for precinct representing a community those departures. Deviations from neutral that shares local, state, and federal criteria signal the presence of potential representatives, it also created subordination and lay the foundation for the administrative headaches for local sorting claim; namely, that the districts election officials[.] reflect racial classifications of individual voters and do not constitute neutral, Such complaints have been echoed by local geographic representative units. election officials in Virginia who “end up taking the brunt of complaints from voters The Supreme Court has cited several sources who can't understand why they can't vote in of direct and circumstantial evidence that their old precinct, why they can't find any of courts can rely upon in identifying racial their current office holders on the ballot, and deviations, including: why they are in the same district as a relative who lives nowhere near them[.]” [S]tatements by legislators indicating that race was a predominant factor in Of course, the presence of identifiable redistricting; evidence that race or deviations alone does not satisfy the percentage of race within a district predominance inquiry because was the single redistricting criterion “subordination” requires “substantial that could not be compromised; ... use disregard” for traditional, neutral districting of land bridges in a deliberate attempt criteria. The substantiality of any identified to bring African–American deviations—and whether it is sufficient to population into a district; and creation support a finding of predominance—is of districts that exhibit disregard for

402 examined when the Court weighs the stringent than the 5% deviation held evidence as a whole in the final stage. generally permissible in Brown v. Thomson, cannot explain away deviations from neutral In reviewing the Challenged Districts, the principles. The predominance inquiry Court will consider evidence bearing on examines the basis upon which voters were legislators' bases for the deviations. sorted into appropriately apportioned Deviations may be attributed to any number districts. Where apportionment by political of considerations, but legislators typically subdivision must be sacrificed to equal rely upon the following: population equality, population goals, for example, other neutral race, political affiliation or preference, and principles such as compactness and precinct incumbency. The Court will evaluate these boundaries can often pick up the slack. A bases for deviation in the following manner: substantial deviation from neutral principles, therefore, only admits of answer by other, i. Population non-neutral criteria, such as race or political affiliation. “[A]n equal population goal ... is part of the redistricting background, taken as a given, ii. Racial Deviations when determining whether race, or other factors, predominate in a legislator's One explanation for a district's deviations determination as to how equal population from neutral districting criteria may be objectives will be met.” Thus, achievement voters' race. The mere awareness or of the population goal is not a traditional consideration of race by legislators in their redistricting factor that is considered in the districting decisions does not, on its own, balancing that determines predominance. provide sufficient evidence to support a claim However, the requirement to comply with of racial sorting under the Equal Protection federally imposed population goals is Clause. It takes more than consideration of relevant to assessing why a district may race to prove that race predominated over appear to deviate from neutral criteria. This is traditional factors. Of course, if legislators' particularly true where the census data shows use of race entailed the subordination of other significant losses or gains of population in districting criteria, it must be adequately certain geographic areas of a State. justified under the strict scrutiny regime.

The Court's analysis does not change just iii. Political Deviations because the State has decided to adopt a lower percentage deviation threshold than Another explanation for a district's deviations constitutionally required. In Alabama, the from neutral districting criteria may be legislature adopted “a more rigorous voters' political opinions, affiliations, and deviation standard than our precedents have beliefs. As with race, the mere awareness or found necessary under the Constitution.” consideration of voters' political affiliation There, as here, it seems that “[c]ompliance by legislators is both unavoidable and with these two goals”—BVAP targets and a constitutionally permissible. Accordingly, ±1% population deviation rule—“posed districting on the basis of political affiliation particular difficulties with respect to ... the may be a legitimate criterion for the State's ... majority-minority districts[.]” But legislature to consider. “legislative efforts to create districts of approximately equal population” more

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The Intervenors have raised the argument Some of these deviations reflect an interest in that some of the Challenged Districts have drawing district lines between incumbents' political, rather than racial, justifications. residences to avoiding pairing incumbents. Other deviations, however, reveal an effort to iv. Incumbency Deviations fence in the incumbent's preferred voters or fence out the incumbent's detractors or Yet another explanation for a district's challengers. Whether this latter definition of deviations from neutral districting criteria “incumbency protection” states a legitimate may be incumbency considerations. In government interest need not be decided here Gaffney v. Cummings, the Supreme Court because no one has presented that issue. observed that: “It would be idle, we think, to contend that any political consideration taken That said, we share the dissent's concern over into account in fashioning a reapportionment Intervenors' “implicit suggestion that plan is sufficient to invalidate it.... approval by incumbent legislators” can Redistricting may pit incumbents against one somehow “rescue” a plan from a finding of another or make very difficult the election of racial predominance. We fully agree that the most experienced legislator.” “[t]he [VRA] and the Equal Protection Accordingly, a district's impact on an Clause are intended to protect the rights of the incumbent may be a legitimate criterion for individual voter, not to promote the self- the legislature to consider. interest of incumbents in majority-minority districts.” And, to be clear, the framework we However, as with political deviations, adopt today condones no such thing. deviations from neutral districting principles for incumbency purposes are not always For example, if legislators attempt to “ permissible. In Bush, the Court recognized ‘pac[k]’ minority voters into a particular “incumbency protection, at least in the majority-minority district for the purpose of limited form of ‘avoiding contests between protecting the incumbent,” this would still incumbent[s],’ as a legitimate state goal.” constitute racial sorting regardless of the This state interest “aim[s] at maintaining “goal” of incumbency protection. This is existing relationships between incumbent precisely what we find occurred in HD 75, congressmen and their constituents and and we hold that race predominated preserv[es] the seniority the members of the accordingly. State's delegation have achieved in the United States House of Representatives,” but On the other hand, if legislators attempt to does not necessarily invade the province of pack supporters into their districts or attempt the voters. As the LULAC Court advised: to remove detractors or challengers, then it could hardly be said that race drove the “[I]ncumbency protection can be a districting deviation. This does not imply that legitimate factor in districting, but such actions are immune from constitutional experience teaches that incumbency challenge. Although the Supreme Court has protection can take various forms, not only sanctioned a state interest in all of them in the interests of the “incumbency pairing prevention,” the constituents.” Plaintiffs simply did not raise any challenge Here, the Intervenors allege that many of the to the Commonwealth's alleged interest in a Challenged Districts' deviations have wider definition of “incumbency protection.” “incumbency protection” justifications.

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Thus, we are in no position to decide that district's overall shape was not far from constitutional question. routine. Looking at the complete picture, Simply put, if incumbency interests however, the district court found that “[r]ace constitute the predominate criterion driving was ... the predominant, overriding factor the construction of the district, then a claim explaining the General Assembly's decision of racial gerrymandering must fail. That, to attach to the [district] various appendages however, does not imply that a claim of containing dense majority-black political gerrymandering would face a similar populations.” fate. In conducting the predominance balancing, c. Weighing two particular issues warrant the Court's careful attention. The final step in the predominance inquiry of a racial sorting claim involves the weighing i. Racial & Political Correlation of the evidence in total to determine whether the deviations attributable to race Occasionally, a deviation may appear equally “predominate” over all other districting explainable by racial or political motivations. criteria employed by the legislature, Because the State is presumed to have acted including both neutral criteria and deviations lawfully and in good faith, the plaintiff must attributable to non-racial motives. To provide evidence that race—rather than demonstrate predominance, the Plaintiffs politics—represented the primary basis for must show that the legislature “subordinated” the classification. Evidence may include the or exhibited “substantial disregard” for these sources of data relied upon in drawing the other criteria. district, the use of fixed (or “aspirational”) political or racial targets or floors, and In making its predominance determination, statements from legislators regarding the the Court “must be sensitive to the complex relative priority of their racial and political interplay of forces that enter a legislature's goals. redistricting calculus” and “exercise extraordinary caution.” “Federal-court A political objective, however, does not review of districting legislation represents a immunize the use of race as a basis for serious intrusion on the most vital of local classification because race cannot be used as functions,” and the Plaintiffs' burden is a proxy for political characteristics, even if understandably “a demanding one.” there is a proven correlation between race and Therefore, the redistricting enactments of a political preference in the state. This is legislature are entitled to a presumption of because “to the extent that race is used as a correctness and good faith, and the burden is proxy for political characteristics, a racial upon the plaintiff to dislodge that stereotype requiring strict scrutiny is in presumption. operation.”

It should be noted, however, that the This is consistent with the Supreme Court's predominance balancing inquiry is holding in Hunt v. Cromartie (Cromartie I). qualitative rather than quantitative. In Miller, The lesson of Cromartie I was that a political for example, the challenged district classification would not be considered racial employed gangly arms at various points to simply because the Democratic voters capture black population centers, but the happened to be black. The lesson was not that

405 a racial classification would be considered Core retention—or “respecting existing political simply because black voters district boundaries”—appears to be facially happened to be Democrats. neutral and serves neutral political values, such as increased administrative ease, In the latter scenario, the State still makes electoral accountability, and enhanced voter decisions about individuals based on the awareness and engagement. Unlike the other color of their skin. It is the act of using race neutral criteria identified above, however, as a proxy that constitutes an offensive core retention holds a special place in the stereotype. The fact that a stereotype might predominance balance. That is because “core have some basis in fact—or is relied upon to preservation ... is not directly relevant to the achieve “non-racial” purposes—does not origin of the new district inhabitants.” render it any less offensive. Moreover, core retention may be used to insulate the original basis for the district Evidence of a racial floor will also lend boundaries. support to the argument that race, rather than politics, can be attributed for particular Thus, where district lines track a path similar deviations from neutral principles. Although to their predecessor districts or where “core such a floor will not result in per se retention” seems to predominate, courts predominance where a district is formed should also examine the underlying predominantly on the basis of neutral criteria, justification for the original lines or original its use can buttress a plaintiff's argument that district. Legislators' use of the core retention race was the primary reason for a deviation principle should certainly receive some where race and politics would otherwise degree of deference. But, the inquiry in a seem equally plausible. racial sorting claim examines the basis upon which voters were placed “within or without Lastly, statements about the relative priority a particular district.” “That's the way we've of districting goals may constitute evidence always done it” may be a neutral response, to support a finding of racial predominance. but it is not a meaningful answer. Taken alone, the parroting of federal requirements or the acknowledgment that The Court applied the foregoing principles certain compliance obligations are when weighing all of the evidence in the “mandatory” or “nonnegotiable” does not record and in ascertaining whether voters lend any weight in the predominance balance. were sorted into a district predominantly on If it did, the State would start the the basis of their race. predominance balancing at an immediate disadvantage. However, if evidence is 2. Strict Scrutiny Analysis provided that demonstrates legislators held a false belief that certain artificial criteria— Having applied these precepts to the such as fixed BVAP floor—were necessary evidence, we found that the Plaintiffs met to comply with federal law, then statements their burden to prove that race was by those particular legislators regarding predominant in the formation of HD 75, compliance are relevant evidence in the making it necessary to apply strict scrutiny as predominance inquiry. to that district. To survive strict scrutiny, the redistricting statute must be narrowly tailored ii. Core Retention to a compelling state interest. In the redistricting context, this familiar test takes

406 on a somewhat different appearance, which choose between compliance with § 5 the Court will now examine. and compliance with the Equal Protection Clause. a. Compelling Interest We find this reasoning persuasive, with the In prior cases, the Supreme Court has proviso that the State's interest must be in assumed, without deciding, that compliance actual compliance with the standards with federal antidiscrimination laws can articulated in federal antidiscrimination law constitute a compelling state interest. Various as interpreted by the federal courts. members of the Court have also expressed their separate views on the matter. This distinction is an important one. In Miller, the Supreme Court stipulated that This already complex posture was rendered “compliance with federal antidiscrimination even less certain by the recent decision in laws cannot justify race-based districting Shelby County. There, the Supreme Court where the challenged district was not struck down the coverage formula under reasonably necessary under a constitutional Section 4 of the VRA, but “issue[d] no reading and application of those laws.” That holding on § 5 itself[.]” The Supreme Court fundamental limitation remains applicable. In did not help matters in Alabama when it drafting redistricting legislation, the State stated, “[W]e do not here decide whether, must pass a state law that complies with both given Shelby County v. Holder, continued federal law and the federal constitution. compliance with § 5 remains a compelling Thus, the goal of “actual compliance” is interest [.]” clearly compelling. If the State achieves actual compliance with the demands of a Here, the Intervenors claim compelling federal statute, and the federal statute is itself interests founded on both Section 2 and constitutional, then there can be little doubt Section 5 of the VRA. To resolve whether that the state law is similarly constitutional. compliance with the VRA was a compelling The State also has an interest in avoiding interest at the time of enactment, the Court preclearance denial under Section 5 (or finds the rationale offered by Justice Scalia in liability under Section 2). This goal of his LULAC opinion convincing. As to “defensive compliance,” however, is not a Section 5, Justice Scalia wrote, in a passage compelling interest. This is because joined by Chief Justice Roberts, Justice defensive compliance could often entail a Thomas, and Justice Alito: violation of constitutional law itself: subordinating traditional, neutral criteria and We long ago upheld the other districting criteria to racial constitutionality of § 5 as a proper considerations. exercise of Congress's authority under § 2 of the Fifteenth But Section 5 does not require—and cannot Amendment to enforce that be read to require—states to subordinate Amendment's prohibition on the traditional, neutral districting principles to denial or abridgment of the right to race in the redistricting process. The DOJ's vote. If compliance with § 5 were not own regulations state this explicitly. a compelling state interest, then a Therefore, a state that finds itself engaging in State could be placed in the predominant racial sorting to fulfill an impossible position of having to interest in defensive compliance will begin to

407 forfeit any credible interest in preventing predominant use of race in drawing a retrogression and may be said to have challenged district. adopted an interpretation of Section 5 that would itself render Section 5 unconstitutional The conceptual difficulty for the narrow- as applied. tailoring inquiry is this: if a finding of predominance means that race subordinated In sum, we hold that Virginia's interest in other considerations, and a constitutional actual compliance with the standards of reading of the antidiscrimination standards federal antidiscrimination law—as the does not require race to subordinate other federal courts have interpreted them—was a considerations, then how can an compelling interest at the time the 2011 unconstitutional reading of a federal statute redistricting plan was designed and enacted. by the State be the interest that saves the Apart from that question, the Court believes State's unconstitutional racial gerrymander? that an interest that is compelling at a The answer is this: if the disregard for non- redistricting plan's inception is capable of racial criteria could have reasonably been sustaining the plan until the next districting viewed as not substantial, and the State cycle. As the district court in Alabama stated, shows a strong basis in evidence that its “We evaluate the plans in the light of the deviations appeared necessary to ensure legal standard that governed the Legislature actual compliance with the federal standard, when it acted, not based on a later decision of then the district could still have been the Supreme Court that exempted [the State] considered reasonably necessary under a from future coverage under section 5 of the constitutional reading of the statute. [VRA].” Because the legislature possessed a compelling interest in actual compliance with Therefore, as the finder of fact, we employ a federal antidiscrimination laws as interpreted “preponderance” standard during the by the federal courts at the time the plan was predominance inquiry, but apply a enacted, and because redistricting plans are “sufficiency” standard during the narrow inherently subject to periodic revision on a tailoring inquiry. Justice Breyer's dissent in reasonable, decennial basis, we conclude that Abrams v. Johnson makes this rationale clear: the compelling interest underlying the statute at enactment remains a compelling interest This legal distinction—between during its effective duration. whether a plan really violates § 2 or might well violate § 2—may seem b. Narrow Tailoring technical. But it is not. A legal rule that permits legislatures to take The next question in the analytical calculus is account of race only when § 2 really whether the State's redistricting statute was requires them to do so is a rule that “narrowly tailored” to this compelling shifts the power to redistrict from interest. In particular, the question is whether legislatures to federal courts (for only a State's “attempt” at actual compliance could the latter can say what § 2 really be viewed as “reasonably necessary under a requires). A rule that rests upon a constitutional reading and application of reasonable view of the evidence (i.e., [federal antidiscrimination] laws.” In that permits the legislature to use race Alabama, the Supreme Court explained that if it has a “strong basis” for believing narrow tailoring is satisfied if there is a it necessary to do so) is a rule that “strong basis in evidence” for the leaves at least a modicum of

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discretionary (race-related) court should accept that reasonable judgment redistricting authority in the hands of during the narrow tailoring stage. legislators. Thus, the question a court must ask at the In Abrams, a federal court was already narrow-tailoring stage is whether the required to undertake the districting legislature has shown that it had “good endeavor, so Justice Breyer's dissent was reasons” to believe—i.e., that it had a strong unavailing. Because the lower court decided basis in evidence for believing—that its that it could not create a second majority- actions were reasonably necessary to achieve black district without subordinating neutral actual compliance with federal principles, it declined to do so. This does not antidiscrimination standards based on a mean, however, that a court reviewing a constitutional reading of those standards. Or, State's plan cannot accept the State's alternate could a reasonable legislator have come to judgment, so long as the legislature had a the conclusion that the challenged district strong basis for believing its plan was violated neither federal law nor any compliant. constitutional limitations upon that federal law. Therefore, for predominance, the inquiry is whether, as a matter of fact, the State This formulation also explains why the substantially disregarded non-racial criteria. Plaintiffs and Intervenors proposed For narrow tailoring, the inquiry is whether seemingly different narrow tailoring the State had good reason to believe that its inquiries. Plaintiffs argue that the State “must actions were required for actual compliance show that [it] had a ‘strong basis in evidence’ with the non-dilution or non-retrogression for believing that all of the Challenged standard. Because substantial disregard of Districts needed to meet or exceed a non-racial criteria is not required under a predetermined BVAP target to avoid constitutional reading of either standard, this retrogression.” Pls.' Post–Trial Brief at 28. inquiry necessarily entails also asking Intervenors argued at trial that the narrow whether the State had good reason to believe tailoring question is “how much that district that its own departure from non-racial criteria violates the state's criteria.” Both of these was not substantial. inquiries are necessary, but neither is sufficient. Because the standards of the racial sorting claim and the standards of non-dilution and The narrow tailoring inquiry asks whether non-retrogression often stand in tension, the “the legislature ha[d] a ‘strong basis in Court must recognize that the State is evidence’ in support of the (race-based) attempting to “toil with the[se] twin choice that it has made.” demands” and provide a fairway for the State's objectively reasonable efforts. There This standard ... does not demand that may be a variety of plans that reasonably a State's actions actually be necessary avoid dilution and retrogression and also to achieve a compelling state interest reasonably respect traditional, neutral in order to be constitutionally valid. districting principles. If the legislature had a And legislators may have a strong strong basis in evidence for its districting basis in evidence to use racial decision and reasonable individuals could classifications in order to comply have come to a different conclusion, then the with a statute when they have good

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reasons to believe such use is minority districts. This holds true not only as required, even if a court does not find a legal principle, but as a matter of logic. that the actions were necessary for Based on demographic changes within the statutory compliance. State, it simply may not be feasible to create the same number of majority-minority With respect to Section 5, for example, this districts because performing Section 5 inquiry into whether the “race-based choice” districts must also avoid unreasonable had a “strong basis in evidence” reaches both deviations from neutral districting criteria. the standard of retrogression and—because a constitutional interpretation of retrogression A retrogression analysis must “take account does not require subordination—the standard of all significant circumstances,” while of subordination. retaining Section 5's “anchoring reference to electing a candidate of choice.” This mandate With respect to subordination, the Supreme is now part of the statute itself. “Clearly, Court has noted that the extent of a State's ‘ability to elect’ is the statutory watchword.” disregard of neutral criteria “is not irrelevant to the narrow tailoring inquiry” when it Therefore, once a court finds that race “exhibit[s] a level of racial manipulation that predominated, the strong basis in evidence exceeds what [the VRA] could justify.” In standard asks not only whether the legislature other words, part of showing that a district is had good reasons for believing the BVAP narrowly tailored to an interest in actual percentage employed in the district—as well compliance with a constitutional reading of as the district itself—was necessary to avoid the retrogression standard entails showing retrogression, but also whether the district is that the district is one that a reasonable one that a reasonable legislator could believe legislator could believe entailed only generally respected neutral districting reasonable and minor deviations from neutral principles. As the Alabama Court reminded: districting conventions. “The standards of § 5 are complex; they often require evaluation of controverted claims Nor is an inquiry into whether the State about voting behavior; the evidence may be possessed a “strong basis in evidence” that its unclear; and, with respect to any particular actions were necessary to “prevent district, judges may disagree about the proper retrogression” limited to the BVAP outcome.” This applies to reasonable state percentages in the Benchmark Plan's existing judgments about subordination as well. In the majority-minority districts. When Congress context of redistricting, the “narrow amended Section 5, it rejected the Supreme tailoring” inquiry permits the State to Court's decision in Georgia v. Ashcroft, and overshoot the bull's-eye, so long as it hits the “adopted the views of the dissent.” The target. dissent “made clear that courts should not mechanically rely upon numerical The foregoing legal framework for analyzing percentages but should take account of all a racial sorting claim provides the guidepost significant circumstances.” Thus, there can for the statewide and district-by-district be no argument that retrogression “locks in” findings that follow. the BVAP of each particular district. B. Evidence Of General Application To All The retrogression standard also does not Districts “lock in” a specific number of majority-

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“A racial gerrymandering claim ... applies to employed by Delegate Jones and the other the boundaries of individual districts” and legislators who had a hand in crafting the must be proven on a “district-by-district” Challenged Districts. Those delegates basis. However, the Plaintiffs provided some believed this necessary to avoid retrogression evidence that applied across all districts. under federal law, and we do not doubt the Therefore, the Court will assess that evidence sincerity of their belief. before proceeding to its district-by-district analysis. In like fashion, the Third, the Plaintiffs' expert, Dr. Stephen Commonwealth's evidence may apply across Ansolabehere, testified about his analysis of districts. Our findings on the evidence are VTDs in the Commonwealth. In particular, based on our credibility determinations and Dr. Ansolabehere used statistical models to how particular evidence squares with the examine the movement of VTDs into and out record as a whole. of the Challenged Districts and opined whether, in his view, those movements were First, the Intervenors frequently discussed the predominantly “racial” or “political.” substantial population changes experienced on both a statewide level and in the With respect to Dr. Ansolabehere's analysis Challenged Districts. That evidence has a regarding race and politics as “predictors” of role to play in the predominance analysis, but the likelihood of inclusion of VTDs in one of it is a limited one. the Challenged Districts, the Court has both initial technical concerns and more As the Supreme Court held in Alabama, “an fundamental substantive concerns about the equal population goal is not one factor among method employed that cause us not to credit others to be weighed against the use of race his views as to the reasons for VTD to determine whether race ‘predominates.’ ” placement. First, even though Dr. Instead, “it is part of the redistricting Ansolabehere's analysis provides a background, taken as a given, when “regional” control to avoid examining VTDs determining whether race, or other factors, that could not have feasibly found their way predominate in a legislator's determination as into the Challenged Districts, that does not to how equal population objectives will be account for whether a VTD in that region met.” could be considered to “hop” over another VTD in the region en route to the target Although the equal population goal is not a district in violation of contiguity traditional factor to be considered in the conventions. balance in deciding predominance, its “background” role is nonetheless important More fundamentally, however, Dr. in assessing why certain redistricting actions Ansolabehere's “race versus politics” were taken. For example, gains or losses in opinions miss the mark because they do not population affect where in a State new consider the extent to which the boundaries districts must be created or where old districts themselves are justifiable by neutral criteria cannot stand. That, in turn, is pertinent to or any other motivation besides race or which neutral redistricting criteria can—or political disposition. The models that he cannot—be fully satisfied. employed do not, for example, consider Second, for the reasons provided in the “economic factors, social factors, cultural factual discussion in Section III above, the factors, geographic factors, governmental Court finds that a 55% BVAP floor was jurisdictions and service delivery areas.” If a

411 district is intentionally designed as a Score was .243, and the average performing district for Section 5 purposes, Schwartzberg score was 2.128. Id. Under the there should be little surprise that the Reock and Polsby–Popper measures, higher movement of VTDs into or out of the district scores represent more compact districts. is correlated—even to a statistically Under the Schwartzberg measure, lower significant degree—with the racial scores represent more compact districts. Of composition of the population. This does not the 100 House districts, seven of the mean, however, that race “predominated” for Challenged Districts are in the “bottom the purposes of a racial sorting claim. 50”—with the lowest Reock scores—and five of the Challenged Districts are in the “top The predominance question requires an 50”—with the highest Reock scores. inquiry into whether the movement of VTDs into and out of a district subordinated other With these generally applicable findings in criteria in the process. Dr. Ansolabehere's mind, the Court now advances to the requisite analysis, for the most part, just does not district-by-district analysis. In so doing, the provide any specific insights into this inquiry. analysis is guided by the legal principles and Dr. Ansolabehere's partial correlation the framework outlined in Section IV.A. analysis, which holds other factors— above. including party—steady can be considered in determining whether a district's deviations C. District–by–District Analysis from neutral criteria may be more attributable to race or politics, but it can only be As with the generally applicable factual considered in assessing—not refuting— findings above, our district-by-district testimony that provides non-racial reasons analysis itself is a factual one that we have for particular deviations from neutral based on our examination of the record as a principles. Moreover, using Dr. Katz's whole and on our assessment of the admittedly crude, but nonetheless reliable, credibility of the witnesses. approximation for the limitation that VTDs are not equally susceptible to being included 1. District 63 in every district, the statistical significance of the racial justification disappears, at least HD 63 is found in the Dinwiddie–Greensville with respect to the question of whether race area and was represented by then-Delegate or politics is a more significant predicator of Rosalyn Dance during the 2011 redistricting VTD placement. On balance, Dr. process. Under the Benchmark Plan, the Ansolabehere's analysis on the VTD issue is district contained all of Dinwiddie and not reliable proof on the predominance issue. Petersburg City, and part of Chesterfield. Lastly, the Court finds that some “statewide” Under the Enacted Plan, the district now compactness information is useful as a point contains all of Petersburg City and parts of of comparison for the district-by-district Chesterfield, Dinwiddie, Hopewell, and analysis set out in Section IV.C. below. In the Prince George. This increased the number of Challenged Districts, the average Reock county and city splits from 1 to 4 and score was .320, the average Polsby–Popper increased the number of split VTDs from 0 to Score was .192, and the average 8. HD 63 has a core retention percentage of Schwartzberg score was 2.365. In the Non– 80.2, and is contiguous by land. Challenged Districts, the average Reock score was .360, the average Polsby–Popper

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On its face, the district is unusually shaped. candidates alike that reside in Dinwiddie After chopping Dinwiddie County in half, the precinct and wish to know their House southern border of the district tends to follow district. In the absence of any further precinct boundaries from west to east until it explanation by the Intervenors or the cuts through Dinwiddie precinct along Plaintiffs, however, the Court declines to Interstate 85. After that, the district line identify any particular rationale for this “sub- constricts, carving out a hook around New deviation,” meaning that the Plaintiffs have Hope. After a brief return to a rather normal not carried their burden of attributing it to configuration around Petersburg City, the race. district narrows to avoid the Jefferson Park area and the homes of Delegates Cox and The other “sub-deviation”—the hook around Ingram. It then continues in a narrow form New Hope—is decidedly not racial. After through Prince George, into various parts of reviewing the evidence, the Court finds that Hopewell, and terminates at the James River. the purpose for this deviation was “challenger prevention” and “incumbency The district had Reock and Polsby–Popper protection.” This deviation was negotiated scores of .61 and .48 under the Benchmark between Delegates Dance, Tyler, and Jones. Plan and experienced a steep drop to scores Delegate Jones testified that the cutout of .25 and .16 under the Enacted Plan. This accounted for “the bulk of the splits in [the marks the largest Reock compactness 75th] district,” that New Hope was retained reduction of any district in the Enacted Plan. in HD 63 because “a tremendous amount of The district's Schwartzberg score is 2.506. [Delegate Dance's] employees or constituents had family” there, and that Delegate Dance The district's deviations from neutral had “a potential primary opponent she redistricting criteria begin with the splitting wanted to draw out of her district.” So, if it of Dinwiddie County. This split appears to be looks like the hook is reaching for something, avowedly racial. Delegate Dance testified that's because it is: a potential threat to the that the southern half of Dinwiddie “went to incumbent. Delegate Tyler to try to get her number ... [o]f African–American voters up to 55 percent.” Thus, at this point the record is that one Within this deviation are two sub-deviations: reason for the configuration of HD 63 was (1) the splitting of Dinwiddie precinct; and racial and one reason was purely political. (2) the hook that wraps around New Hope precinct. The other component of HD 63's unusual shape is its reach north and east from U.S. The Dinwiddie precinct is split along I–85, 460 to the James River in a way that runs but this is not listed among the redistricting through both Prince George County and the criteria, which undermines its explanatory City of Hopewell. In so doing, this value as a districting criterion. Although component of HD 63 increases the number of established transit corridors may split areas localities in the district from three to five, and into “communities of interest” over time, it also splits a number of VTDs. According to there was no evidence that this precinct is Delegate Dance's testimony, “that's what it comprised of distinct communities on either took to get [Delegate Tyler] to the 55 percent side of the highway. On the other hand, the strength of African–American voters.” Not artificial border provided by I–85 may only did this help satisfy the 55% threshold provide a clear boundary to voters and in District 75, it also helped maintain a

413 substantial African–American population in Dr. Ansolabehere notes the number of VTD District 63. Delegate Dance “picked up parts splits. But the majority of splits are of Prince George ... to get more African– attributable to incumbency considerations Americans ... [a]nd then ... picked up the rather than race. Moreover, some splits concentration of African–Americans in appear to be attributable to Delegate Jones' Hopewell[.]” twin aims of solving the water crossing and limiting population deviations to ±1%. In However, the record shows that the eastern sum, we find Dr. Ansolabehere's testimony border advanced other criteria, both neutral on each point to be unconvincing. Thus, his and political. In order to unwind the water evidence did not help the Plaintiffs in their crossing in the Benchmark HD 74, Delegate obligation to prove predominance and to Jones decided to move precincts in Hopewell dislodge the presumption of lawful action to City out of HD 74 and into HD 63. Thus, HD which the General Assembly's redistricting 63's eastern configuration improved HD 74's plan is entitled. adherence to contiguity conventions. Moreover, by placing these precincts in HD Based on the record, the Court finds that the 63 rather than HD 62 or HD 64, the District's Plaintiffs have not satisfied their burden to eastern boundary avoids solving the water prove that racial considerations subordinated crossing problem to the detriment of all other neutral and race-neutral districting Republican districts on either side. Thus, it criteria in the formation of HD 63. And, on appears that this aspect of HD 63's unusual the basis of the record, the Court holds, as a shape can be explained on a neutral, racial, matter of fact, that race did not predominate and political basis. in the drawing of HD 63.

It is the Plaintiffs' burden to show that the 2. District 75 racial considerations subordinated all other criteria, including neutral criteria and other HD 75 is found in the Dinwiddie–Greensville non-racial criteria. The evidence provided area and was represented by Delegate Roslyn thus far is in equipoise, and the Plaintiffs Tyler during the 2011 redistricting process. have not yet satisfied their burden on the Under the Benchmark Plan, the district predominance issue. contained all of Sussex County, Greensville, and Emporia City and parts of Brunswick, Plaintiffs rely on the testimony of Dr. Franklin City, Isle of Wight, Lunenberg, and Ansolabehere to complete their task. To Southampton. Under the Enacted Plan, the begin, Dr. Ansolabehere notes the drop in district now contains all of Emporia City and compactness scores but, as discussed above, Greensville and parts of Brunswick, that is more of a flag than a conclusion. If Dinwiddie, Franklin City, Isle of Wight, compactness has been sacrificed to enhance Lunenberg, Southampton, Surry, and Sussex. contiguity or serve political ends, then race This increased the number of county and city alone has not subordinated this criterion. Dr. splits from 5 to 8 and increased the number Ansolabehere also analyzed VTD of split VTDs from 4 to 13. HD 75 has a core movements but, as discussed above, that retention percentage of 78.64, and is analysis fails to account for other criteria that contiguous by land. may be shaping the district, such as incumbency considerations or solving On its face, the district appears relatively contiguity issues in nearby districts. Finally, compact, despite its odd tendency to leak

414 across county and city lines. The district had population. That appears to be the case Reock and Polsby–Popper scores of .42 and because HD 75 was underpopulated. The .22 under the Benchmark Plan, which shifted choice to go north, however, was “to try to to scores of .41 and .19 under the Enacted get [Delegate Tyler's] number ... [o]f Plan. The district's Schwartzberg score is African–Americans voters up to 55 percent.” 2.282. Although the district's technical Therefore, while underpopulation may help compactness remained “about the same explain the changes to the district, it cannot between the two plans,” Delegate Tyler be weighed against race in the predominance testified that her district has “[v]ery irregular analysis. borders” and is “not an easy district to follow.” The district's irregular eastern and western borders can be also attributed to race because, A review of HD 75's boundaries suggests that according to Delegate Dance, moving she is right. Although the district has a clear coherently to the “east [or] west would have southern border, that provides no solace been Euro–Americans, and she needed some because her district borders North Carolina. African Americans to get to that 55 percent.” Unlike population equality and VRA Delegate Jones' testimony did not contradict compliance, state borders are not just that assessment. mandatory; they admit no variation. As such, state borders are a nullity in the Delegate Jones testified that many of the predominance balance. The only other changes, such as swapping out the Wakefield county boundaries seemingly respected are and Dendron precincts, splitting Franklin those segments bordering Mecklenburg, City, and excluding the Berlin and Ivor Nottoway, Prince George, and Suffolk precincts were done on the basis of a counties. Notable in this regard, is the “member request” or because Delegate Tyler addition of the district's lower left corner, did not receive many votes in those removed which makes Brunswick County whole. precincts. Delegate Jones accepted these changes even though adherence to political Delegate Dance testified that the creation of subdivisions and compactness would be HD 75 “gave us a little trouble to try to get to subordinated in the process. But attributing the 55 percent.” To get to the 55% BVAP, the the changes to “member requests” or district “required some drastic performance concerns begs, rather than maneuvering[.]” Delegate Tyler herself answers, the relevant question: was the testified that she “was concerned about the request racial or political? decrease in number of black people in my district.” Like in HD 63, the evidence admits of both a racial purpose and a political purpose. For Although the irregularity of the district instance, Delegate Jones himself testified that boundaries can be seen to buttress Delegate Delegate Tyler's request to swap Wakefield Dance's testimony that HD 75 required and Dendron was based on “real concerns” “drastic maneuvering” in order to comply stemming from the fact that she “didn't break with the 55% BVAP floor, the Intervenors 51 percent” in a general election race “with a have offered their own explanations for the Caucasian” and that she “won by less than district's “very irregular borders.” Delegate 300 votes” in a “five-way race in a primary Jones testified that Dinwiddie County was with two Caucasians.” That bespeaks an split because the district was in need of effort to both protect the incumbent and

415 prevent retrogression. Similarly, Delegate cover her district with ease, and was Jones testified: “[S]he was worried about too “concern[ed] about the decrease in number of low of a black voting-age population for her black people in [her] district.” to be able to be successful in an election.” This too reflects an effort to protect the Intervenors attempt to explain the boundary incumbent while also preserving minority deviations by ascribing a political purpose to voters' ability to elect their candidate of them. But that attempt is not successful. As choice. in Bush, the record shows that, in building HD 75, race was used by Delegate Tyler Unlike in HD 63, however, here there is no herself as a proxy for Democratic voters in an ambiguity about the basis upon which voters effort to protect her own position as an were sorted. Intervenors' Post–Trial Brief incumbent at the expense of traditional relies upon the overlapping racial and districting principles. When a legislator sorts political purposes to argue that race did not voters by political affiliation or performance, “predominate.” According to the Intervenors, then the deviation from neutral principles is a Delegate Tyler's deposition testimony “made political one. But, when a legislator sorts crystal clear her view that ‘[w]hat I'm saying voters by race, for whatever purpose, then the is most of the time blacks vote Democratic,’ deviation is a racial one. As explained above, and that ‘in [her] mind, the purpose of the lesson of Cromartie was that a political ensuring 55 percent BVAP was to help deviation would not be considered racial Democrats be elected.’ ” But, attributing a simply because the Democratic voters political purpose to—or justification for—the happened to be black. The lesson was not that 55% BVAP floor does not somehow render it a racial deviation would be considered a non-racial classification. Whether the political simply because the black voters changes were made to comply with Section happened to be Democrats. That is using race 5, enhance Democratic performance, or as a proxy for political affiliation, an protect the incumbent, the changes were still approach that is prohibited. made based on voters' skin color. As to HD 75, the Plaintiffs have proved Weighing all the evidence and testimony (without reference to Dr. Ansolabehere's provided on the record, the Court finds that testimony) that race was the predominate racial considerations subordinated traditional criterion leading to the disregard of neutral districting principles and other non-racial conventions in forming HD 75. Moreover, to districting criteria in the creation of HD 75. the extent that political interests were The testimony from the three delegates considered and achieved, it appears that those primarily responsible for shaping the district, criteria were secondary to, and only satisfied Delegates Jones, Tyler, and Dance, shows by, adherence to the 55% BVAP floor. that the overriding objective was to achieve a 55% BVAP in HD 75. Achieving a 55% Based on the foregoing analysis, the Court BVAP floor required “drastic maneuvering” finds that race was the predominate criterion that is reflected on the face of the district and, driving the formation and configuration of according to Delegate Jones, would not HD 75; and, therefore, the legislature's otherwise have been undertaken due to the decision is subject to strict scrutiny. To impact on traditional county boundaries. survive strict scrutiny, the Intervenors must Delegate Tyler herself found the boundaries show that the legislature had a “strong basis “very irregular,” worried about her ability to

416 in evidence” for its racial districting in the benchmark plan and whether it decisions. continues in the proposed plan[.]”

The Court finds that this burden has been Plaintiffs dispute the need for raising the satisfied and that, accordingly, HD 75 BVAP percentage in HD 75, arguing that the survives the Plaintiffs' challenge. First, district was already a performing Section 5 Delegate Jones' determination that HD 75 (or district for minority-preferred candidates its environs) reflected an “ability-to-elect” going into the 2011 redistricting. Here, that district requiring protection against argument only strengthens the Intervenors' retrogression was a reasonable hand. Under the Benchmark Plan, BVAP in determination. As Plaintiffs themselves point HD 75 was 55.3%. Under the Enacted Plan, out, HD 75 appeared to be a performing BVAP in HD 75 was 55.4%. Considering the ability-to-elect district before the State's intricacies of redistricting, the new HD 75 redistricting efforts. Therefore, retaining this could effectively be considered to have the ability to elect reasonably can be viewed as “same” BVAP level as the old HD 75. And, necessary to ensure actual compliance with considering the evidence relied upon by the federal non-retrogression standard. Delegate Jones, it appears abundantly clear that he had “good reasons” for holding the Next, as to HD 75, the 55% BVAP floor is BVAP in HD 75 just above 55% to ensure grounded in a “strong basis in evidence” that the district remained a performing because the primary source of the 55% Section 5 district for minority-preferred BVAP threshold appears to have been an candidates, as Plaintiffs' themselves suggest. analysis of HD 75 itself. For example, Delegate Jones testified that he did not feel a Nor does the 55% floor appear unreasonable 52% BVAP threshold across all districts when subjected to expert review. Plaintiffs' would be acceptable “based on ... the own expert noted that HD 63 and 75 “exhibit functional analysis that I had done using the high rates of [racial] polarization because Tyler primary, for example, and the Tyler large majorities of Whites vote in the general election in 2005.” These were close opposite way as large majorities of African races, prompting “real concerns.” Delegate Americans.” Intervenors' expert agreed, Jones met with Delegate Tyler “probably half observing that the 2011 and 2013 elections a dozen times to configure her district as she held in HD 75 were racially polarized. Dr. felt it needed to be configured for ... [minority Ansolabehere ultimately opined that a 55% voters] to elect a candidate of their choice for BVAP threshold was not necessary in HD 75, her district.” but ex post statistical analyses cannot upset the State's ex ante judgment so long as that Delegate Jones examined turnout rates in HD decision was “reasonably necessary” based 75, an issue about which Delegate Tyler was on strong evidence. In this case, it was so particularly concerned. In addition, Delegate based. Simply put, there were “good reasons” Jones considered the district's prison to believe that a 55% BVAP threshold was population and relied upon his knowledge of necessary to ensure that minority voting the district's electoral history. These are influence did not retrogress in HD 75, and the precisely the kinds of evidence that Court will not upset that reasonable legislators are encouraged to use “[i]n judgment. determining whether the ability to elect exists

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The Court finds that legislators had good more compact “only by incorporating heavily reason to believe that maintaining a 55% African–American communities at the BVAP level in HD 75 was necessary to outskirts of the benchmark district.” Delegate prevent actual retrogression (and not just to McClellan also testified at trial that HD 69 attain preclearance), and that this was had to satisfy the 55% BVAP floor, achieved by reasonable deviations from according to Delegate Jones. But all of this is traditional redistricting criteria (judged by a largely irrelevant. The question is whether sufficiency standard). Because the State has the Commonwealth's consideration of race or provided a “strong basis in evidence” for its a racial floor subordinated traditional, neutral use of race-based districting in its criteria. Plaintiffs have offered no evidence to configuration of HD 75, the Court holds that show subordination, relying instead on the HD 75 passes constitutional muster under the erroneous view that proof of a 55% BVAP Equal Protection Clause of the Fourteenth floor would be sufficient to carry their Amendment. burden. As explained previously, it is not.

3. District 69 With respect to potential deviations from neutral criteria, it should be noted that HD 69 HD 6938 is found in the Richmond area and is not contiguous by land. However, the was represented by Delegate Betsy *560 Carr district contains multiple river crossings, and during the 2011 redistricting process. Under no evidence has been provided by the both the Benchmark Plan and the Enacted Plaintiffs to show that the district improperly Plan, the district contains parts of combines two distinct communities of Chesterfield and Richmond City. Although interest rather than uniting one community of the number of county and city splits remained interest. Moreover, the Plaintiffs have not the same, redistricting increased the number provided any evidence that this split has of split VTDs from 2 to 4. HD 69 has a core diminished representation for communities retention percentage of 74.7. on either side of the James. As such, there is no evidence that contiguity was On its face, the district appears to reflect a “subordinated” to non-neutral criteria. large, compact swath of Richmond below the Fan District and to the south of the James In short, the Plaintiffs have failed to carry River. The district had Reock and Polsby– their burden of proof with respect to HD 69, Popper scores of .37 and .20 under the and the Court holds, as a matter of fact, that Benchmark Plan, which increased to scores race did not predominate in the drawing of of .52 and .34 under the Enacted Plan. The HD 69. district's Schwartzberg score is 1.712. As Delegate Jones testified, the changes from the 4. District 70 Benchmark Plan made the district more “Richmond centric,” which appears on its HD 70 is found in the Richmond area and was face to have enhanced the district's alignment represented by Delegate Delores McQuinn with a distinct political subdivision and during the 2011 redistricting process. Under community of interest. both the Benchmark Plan and the Enacted Plan, the district contains parts of The Plaintiffs recognize that HD 69 has Chesterfield, Henrico, and Richmond City. become more compact and retained its Although the number of county and city splits “core,” but argue that the district has become remained the same, redistricting increased

418 the number of split VTDs from 2 to 3. HD 70 population had expanded—and to cede more has a core retention percentage of 67.31. Richmond-centered population to HD 69 and HD 71. The Plaintiffs' case supports that On its face, the district appears coherent and point. These represent objectively generally compact, perhaps with the identifiable communities of interest. exception of the “turret” on top of the district. HD 70 straddles the intersection of Plaintiffs also argue that HD 70 was not Richmond City, Chesterfield County, and under-populated before the redistricting Henrico County, with most of the boundaries process, but “the General Assembly added therein drawn on the basis of precinct and about 26,000 people and removed about VTD lines. The district had Reock and 26,000 people in redrawing the district.” As Polsby–Popper scores of .47 and .14 under discussed above, if properly populated the Benchmark Plan, which shifted to scores districts were presumptively required to of .40 and .19 under the Enacted Plan. In remain untouched, then all the other districts other words, the district became slightly more would need to wrap around them (in elongated, but also removed some of its more substantial disregard of neutral principles) in convoluted and irregular boundaries in the order to achieve population equality. Nor is process. The district's Schwartzberg score is the substitution in population numbers 2.290. particularly shocking. If a properly populated district must shift locations, then it will As the Plaintiffs contend, the redistricting necessarily “remove” a large amount of “pull[ed] the district substantially out of the people from its old location and “add” the city of Richmond and pull[ed] it into the same amount from its new location. That Chesterfield area and deeper into Henrico result seems rather obvious. County.” Plaintiffs believe that this shows a disregard for core retention, but this is With respect to deviations, HD 70—like HD precisely the reason the Court cautioned 69—is divided by the James, but contains a about “core retention” arguments above. river crossing. And—like HD 69—Plaintiffs Redistricting, by its very nature, involves the have offered no evidence to suggest that this changing of districts. If a state completely has had any effect on representation or local abandoned its prior map and started from communities of interest. As such, there is no scratch, a hypothetical new “HD 70” might evidence that contiguity was “subordinated” bear no resemblance whatsoever to the to non-neutral criteria. benchmark “HD 70,” but that would not— taken alone—be suspicious. Moreover, such The only facially odd deviation sits atop the a hypothetical would entail “removing” the northern edge of the district. This “turret” entire population of HD 70 and then “adding” appears to deviate from districting norms, that entire number back. Again, nothing especially insofar as it pokes across about that would be inherently suspicious. Richmond City lines. However, Intervenors offered a simple, non-racial explanation for The question is whether the boundaries—or this deviation: Delegate McQuinn, the the changes to the boundaries—are justifiable incumbent, lives there. As Delegate Jones by reference to traditional, neutral criteria. testified: “[H]ad she not lived there, I could Here, they are. Delegate Jones testified that have actually had all of the 71st District in the HD 70's overall configuration was altered to city of Richmond because I could have taken better represent suburban interests—where these couple of precincts and there wouldn't

419 have been any going into the Radcliffe The district itself includes the Fan, moves precinct in Henrico County for 71.” east through Richmond's downtown, and continues up to Church Hill. The district In weighing the evidence, the Court contains the majority of the North Side, and recognizes that Delegate McClellan testified contains one precinct in eastern Henrico that HD 70 was drawn to comply with the County. 55% BVAP floor, but the legislature's pursuit of this goal is not the “predominate” criterion The only facially evident deviations are along employed unless it subordinates all others. HD 71's eastern border. Here, the district's The Court finds that HD 70 is largely one Henrico precinct and the 701, 702, and explained by reference to traditional, neutral 706 VTDs seem to form a set of “horns” on districting criteria, and that the only deviation the eastern side of the district. therefrom is explainable on the basis of “incumbent pairing prevention.” As a result, In examining these deviations, it should first this Court holds, as a matter of fact, that race be noted that the northern-most horn adheres did not predominate in the drawing of HD 70. to the boundaries of Ratcliffe precinct, whereas the two other horns appear to adhere 5. District 71 to the boundaries of VTDs 701, 702, and 706. Plaintiffs have argued that VTDs 701 and 702 HD 71 is found in the Richmond area and was were included because they were “heavily represented by Delegate Jennifer McClellan African American” and “very densely during the 2011 redistricting process. Under populated.” The Plaintiffs have not discussed both the Benchmark Plan and the Enacted whether Ratcliffe was added to capture black Plan, the district contains parts of Henrico voters. Although Delegate McClellan and Richmond City. Although the number of testified that the 55% BVAP rule affected the county and city splits remained the same, districting decisions as to HD 71, the redistricting increased the number of split Plaintiffs bear the burden of showing that the VTDs from 1 to 3. HD 71 has a core retention decision subordinated neutral criteria in the percentage of 78.31, and is contiguous by process. land. Plaintiffs have not satisfied that burden. On its face, the district appears quite compact Delegate Jones offered a far more convincing and generally follows normal districting reason for HD 71's eastern horns. As conventions. The district had Reock and discussed above, Delegate McQuinn lives Polsby–Popper scores of .24 and .19 under right on the border of VTDs 703 and 705. the Benchmark Plan, which increased to “[H]ad [Delegate McQuinn] not lived [in scores of .33 and .24 under the Enacted Plan. Richmond], I could have actually had all of The district's Schwartzberg score is 2.045. the 71st District in the city of Richmond The district remains bounded to the south by because I could have taken these couple of the James River—a natural geographic precincts and there wouldn't have been any boundary—and became “more Richmond going into the Radcliffe precinct in Henrico centric” with the 2011 redistricting thanks to County for 71.” the removal of Summit Court, Hilliard, and Stratford Hall precincts from its western Plaintiffs also noted the split of VTD 505, edge. which was previously wholly within HD 71. Although a VTD split constitutes a deviation

420 from neutral principles, the decision to split and had a personal “community of 505 advanced other neutral principles, such interest”—rather than partisan—connection as compactness. Plaintiffs have not to the area. demonstrated that this split “subordinated” such neutral principles. There is a difference between pruning the edges of the political thicket and striding Delegate McClellan also spoke extensively headlong into it. By verifying a district's about the removal of precinct 207 from her overall compliance with neutral criteria that district, which split the Fan neighborhood. do not discriminate between citizens based Precinct 207 had “highly democratic voter on their race or other individualized turnout,” and Delegate McClellan had “quite characteristics, the Court fulfills its a base there[.]” constitutional duty to ascertain whether state legislation violates the Equal Protection But this split does not appear to substantially Clause. The Court should not, however, disregard neutral principles on its face. A become embroiled in a credibility dispute local resident might wonder why the Fan between two legislators, especially when straddled two House districts, but any resolving that “factual” issue is unnecessary observer of the map would see that precinct to find that neutral criteria predominated in 207 was removed and replaced with precinct the drawing of the district boundaries. HD 71 204, making the district more compact. does not substantially disregard traditional, neutral districting principles, and that is Nor does that swap appear obviously racial. sufficient for the Court to find that these As Delegate McClellan testified, precinct principles were not subordinated to race. The 204 is “demographically similar to 207 existence of a 55% BVAP floor does not racially.” Delegate McClellan testified that disturb that fact.40 Therefore, the Court she couldn't keep “any portion of 207” holds, as a matter of fact, that race did not because it would “push the [BVAP] below 55 predominate in the drawing of HD 71. percent,” but if the 55% BVAP goal could be achieved without subordinating neutral 6. District 74 principles on the whole, it does not matter what Delegate McClellan's personal HD 74 is found in the Richmond area and was preferences were. represented by Delegate Joseph Morrissey during the 2011 redistricting process. Under And here, her personal preferences appeared the Benchmark Plan, the district contained all in conflict with those of another legislator: of Charles City and parts of Henrico, Delegate Loupassi. According to Delegate Hopewell City, and Richmond City (as well Jones, Delegate Loupassi used to be on the as part of Prince George containing no Richmond City Council and his former ward population). Under the Enacted Plan, the abutted precinct 207 where he had strong district now contains all of Charles City and support, so he “wanted that precinct in his parts of Henrico and Richmond City. This district.” Delegate McClellan argued that decreased the number of county and city adding precinct 207 to Delegate Loupassi's splits from 4 to 2, with the number of split district “didn't help him” because he is a VTDs remaining the same. HD 74 has a core Republican, but Delegate Jones testified that retention percentage of 80.08, and is Delegate Loupassi has “a broad base of contiguous by land. support from the democratic side of the aisle”

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On its face, the ax-shaped district arouses In the end, however, the primary objection to some suspicion. The “blade” of the ax this district amounts to a criticism that the encompasses all of Charles City, but the district is too long. But predominance is not eastern “handle” is curious. The district had merely a beauty contest centered on Reock- Reock and Polsby–Popper scores of .16 and style compactness. Although this district .10 under the Benchmark Plan, which certainly does not earn high marks in a remained almost identical—with scores of qualitative predominance analysis, the .16 and .12–under the Enacted Plan. The Plaintiffs have failed to demonstrate that district's Schwartzberg score is 2 .839. These neutral criteria were substantially low scores reflect the district's substantially disregarded in the formation of HD 74. The elongated shape. district contains all of Charles City and, for most of its length, has readily identifiable Despite its elongation, however, the district is boundaries. Moreover, the shifting of black not as unreasonable as it first appears. The population into HD 63 and HD 71 largely north edge of the handle tracks the Henrico improved HD 74's compliance with neutral county line, while the lower edge is almost criteria, such as contiguity and compactness. entirely retained within Henrico County. In Moreover, the district has retained roughly fact, Delegate Jones' revision permitting the the same long shape since 1991. Core upper edge to track Henrico county lines “put retention alone cannot be used to save an some more good Republican precincts in otherwise offensive district, but it is worth there that the gentleman in the 97th did not holding in the balance if the familiarity of the want to lose[.]” The district has also boundaries has “allow[ed for the] improved on neutral metrics over the last development of relationships and three districting cycles. In particular, the communities of interest relative to election of 2011 plan removed the water crossing delegates.” discussed in Wilkins v. West. On the whole, the Court finds that the The Intervenors also noted that the BVAP Plaintiffs have failed to meet the percentage in the district had been lowered predominance inquiry's “demanding burden” substantially from the Benchmark Plan. But to show that racial considerations the fact that the BVAP percentage dropped subordinated both neutral criteria and other does not, taken alone, indicate that race was race-neutral explanations in the formation of not the predominate criterion influencing the HD 74. Therefore, the Court holds, as a district's construction. As the Plaintiffs matter of fact, that race did not predominate observe, much of the black population ceded in the drawing of HD 74. from HD 74 went to other Challenged Districts, such as HD 63 and HD 71. Unlike 7. District 77 in a racial vote dilution claim, a racial predominance inquiry does not necessarily HD 77 is found in the Portsmouth area and concern itself with whether the BVAP went was represented by Delegate Lionel Spruill up or down. A district formed primarily to during the 2011 redistricting process. Under eject black voters would employ the same both the Benchmark Plan and the Enacted racial classification as a district formed Plan, the district contains parts of primarily to include black voters. Chesapeake and Suffolk. The number of county and city splits remained the same, and the number of split VTDs decreased from 4

422 to 3. HD 77 has a core retention percentage predominate, political performance might of 74.4. predominate, or racial considerations might predominate. These are all questions that At first glance, this jagged and elongated Plaintiffs bore the burden of answering. The district is suspect. However, upon closer Court is not in a position to guess based on inspection, the top-right corner of the district the skimpy evidence submitted. hews to strange county lines, while many curious features on the lower side of the But, the record does show that the district's district track natural water boundaries and already-strange 2001 design was somewhat precincts that are themselves rather jagged ameliorated in HB 5005 by moving the and elongated. The district had Reock and “Airport District” precinct from HD 77 to HD Polsby–Popper scores of .18 and .17 under 76, and “reuniting” the “old city of South the Benchmark Plan, which shifted to scores Norfolk” at Delegate Spruill's request, which of .19 and .15 under the Enacted Plan. The allowed segments of the new district to more district's Schwartzberg score is 2.542. With closely track county boundaries and water respect to neutral criteria, it appears that boundaries. These changes also served compliance therewith could still result in an political ends. The Airport District is inherently oddly-shaped district, but the primarily Republican, so this transfer helped record lacks guidance in this regard. Delegate Jones, whereas the “old city of South Norfolk” surrounds Delegate Spruill's The record is similarly unclear and residence, which was seen as politically incomplete respecting deviations from advantageous for him as well, Although the traditional criteria. The district's large neighborhoods added around Delegate western chunk is admittedly attributable to a Spruill also contained meaningful black single precinct, but that does not answer why populations, Tanglewood, Oaklette, Norfolk that whole half of the district is thrust so far Highlands, Indian River, and Johnson Park into HD 76 as to nearly sever it in half. As were all majority-white precincts. Delegate Jones observed, the 76th and 77th districts share the most geographical The Court also observes that the district is not boundary area on the map. contiguous by land and does not appear to possess a water crossing within its bounds, Based on the alternative districting plans but Plaintiffs have offered no substantive referenced by the Plaintiffs, it appears that it evidence on whether this deviation relates in was possible to create the same number of any way to the attainment of the district's performing districts in this region without BVAP level, which is 58.8% in the Executed resorting to this westward leap. So was this Plan. deviation necessary to reach the 55% BVAP floor (in which case, race might Based on the testimony, evidence, and predominate), or was this deviation arguments, the Court cannot ascertain from motivated by a desire to remove Democrat the record whether race, politics, or other performing precincts from Delegate Jones' criteria predominated in the formation of HD district (in which case politics might 77. Frankly, if the presumption of correctness predominate)? Or, is this overall structure and good faith has any meaning, it is attributable to the “knock-on” effects of applicable in this instance. The Plaintiffs avoiding pairing incumbents in this region? If simply point to the threshold's attainment of so, incumbency considerations might the 55% BVAP floor, evidence of racial

423 correlation, and a low compactness score to district's Schwartzberg score is 3.054—the prove that race predominated. There is no highest of all the Challenged Districts. evidence-based explanation to show how, if at all, the racial floor impacted the boundaries Because the district makes little rational of HD 77 or why voters were placed there in sense as a geographical unit, the Court will the redistricting process. The Plaintiffs move directly to ascertaining the cannot hand the Court a stone and expect predominant purpose of the deviations. To back a sculpture. begin, it is hard to identify what is now a “deviation” because it is hard to identify what It is at least as likely that politics and is now the core of the district. The district is traditional districting factors account for the split by water twice without any apparent configuration and composition of HD 77 as it crossing enabling residents to stay within the is that race was responsible. Because the district on either occasion. Plaintiffs have failed to provide evidence as to the ways in which racial considerations The Plaintiffs correctly note that HD 80's might have had a “direct and significant western border “winds its way around low impact” on the District's formation, the Court BVAP precincts like Silverwood (14.9%), finds that the Plaintiffs have failed to meet the Churchland (8.3%), and Fellowship (14.2%) burden of proof required to show that race to capture high BVAP precincts such as predominated in the construction of HD 77. Yeates (56.3%) and Taylor Road (48.8%).” Considering the district's attainment of the 8. District 80 BVAP floor, this is the kind of detailed explanation that might lead the Court to find HD 80 is found in the Portsmouth area and that racial considerations subordinated all was represented by Delegate Matthew James others. In this case, however, the Plaintiffs' during the 2011 redistricting process. Under racial explanation must contend with other the Benchmark Plan, the district contained “dominant and controlling” considerations: parts of Chesapeake, Norfolk, and incumbency protection as well as geographic Portsmouth. Under the Enacted Plan, the features and a naval base. district now contains parts of Chesapeake, Norfolk, Portsmouth, and Suffolk. This In addition to the constraints imposed by the increased the number of county and city splits James River, the Atlantic Ocean, and the from 3 to 4 but decreased the number of split Norfolk naval base, the district needed to VTDs from 2 to 1. HD 80 has a core retention retain the residence of Delegate James while percentage of 59.94. avoiding the residences of Delegate Johnny Joannou (HD 79) and then-Delegate Kenneth At trial, Intervenors stated, “I think it's fair to Alexander (HD 89). The general—and say honestly that this district looks a little relatively simple—problem was “a loss of irregular.” But “a little irregular” is “a little population” in the area and the need to move bit of an understatement.” The district is quite district boundaries “from the oceanfront back unusually configured. The district had Reock ... western to Suffolk” to capture population. and Polsby–Popper scores of .39 and .26 This problem became far more complex, under the Benchmark Plan, which however, because Delegates Alexander, experienced a substantial drop to scores of Joannou, and Jones all live in relatively close .26 and .11 under the Enacted Plan. The proximity. To avoid pairing incumbents, the westward shift of the districts had to wrap

424 around the residences of the incumbents, and northeast without pairing resulting in the distortion found here. Thus, incumbents. the map needed to “roll the population around ... to make sure Delegate Joannou had a Based on this record, it appears just as likely sufficient number of residents in his district” that precincts were selected for being highly and narrow the neck of the district before Democratic and avoided for being highly leaping further out westward to avoid Republican, as it is that precincts were Delegate Joannou while capturing Delegate selected for being highly African–American James. and avoided for being highly Caucasian. And, just because “the most loyal Democrats That explanation addresses why neutral happen to be black Democrats” does not criteria were subordinated, but it does not mean that a political gerrymander is thereby provide the basis upon which voters were transformed into a racial gerrymander. sorted into the corresponding districts. “Incumbent pairing prevention” may have On the whole, the Court finds that the resulted in “population rolls,” but an equal Plaintiffs have not carried the burden of population goal itself is not part of the demonstrating that racial considerations predominance balance. subordinated neutral districting criteria and other non-racial districting criteria, including “Incumbency protection,” on the other hand, incumbent pairing prevention and does provide an explanation for the incumbency protection. Although the amalgamation of precincts selected for HD existence of the BVAP floor itself weighs in 80. As the Intervenors explained: favor of a racial predominance finding, the Court finds, as a matter of fact, that— Although HD80 could have been qualitatively—the “dominant and drawn to take territory from HD76— controlling” factor dictating the construction represented by Delegate Jones—the of HD 80 was incumbency protection, and precincts there were Republican that race did not predominate in the drawing strongholds, and neither Jones nor of HD 80. HD80's representative, Democrat Matthew James, wanted that trade. 9. District 89 Drawing HD80 into the former territory of HD79 gave those HD 89 is found in the Norfolk area and was Democratic-leaning precincts to represented by then-Delegate Kenneth James, and not Jones. This Alexander during the 2011 redistricting arrangement made HD80 less process. Under both the Benchmark Plan and compact than it would have been had the Enacted Plan, the district is contained it taken territory from Jones, but it wholly within Norfolk. There were no county was politically preferable. HD80 was or city splits and the number of split VTDs also drawn to protect other remained the same under both plans. HD 89 incumbents, Johnny Joannou (HD79) has a core retention percentage of 76.86. and Kenneth Alexander (HD89), who resided near the borders they shared On its face, the district appears reasonably with HD80, making it impossible for compact and generally follows precinct lines HD80 to take territory to the north within Norfolk. The district had Reock and Polsby–Popper scores of .58 and .31 under

425 the Benchmark Plan, which dropped to scores split VTDs remained the same. HD 90 has a of .40 and .20 under the Enacted Plan. The core retention percentage of 63.21. district's Schwartzberg score is 2 .263. On its face, the district appears to represent a Although the district is not contiguous by reasonably compact geographic unit. The land, it does contain water crossings within district had Reock and Polsby–Popper scores the district. One of these crossings is largely of .35 and .24 under the Benchmark Plan, to blame for the district's relative drop in which shifted to scores of .46 and .20 under compactness. The added precinct— the Enacted Plan. Ints.' Ex. 15 at 15, Table 9. Berkley—contains a high BVAP percentage, The district's Schwartzberg score is 2.221. but is also relatively close to Delegate Alexander's residence. Apart from the district's two extensions into Virginia Beach and lack of land contiguity, In addition, the district added a small “pipe” HD 90 seems to largely comply with to its northernmost border, which includes a traditional, neutral districting conventions. funeral home owned by Delegate Alexander. Even these “deviations,” however, must be As Delegate Jones explained, Virginia state viewed in context. Specifically, the 2011 legislators are “part-time citizen legislators,” redistricting plan improved the district's many of whom regularly interact with their compliance with the “political subdivisions” constituents in their professional capacities. criterion by removing a segment from As such, having a business within the district Chesapeake. And, the southern appendage enables incumbents to more readily engage that reaches into Virginia Beach tracks the with their constituents. county line on its western border. Moreover, one of the district's jumps across water Weighing all evidence, it appears that a connects parts of Norfolk. As such, this land- couple of small deviations possibly could be contiguity failure simultaneously serves to attributable either to racial or to incumbency unite a political subdivision and community considerations, but the district's composition of interest. is predominantly attributable to traditional, neutral principles. Therefore, the Court holds On the record submitted, neutral criteria that the Plaintiffs did not carry the burden of appear to predominate. Even if the southern proving that race predominated in the appendage reaching into Virginia Beach were drawing of HD 89. enough for the district as a whole to exhibit a “substantial disregard” for neutral principles, 10. District 90 it hardly appears that this offending piece of land could be viewed as racially driven. In HD 90 is found in the Norfolk area and was fact, that segment of Virginia Beach contains represented by Delegate Algie Howell, Jr. some of the lowest BVAP percentages in the during the 2011 redistricting process. Under entire district. Therefore, the Court holds that the Benchmark Plan, the district contained the Plaintiffs did not carry the burden to parts of Chesapeake, Norfolk, and Virginia prove that race predominated in the drawing Beach. Under the Enacted Plan, the district of HD 90, notwithstanding that it satisfies the now contains parts of Norfolk and Virginia 55% BVAP floor. Beach. This decreased the number of county and city splits from 3 to 2 and the number of 11. District 92

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HD 92 is found in the Hampton area and was percentage of 62.15, and is contiguous by represented by Delegate Jeion Ward during land. the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the Their proximity notwithstanding, HD 92 and district is contained wholly within Hampton. HD 95 share little in common. From bottom The district contains no county or city splits, to top, the district begins by encompassing and redistricting lowered the number of split the full width of Newport News but soon VTDs in the district from 3 to 0. HD 92 has a departs from any observable neutral criteria. core retention percentage of 77.27. As the district moves northwest, a sliver attributable to the River precinct extends into On the whole, the Court finds it hard to HD 94 before the district works its way imagine a better example of a district that entirely over into Hampton City. There it complies with traditional, neutral districting remains for a period before extending briefly principles. The district had Reock and back into Newport News via the South Polsby–Popper scores of .28 and .15 under Morrison precinct. After retreating back into the Benchmark Plan, which increased to Hampton City the district then hits water and scores of .34 and .26 under the Enacted Plan. York County, which it weaves around before The district's Schwartzberg score is 1.970. running up through the middle of Newport News in a narrow spike. If there is any As a result of the 2011 redistricting process, reasonably neutral explanation for the route the district became more compact, reunified followed, this Court was not informed. The downtown Hampton, and eliminated all district had Reock and Polsby–Popper scores precinct splits. Moreover, most of the of .43 and .28 under the Benchmark Plan, district's southern border is marked by the which dropped to scores of .14 and .14 under waterfront and much of the district's western the Enacted Plan. This rendered HD 95 the border now follows the Hampton boundary, least compact district on the map under the making it easily identifiable to voters. Reock metric. The district's Schwartzberg Although the district is not contiguous by score is 2.657. land, it contains water crossings to allow voters to travel between parts of the district Rather than attempting to explain the district without traversing other districts. The Court through neutral criteria, the Intervenors holds, as a matter of fact, that traditional, themselves acknowledge that the neutral criteria—not race—predominated in construction of the district was “significantly the construction of HD 92. political.” According to Delegate Jones, the district's movement north follows heavily 12. District 95 Democratic precincts and then narrowly jumps through two Republican precincts in HD 95 is found in the Hampton area and was order to capture another strongly Democratic represented by Delegate Mamye BaCote voting area at its northernmost tip. Moreover, during the 2011 redistricting process. Under the district's eastward “zig” followed by its both the Benchmark Plan and the Enacted westward “zag” managed to avoid including Plan, the district contains parts of Hampton the residence of Delegate Robin Abbott in and Newport News. Although the number of HD 95. This avoided pairing female county and city splits remained the same, Democratic incumbents and, in conjunction redistricting increased the number of split with the partisan maneuvering above, placed VTDs from 1 to 6. HD 95 has a core retention Delegate Abbott in a more heavily

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Republican swing seat. As Intervenors Today, despite the Supreme Court's clear explained: “HD95 was crafted carefully to warning against the mechanical use of racial avoid taking HD94's Republican precincts targets in redistricting, this court upholds the and instead take Democratic-leaning Virginia General Assembly's application of a population left behind by HD93 and reach one-size-fits-all racial quota to twelve highly into precincts surrounded by HD93 to dilute dissimilar legislative districts. This quota was Democratic voting strength in that area.” used to assign voters to districts based on the The Court finds that explanation persuasive. color of their skin without the constitutional Where there is a correlation between race and protection afforded by strict scrutiny. party, the burden is upon the Plaintiffs to I recognize that the legislature in this case did dislodge the evidence showing that voters not have the benefit of the Supreme Court's were sorted predominantly on the basis decision in Alabama, and I do not doubt that political preference rather than race. Delegate individual legislators acted in good faith in Jones had access to political performance the redistricting process. Nevertheless, the data as well as racial data. As the Intervenors resulting legislative enactment has affected asked during closing argument: “[I]f race was Virginia citizens' fundamental right to vote, the principal factor, why [did the legislature] in violation of the Equal Protection Clause. pass by all these areas which have more black Accordingly, I would invalidate Virginia's voters [in the southern part of the peninsula 2011 redistricting plan. and] go up there [to the northern tip of the district]? ... We don't hear any analysis from I. the other side on that point. There's no contradictory testimony.” On the evidence Redistricting decisions are almost always submitted, political advantage (based on made with a “consciousness of race,” and partisan performance data) has been shown to such awareness does not necessarily result in have been the dominant and controlling a violation of the Equal Protection Clause. consideration guiding the district's However, when a legislature is “motivated” unorthodox boundaries. As a result, the Court by racial considerations, this inherently holds, as a matter of fact, that race did not suspect system of racial classification must predominate in the construction of HD 95. satisfy the rigorous requirements of strict scrutiny. V. CONCLUSION A plaintiff asserting a race-based equal For the foregoing reasons, the Court holds protection claim in a redistricting case has the that each of the twelve Challenged Districts burden of proving “that race was the withstands constitutional scrutiny under the predominant factor motivating the Equal Protection Clause, and judgment will legislature's decision to place a significant be entered for the Defendants and the number of voters within or without a Intervenor–Defendants. particular district.” Under this predominance test, a plaintiff must show that “the It is so ORDERED. legislature subordinated traditional race- neutral districting principles ... to racial … considerations.” When a legislature has “relied on race in substantial disregard of BARBARA MILANO KEENAN, Circuit customary and traditional districting Judge, dissenting:

428 principles,” such traditional principles have This case presents a textbook example of been subordinated to race. racial predominance, in which a uniform racial quota was the only criterion employed Strict scrutiny is required when race was the in the redistricting process that could not be predominant factor that categorically was compromised. This one-size-fits-all quota accorded priority over race-neutral districting automatically made racial sorting a priority factors. As the Supreme Court has explained, over any other districting factor. Although a traditional factors have been subordinated to legislature is entitled to a presumption of race when “[r]ace was the criterion that, in good faith, this presumption must yield when the State's view, could not be compromised,” the evidence shows that citizens have been and when traditional, race-neutral criteria assigned to legislative districts primarily were considered “only after the race-based based on their race. For this reason, I disagree decision had been made.” Thus, while a with the majority's conclusion that a uniform redistricting plan may reflect certain racial quota merely is “evidence” of traditional districting criteria, that plan predominance, and instead would hold that nevertheless remains subject to strict scrutiny the existence of such a widely applied quota when those criteria have been subordinated to establishes predominance as a matter of law. a process that has sorted voters primarily by race. A.

Contrary to the majority's view, this I first observe that while the parties have predominance inquiry does not require that engaged in a semantical debate whether the the use of race in drawing district boundaries 55% BVAP threshold was an “aspirational be in “conflict” with traditional districting target” or a “rule,” the evidence presented at criteria. In fact, the race of a voter often trial clearly established that the legislature correlates with other districting employed the 55% BVAP figure as a fixed, considerations, including partisan preference, non-negotiable quota. Three individual incumbency protection, and communities of delegates testified regarding their interest. The conclusion logically follows, understanding of the mandatory nature of the therefore, that racial sorting frequently will quota. And, despite Delegate Jones' trial not be in “conflict” with these and other testimony that the 55% BVAP figure was districting criteria. merely an “aspirational ... rule of thumb,” he promoted the plan during the House of Because such districting criteria can be used Delegates floor debates as having achieved a to mask racial sorting, courts must carefully 55% minimum BVAP for all majority- examine the evidence under the test for minority districts. The legislators' subjective predominance articulated in Miller and Shaw understanding that the 55% figure operated II. Under that test, race necessarily as a mandatory floor further was predominates when the legislature has corroborated by the fact that, in the 2011 subordinated traditional districting criteria to plan, the BVAP in most of the twelve racial goals, such as when race is the single challenged districts converged toward 55% immutable criterion and other factors are while each district satisfied the 55% BVAP considered only when consistent with the floor. racial objective. B. II.

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The “disregard of individual rights” is the The uniform racial quota employed in the “fatal flaw” in such race-based present case is more suspicious on its face classifications. By assigning voters to certain than the racial thresholds at issue in Alabama. districts based on the color of their skin, The legislature in Alabama sought to states risk “engag[ing] in the offensive and maintain preexisting racial percentages demeaning assumption that voters of a specific to each district with the aim of particular race, because of their race, think avoiding retrogression under Section 5. In alike, share the same political interests, and contrast, the racial quota used in the present will prefer the same candidates at the polls.” case was applied indiscriminately to all Quotas are especially pernicious twelve districts irrespective of the particular embodiments of racial stereotypes, because characteristics of those districts. The Virginia they threaten citizens' “‘personal rights' to be plan's one-size-fits-all quota thus raises even treated with equal dignity and respect.” more serious concerns that the legislature's districting decisions were driven primarily by Here, the plan contravened the rights of race. individual voters by applying a one-size-fits- all racial quota for black voters in twelve In view of the Virginia legislature's highly dissimilar districts, without regard to application of a single racial quota to the characteristics of the voters or of their numerous districts in the case before us, this communities. The 55% quota thus is a classic court is not presented with the question example of race-based stereotyping and whether a particular fixed BVAP percentage unequal treatment prohibited by the Equal would trigger strict scrutiny if applied to a Protection Clause. single district. Nor is this court asked to decide whether strict scrutiny is required The Supreme Court's skepticism of racial every time a legislature intentionally creates quotas is long-standing. However, the Court a majority-minority district. has yet to decide whether use of a one-size- fits-all racial quota in a legislative Instead, the more narrow question before this redistricting plan or, in particular, use of such court is whether strict scrutiny is required a quota well exceeding 50%, establishes when a uniform racial quota of 55% has been predominance as a matter of law under applied by a legislature in drawing twelve Miller. legislative districts that are highly dissimilar in character. Here, because traditional The Court recently has cautioned against districting criteria were considered solely “prioritizing mechanical racial targets above insofar as they did not interfere with this 55% all other districting criteria” in redistricting. minimum floor, the quota operated as a filter Although the Court in Alabama did not through which all line-drawing decisions had decide whether the use of a racial quota well to pass. Such a racial filter necessarily had a exceeding 50%, of itself, can establish discriminatory effect on the configuration of predominance, the Court made clear that such the districts, because it rendered all “mechanical racial targets” are highly traditional criteria that otherwise would have suspicious. After issuing this admonishment been “race-neutral” tainted by and and identifying several errors in the district subordinated to race. Under these court's analysis, the Court ultimately circumstances, although a legislature may remanded the case to the district court to take into account traditional districting reconsider the question of predominance. criteria, race-neutral application of those

430 criteria becomes impossible and all decisions Equal Protection Clause. Rather, as stated necessarily are affected by race. Therefore, I above, the constitutional harm results from would hold that the plaintiffs have individual voters being sorted into districts established as a matter of law under Miller based on the color of their skin. By requiring that race predominated in the legislative that use of race actually “conflict” with drawing of each of the challenged districts, traditional redistricting criteria, the majority's and I would apply strict scrutiny in predominance test often will fail to identify examining the constitutionality of those constitutionally suspect racial sorting. districts. IV. III. In reviewing a redistricting plan, courts In stark contrast, the majority's predominance typically examine whether a plan complies analysis accepts the use of this facially with traditional districting factors, such as suspicious racial quota. In doing so, the compactness and contiguity, when evaluating majority places an unwarranted burden on the whether there is evidence of racially plaintiffs to show that the quota had motivated decision making. When a identifiable effects on the drawing of legislative district is bizarre in shape, that fact particular district lines. The majority thus “may be persuasive circumstantial evidence effectively would require the plaintiffs to that race for its own sake, and not other present an alternative legislative map districting principles, was the legislature's showing how lines could have been drawn dominant and controlling rationale in differently without imposing the 55% quota. drawing its district lines.” Here, however, the Such an onerous burden, however, far majority relies on shape and other traditional exceeds the required showing for establishing districting factors to uphold the 2011 plan, predominance. even in the face of the overwhelming, direct evidence of racial motivation evidenced by Additionally, under the majority's test, visual the use of a one-size-fits-all racial quota. inspection of a district would be fatal to an equal protection claim if the district's The majority's analysis is not aided by boundaries appear to be consistent with Cromartie II and Bush. In Cromartie II, the traditional criteria, irrespective of direct Court described the predominance inquiry as evidence that the line-drawing was racially requiring plaintiffs to show that a district's motivated at the outset. Thus, as a result of boundaries were drawn “because of race the majority's analysis, and its requirement rather than because of” other districting that the use of race be in actual “conflict” criteria. However, a legislative district with traditional districting criteria, future necessarily is crafted “because of race” when plaintiffs asserting a racial sorting claim will a racial quota is the single filter through be restricted to challenging districts that which all line-drawing decisions are made. manifest extreme line-drawing unexplainable on race-neutral grounds, like the district at Similarly, the principal opinion in Bush issue in Shaw I. explained that “[s]ignificant deviations from traditional districting principles ... cause As the Supreme Court has emphasized, constitutional harm insofar as they convey however, a district that is bizarre in shape is the message that political identity is, or not the constitutional harm prohibited by the should be, predominantly racial.” The import

431 of this language is obvious. The harm caused scrutiny. Moreover, given the significant by racial stereotyping is apparent when racial population deficits in most of the challenged sorting manifests itself in odd district districts, our inquiry must focus on “which boundaries that are visible to any observer. voters the legislature decide[d] to choose” But the incidence of constitutional harm is when moving voters between districts in not limited to the presence of a district that is order to achieve population equality. Here, odd in shape. In the present case, the the legislature's decision to move certain legislature's use of a racial quota resulted in voters in order to maintain a preexisting 55% constitutional harm, because that BVAP floor in the new plan is still a methodology “convey[ed] the message that “mechanically numerical” method of political identity is, or should be, redistricting that is subject to strict scrutiny. predominantly racial.” I therefore conclude that the majority's I also disagree with the intervenors' implicit approach effectively and improperly places suggestion that approval by incumbent on plaintiffs asserting racial predominance in legislators in the challenged districts redistricting a burden never assigned by the somehow rescues the plan from a finding of Supreme Court. Under the majority's racial predominance. The Voting Rights Act analysis, plaintiffs now will be required to (VRA) and the Equal Protection Clause are show circumstantial evidence of racial intended to protect the rights of the individual motivation through “actual conflict” with voter, not to promote the self-interest of traditional districting criteria, when such incumbents in majority-minority districts. To plaintiffs already have presented dispositive the contrary, immunizing incumbents from direct evidence that the legislature assigned challenge could entrench them in race a priority over all other districting overwhelmingly safe districts and undermine factors. the representatives' accountability to their constituents. One can easily imagine how V. such entrenchment could harm minority voters by discouraging challengers from Even upon applying its heightened running and by preventing voters from predominance standard, the majority electing a new candidate who better concludes that race was the predominant represents their interests. “Packing” minority factor in the drawing of District 75. I would voters into a particular majority-minority hold that, under the majority's test, the same district for the purpose of protecting the conclusion of predominance holds true for incumbent also can reduce minority voters' neighboring District 63 as well. ability to influence elections in nearby districts. As a result of the “drastic maneuvering” required to reach a 55% BVAP in District 75, A true predominance analysis also is not portions of a county previously in District 63 affected by the fact that, at the time of the were shifted into District 75, a move that the 2010 census, nine of the twelve challenged majority agrees was “avowedly racial.” The districts already had a BVAP of 55% or plan compensated for this loss of BVAP in higher. Even assuming that such figures District 63 by adding to the district new areas could protect the configuration of those nine with high BVAP concentrations. Due to the districts in the 2011 plan, the three remaining changes in the 2011 plan, District 63 districts still would be subject to strict experienced a startling reduction in

432 compactness and an increase in the number merely general and conclusory in nature and, of split cities, counties, and VTDs. This and therefore, fell far short of demonstrating a other evidence showed that implementation “strong basis in evidence” for the application of the 55% racial quota had a marked impact of a racial quota. Not only did the 2005 on the configuration of both Districts 63 and elections occur six years prior to the 2011 75. redistricting, but Tyler ran unopposed in the two elections since, casting significant doubt VI. on Jones' contention that District 75 was so competitive that a minority-preferred I further conclude that none of the challenged candidate required at least a 55% BVAP to be districts can survive the test of strict scrutiny, re-elected from 2011 onward. And, critically, because the legislature's use of the 55% quota Jones failed to provide any explanation of was not narrowly tailored to achieve a how his “functional” review led him to compelling state interest in any of the conclude that a 55% BVAP was required in challenged districts. Evidence of narrow District 75 to ensure compliance with the tailoring in this case is practically non- VRA. existent. The evidence supporting the use of the 55% Assuming that compliance with the VRA is a racial quota in the remaining challenged compelling state interest, attempts at such districts was even weaker. The House of compliance “cannot justify race-based Delegates did not conduct an analysis districting where the challenged district was regarding the extent of racially polarized not reasonably necessary under a voting in any of these districts. Although constitutional reading and application” of Delegate Jones stated that he was aware of federal law. Thus, narrow tailoring requires low registration rates among black voters, he that the legislature have a “strong basis in also admitted that he did not review voter evidence” for its race-based decision, that is, registration figures when drawing the plan. “good reasons to believe” that the chosen Nor did he examine minority turnout rates in racial classification was required to comply most of the challenged districts, or consider with the VRA. state Senate districts, congressional maps, or other maps that had been pre-cleared or In the present case, the intervenors presented rejected by the Department of Justice. And, virtually no evidence supporting the need for in attempting to justify imposition of the 55% application of a 55% BVAP in any of the BVAP quota in District 63, Jones stated that challenged districts. In fact, Delegate Jones he “t[hought] there was a primary” in which even had difficulty articulating the original Delegate Dance ran as an independent, which source of the 55% figure. results he reviewed, but he did not specify how those results led him to select a 55% The only evidence suggestive of any tailoring BVAP threshold in District 63. Such involved District 75. Delegate Jones testified unsubstantiated and general comments that he conducted a “functional analysis” of plainly do not constitute the strong basis in Delegate Tyler's primary and general election evidence required to satisfy strict scrutiny. results in 2005, and considered the significant prison population in that district, which Finally, I do not think that the outcome of this together supported the imposition of a 55% case, in favor of either party, is dependent on racial floor. However, Jones' statements were any of the expert testimony. However, I

433 pause to note that I find the testimony offered political process and to elect representatives by Dr. Katz to be singularly unpersuasive on of their choice,” and that minority voters the issue of narrow tailoring. Dr. Katz retain their existing ability to elect their admitted that he provided only a “crude” preferred candidates. analysis of the likelihood that a candidate For these reasons, I would find that the record preferred by minority voters would be utterly fails to show that the legislature had a elected. According to Dr. Katz, this “crude” “strong basis in evidence” for using the 55% method demonstrated that a 55% BVAP racial quota in any of the challenged districts. correlates with an 80% chance of electing a Accordingly, I would hold that all the black candidate. districts fail the test of strict scrutiny.

Dr. Katz' crude analysis exhibits two glaring VII. flaws. First, it underrepresents the likelihood that the preferred candidate of minority The promise of the Equal Protection Clause voters would be elected by evaluating only is the guarantee of true equality under the the likely success of black candidates, when law, enforced by our courts for the protection minority voters had elected non-minority of our citizens irrespective of the power of delegates in certain of the challenged any governmental entity. The Virginia districts. Second, and more fundamentally, legislature's use of the racial quota in this Dr. Katz' analysis is flawed because the VRA case violated this core constitutional does not guarantee the success of a candidate principle in the absence of a strong basis in of a particular race in a given election. evidence supporting its race-based decision. Rather, the VRA ensures that minority voters Thus, I would invalidate Virginia's 2011 do not “have less opportunity than other redistricting plan. I respectfully dissent. members of the electorate to participate in the

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“Supreme Court will weigh in on whether Va. districts are racially gerrymandered”

The Washington Post Robert Barnes and Laura Vozzella June 6, 2016

The Supreme Court announced Monday it gerrymandering. Unlike the usual process will take its second look at whether involved in selecting which cases it will Virginia’s Republican political leaders review, federal law leaves the court little gerrymandered the state’s electoral maps in discretion in deciding whether to review order to diminish the power of African redistricting challenges. American voters. Last year, the court sent back Alabama’s Last month, the justices upheld a plan legislative redistricting plan, saying imposed by a lower court that redrew some of legislators had failed to find the legal sweet the commonwealth’s congressional districts spot between districts drawn with enough and created the possibility of electing a minority voters that they can elect second black U.S. House member. representatives of their choice but not with so many minority voters that surrounding On Monday, the court said it would review a districts are intentionally made safe for white different court’s rejection of a challenge that Republicans. said Republican leaders reduced the strength of minority voters by packing them into a The Virginia cases were brought by Marc E. dozen House of Delegates districts. Elias and funded by the National Democratic Redistricting Trust. Elias is general counsel A three-judge panel had voted 2 to 1 that the to Hillary Clinton’s presidential campaign districts were constitutional and that race had and worked on the campaign of now-Gov. not been the primary consideration in Terry McAuliffe (D). drawing them. Virginia House Speaker William J. Howell The case will be considered in the new term (R-Stafford) said the three-judge panel in the that begins in October, and if the Supreme current case “plainly laid out the Court orders any changes in the districts, they constitutionality of Virginia’s House of would presumably take place in advance of Delegates redistricting plan and we are the 2017 elections. confident that upon review the Supreme The Supreme Court is increasingly being Court will affirm the lower court ruling.” asked to consider cases of alleged racial

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Supporters of the plan noted that every The deal sailed through the House on an 86- member of the Legislative Black Caucus to-8 vote. Most of the resistance came from voted for it when it was drawn in 2011. Republicans in the closely divided Senate, where the map was passed on a straight party- But support from black incumbents does not line vote of 22 to 18. Senate Republicans said guarantee that the maps were fair, said Brian at the time that the Democratic plan divided Cannon, executive director of up too many counties and cities and OneVirginia2021, a nonprofit group pushing contained districts that varied too widely in for nonpartisan redistricting. population. “It’s not about the black legislators. It’s about More recently, House Democrats have begun the black voters, whether African American complaining about the lines. voters have been illegally packed into districts,” Cannon said. “This leaves a “We have a state that is essentially a 50-50, number of communities split. It wrings out Republican-Democratic state and two-thirds competition from elections, and it only serves of the House is controlled by the as an incumbent-protection racket.” Republicans,” said House Minority Leader David J. Toscano (D-Charlottesville). “That He added: “The Supreme Court has a chance only makes sense in terms of lines that are to uphold good-government redistricting drawn to protect the incumbent Republican criteria in this case because what they’re majority.” faced with is a scenario in which the political process subverted all other good-government That may not mean much to the justices. The criteria in favor of politics.” court has shown a high tolerance for partisan gerrymandering aimed at protecting Richmond braced for a stalemate over incumbents. But the Constitution forbids redistricting in 2011, the first time since gerrymandering that relies too heavily on Reconstruction that political map-making race, because it harms the political clout of had been undertaken by a divided legislature. minorities. But the GOP-led House and Democratic-led Senate struck an informal deal: Republicans The lawsuit singled out 12 legislative in the House agreed to accept Senate lines districts for such criticism. But two of the drawn by Democrats, and Democrats in the three judges examining the plan said Senate agreed to accept House lines drawn by challengers had failed to prove that race was Republicans. the predominant factor in drawing 11 of them. Some Democrats complained at the time that the GOP could have drawn two additional Dissenting Judge Barbara Milano Keenan •majority-minority districts but chose not to. disagreed, saying the state’s leaders applied a Many black legislators spoke in favor of the “one-size-fits-all racial quota” to the plan, saying that their views had been taken otherwise dissimilar districts. into account.

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In the congressional case decided last month, the Supreme Court did not reach the question of whether Virginia lawmakers had intentionally packed minority voters in a way that diminished their strength. Instead, the court found that the Republican congressmen challenging the lower court’s decision did not have the legal standing to bring the suit.

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“How racial gerrymandering deprives black people of political power”

Washington Post Kim Soffen June 9, 2016

Thirty years ago, the Supreme Court “Typically the goal in [packing minorities expanded the meaning of one of the most into a district] is not to reduce minority important civil rights laws in U.S. history — representation in the adjacent districts; it’s to the Voting Rights Act of 1965. Among other reduce Democrats’ representation in those things, the court prohibited a then-common districts," said Nicholas Stephanopoulos, a practice among some states of spreading professor at the University of Chicago Law minorities across voting districts, leaving School. "They’ve been arguably using the them too few in number in any given district racial demographics as a way to enact a to elect their preferred candidates. The Republican gerrymander.” practice became known as "racial The issue has gained new prominence thanks gerrymandering." to Bethune-Hill v. Virginia Board of The court’s solution required that states Elections, a case the Supreme Court agreed create majority-minority districts — districts on Monday to hear. Virginia’s Republican- in which the majority of the voting-age held state legislature drew its majority- population belonged to a single minority. minority districts to be 55 percent black. With voting that occurred largely along racial Golden Bethune-Hill, among other Virginian lines, these districts allowed minority voters voters, sued the state’s Board of Elections, to elect their candidates of choice. arguing that they used race as a primary factor in drawing district lines for the House But a fascinating development occurred in of Delegates, which is unconstitutional under the years since. These districts, rather than the equal protection clause of the 14th giving African Americans more political Amendment. power, might have actually started to deprive them of it. Majority-minority districts, by The state contends the redistricting process concentrating the minority vote in certain occurred fairly and legally, with bipartisan districts, have the unintended consequence of support. Republicans have generally diluting their influence elsewhere. Experts defended their redistricting practices as say some Republican legislatures have following a legal practice of drawing districts capitalized on this new reality, redistricting in in politically favorable ways — just as their political favor under the guise of Democrat-controlled legislatures do. majority-minority districts.

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Constitutional issues aside, what’s the You might be thinking that, if only 30 percent practical consequence of the standard of a district's voters are black, it will be hard practice of "packing" districts with at least 50 for African Americans to elect their preferred percent African Americans? There are candidate. But that's increasingly not the dozens of majority-minority congressional case. The reason: the decline of racially districts across the country, and many more polarized voting. Minority and white voting state-level districts. They’re concentrated in patterns used to be starkly divergent, but the South, but can be found in states like New now, more whites vote for the minority- York and Ohio as well. favored candidate, especially in primaries. This change came about as racial divisions, Consider an example: Imagine the minority- beginning with the decline of segregation and favored candidate can win an election in a explicit racism, have faded (though district if at least 30 percent of voters are obviously not disappeared), and the interests minorities. What harm is done by the of politically like-minded blacks and whites legislators packing the district up to 50 have aligned. As a result, fewer minority percent minority voters? voters are required for a district to elect their Much like political gerrymandering, it limits favored candidate. black influence in surrounding districts. It One 2002 paper found that from the 1960s to would require the creation of, for instance, a the 1980s, districts needed to be more than 50 50 percent and a 10 percent black district, — some in the South as much as 65 — rather than two 30 percent black districts. In percent African American for their favored other words, the requirement would give candidate to win the election. But today, black voters one representative of their experts place the figure between 40 and 45 choice rather than two. percent. Stephanopoulos says it’s “certainly And even if it doesn’t decrease the number of below 50 percent” across the country. representatives the black voters can elect, it In majority-minority districts, minority can decrease their influence in white- voters are, by definition, packed beyond that dominated districts. As shown in the graphic threshold. Ultimately, this is detrimental to below, in a hypothetical state with five the minorities. David Canon, a professor of districts, packing the minority voters in at 50 political science at the University of percent levels rather than 30 percent leads Wisconsin-Madison said, “If you have too them to lose influence in two other districts, high a percent African Americans in a House leaving them overwhelmingly white. district, it does dilute the overall In both scenarios, the minority is numerous representation of African American enough to control the election in two districts. interests.” What differs is whether they have a political Since the minority electorate leans liberal, voice elsewhere in the state, which is packing minorities has the same effect as ultimately necessary to pass state-wide packing Democrats, causing the district map legislation in their favor. to favor Republicans in the same way it

439 favors whites. This key correlation has made States across the country, particularly in the majority-minority districts popular among South where legislatures tend to lean Republican-held state legislatures beyond Republican and the Department of Justice Virginia. historically had stronger control over voting rights, draw these districts. Though the court The partisanship is especially clear when is more concerned with the inappropriate use seeing how the district lines change census- of racial classifications rather than the to-census. Stephanopoulos said Republican deprivation of minority political power, its legislatures take districts "that were already ruling could have implications for electing minority representatives and pack legislatures across the country. more minority voters into them," and Democratic legislatures tend to "unpack ... The Supreme Court will hear arguments in its minority districts." In Arizona, which has a next term beginning in October. Republican legislature but districting is done by an independent commission, "there was much less packing of minority voters than there was in the other states."

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“Court reopens race and death penalty issues”

SCOTUSblog Lyle Denniston June 6, 2016

[Excerpt; Some references to other cases that were assigned a majority population of have been omitted.] minorities. The claim was that each of those districts was the result of racial Returning to ongoing disputes over the role gerrymandering — in particular, the of race in criminal punishment and in legislature’s decision to start with the politics, the Supreme Court on Monday premise that those districts should have at added new cases for decisions at its next least a fifty-five-percent minority population. Term — one involving the death penalty in Texas, the other involving the drawing of The Supreme Court has ruled several times new maps for election of members of that it is unconstitutional to draw up Virginia’s state legislature. districting maps if race was the “predominant factor” in drafting the boundaries and […] deciding who should or should not be The other race case that the Court agreed on included in given districts. In the House of Monday to review, Bethune-Hill v. Virginia Delegates case, a three-judge federal district State Board of Elections, brings the question court ruled that race was, in fact, the of racial gerrymandering in redistricting predominant factor in a single district, but plans back to the Court for the second time even that one was not unconstitutional this Term — and in the second case involving because it had been done to avoid violating Virginia. The other case, Wittman v. federal civil rights law. Personhubballah, involved congressional The challengers apparently enhanced their redistricting; it ultimately ended last month, chances of getting their complaint heard by when the Justices found that none of the the Supreme Court by pointing out, in a later challengers had a real legal stake in the case filing, that the decision in their case and dismissed it. conflicted directly with a federal court’s The new case focused on a plan that the ruling finding racial gerrymandering in the Virginia legislature drew up in 2011, creation of two congressional districts in following a federal census, for the one North Carolina. hundred seats in its lower chamber, the The Supreme Court issued a major ruling on House of Delegates. The challenge in federal the racial gerrymandering issue last Term, in court to the plan focused on twelve districts the case of Alabama Legislative Black

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Caucus v. Alabama. Apparently, however, Each of the three newly granted cases will the Court is not yet satisfied that the decision come up for hearing and decision in the went far enough to clarify its views on that Court’s next Term, starting in October. subject. […]

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“Virginia House districts upheld”

Daily Press Travis Fain October 22, 2015

A three judge panel dismissed a lawsuit strengthening the party's on the House of Thursday challenging 12 districts in the Delegates. Republicans testified that partisan Virginia House of Delegates, rejecting concerns, and incumbent protection, drove arguments that Republican legislators used much of their thinking. racial politics to draw the lines. Plaintiffs failed to prove that racial concerns The districts, including two on the Peninsula, were predominant, the majority wrote. will stay as they are, though an appeal is The packing argument was successful in a likely. separate challenge to Virginia's 3rd The decisions was 2-1. U.S. District Court Congressional District, which is being judges Robert Payne and Gerald Bruce Lee redrawn now under a court order. Payne was said race was the predominant reason for the only judge to serve on both cases, and he drawing just one of the 12 districts – District disagreed with the majority's 3rd District 75 in Sussex County – and that the legislature decision. had a good reason to rely on race there. Marc Elias, whose firm brought this case, the In the other districts, the two judges said GOP 3rd District case and another still-pending leaders managed to "traverse a precarious case targeting Virginia's voter ID laws, said path between constitutional and statutory his team is reviewing the Thursday decision, demands that are often in tension with one but expects to appeal. Golden Bethune-Hill, another." a well-known local activist and retired Riverside Health System executive, is the 4th Circuit Court of Appeals Judge Barbara lead plaintiff in the case, and it bears her Milano Keenan disagreed, saying the General name. Assembly used a "one-size fits all racial quote" to draw districts in "a textbook The majority opinion runs 155 pages and example of racial predominance." delves deep into redistricting history and theory, as well as American racial politics. Plaintiffs had accused the assembly's GOP Keenan's dissent adds another 21 pages. majority of packing black voters into districts to dilute their voting strength elsewhere,

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The majority opinion describes each district's The judges also complained of the vague and borders in turn, saying it's "hard to imagine a often competing requirements mapmakers better example of a district that complies with face, saying that the "conceptual grace" of traditional, neutral districting principles" Supreme Court standards lack in "practical than the 92nd District held by Del. Jeion guidance." Ward," D-Hampton. "For litigators, it provides an enticingly Not so with Del. Mamye BaCote's 95th vague standard and invites litigation that can District, which runs through parts of Newport drive up the cost of conducting and defending News and Hampton. the state's redistricting endeavor," they wrote. "If there is any reasonably neutral In a statement released late Thursday, explanation for the route followed, this court Speaker of the House William Howell said was not informed," the judges wrote. the case "unnecessarily cost Virginia taxpayers hundreds of thousands of dollars." House Appropriations Chairman S. Chris Jones, the Suffolk Republican who "The lawsuit came despite the fact that the spearheaded the 2011 redistricting, testified House districts were adopted with bipartisan that the 95th's lines were drawn to avoid two support, including the support of a majority heavily Republican precincts, gather in of the African American members in the Democrats and avoid then Del. Robin House of Delegates at the time, and approved Abbott's home. by President Obama's Department of Justice," Howell said in his statement. That helped keep Abbott out of the legislature. There are a number of legal challenges ongoing in Virginia and other states ahead of This is the sort of allowed political the 2016 presidential elections. Even the 3rd gerrymandering that proves the need for District case here may not be fully broad redistricting reform, according to some adjudicated. Republican congressman are groups, including OneVirginia2021, which trying for a second time to block a redraw at re-upped its call for change following the U.S. Supreme Court. The court hasn't Thursday's decision. The majority noted that taken the case, but called late last month for Elias and his team didn't argue against new briefs on the matter. political gerrymanders, though, and indicated there might be room to litigate the matter. A separate case here, challenging House districts not at issue in the racial gerrymander "Simply put, if incumbency interests case, is pending in the state courts system. constitute the predominate criterion driving That case doesn't deal with race, but a state the construction of the district, then a claim constitutional requirement that districts be of racial gerrymandering must fail," the compact. It was brought by judges wrote. "That, however, does not imply OneVirginia2021. that a claim of political gerrymandering would face a similar fate."

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A different judge will hear that case, but "All of the expert testimony provided reveals Thursday's opinion contains logic that could one deep conceptual dilemma: no one can come to bear. Payne and Lee described agree what it is or, as a result, how to measure compactness as "surprisingly ethereal given it," they wrote. "There are at least 20 its seemingly universal acceptance as a measures, not one of which can claim any guiding principle for districting." greater legitimacy than its peers."

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McCrory v. Harris

15-1262

Ruling Below: Harris v. McCrory, No. 1:13-CV-949, 2016 WL 482052 (M.D.N.C. Feb. 5, 2016)

Voters challenged the constitutionality of two congressional districts in North Carolina, on the grounds that they were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause.

The District Court held that race was indeed the primary factor in the redistricting, and that this resulted in the redistricting criteria used by the state legislature violating the Equal Protection Clause.

Question Presented: (1) Whether the court below erred in presuming racial predominance from North Carolina's reasonable reliance on this Court's holding in Bartlett v. Strickland that a district created to ensure that African Americans have an equal opportunity to elect their preferred candidate of choice complies with the Voting Rights Act (VRA) if it contains a numerical majority of African Americans; (2) whether the court below erred in applying a standard of review that required the State to demonstrate its construction of North Carolina Congressional District 1 was “actually necessary” under the VRA instead of simply showing it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; (3) whether the court below erred in relieving plaintiffs of their burden to prove “race rather than politics” predominated with proof of an alternative plan that achieves the legislature's political goals, is comparably consistent with traditional redistricting principles, and brings about greater racial balance than the challenged districts; (4) whether, regardless of any other error, the three- judge court's finding of racial gerrymandering violations was based on clearly erroneous fact- finding; (5) whether the court below erred in failing to dismiss plaintiffs' claims as being barred by claim preclusion or issue preclusion; and (6) whether, in the interests of judicial comity and federalism, the Court should order full briefing and oral argument to resolve the split between the court below and the North Carolina Supreme Court which reached the opposite result in a case raising identical claims

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David HARRIS, Christine Bowser, and Samuel Love, Plaintiffs, v. Patrick MCCRORY, in his capacity as Governor of North Carolina, North Carolina State Board of Elections, and Joshua Howard, in his capacity as Chairman of the North Carolina State Board of Elections, Defendants.

United States District Court, M.D. North Carolina

Decided on February 5, 2016

[Excerpt; some citations and footnotes omitted]

Roger L. Gregory, United States Circuit Judge Laws that classify citizens based on race are constitutionally suspect and therefore subject Circuit Judge Roger L. Gregory wrote the to strict scrutiny; racially gerrymandered majority opinion, in which District Judge districting schemes are no different, even Max O. Cogburn, Jr., joined and filed a when adopted for benign purposes. This does separate concurrence. District Judge William not mean that race can never play a role in L. Osteen, Jr., joined in part and filed a redistricting. Legislatures are almost always dissent as to Part II.A.2: cognizant of race when drawing district lines, and simply being aware of race poses no “[T]he Framers of the Fourteenth constitutional violation. Only when race is Amendment ... desired to place clear limits the “dominant and controlling” consideration on the States' use of race as a criterion for in drawing district lines does strict scrutiny legislative action, and to have the federal apply. courts enforce those limitations.” For good reason. Racial classifications are, after all, This case challenges the constitutionality of “antithetical to the Fourteenth Amendment, two North Carolina congressional districts as whose ‘central purpose’ was ‘to eliminate racial gerrymanders in violation of the Equal racial discrimination emanating from official Protection Clause of the Fourteenth sources in the States.’ ” Amendment. Specifically, this case concerns North Carolina's Congressional District 1 The “disregard of individual rights” is the (“CD 1”) and Congressional District 12 (“CD “fatal flaw” in such race-based 12”) as they stood after the 2011 redistricting. classifications. By assigning voters to certain The plaintiffs contend that the congressional districts based on the color of their skin, map adopted by the North Carolina General states risk “engag[ing] in the offensive and Assembly in 2011 violates the Fourteenth demeaning assumption that voters of a Amendment: race was the predominant particular race, because of their race, ‘think consideration with respect to both districts, alike, share the same political interests, and and the General Assembly did not narrowly will prefer the same candidates at the polls.’ tailor the districts to serve a compelling ” Quotas are especially pernicious interest. The Court agrees. embodiments of racial stereotypes because they threaten citizens' “ ‘personal rights' to be After careful consideration of all evidence treated with equal dignity and respect.” presented during a three-day bench trial, the

447 parties' findings of fact and conclusions of U.S. House of Representatives after every law, the parties' arguments, and the decennial census. applicable law, the Court finds that the plaintiffs have shown that race predominated Redistricting legislation must comply with in both CD 1 and CD 12 and that the the Voting Rights Act of 1965 (“VRA”). defendants have failed to establish that its “The Voting Rights Act was designed by race-based redistricting satisfies strict Congress to banish the blight of racial scrutiny. Accordingly, the Court holds that discrimination in voting ....” Enacted the general assembly's 2011 Congressional pursuant to Congress's enforcement powers Redistricting Plan is unconstitutional as under the Fifteenth Amendment, the VRA violative of the Equal Protection Clause of prohibits states from adopting plans that the Fourteenth Amendment. would result in vote dilution under section 2, Having found that the 2011 Congressional 52 U.S.C. § 10301, or in covered Redistricting Plan violates the Equal jurisdictions, retrogression under section 5, Protection Clause, the Court will require that 52 U.S.C. § 10304. new congressional districts be drawn Section 2(a) of the VRA prohibits the forthwith to remedy the unconstitutional imposition of any electoral practice or districts. procedure that “results in a denial or abridgement of the right of any citizen ... to Before turning to a description of the history vote on account of race or color.” A section 2 of the litigation and an analysis of the issues violation occurs when, based on the totality it presents, the Court notes that it makes no of circumstances, the political process results finding as to whether individual legislators in minority “members hav[ing] less acted in good faith in the redistricting opportunity than other members of the process, as no such finding is required. electorate to participate in the political Nevertheless, the resulting legislative process and to elect representatives of their enactment has affected North Carolina choice.” citizens' fundamental right to vote, in violation of the Equal Protection Clause. Section 5 of the VRA prohibits a state or political subdivision subject to section 4 of I. the VRA from enforcing “any voting qualification or prerequisite to voting, or A. standard, practice, or procedure with respect to voting different from that in force or effect The North Carolina Constitution requires on November 1, 1964,” unless it has obtained decennial redistricting of the North Carolina a declaratory judgment from the District Senate and North Carolina House of Court for the District of Columbia that such Representatives, subject to several specific change “does not have the purpose and will requirements. The general assembly is not have the effect of denying or abridging directed to revise the districts and apportion the right to vote on account of race or color” representatives and senators among those or has submitted the proposed change to the districts. Similarly, consistent with the U.S. attorney general and the attorney requirements of the Constitution of the general has not objected to it. By requiring United States, the general assembly that proposed changes be approved in establishes North Carolina's districts for the advance, Congress sought “ ‘to shift the advantage of time and inertia from the

448 perpetrators of the evil to its victim,’ by percentage of persons of voting age who ‘freezing election procedures in the covered identify as African–American. areas unless the changes can be shown to be nondiscriminatory.’ ” The purpose of this The general assembly first drew CD 1 in an approach was to ensure that “no voting- iteration of its present form in 1992. Between procedure changes would be made that would 1997 and 2011, the BVAP fell below 50 lead to a retrogression in the position of racial percent. The BVAP stood at 46.54 percent, minorities with respect to their effective for example, for the plan in place from 1997 exercise of the electoral franchise.” Section to 2001. After the 2000 census, the general 5, therefore, prohibits a covered jurisdiction assembly enacted the 2001 Congressional from adopting any change that “has the Redistricting Plan (now referred to as the purpose of or will have the effect of “benchmark” or “benchmark plan”) that diminishing the ability of [the minority redrew CD 1, modestly increasing the BVAP group] ... to elect their preferred candidates of to 47.76 percent. choice.” The BVAP of former CD 12 mirrored that of In November 1964, several counties in North former CD 1. Initially in 1991, to comply Carolina met the criteria to be classified as a with the DOJ's then-existing “maximization” “covered jurisdiction” under section 5. As policy—requiring majority-minority districts such, North Carolina was required to submit wherever possible—CD 12 was drawn with a any changes to its election or voting laws to BVAP greater than 50 percent. After years of the U.S. Department of Justice (“DOJ”) for litigation and the U.S. Supreme Court's federal preapproval, a process called repudiation of the maximization policy, the “preclearance.” To obtain preclearance, general assembly redrew the district in 1997 North Carolina had to demonstrate that a with a BVAP of 32.56 percent. The general proposed change had neither the purpose nor assembly thus determined that the VRA did effect “of denying or abridging the right to not require drawing CD 12 as a majority vote on account of race or color.” African-American district. The 2001 benchmark version of CD 12 reflected a The legal landscape changed dramatically in BVAP of 42.31 percent. 2012, when the Supreme Court held unconstitutional the coverage formula used to Despite the fact that African-Americans did determine which states are subject to the not make up a majority of the voting-age section 5 preclearance requirement. As a population in these earlier versions of CD 1 result of the invalidation of the coverage or CD 12, African-American preferred formula under section 4, North Carolina is no candidates easily and repeatedly won longer obligated to comply with the reelection under those plans. Representative preclearance requirements of section 5. Eva Clayton prevailed in CD 1 in 1998 and 2000, for instance, winning 62 percent and 66 B. percent of the vote, respectively. Indeed, African-American preferred candidates For decades, African-Americans enjoyed prevailed with remarkable consistency, tremendous success in electing their winning at least 59 percent of the vote in each preferred candidates in former versions of of the five general elections under the version CD 1 and CD 12 regardless of whether those of CD 1 created in 2001. Representative G.K. districts contained a majority black voting Butterfield has represented that district since age population (“BVAP”)—that is the 2004. Meanwhile, in CD 12, Congressman

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Mel Watt won every general election in CD Redistricting Plan under the direction of 12 between 1992 and 2012. He never Senator Rucho and Representative Lewis. Dr. received less than 55.95 percent of the vote, Hofeller was the “principal architect” of the gathering at least 64 percent in each election 2011 Congressional Redistricting Plan (as under the version of CD 12 in effect during well as the state senate and house plans). the 2000s. Senator Rucho and Representative Lewis No lawsuit was ever filed to challenge the were the sole sources of instruction for Dr. benchmark 2001 version of CD 1 or CD 12 Hofeller regarding the design and on VRA grounds. construction of congressional maps. All such instructions were provided to Dr. Hofeller C. orally – there is no written record of the Following the census conducted April 1, precise instructions Senator Rucho and 2010, leaders of the North Carolina House of Representative Lewis gave to Dr. Hofeller. Representatives and Senate independently Dr. Hofeller never received instructions from appointed redistricting committees. Each any legislator other than Senator Rucho and committee was responsible for Representative Lewis, never conferred with recommending a plan applicable to its own Congressmen Butterfield or Watt, and never chamber, while the two committees jointly conferred with the Legislative Black Caucus were charged with preparing a redistricting (or any of its individual members) with plan for the U.S. House of Representatives respect to the preparation of the North Carolina districts. Senator Rucho and congressional maps. Representative Lewis Representative Lewis were appointed chairs did not make Dr. Hofeller available to answer of the Senate and House Redistricting questions for the members of the North Committees, respectively, on January 27 and Carolina Senate and House Redistricting February 15, 2011. Committees.

Senator Rucho and Representative Lewis Throughout June and July 2011, Senator were responsible for developing a proposed Rucho and Representative Lewis released a congressional map. In Representative series of public statements describing, among Lewis's words, he and Senator Rucho were other things, the criteria that they had “intimately involved” in the crafting of these instructed Dr. Hofeller to follow in drawing maps. the proposed congressional map. As Senator Rucho explained at the July 21, 2011, joint Senator Rucho and Representative Lewis meeting of the Senate and House engaged private redistricting counsel and a Redistricting Committees, those statements political consultant. Specifically, Senator “clearly delineated” the “entire criteria” that Rucho and Representative Lewis engaged the were established and “what areas we were law firm of Ogletree, Deakins, Nash, Smoak looking at that were going to be in & Stewart, P.C. (“Ogletree”) as their private compliance with what the Justice Department redistricting counsel. In December 2010, expected us to do as part of our submission.” Ogletree engaged Dr. Thomas Hofeller, who served as redistricting coordinator for the In their June 17, 2011, public statement, Republican National Committee for the Senator Rucho and Representative Lewis 1990, 2000, and 2010 redistricting cycles, to highlighted one criterion in their redistricting design and draw the 2011 Congressional plan:

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In creating new majority African in the Twelfth District that is covered by American districts, we are obligated Section 5 of the Voting Rights Act to follow ... the decisions by the North (Guilford).” Therefore, “[b]ecause of the Carolina Supreme Court and the presence of Guilford County in the Twelfth United States Supreme Court in District, we have drawn our proposed Strickland v. Bartlett. Under the Twelfth District at a black voting age level Strickland decisions, districts created that is above the percentage of black voting to comply with section 2 of the age population found in the current Twelfth Voting Rights Act, must be created District.” with a “Black Voting Age Population” (“BVAP”), as reported On July 28, 2011, the general assembly by the Census, at the level of at least enacted the congressional and legislative 50% plus one. Thus, in constructing plans, which Dr. Hofeller had drawn at the VRA majority black districts, the direction of Senator Rucho and Chairs recommend that, where Representative Lewis. The number of possible, these districts be drawn at a majority-BVAP districts in the 2011 level equal to at least 50% plus one Congressional Redistricting Plan increased “BVAP.” from zero to two when compared to the benchmark 2001 Congressional Redistricting On July 1, 2011, Senator Rucho and Plan. The BVAP in CD 1 increased from Representative Lewis made public their first 47.76 percent to 52.65 percent, and in CD 12 proposed congressional plan, entitled the BVAP increased from 43.77 percent to “Rucho-Lewis Congress,” and issued a 50.66 percent. public statement. The plan was drawn by Dr. Hofeller and contained two majority-BVAP Following the passage of the 2011 districts, namely CD 1 and CD 12. With Congressional Redistricting Plan, the general regard to proposed CD 1, Senator Rucho and assembly, on September 2, 2011, submitted Representative Lewis stated that they had the plan to the DOJ for preclearance under included a piece of Wake County (an urban section 5 of the VRA. On November 1, 2011, county in which the state capital, Raleigh, is the DOJ precleared the 2011 Congressional located) because the benchmark CD 1 was Redistricting Plan. underpopulated by 97,500 people. Senator Rucho and Representative then added: D.

Because African Americans represent 1. a high percentage of the population added to the First District from Wake Two sets of plaintiffs challenged the 2011 County, we have also been able to re- Congressional Redistricting Plan in state establish Congressmen Butterfield's court for illegal racial gerrymandering. A district as a true majority black three-judge panel consolidated the two cases. district under the Strickland case. The state court held a two-day bench trial on June 5 and 6, 2013. On July 8, 2013, the court With regard to CD 12, Senator Rucho and issued a decision denying the Plaintiffs' Representative Lewis noted that although the pending motion for summary judgment and 2001 benchmark district was “not a Section 2 entering judgment for the defendants. Id. The majority black district,” there “is one county court acknowledged that the general

451 assembly used race as the predominant factor including barring the defendants from in drawing CD 1. Nonetheless, applying strict conducting elections for the U.S. House of scrutiny, the court concluded that North Representatives based on the 2011-enacted Carolina had a compelling interest in First and Twelfth Congressional Districts. avoiding liability under the VRA, and that the districts had been narrowly tailored to avoid Because the Plaintiffs' action “challeng[ed] that liability. With regard to CD 12, the court the constitutionality of the apportionment of held that race was not the driving factor in its congressional districts” in North Carolina, creation, and therefore examined and upheld the chief judge of the U.S. Court of Appeals it under rational-basis review. for the Fourth Circuit granted the Plaintiffs' The state court plaintiffs appealed, and the request for a hearing by a three-judge court North Carolina Supreme Court affirmed the on October 18, 2013. trial court's judgment. The U.S. Supreme Court, however, granted certiorari, vacated A three-day bench trial began on October 13, the decision, and remanded the case to the 2015. After the bench trial, this Court ordered North Carolina Supreme Court for further the parties to file posttrial briefs. The case is consideration in light of Alabama Legislative now ripe for consideration. Black Caucus v. Alabama. On December 18, 2015, the North Carolina Supreme Court II. reaffirmed the trial court's judgment. “[A] State may not, absent extraordinary 2. justification, ... separate its citizens into different voting districts on the basis of race.” Plaintiffs David Harris and Christine Bowser A voting district is an unconstitutional racial are U.S. citizens registered to vote in CD 1 or gerrymander when a redistricting plan CD 12, respectively. Neither was a plaintiff “cannot be understood as anything other than in the state-court litigation. an effort to separate voters into different districts on the basis of race, and that the Plaintiffs brought this action on October 24, separation lacks sufficient justification.” 2013, alleging, among other things, that North Carolina used the VRA's section 5 In a racial gerrymander case, the “plaintiff's preclearance requirements as a pretext to burden is to show, either through pack African–American voters into North circumstantial evidence of a district's shape Carolina's Congressional Districts 1 and 12 and demographics or more direct evidence and reduce those voters' influence in other going to legislative purpose, that race was the districts. predominant factor motivating the legislature's decision to place a significant Plaintiffs sought a declaratory judgment that number of voters within or without a North Carolina's Congressional Districts 1 particular district.” “To make this showing, a and 12, as drawn in the 2011 Congressional plaintiff must prove that the legislature Redistricting Plan, was a racial gerrymander subordinated traditional race-neutral in violation of the Equal Protection Clause of districting principles, including but not the Fourteenth Amendment. Plaintiffs also limited to compactness, contiguity, and sought to permanently enjoin the defendants respect for political subdivisions or from giving effect to the boundaries of the communities defined by actual shared First and Twelfth Congressional Districts, interests, to racial considerations.” Public

452 statements, submissions, and sworn necessary under a constitutional reading and testimony by the individuals involved in the application” of federal law. Thus, narrow redistricting process are not only relevant but tailoring requires that the legislature have a often highly probative. “strong basis in evidence” for its race-based decision, that is, “good reasons to believe” Once plaintiffs establish race as the that the chosen racial classification was predominant factor, the Court applies strict required to comply with the VRA. Evidence scrutiny, and “the State must demonstrate of narrow tailoring in this case is practically that its districting legislation is narrowly nonexistent; the state does not even proffer tailored to achieve a compelling interest.” If any evidence with respect to CD 12. Based race did not predominate, then only rational- on this record, as explained below, the Court basis review applies. concludes that North Carolina's 2011 Congressional Redistricting Plan was not For the reasons that follow, the Court finds narrowly tailored to achieve compliance with that the plaintiffs have presented dispositive the VRA, and therefore fails strict scrutiny. direct and circumstantial evidence that the legislature assigned race a priority over all A. other districting factors in both CD 1 and CD 12. There is strong evidence that race was the As with any law that distinguishes among only nonnegotiable criterion and that individuals on the basis of race, “equal traditional redistricting principles were protection principles govern a State's subordinated to race. In fact, the drawing of congressional districts.” “Racial overwhelming evidence in this case shows classifications with respect to voting carry that a BVAP-percentage floor, or a racial particular dangers. Racial gerrymandering, quota, was established in both CD 1 and CD even for remedial purposes, may balkanize us 12. And, that floor could not be into competing racial factions; it threatens to compromised. A congressional district carry us further from the goal of a political necessarily is crafted because of race when a system in which race no longer matters ....” racial quota is the single filter through which As such, “race-based districting by our state all line-drawing decisions are made, and legislatures demands close judicial scrutiny.” traditional redistricting principles are considered, if at all, solely insofar as they did To trigger strict scrutiny, the plaintiffs first not interfere with this quota. Accordingly, the bear the burden of proving that race was not Court holds that “race was the predominant only one of several factors that the legislature factor motivating the legislature's decision to considered in drawing CD 1 and CD 12, but place a significant number of voters within or that race “predominated.” Under this without a particular district.” predominance test, a plaintiff must show that “the legislature subordinated traditional race- Because race predominated, the state must neutral districting principles ... to racial demonstrate that its districting decision is considerations.” When a legislature has narrowly tailored to achieve a compelling “relied on race in substantial disregard of interest. Even if the Court assumes that customary and traditional districting compliance with the VRA is a compelling principles,” such traditional principles have state interest, attempts at such compliance been subordinated to race. “cannot justify race-based districting where the challenged district was not reasonably

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When analyzing the legislative intent factors are considered only when consistent underlying a redistricting decision, there is a with the racial objective.” “presumption of good faith that must be accorded legislative enactments.” This a. presumption “requires courts to exercise extraordinary caution in adjudicating claims The legislative record is replete with that a State has drawn district lines on the statements indicating that race was the basis of race.” Such restraint is particularly legislature's paramount concern in drawing warranted given the “complex interplay of CD 1. During legislative sessions, Senator forces that enter a legislature's redistricting Rucho and Representative Lewis made clear calculus,” making redistricting possibly “the that CD 1 “[w]as required by Section 2” of most difficult task a legislative body ever the VRA to have a BVAP of at least 50 undertakes.” This presumption must yield, percent plus one person. however, when the evidence shows that citizens have been assigned to legislative b. districts primarily based on their race. The public statements released by Senator 1. Rucho and Representative Lewis also reflect their legislative goal, stating that, to comply CD 1 presents a textbook example of racial with section 2 of the VRA, CD 1 must be predominance. There is an extraordinary established with a BVAP of 50 percent plus amount of direct evidence – legislative one person. Further, in its preclearance records, public statements, instructions to Dr. submission to the DOJ, North Carolina Hofeller, the “principal architect” of the 2011 makes clear that it purposefully set out to add Congressional Redistricting Plan, and “a sufficient number of African-American testimony – that shows a racial quota, or voters in order to” draw CD 1 “at a majority floor, of 50-percent-plus-one-person was African-American level.” established for CD 1. Because traditional districting criteria were considered, if at all, c. solely insofar as they did not interfere with this 50-percent-plus-one-person minimum In light of this singular legislative goal, floor, the quota operated as a filter through Senator Rucho and Representative Lewis, which all line-drawing decisions had to pass. unsurprisingly, instructed Dr. Hofeller to As Dr. Hofeller stated, “[S]ometimes it treat CD 1 as a “voting rights district,” wasn't possible to adhere to some of the meaning that he was to draw CD 1 to exceed traditional redistricting criteria in the creation 50-percent BVAP. of [CD 1]” because “the more important thing was to ... follow the instructions that I ha[d] The Court is sensitive to the fact that CD 1 been given by the two chairmen [to draw the was underpopulated; it is not in dispute that district as majority-BVAP].” Indeed. The CD 1 was underpopulated by 97,500 people Court therefore finds that race necessarily and that there were efforts to create districts predominates when, as here, “the legislature with approximately equal population. While has subordinated traditional districting equal population objectives “may often prove criteria to racial goals, such as when race is ‘predominant’ in the ordinary sense of that the single immutable criterion and other word,” the question of whether race predominated over traditional raced-neutral

454 redistricting principles is a “special” inquiry: cautioned against “prioritizing mechanical “It is not about whether a legislature believes racial targets above all other districting that the need for equal population takes criteria” in redistricting. Although the Court ultimate priority,” but rather whether the in Alabama did not decide whether the use of legislature placed race above nonracial a racial quota exceeding 50 percent, standing considerations in determining which voters to alone, can establish predominance as a matter allocate to certain districts in order to achieve of law, the Court made clear that such an equal population goal. “mechanical racial targets” are highly suspicious. To accomplish equal population, Dr. Hofeller intentionally included high concentrations of There is “strong, perhaps overwhelming” African-American voters in CD 1 and direct evidence in this case that the general excluded less heavily African-American assembly “prioritize[ed] [a] mechanical areas from the district. During cross- racial target[ ] above all other districting examination, Dr. Hofeller, in response to why criteria” in redistricting. In order to achieve he moved into CD 1 a part of Durham County the goal of drawing CD 1 as a majority- that was “the heavily African-American part” BVAP district, Dr. Hofeller not only of the county, stated, “Well, it had to be.” Dr. subordinated traditional race-neutral Hofeller, after all, had to “make sure that in principles but disregarded certain principles the end it all adds up correctly”—that is, that such as respect for political subdivisions and the “net result” was a majority-BVAP compactness. district. Dr. Hofeller testified that he would split Dr. Hofeller certainly “ma[de] sure that in the counties and precincts when necessary to end it add[ed] up correctly.” The BVAP achieve a 50-percent-plus-one-person BVAP substantially increased from 47.76 percent, in CD 1. Dr. Hofeller further testified that he the BVAP in CD 1 when the benchmark plan did not use mathematical measures of was enacted, to 52.65 percent, the BVAP compactness in drawing CD 1. Had he done under the 2011 Congressional Plan—an so, Dr. Hofeller would have seen that the increase of nearly five percentage points. Pls.' 2011 Congressional Redistricting Plan Ex. 69 at 111. And, while Dr. Hofeller had reduced the compactness of CD 1 discretion, conceivably, to increase the significantly. BVAP to as high as he wanted, he had no discretion to go below 50-percent-plus-one- Apparently seeing the writing on the wall, the person BVAP. This is the very definition of a defendants make the passing argument that racial quota. the legislature configured CD 1 to protect the incumbent and for partisan advantage. The d. defendants, however, proffer no evidence to support such a contention. There is nothing in The Supreme Court's skepticism of racial the record that remotely suggests CD 1 was a quotas is longstanding. The Court, however, political gerrymander, or that CD 1 was has yet to decide whether use of a racial quota drawn based on political data. It cannot in a legislative redistricting plan or, in seriously be disputed that the predominant particular, use of such a quota exceeding 50 focus of virtually every statement made, percent, establishes predominance as a matter instruction given, and action taken in of law under Miller. The Court recently has connection with the redistricting effort was to

455 draw CD 1 with a BVAP of 50 percent plus been “race-neutral” tainted by and one person to comply with the VRA. subordinated to race. For these reasons, the Court holds that the plaintiffs have e. established that race predominated in the legislative drawing of CD 1, and the Court Even if the Court assumes, arguendo, that this will apply strict scrutiny in examining the is a “mixed-motive suit”—in which a state's constitutionality of CD 1. conceded goal of “produc[ing] majority- minority districts” is accompanied by “other 2. goals, particularly incumbency protection”— CD 12 presents a slightly more complex race can be the predominant factor in the analysis than CD 1 as to whether race drawing of a district without the districting predominated in redistricting. Defendants revisions being “purely race-based.” Indeed, contend that CD 12 is a purely political the Supreme Court has observed that district and that race was not a factor even “partisan politicking” may often play a role considered in redistricting. Nevertheless, in a state's redistricting process, but the fact direct evidence indicating racial “[t]hat the legislature addressed these predominance combined with the traditional interests [need] not in any way refute the fact redistricting factors' complete inability to that race was the legislature's predominant explain the composition of the new district consideration.” rebut this contention and leads the Court to conclude that race did indeed predominate in As the Supreme Court has explained, CD 12. traditional factors have been subordinated to race when “[r]ace was the criterion that, in a. the State's view, could not be compromised,” and when traditional, race-neutral criteria While not as robust as in CD 1, there is were considered “only after the race-based nevertheless direct evidence supporting the decision had been made.” When a legislature conclusion that race was the predominant has “relied on race in substantial disregard of factor in drawing CD 12. Public statements customary and traditional districting released by Senator Rucho and practices,” such traditional principles have Representative Lewis reflect this legislative been subordinated to race. Here, the record is goal. In their June 17, 2011, statement, for unequivocally clear: the general assembly example, Senator Rucho and Representative relied on race – the only criterion that could Lewis provide, not be compromised – in substantial disregard of traditional districting principles. In creating new majority African American districts, we are obligated Moreover, because traditional districting to follow ... the decisions by the North criteria were considered, if at all, solely Carolina Supreme Court and the insofar as they did not interfere with this 50- United States Supreme Court .... percent-plus-one-person minimum floor, the Under the[se] decisions, districts quota operated as a filter through which all created to comply with section 2 of line-drawing decisions had to pass. Such a the Voting Rights Act, must be racial filter had a discriminatory effect on the created with a “Black Voting Age configuration of CD 1 because it rendered all Population” (“BVAP”), as reported traditional criteria that otherwise would have by the Census, at the level of at least

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50% plus one. Thus, in constructing instead, reading the text in its ordinary VRA majority black districts, the meaning, the statement evinces a level of Chairs recommend that, where intentionality in the decisions regarding race. possible, these districts be drawn at a The Court will again decline to conclude that level equal to at least 50% plus one it was purely coincidental that the district was “BVAP.” now majority BVAP after it was drawn.

This statement describes not only the new CD Following the ratification of the revised 1, as explained above, but clearly refers to redistricting plan, the North Carolina General multiple districts that are now majority Assembly and attorney general submitted the minority. This is consistent with the changes plan to the DOJ for preclearance under to the congressional map following section 5. The submission explains, redistricting: the number of majority-BVAP districts in the 2011 plan, compared to the One of the concerns of the benchmark 2001 plan, increased from zero to Redistricting Chairs was that in 1992, two, namely CD 1 and CD 12. The Court the Justice Department had objected cannot conclude that this statement was the to the 1991 Congressional Plan result of happenstance, a mere slip of the pen. because of a failure by the state to Instead, this statement supports the create a second majority minority contention that race predominated. district combining the African- American community in The public statement issued July 1, 2011, Mecklenburg County with African- further supports this objective. There, American and Native American Senator Rucho and Representative Lewis voters residing in south central and stated, “Because of the presence of Guilford southeastern North Carolina. County in the Twelfth District [which is covered by section 5 of the VRA], we have The submission further explains that drawn our proposed Twelfth District at a Congressman Watt did not believe that black voting age level that is above the African-American voters in Mecklenburg percentage of black voting age population County were politically cohesive with Native found in the current Twelfth District.” As American voters in southeastern North explained, section 5 was intended to prevent Carolina. The redistricting committee retrogression; to ensure that such result was accordingly drew the new CD 12 based on achieved, any change was to be precleared so these considerations, including DOJ's 1992 that it did “not have the purpose and [would] concern that a new majority-minority district not have the effect of denying or abridging be created—a concern that the U.S. Supreme the right to vote on account of race or color.” Court handily rejected in Miller, when it Despite the fact that nothing in section 5 repudiated the maximization policy. The required the creation of a majority-minority discussion of CD 12 in the DOJ submission district in CD 12,5 this statement indicates concludes, “Thus, the 2011 version that it was the intention in redistricting to maintains, and in fact increases, the African- create such a district—it was drawn at a American community's ability to elect their higher BVAP than the previous version. This candidate of choice in District 12.” Given the statement does not simply “show[ ] that the express concerns of the redistricting legislature considered race, along with other committee, the Court will not ascribe the partisan and geographic considerations,”; result to mere coincidence and instead finds

457 that the submission supports race And, make no mistake, the BVAP in CD 12 predominance in the creation of CD 12. was ramped up: the BVAP increased from 43.77 percent to 50.66 percent. This b. correlates closely to the increase in CD 1. Such a consistent and whopping increase In addition to the public statements issued, makes it clear that the general assembly's Congressman Watt testified at trial that predominant intent regarding district 12 was Senator Rucho himself told Congressman also race. Watt that the goal was to increase the BVAP c. in CD 12 to over 50 percent. Congressman Watt testified that Senator Rucho said “his The shape of a district is also relevant to the leadership had told him that he had to ramp inquiry, as it “may be persuasive up the minority percentage in [the Twelfth] circumstantial evidence that race for its own Congressional District up to over 50 percent sake, and not other districting principles, was to comply with the Voting Rights Law.” the legislature's dominant and controlling Congressman Watt sensed that Senator rationale in drawing its district lines.” CD 12 Rucho seemed uncomfortable discussing the is a “serpentine district [that] has been subject “because his leadership had told him dubbed the least geographically compact that he was going to have to go out and justify district in the Nation.” that [redistricting goal] to the African- American community.” Under the benchmark 2001 plan, CD 12 had a Reock score6 of .116, the lowest in the state Defendants argue that Senator Rucho never by far. Under the new plan, the Reock score made such statements to Congressman Watt, of CD 12 decreased to .071, remaining the citing Senator Rucho and Congresswoman lowest in the state by a good margin. A score Ruth Samuelson's testimony in the Dickson of .071 is low by any measure. At trial, Dr. trial. Nevertheless, after submitting Ansolabehere testified that a score of .2 “is Congressman Watt to thorough and probing one of the thresholds that [is] commonly cross-examination about the specifics of the use[d] ... one of the rules of thumb” to say content and location of this conversation, the that a district is noncompact. defendants declined to call Senator Rucho or Congresswoman Samuelson to testify, Defendants do not disagree. At trial, Dr. despite both being listed as defense witnesses Hofeller testified that in redrawing CD 12, he and being present throughout the trial. The made the district even less compact. And Court is thus somewhat crippled in its ability importantly, Dr. Hofeller did not “apply the to assess either Senator Rucho or mathematical measures of compactness to Congresswoman's Samuelson's credibility as see how the districts were holding up” as he to their claim that Senator Rucho never made was drawing them. Nevertheless, Dr. such statements. Based on its ability to Hofeller opined that “District 12's observe firsthand Congressman Watt and his compactness was in line with former versions consistent recollection of the conversation of District 12 and in line with compactness as between him and Senator Rucho, the Court one would understand it in the context of credits his testimony and finds that Senator North Carolina redistricting ....” While he did Rucho did indeed explain to Congressman not recall any specific instructions as to Watt that the legislature's goal was to “ramp compactness, he was generally “to make up” CD 12's BVAP. plans as compact as possible with the goals

458 and policies of the entire plan,”—that is, as Dr. Hofeller's own testimony belie his the defendants claim, to make the state more assertions that he did not consider race until favorable to Republican interests, a everything was said and done. At trial, he contention to which the Court now turns. testified that he was “aware of the fact that Guilford County was a Section 5 county” and d. that he “was instructed [not] to use race in any form except perhaps with regard to Defendants claim that politics, not race, was Guilford County.” Dr. Hofeller also testified the driving factor behind the redistricting in in his deposition that race was a more active CD 12. The goal, as the defendants portray it, consideration: “[I]n order to be cautious and was to make CD 12 an even more heavily draw a plan that would pass muster under the Democratic district and make the Voting Rights Act, it was decided to reunite surrounding counties better for Republican the black community in Guilford County into interests. This goal would not only enable the Twelfth.” Republican control but also insulate the plan from challenges such as the instant one. Moreover, Senator Rucho and Representative Lewis themselves attempted to downplay the Dr. Hofeller testified to this singular aim time “claim[ ] that [they] have engaged in extreme and again at trial: “My instructions from the political gerrymandering.” In their joint two chairman [Senator Rucho and statement published July 19, 2011, they Congressman Lewis] were to treat District 12 assert that these claims are “overblown and as a political district and to draw it using inconsistent with the facts.” The press release political data and to draw it in such a manner continues to explain how Democrats that it favorably adjusted all of the maintain a majority advantage in three surrounding districts.” districts and a plurality advantage in the ten remaining districts. This publication serves to Dr. Hofeller testified that he complied with discredit their assertions that their sole focus Senator Rucho and Representative Lewis's was to create a stronger field for Republicans instructions and did not look at race at all statewide. when creating the new districts. Using Maptitude, Dr. Hofeller provided, “On the That politics not race was more of a post-hoc screen when I was drawing the map was the rationalization than an initial aim is also Obama/McCain race shaded in accordance supported by a series of emails presented at with the two-party vote, which excluded the trial. Written by counsel for Senator Rucho minor party candidates, and that was the sole and Representative Lewis during the thematic display or numeric display on the redistricting, the first email, dated June 30, screen except for one other thing, and that 2011, was sent to Senator Rucho, was the population of the precinct because of Representative Lewis, Dr. Hofeller, and one person, one vote,” Hofeller testified that others involved in the redistricting effort, it was only after the fact that he considered providing counsel's thoughts on a draft public race and what impact it may or may not have statement “by Rucho and Lewis in support of had. proposed 2011 Congressional Plan.” “Here is my best efforts to reflect what I have been Despite the defendants' protestations, the told about legislative intent for the Court is not persuaded that the redistricting congressional plans. Please send me your was purely a politically driven affair. Parts of suggestions and I will circulate a revised

459 version for final approval by [Senator Rucho] Defendants argue that these findings are and [Representative Lewis] as soon as based on a theory the Supreme Court has possible tomorrow morning,” counsel wrote. rejected—that is, Dr. Ansolabehere used only In response, Brent Woodcox, redistricting party registration in his analysis, and the counsel for the general assembly, wrote, “I do Supreme Court has found that election results think the registration advantage is the best are better predictors of future voting aspect to focus on to emphasize behavior. But Dr. Ansolabehere stated that he competitiveness. It provides the best understood the Supreme Court's finding and evidence of pure partisan comparison and explained why in this situation he believed serves in my estimation as a strong legal that using registration data was nonetheless argument and easily comprehensible political preferable: registration data was a good talking point.” Id. Unlike the email at issue in indicator of voting data and it “allowed [him] Cromartie II, which did not discuss “the point to get down to [a deeper] level of analysis.” of the reference” to race, this language Moreover, Defendants themselves appear to intimates that the politics rationale on which have considered registration data at some the defendants so heavily rely was more of an point in the redistricting process: in their July afterthought than a clear objective. 19, 2011, statement, Senator Rucho and Representative Lewis consider the numbers This conclusion is further supported of registered Democrats, Republicans, and circumstantially by the findings of the unaffiliated voters across all districts. Plaintiffs' experts, Drs. Peterson and Ansolabehere. At trial, Dr. Peterson opined While both studies produce only that race “better accord[ed] with” the circumstantial support for the conclusion that boundary of CD 12 than did politics, based race predominated, the plaintiffs were not on his “segment analysis.” This analysis limited to direct evidence and were entitled to looked at three different measures of African- use “direct or circumstantial evidence, or a American racial representation inside and combination of both.” The defendants' outside of the boundary of CD 12, and four argument that Dr. Peterson's analysis is “of different measures of representations of little to no use” to the Court, as he “did not Democrats for a total of twelve segment and could not conclude” that race analyses. Four of the twelve studies predominated, is unavailing in this regard. supported the political hypothesis; two support both hypotheses equally; while six The defendants contend that, to show that support the race hypothesis—“and in each of race predominated, the plaintiffs must show these six, the imbalance is more pronounced “alternative ways” in which “the legislature than in any of the four studies favoring the could have achieved its legitimate political Political Hypothesis.” objectives” that were more consistent with traditional districting principles and that Using different methods of analysis, Dr. resulted in a greater racial balance. The Ansolabehere similarly concluded that the Supreme Court, however, limited this new districts had the effect of sorting along requirement to “a case such as [the one at racial lines and that the changes to CD 12 issue in Cromartie II],”—that is, a case in from the benchmark plan to the Rucho-Lewis which “[t]he evidence taken together ... [did] plan “can be only explained by race and not not show that racial considerations party.” predominated,” id. Here, the evidence makes abundantly clear that race, although generally

460 highly correlative with politics, did indeed compelling governmental interest. While predominate in the redistricting process: “the such scrutiny is not necessarily “strict in legislature drew District 12's boundaries theory, but fatal in fact,” the state must because of race rather than because of establish the “most exact connection between political behavior.” Redistricting is justification and classification.” inherently a political process; there will always be tangential references to politics in The Court's strict-scrutiny analysis for CD 12 any redistricting—that is, after all, the nature is straightforward. The defendants of the beast. Where, like here, at the outset completely fail to provide this Court with a district lines were admittedly drawn to reach compelling state interest for the general a racial quota, even as political concerns may assembly's use of race in drawing CD 12. have been noted at the end of the process, no Accordingly, because the defendants bear the “alternative” plans are required. burden of proof to show that CD 12 was narrowly tailored to further a compelling e. interest, and the defendants failed to carry that burden, the Court concludes that CD 12 In light of all of the evidence, both direct and is an unconstitutional racial gerrymander in circumstantial, the Court finds that race violation of the Equal Protection Clause of predominated in the redistricting of CD 12. the Fourteenth Amendment. Traditional redistricting principles such as compactness and contiguity were The defendants do, however, point to two subordinated to this goal. Moreover, the compelling interests for CD 1: the interest in Court does not find credible the defendants' avoiding liability under the “results” test of purported rationale that politics was the VRA section 2(b) and the “nonretrogression” ultimate goal. To find that otherwise would principle of VRA section 5. Although the create a “magic words” test that would put an Supreme Court has yet to decide whether end to these types of challenges. To accept VRA compliance is a compelling state the defendants' explanation would “create[ ] interest, it has assumed as much for the an incentive for legislators to stay “on script” purposes of subsequent analyses. The Court, and avoid mentioning race on the record.” therefore, will assume, arguendo, that The Court's conclusion finds support in light compliance with the VRA is a compelling of the defendants' stated goal with respect to state interest. Even with the benefit of that CD 1 to increase the BVAP of the district to assumption, the 2011 Congressional 50 percent plus one person, the result of Redistricting Plan does not survive strict which is consistent with the changes to CD scrutiny because the defendants did not have 12. a “strong basis in evidence” for concluding that creation of a majority-minority district— B. CD 1—was reasonably necessary to comply with the VRA. Accordingly, the Court holds The fact that race predominated when the that CD 1 was not narrowly tailored to legislature devised CD 1 an CD 12, however, achieve compliance with the VRA, and does not automatically render the districts therefore fails strict scrutiny. constitutionally infirm. Rather, if race predominates, strict scrutiny applies, but the 1. districting plan can still pass constitutional muster if narrowly tailored to serve a a.

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CD 1 significant enough that the white “The essence of a § 2 claim is that a certain majority routinely votes as a bloc to defeat electoral law, practice, or structure interacts the minority candidate of choice. with social and historical conditions to cause an inequality in the opportunities enjoyed by b. black and white voters to elect their preferred “[R]acial bloc voting ... never can be representatives.” Section 2 of the VRA assumed, but specifically must be proved.” forbids state and local voting procedures that Generalized assumptions about the “result[ ] in a denial or abridgement of the “prevalence of racial bloc voting” do not right of any citizen of the United States to qualify as a “strong basis in evidence.” vote on account of race[.]” “Vote dilution Moreover, the analysis must be specific to claims involve challenges to methods of CD 1. Thus, evidence that racially polarized electing representatives—like redistricting or voting occurs in pockets of other at-large districts—as having the effect of congressional districts in North Carolina does diminishing minorities' voting strength.” not suffice. The rationale behind this principle is clear: simply because “a The question of voting discrimination vel legislature has strong basis in evidence for non, including vote dilution, is determined by concluding that a § 2 violation exists the totality of the circumstances. Under [somewhere] in the State” does not permit it Gingles, however, the Court does not reach to “draw a majority-minority district the totality-of-the-circumstances test unless anywhere [in the state].” the challenging party is able to establish three preconditions. Strikingly, there is no evidence that the general assembly conducted or considered Unlike cases such as Gingles, in which any sort of a particularized polarized-voting minority groups use section 2 as a sword to analysis during the 2011 redistricting process challenge districting legislation, here the for CD 1. Dr. Hofeller testified that he did not Court is considering the general assembly's do a polarized voting analysis for CD 1 at the use of section 2 as a shield. The general time he prepared the map. Further, there is no assembly, therefore, must have a “strong evidence “ ‘that the white majority votes basis in evidence” for finding that the sufficiently as a bloc to enable it ... usually to threshold conditions for section 2 liability are defeat the minority's preferred candidate.’ ” present: “first, ‘that [the minority group] is In fact, based on the defendants' own sufficiently large and geographically admission, “African American voters have compact to constitute a majority in a single been able to elect their candidates of choice member district’; second, ‘that [the minority in the First District since the district was group] is politically cohesive’; and third, established in 1992.” This admission, in the ‘that the white majority votes sufficiently as Court's view, ends the inquiry. In the interest a bloc to enable it ... usually to defeat the of completeness, the Court will comment on minority's preferred candidate.’ ” A failure to an argument the defendants' counsel made at establish any one of the Gingles factors is trial and in their posttrial brief. fatal to the defendants' claim. For the reasons stated below, the Court finds that the The defendants contend that there is some defendants fail to show the third Gingles evidence that the general assembly factor, that the legislature had a “strong basis considered “two expert reports” that “found in evidence” of racially polarized voting in the existence of racially polarized voting in”

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North Carolina. These generalized reports, retrogression in the position of racial standing alone, do not constitute a “strong minorities with respect to their effective basis in evidence” that the white majority exercise of the electoral franchise.’ ” Indeed, votes as a bloc to defeat the minority's “the [VRA] and our case law make clear that preferred candidate of choice in CD 1. a reapportionment plan that satisfies § 5 still Moreover, it is not enough for the general may be enjoined as unconstitutional,” as assembly to simply nod to the desired section 5 does not “give covered jurisdictions conclusion by claiming racially polarized carte blanche to engage in racial voting showed that African-Americans gerrymandering in the name of needed the ability to elect candidates of their nonretrogression.” “A reapportionment plan choice without asserting the existence of a would not be narrowly tailored to the goal of necessary premise: that the white majority avoiding retrogression if the State went was actually voting as a bloc to defeat the beyond what was reasonably necessary to minority's preferred candidates. “Unless avoid retrogression.” Id. Applying that [this] point[ ] [is] established, there neither principle below, it is clear that CD 1 is not has been a wrong nor can be a remedy.” narrowly tailored to the avoidance of section 5 liability. Contrary to the defendants' unfounded contentions, the composition and election a. results under earlier versions of CD 1 vividly demonstrate that, though not previously a In Alabama, the Supreme Court made clear majority-BVAP district, the white majority that section 5 “does not require a covered did not vote as a bloc to defeat African- jurisdiction to maintain a particular Americans' candidate of choice. In fact, numerical minority percentage.” Rather, precisely the opposite occurred in these two section 5 requires legislatures to ask the districts: significant crossover voting by following question: “To what extent must we white voters supported the African-American preserve existing minority percentages in candidate. The suggestion that the VRA order to maintain the minority's present would somehow require racial balkanization ability to elect its candidate of choice?” There where, as here, citizens have not voted as is no evidence that the general assembly racial blocs, where crossover voting has asked this question. Instead, the general naturally occurred, and where a majority- assembly directed Dr. Hofeller to create CD minority district is created in blatant 1 as a majority-BVAP district; there was no disregard for fundamental redistricting consideration of why the general assembly principles is absurd and stands the VRA on should create such a district. its head. As the defendants fail to meet the third Gingles factor, the Court concludes that While the Court “do[es] not insist that a section 2 did not require the defendants to legislature guess precisely what percentage create a majority-minority district in CD 1. reduction a court or the Justice Department might eventually find to be retrogressive,” 2. the legislature must have a “strong basis in evidence” for its use of racial classifications. Turning to consider the defendants' section 5 Specifically, the Supreme Court noted that it defense, the Supreme Court has repeatedly would be inappropriate for a legislature to struck down redistricting plans that were not “rel[y] heavily upon a mechanically narrowly tailored to the goal of avoiding “ ‘a numerical view as to what counts as

463 forbidden retrogression.” That is precisely interest in avoiding retrogression in a district what occurred here: the general assembly where African–American voters had established a mechanical BVAP target for successfully elected their representatives of CD 1 of 50 percent plus one person, as choice for two decades did not justify opposed to conducting a more sophisticated “substantial augmentation” of the BVAP. analysis of racial voting patterns in CD 1 to Such an augmentation could not be narrowly determine to what extent it must preserve tailored to the goal of complying with section existing minority percentages to maintain the 5 because there was “no basis for concluding minority's present ability to elect its that the increase to a 50.9% African– candidate of choice. American population ... was necessary to ensure nonretrogression.” “Nonretrogression b. is not a license for the State to do whatever it deems necessary to ensure continued Although CD 1 has been an extraordinarily electoral success; it merely mandates that the safe district for African-American preferred minority's opportunity to elect candidates of choice for over twenty years, representatives of its choice not be the 2011 Congressional Redistricting Plan diminished, directly or indirectly, by the increased CD 1's BVAP from 47.76 percent State's actions.” While the BVAP increase to 52.65 percent. Despite the fact that here is smaller than that in Bush, the principle African-Americans did not make up a is the same. Defendants show no basis for majority of the voting-age population in CD concluding that an augmentation of CD 1's 1, African-American preferred candidates BVAP to 52.65 percent was narrowly tailored easily and repeatedly won reelection under when the district had been a safe district for earlier congressional plans, including the African-American preferred candidates of 2001 benchmark plan. Representative Eva choice for over two decades. Clayton prevailed in CD 1 in 1998 and 2000, for instance, winning 62 percent and 66 In sum, the legislators had no basis—let percent of the vote, respectively. Indeed, alone a strong basis—to believe that an African-American preferred candidates inflexible racial floor of 50 percent plus one prevailed with remarkable consistency, person was necessary in CD 1. This quota winning at least 59 percent of the vote under was used to assign voters to CD 1 based on each of the five general elections under the the color of their skin. “Racial classifications benchmark version of CD 1. In 2010, of any sort pose the risk of lasting harm to our Congressman Butterfield won 59 percent of society. They reinforce the belief, held by too the vote, while in 2012 – under the many for too much of our history, that redistricting plan at issue here – he won by an individuals should be judged by the color of even larger margin, receiving 75 percent of their skin.” the vote. For these reasons, the Court finds that CD 1 In this respect, the legislature's decision to cannot survive strict scrutiny. Accordingly, increase the BVAP of CD 1 is similar to the the Court is compelled to hold that CD 1 redistricting plan invalidated by the Supreme violates the Equal Protection Clause of the Court in Bush. In Bush, a plurality of the Fourteenth Amendment. Supreme Court held that increasing the BVAP from 35.1 percent to 50.9 percent was III. not narrowly tailored because the state's

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Having found that the 2011 Congressional Plan, and because the defendants have failed Redistricting Plan violates the Equal to establish that this race-based redistricting Protection Clause, the Court now addresses satisfies strict scrutiny, the Court finds that the appropriate remedy. Plaintiffs have the 2011 Congressional Redistricting Plan is requested that we “determine and order a unconstitutional, and will require the North valid plan for new congressional districts.” Carolina General Assembly to draw a new Nevertheless, the Court is conscious of the congressional district plan. A final judgment powerful concerns for comity involved in accompanies this opinion. interfering with the state's legislative responsibilities. As the Supreme Court has SO ORDERED. repeatedly recognized, “redistricting and reapportioning legislative bodies is a … legislative task which the federal courts should make every effort not to pre-empt.” COGBURN, District Judge, concurring: As such, it is “appropriate, whenever practicable, to afford a reasonable I fully concur with Judge Gregory's majority opportunity for the legislature to meet opinion. Since the issue before the court was constitutional requirements by adopting a created by gerrymandering, and based on the substitute measure rather than for the federal evidence received at trial, I write only to court to devise ... its own plan.” Under North express my concerns about how unfettered Carolina law, courts must give legislatures at gerrymandering is negatively impacting our least two weeks to remedy defects identified republican form of government. in a redistricting plan. Voters should choose their representatives. The Court also recognizes that individuals in This is the “core principle of republican CD 1 and CD 12 whose constitutional rights government.” To that end, the operative have been injured by improper racial clause of Article I, § 4 of the United States gerrymandering have suffered significant Constitution, the Elections Clause, gives to harm. “Those citizens ‘are entitled to vote as the states the power of determining how soon as possible for their representatives congressional representatives are chosen: under a constitutional apportionment plan.’ ” Therefore, the Court will require that new The Times, Places and Manner of holding districts be drawn within two weeks of the Elections for Senators and entry of this opinion to remedy the Representatives, shall be prescribed in unconstitutional districts. In accordance with each State by the Legislature thereof; but well-established precedent that a state should the Congress may at any time by Law have the first opportunity to create a make or alter such Regulations, except as constitutional redistricting plan, the Court to the places of chusing Senators. allows the legislature until February 19, 2016, to enact a remedial districting plan. As redistricting through political gerrymander rather than reliance on natural IV. boundaries and communities has become the tool of choice for state legislatures in drawing Because the plaintiffs have shown that race congressional boundaries, the fundamental predominated in CD 1 and CD 12 of North principle of the voters choosing their Carolina's 2011 Congressional Redistricting

465 representative has nearly vanished. Instead, gerrymandering on steroids as political representatives choose their voters. mapmakers can easily identify individual registrations on a house-by-house basis, Indeed, we heard compelling testimony from mapping their way to victory. As was seen in Congressman G. K. Butterfield (CD 1) and Arizona State Legislature, supra, however, former Congressman Mel Watt (CD 12) that gerrymandering may well have an expiration the configuration of CD 1 and CD 12 made it date as the Supreme Court has found that the nearly impossible for them to travel to all the term “legislature” in the Elections Clause is communities comprising their districts. Not broad enough to include independent only has political gerrymandering interfered congressional redistricting commissions. with voters selecting their representatives, it has interfered with the representatives To be certain, gerrymandering is not meeting with those voters. In at least one employed by just one of the major political state, Arizona, legislative overuse of political parties. Historically, the North Carolina gerrymandering in redistricting has caused Legislature has been dominated by the people to take congressional redistricting Democrats who wielded the gerrymander away from the legislature and place such exceptionally well. Indeed, CD 12 runs its power in an independent congressional circuitous route from Charlotte to redistricting commission, an action that Greensboro and beyond—thanks in great part recently passed constitutional muster. to a state legislature then controlled by Democrats. It is a district so contorted and Redistricting through political contrived that the United States Courthouse gerrymandering is nothing new. Starting in in Charlotte, where this concurrence was the year the Constitution was ratified, 1788, written, is five blocks within its boundary, state legislatures have used the authority and the United States Courthouse in under the Elections Clause to redraw Greensboro, where the trial was held, is five congressional boundaries in a manner that blocks outside the same district, despite being favored the majority party. For example, in more than 90 miles apart and located in 1788, Patrick Henry persuaded the Virginia separate federal judicial districts. How a legislature to remake its Fifth Congressional voter can know who their representative is or District to force Henry's political foe James how a representative can meet with those Madison to run against James Monroe. pocketed voters is beyond comprehension. Madison won in spite of this, but the game playing had begun. In 1812, Governor While redistricting to protect the party that Elbridge Gerry signed a bill redistricting controls the state legislature is Massachusetts to benefit his party with one constitutionally permitted and lawful, it is in district so contorted that it was said to disharmony with fundamental values upon resemble a salamander, forever giving such which this country was founded. “[T]he true type of redistricting the name gerrymander. principle of a republic is, that the people Thus, for more than 200 years, should choose whom they please to govern gerrymandering has been the default in them.” Beyond taking offense at the affront congressional redistricting. to democracy caused by gerrymandering, courts will not, however, interfere with Elections should be decided through a contest gerrymandering that is philosophically rather of issues, not skillful mapmaking. Today, than legally wrong. As has been seen in modern computer mapping allows for Arizona, it is left to the people of the state to

466 decide whether they wish to select their also conceded at trial they did not seek to representatives or have their representatives prove any ill-intent. Nevertheless, I wish to select them. emphasize that the evidence does not suggest a flagrant violation. Instead, the legislature's … redistricting efforts reflect the difficult exercise in judgment necessary to comply OSTEEN, JR., District Judge, concurring in with section 5 of the Voting Rights Act part and dissenting in part: (“VRA”) in 2010, prior to the Supreme Court's decision in Shelby County v. Holder. I concur with the majority in finding that Shelby struck down as unconstitutional the Plaintiffs have met their burden of proving formula created under section 4 of the VRA that race predominated in the drawing of and, resultingly, removed those covered North Carolina's First Congressional District jurisdictions from section 5. (“CD 1”) and that Defendants have failed to show that the legislature's use of race in the In Shelby, the Supreme Court recognized the drawing of that district was narrowly tailored success of the VRA. However, the Court also to serve a compelling governmental interest. described its concern with an outdated I also concur with the majority with respect section 4 formula and the restrictions of to North Carolina's Twelfth Congressional section 5: District (“CD 12”) in that, if race was a predominant factor, Defendants did not meet Yet the Act has not eased the their burden to prove that CD 12 was restrictions in § 5 or narrowed the narrowly tailored to serve a compelling state scope of the coverage formula in § interest. However, I respectfully dissent from 4(b) along the way. Those the majority in that I find that Plaintiffs have extraordinary and unprecedented not met their burden of proving that race features were reauthorized—as if predominated in the drawing of CD 12. As a nothing had changed. In fact, the result, I conclude that the district is subject to Act's unusual remedies have grown and passes the rational basis test and is even stronger. When Congress constitutional. I differ with the well-reasoned reauthorized the Act in 2006, it did so opinion of my colleagues only as to the for another 25 years on top of the degree to which race was a factor in the previous 40—a far cry from the initial drawing of CD 12. five-year period. Congress also expanded the prohibitions in § 5. We I. CONGRESSIONAL DISTRICT I had previously interpreted § 5 to prohibit only those redistricting plans With respect to my concurring opinion, I only that would have the purpose or effect add that I do not find, as Plaintiffs have of worsening the position of minority contended, that this legislative effort groups. In 2006, Congress amended § constitutes a “flagrant” violation of the 5 to prohibit laws that could have Fourteenth Amendment. The majority favored such groups but did not do so opinion makes clear that bad faith is not because of a discriminatory purpose, necessary in order to find a violation. even though we had stated that such Although Plaintiffs argued that the actions of broadening of § 5 coverage would the legislature stand in “flagrant” violation of “exacerbate the substantial federalism Fourteenth Amendment principles, Plaintiffs costs that the preclearance procedure

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already exacts, perhaps to the extent conclusions reached by this court and the of raising concerns about § 5's North Carolina Supreme Court. Contrary to constitutionality.” In addition, Plaintiffs' suggestion, I find nothing flagrant Congress expanded § 5 to prohibit or nefarious as to the legislature's efforts any voting law “that has the purpose here, even though I agree that CD 1 was of or will have the effect of improperly drawn using race as a diminishing the ability of any citizens predominant factor without sufficient of the United States,” on account of justification. race, color, or language minority status, “to elect their preferred II. CONGRESSIONAL DISTRICT 12 candidates of choice.” In light of those two amendments, the bar that Turning to my dissent regarding whether covered jurisdictions must clear has Plaintiffs have carried their burden of been raised even as the conditions showing that race was the dominant and justifying that requirement have controlling consideration in drawing CD 12, dramatically improved. a brief history of redistricting efforts in the state will provide helpful context to the Although no court has held that compliance current situation. In 1991, North Carolina with section 5 is a compelling state interest, enacted a Congressional Districting Plan with the Supreme Court has generally assumed a single majority-black district—the 1991 without deciding that is the case. Compliance version of CD 1. The 1991 version of CD 1 with section 5 was, in my opinion, at least a was a majority single-race-black district in substantial concern to the North Carolina both total population and voting age legislature in 2011, a concern made difficult population (“VAP”). The State filed for by the fact that, at least by 2013 and likely by preclearance from the Department of Justice 2010, coverage was “based on decades-old for the 1991 plan under section 5 of the VRA, data and eradicated practices” yet had and there was no objection to the 1991 expanded prohibitions. version of CD 1 specifically. There was, however, a preclearance objection to the As a result, while I agree with my colleagues 1991 Congressional Plan overall because of that CD 1, as drawn, violates the Fourteenth the State's failure to create a second majority- Amendment, I do not find that violation to be minority district running from the flagrant, as argued by Plaintiffs. Instead, I southcentral to southeastern region of the simply find the violation as to CD 1 to be the State. result of an ultimately failed attempt at the very difficult task of achieving As a result of this objection, the General constitutionally compliant redistricting while Assembly drew a new Congressional Plan in at the same time complying with section 5 1992. The 1992 plan included a different and receiving preclearance from the version of CD 1 that was majority minority Department of Justice. In drawing legislative but did not include any portion of Durham districts, the Department of Justice and other County. The General Assembly also created legislatures have historically made similar a second majority-minority district (CD 12) mistakes in their attempts to apply the VRA. that stretched from Mecklenburg County to Further, the difficult exercise of judgment Forsyth and Guilford Counties and then all involved in the legislature's efforts to draw the way into Durham County. The Attorney these districts is reflected in the differing

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General did not interpose an objection to the race, was the predominant motive for the 1992 Congressional Plan. district.

Under the 1992 Congressional Plan, CD 12 In 2001, the North Carolina General was drawn with a single-race total black Assembly enacted the Congress Zero population of 56.63% and a single-race black Deviation Plan for redistricting based upon VAP (“BVAP”) of 53.34%. Under a the 2000 Census. mathematical test for measuring the compactness of districts called the “Reock” Under the 2000 Census, the 2001 version of test (also known as the dispersion test), the CD 12 was drawn with a single-race black 1992 CD 12 had a compactness score of 0.05. total population of 45.02% and an any-part black total population of 45.75%. Single-race The 1992 districts were subsequently black VAP was 42.31% and any-part black challenged under the VRA, and in Shaw I, the VAP was 42.81%. Supreme Court found that the 1992 versions of CD 1 and 12 were racial gerrymanders in In every election held in CD 12 between 1992 violation of the Fourteenth Amendment. The and 2010, without exception, the African- case was remanded for further proceedings. American candidate of choice, Congressman On appeal again after remand, in Shaw II, the Mel Watt, prevailed with no less than 55.95% Supreme Court again found that the 1992 of the vote, regardless of whether the black version of CD 12 constituted a racial VAP in CD 12 exceeded 50%, and regardless gerrymander. of any other characteristic of any specific election, demonstrating clearly that African- Following the decision in Shaw II, in 1997 Americans did not require a majority of the the North Carolina General Assembly VAP to elect their chosen candidate. enacted new versions of CD 1 and CD 12. The 1997 version of CD 12 was drawn with a A. The 2011 Redistricting Process black total population of 46.67% and a black VAP of 43.36%. Following the 2010 Census, Senator Robert Rucho and Representative David Lewis were The plan was yet again challenged in court, appointed chairs of the Senate and House and in Cromartie v. Hunt, a three-judge panel Redistricting Committees, respectively, on held on summary judgment that the 1997 January 27, 2011, and February 15, 2011. version of CD 12 also constituted a racial gerrymander in violation of the Fourteenth Jointly, Senator Rucho and Representative Amendment, although the decision was Lewis were responsible for developing a reversed by the Supreme Court on appeal. proposed congressional map based upon the 2010 Census. Under the 2010 Census, the On remand, the district court again found the 2001 version of CD 12 was overpopulated by 1997 version of CD 12 to be an 2,847 people, or 0.39%. unconstitutional racial gerrymander in violation of the Fourteenth Amendment, They hired Dr. Thomas Hofeller to be the Cromartie v. Hunt, a ruling that the State architect of the 2011 plan, and he began again appealed. The Supreme Court reversed working under the direction of Senator the district court, finding that politics, not Rucho and Representative Lewis in December 2010.2 Senator Rucho and

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Representative Lewis were the sole source of It is clear from both this statement and the instructions for Dr. Hofeller regarding the record that race was, at the very least, one criteria for the design and construction of the consideration in how CD 12 was drawn. 2011 congressional maps. These instructions apparently came, at least in part, from concerns about obtaining Throughout June and July of 2011, Senator preclearance from the DOJ. Testimony was Rucho and Representative Lewis released a elicited at trial that Dr. Hofeller was in fact series of public statements describing, among told to consider placing the African- other things, the criteria that they had used to American population of Guilford County into draw the proposed congressional plan. As CD 12 because Guilford County was a Senator Rucho explained at the July 21, 2011 covered jurisdiction under section 5 of the joint meeting of the Senate and House VRA. Redistricting Committees, those public statements “clearly delineated” the “entire That race was at least present as a concern in criteria” that were established and “what the General Assembly's mind is further areas [they] were looking at that were going confirmed when looking to the General to be in compliance with what the Justice Assembly's 2011 preclearance submission to Department expected [them] to do as part of the Department of Justice. There it explained [their] submission.” that it drew “District 12 as an African- American and very strong Democratic B. The Factors Used to Draw CD 123 district that has continually elected a Democratic African American since 1992,” On July 1, 2011, Senator Rucho and and also noted that CD 12 had been drawn to Representative Lewis made public the first protect “African-American voters in Guilford version of their proposed congressional plan, and Forsyth.” Rucho-Lewis Congress 1, along with a statement explaining the rationale for the The DOJ preclearance submission also map. Specifically with regard to CD 12, explained that the General Assembly had Senator Rucho and Representative Lewis drawn CD 12 in such a way to mitigate noted that although the 2001 benchmark concerns over the fact that “in 1992 the version of CD 12 was “not a Section 2 Justice Department had objected to the 1991 majority black district,” there “is one county Congressional Plan because of a failure by in the Twelfth District that is covered by the State to create a second majority-minority Section 5 of the Voting Rights Act district combining the African-American (Guilford).” Therefore, “[b]ecause of the community in Mecklenburg County with presence of Guilford County in CD 12, we African American and Native American have drawn our proposed Twelfth District at voters residing in south central and a black voting age level that is above the southeastern North Carolina.” The percentage of black voting age population preclearance submission further stated that found in the current Twelfth District.” “the 2011 version [of CD 12] maintains and Although the proposed map went through in fact increases the African American several iterations, CD 12 remained largely community's ability to elect their candidate of unchanged from Rucho-Lewis 1 throughout choice.” I note that I interpret this statement the redistricting process. slightly differently from the majority. I conclude that this statement describes one result of how the new district was drawn,

470 rather than the weight a particular factor was support for the conclusion that racial given in how to draw the district in the first concerns did not predominate over politics. place. Essentially, I would find this statement is an explanation by legislature that because Although Plaintiffs argue that the primary they chose to add Guilford County back into difference between the 2001 and 2011 CD 12, the district ended up with an versions of CD 12 is the increase in black increased ability to elect African-American VAP, allegedly due to the predominance of candidates, rather than the legislature race as a factor, Defendants contend that by explaining that they chose to add Guilford increasing the number of Democratic voters County back into CD 12 because of the in the 2011 version of CD 12 located in results that addition created. Mecklenburg and Guilford Counties, the 2011 Congressional Plan created districts that However, while it is clear that race was a were more competitive for Republican concern, it is also clear that race was not the candidates as compared to the 2001 versions only concern with CD 12. In their July 19, of these districts, including Congressional 2011 Joint Statement, Senator Rucho and Districts 6, 8, 9, and 13, a stated goal of the Representative Lewis stated that the version redistricting chairs. Defendants argue that the of CD 12 in Rucho-Lewis Congress 2, the principal differences between the 2001 and second map that they put forward, was based 2011 versions of CD 12 are that the 2011 upon the 1997 and 2001 versions of that version: (1) adds more strong Democratic district and that the 2011 version was again voters located in Mecklenburg and Guilford drawn by the legislative leaders based upon Counties; (2) adds more Democratic voters to political considerations. According to them, the 2011 version of CD 5 because it was able CD 12 was drawn to maintain that district as to accept additional Democrats while a “very strong Democratic district ... based remaining a strong Republican district; (3) upon whole precincts that voted heavily for removes Democratic voters from the 2011 President Obama in the 2008 General CD 6 in Guilford County and places them in Election.” The co-chairs stated that by the 2001 CD 12; and (4) removes Republican making CD 12 a very strong Democratic voters who had formerly been assigned to the district, adjoining districts would be more 2001 CD 12 from the corridor counties of competitive for Republicans. Cabarrus, Rowan, Davidson and other locations. Further, Dr. Hofeller testified that he constructed the 2011 version of CD 12 based Defendants also contend, or at least intimate, upon whole Voting Tabulation Districts that the final black VAP of the 2011 version (“VTDs”) in which President Obama of CD 12 resulted in part from the high received the highest vote totals during the percentage of African-Americans who vote 2008 Presidential Election, indicating that strongly Democrat. They note that, both in political lean was a primary factor. The only previous versions of CD 12 and in alternative information on the computer screen used by proposals that were before the General Dr. Hofeller in selecting VTDs for inclusion Assembly in 2010, African-Americans in the CD 12 was the percentage by which constituted a super-majority of registered President Obama won or lost a particular Democrats in the district, citing the 2001 VTD. Dr. Hofeller has also stated that there Twelfth Congressional Plan (71.44%); the was no racial data on the screen when he Southern Coalition for Social Justice Twelfth constructed the district, providing some Congressional Plan (71.53%); and the “Fair

471 and Legal” Twelfth Congressional Plan submissions submitted by the state to the (69.14%). Defendants are apparently making Department of Justice. Plaintiffs can also the same argument the State has made several meet this burden through circumstantial times previously: the percentage of African- evidence such as the district's shape, Americans added to the district is compactness, or demographic statistics. coincidental and the result of moving Circumstantial evidence can show that Democrats who happen to be African- traditional redistricting criteria were American into the district. subordinated and that a challenged district is unexplainable on grounds other than race. C. Racial Concerns did not Predominate Plaintiffs do not need to show that race was the only factor that the legislature considered, Equal protection principles deriving from the just that it predominated over other factors. Fourteenth Amendment govern a state's drawing of electoral districts. The use of race If race is established as the predominant in drawing a district is a concern because motive for CD 12, then the district will be “[r]acial gerrymandering, even for remedial subject to strict scrutiny, necessitating an purposes, may balkanize us into competing inquiry into whether the use of race to draw racial factions; it threatens to carry us further the district was narrowly tailored to meet a from the goal of a political system in which compelling state interest. The Supreme Court race no longer matters.” To prove a claim of has assumed without deciding that racial gerrymandering, Plaintiffs first have compliance with sections 2 and 5 of the VRA the burden to prove that race was the is a compelling state interest. Defendants in predominant factor in the drawing of the this case contend that, if the court finds that allegedly gerrymandered districts. either district was drawn predominantly Predominance can be shown by proving that based on race, their maps are narrowly a district “is so extremely irregular on its face tailored to avoid liability under these sections that it rationally can be viewed only as an in satisfaction of strict scrutiny. effort to segregate the races for purposes of voting, without regard for traditional Just as with CD 1, the first hurdle Plaintiffs districting principles,” (i.e., proving must overcome is to show that racial predominance circumstantially), or by concerns predominated over traditional proving that “race for its own sake, and not criteria in the drawing of CD 12. As stated other districting principles, was the above, it is in this finding that I dissent from legislature's dominant and controlling the majority. rationale in drawing its district lines. ... [and] that the legislature subordinated traditional Most importantly, as compared to CD 1, I race-neutral districting principles ... to racial find that Plaintiffs have put forth less, and considerations.” weaker, direct evidence showing that race was the primary motivating factor in the Plaintiffs can meet this burden through direct creation of CD 12, and none that shows that evidence of legislative purpose, showing that it predominated over other factors. Plaintiffs race was the predominant factor in the first point to several public statements that decision on how to draw a district. Such they argue demonstrate the State's intent to evidence can include statements by draw CD 12 at a majority black level and legislative officials involved in drawing the argue that this stated goal demonstrates that redistricting plan and preclearance race predominated. However, I find that the

472 statements issued by the redistricting chairs The co-chairs' later statement that this result show only a “consciousness” of race, rather would help to ensure preclearance under the than a predominance, and by themselves do VRA similarly falls short of explaining that not show an improperly predominant racial such actions were taken in order to ensure motive. preclearance, or that a majority BVAP (or First, Plaintiffs cite to the July 1, 2011 press even an increase in BVAP) was a non- release where the redistricting chairs negotiable requirement. In fact, the co-chairs explained that: explicitly state in the same release that CD 12 was created with “the intention of making it Because of the presence of Guilford a very strong Democratic district” and that County [a section 5 jurisdiction under that it was not a majority black district that the VRA] in the Twelfth District, we was required by section two (insinuating that have drawn our proposed Twelfth it became so as a result of the addition of District at a black voting age level Guilford County, rather than Guilford being that is above the percentage of black added in order to achieve that goal), belying voting age population found in the that there was any mechanical racial current Twelfth District. We believe threshold of the sort that would lend itself to this measure will ensure preclearance a finding of predominance. of the plan. Further, regarding the placement of Guilford This statement seems similar to, and perhaps County into CD 12, Dr. Hofeller testified as slightly more persuasive than, the statements follows: that the Supreme Court found unpersuasive in Cromartie II. In Cromartie II, the Supreme My instructions in drawing the 12th Court considered a statement by the District were to draw it as it were a mapmaker that he had “moved [the] political district, as a whole. We were Greensboro Black Community into the 12th, aware of the fact that Guilford County and now need to take about 60,000 out of the was a Section 5 county. We were also 12th.” The Court in that case noted that while aware of the fact that the black the statement did reference race, it did not community in Greensboro had been discuss the political consequences or fractured by the Democrats in the motivation for placing the population of 2001 map to add Democratic Guilford County in the 12th district. Here, strengths to two Democratic districts. while the statement by the co-chairs does During the process, it was my reference political consequences (ensuring understanding that we had had a preclearance), it still does not rise to the level comment made that we might have a of evidence that the Supreme Court has found liability for fracturing the African- significant in other redistricting cases. While American community in Guilford this statement, like the statement in County between a Democratic district Cromartie II, provides some support for and a Republican district. When the Plaintiffs' contention, it does not rise to the plan was drawn, I knew where the old level of showing predominance. It does not 97th, 12th District had been drawn, indicate that other concerns were and I used that as a guide because one subordinated to this goal, merely, that it was of the things we needed to do a factor. politically was to reconstruct generally the 97th district; and when

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we checked it, we found out that we comparison of the legislative statements as to did not have an issue in Guilford CD 12 with those made with respect to CD 1 County with fracturing the black is illustrative, given that the legislature community. clearly stated its intention to create a majority-minority district within CD 1. Dr. Hofeller's testimony shows that, while the Compared with such open expressions of map drawers were aware that Guilford intent, the statements made with respect to County was a VRA county and that there CD 12 seem to be more a description of the were possibly some VRA concerns resulting characteristics of CD 12 rather than surrounding it, the choice to place Guilford evidence about the weight that the legislature County in CD 12 was at least in part also gave various factors used to draw CD 12. For based on a desire to reconstruct the 1997 example, as the majority points out, in the version of CD 12 for political reasons and public statement issued July 1, 2011, Senator doing so also happened to eliminate any Rucho and Representative Lewis stated, possible fracturing complaint. This is “[b]ecause of the presence of Guilford furthered by Dr. Hofeller's deposition County in the Twelfth District [which is testimony, in which he explained that while covered by section 5 of the VRA], we have the redistricting chairs were certainly drawn our proposed Twelfth District at a concerned about a fracturing complaint over black voting age level that is above the Guilford County, “[his] instruction was not to percentage of black voting age population increase [the black] population. [His] found in the current Twelfth District.” While instruction was to try and take care of [the the majority reaches an imminently VRA] problem, but the primary instructions reasonable conclusion that this is evidence of and overriding instruction in District 12 was an intention to create a majority-minority to accomplish the political goal.” district, I, on the other hand, conclude that the statement reflects a recognition of the fact the Compare these statements with those made black VAP voting age was higher in the new about CD 1, where Dr. Hofeller repeatedly district because of the inclusion of a section 5 testified that he was told “to draw that 1st county, not necessarily that race was the District with a black voting-age population in predominant factor or that Guilford County excess of 50 percent because of the was included in order to bring about that Strickland case.” He also testified that this result. It seems clear to me that some goal for CD 1 could not be compromised, recognition of the character of the completed explaining that while he had some leeway in CD 12 to the Department of Justice how high he could take the BVAP of the addressing the preclearance issue was district, he could not go lower than 50% plus necessary. However, that recognition does 1. These are the sorts of statements that show not necessarily reflect predominant, as predominance, rather than consciousness, of opposed to merely significant, factors in race and are clearly distinguishable from drawing the district. those made about CD 12, where there is only evidence that race was one among several Plaintiffs also point to circumstantial factors. evidence, including the shape of the district, the low compactness scores, and testimony Based upon this direct evidence, I conclude from two experts who contend that race, and that race was a factor in how CD 12 was not politics, better explains the choices made drawn, although not a predominant one. A in drawing CD 12.

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As regards the district's shape and that they, much like Plaintiffs' direct compactness, as Defendants point out, the evidence, show at most that race may have redistricting co-chairs were not working from been one among several concerns and that a blank slate when they drew the 2011 politics was an equal, if not more significant, version of CD 12. CD 12 has been subject to factor. litigation almost every single time it has been redrawn since 1991, and, although Plaintiffs As for Dr. Ansolabehere, his testimony may are correct that it has a bizarre shape and low provide some insight into the demographics compactness scores, it has always had a that resulted from how CD 12 was drawn. bizarre shape and low compactness scores. However, even assuming that his testimony As such, pointing out that these traditional is to be credited in its entirety, I do not find criteria were not observed by the co-chairs in that it establishes that race predominated as a drawing CD 12 is less persuasive evidence of factor in how CD 12 was drawn. racial predominance than it might otherwise be, given that to create a district with a more First, as Defendants point out, Dr. natural shape and compactness score, the Ansolabehere relied on voter registration surrounding districts (and likely the entire data, rather than actual election results, in his map) would have to be redrawn. It is hard to analysis. Even without assuming the conclude that a district that is as non-compact Supreme Court's admonishment about the as CD 12 was in 2010 was revised with some use of registration data as less correlative of specific motivation when it retains a similar voting behavior than actual election results shape as before and becomes slightly less remains accurate, Dr. Ansolabehere's compact than the geographic oddity it already analysis suffers from a separate flaw. Dr. was. Ansolabehere's analysis says that race better explains the way CD 12 was drawn than does As for Plaintiffs' expert testimony, I first note political party registration. However, this is a that Dr. David Peterson's testimony neither criterion that the state did not actually use establishes that race was the predominant when drawing the map. Dr. Hofeller testified motive for the drawing of CD 12 nor does it that when drawing the districts, he examined even purport to. As Dr. Peterson himself only the 2008 presidential election results stated, his opinion was simply that race when deciding which precincts to move in “better accounts for” the boundaries of CD 12 and out of a district. This fact is critical to the than does politics, but he did not have an usefulness of Dr. Ansolabehere's analysis opinion on the legislature's actual motivation, because, absent some further analysis stating on whether political concerns predominated that race better explains the boundaries of CD over other criteria, or if the planners had 12 than the election results from the 2008 nonnegotiable racial goals. presidential election, his testimony simply does not address the criteria that Dr. Hofeller Further, when controlling for the results of actually used. Plaintiffs contend that the the 2008 presidential election, the only data legislature's explanation of political used by the map's architect in drawing CD 12, motivation is not persuasive because, if it Dr. Peterson's analysis actually finds that were the actual motivation, Dr. politics is a better explanation for CD 12 than Ansolabehere's analysis would show that the race. As such, even crediting his analysis, Dr. boundaries were better explained by voter Peterson's report and testimony are of little registration than by race. However, because use in examining the intent behind CD 12 in Defendants have explained that they based

475 their political goals on the results of the 2008 address. As the Court in Cromartie II presidential election, rather than voter explained, in cases where racial identification registration, Dr. Ansolabehere's analysis is correlates highly with political affiliation, simply not enough to prove a predominant Plaintiffs attacking a district must show “at racial motive. the least that the legislature could have achieved its legitimate political objectives in This is particularly true when the other alternative ways that are comparably evidence that might confirm Dr. consistent with traditional districting Ansolabehere's analysis is less than clear, and principles [and] that those districting in fact provides some hesitation as to the alternatives would have brought about analysis, rather than corroborating it. significantly greater racial balance.” Specifically, Dr. Ansolabehere applied his Plaintiffs have not done so here. In envelope analysis to CD 12, a district that essentially alleging that political goals were was originally drawn in order to create a pretext, they have put forth no alternative majority-minority district, has retained a plan that would have made CD 12 a strong substantial minority population in the twenty Democratic district while simultaneously years since its creation, and was extremely strengthening the surrounding Republican non-compact when originally drawn. districts and not increasing the black VAP. Therefore, absent some consideration of As such, they have not proven that politics other factors—the competitiveness of was mere pretext in this case. surrounding, contiguous districts and the compactness of those districts—it is difficult Finally, mindful of the fact that the burden is to place great weight on Dr. Ansolabehere's on Plaintiffs to prove “that the legislature analysis. In other words, if a district starts out subordinated traditional race-neutral as an extremely gerrymandered district, districting principles ... to racial drawn with race as a predominant factor, I do considerations” (i.e., proving predominance not find compelling a subsequent study directly), it is not clear whether compliance concluding that race, and not politics, may be with section 5, although it necessarily a better predictor of the likelihood of voter involved consideration of race, should be inclusion in a modification of the original considered a “neutral” redistricting principle district. or a purely racial consideration. Although I reach the same decision regardless, I As the Supreme Court has explained, conclude that actions taken in compliance Plaintiffs' burden of proving that racial with section 5 and preclearance should not be considerations were “dominant and a factor that elevates race to a “predominant controlling” is a demanding one. In my factor” when other traditional districting opinion, Plaintiffs have not met that burden principles exist, as here, supporting a finding here as to CD 12. Plaintiffs' direct evidence otherwise. As a result, the fact that certain shows only that race was a factor in how CD voters in Guilford County were included in 12 was drawn, not the “dominant and CD 12 in an effort to comply with section 5, controlling” factor. As for their avoid retrogression, and receive preclearance circumstantial evidence, Plaintiffs must show does not persuade me that race was a that the district is unexplainable on grounds predominant factor in light of the other facts other than race. Here, Defendants explain CD of this case. 12 based on the use of political data that Plaintiffs' experts do not even specifically

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As Plaintiffs have failed to show that race rather than strict scrutiny. Because I find that was the predominant factor in the drawing of CD 12 passes the rational basis test, I would CD 12, it is subject to a rational basis test uphold that district as constitutional.

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“Supreme Court to review whether North Carolina relied too heavily on race in redistricting”

PBS Newshour Jonathan Drew June 27, 2016

The U.S. Supreme Court agreed Monday to Carolina’s 13 members of Congress. That decide whether Republican lawmakers relied map was used in an unusual, separate, June 7 too heavily on race when they redrew North congressional primary. Carolina’s congressional districts to give the The Supreme Court denied the state GOP’s GOP a powerful advantage in the swing state. emergency request to intervene ahead of that The justices added the case to their fall primary, but key issues remain unresolved. calendar — almost certainly too late to affect A ruling by the high court also should 2016’s remaining races. But in the years influence the outcome of a separate federal ahead, it could impact partisan efforts to case challenging the districts used to elect create electoral districts aimed at swaying the North Carolina’s state legislators. balance of power in Congress and in state legislatures. North Carolina’s status as a swing state belies the uneven split favoring Republicans in the It could be heard in conjunction with a state’s legislature and congressional separate case challenging voting districts in delegation. Narrowly contested presidential Virginia, an election law expert said. races in 2008 and 2012 show that voter North Carolina’s GOP leaders deny factoring preferences are split fairly evenly statewide. in race to an illegal extent, saying their 2011 But the GOP used redistricting in 2011 to map was designed primarily to give create veto-proof majorities of more than Republicans an edge and to comply with the two-thirds of the seats in the state legislature, federal Voting Rights Act. and the state’s congressional delegation now Opponents argue that they unfairly stacked has 3 Democrats to 10 Republicans. minorities into fewer districts after the 2010 The case is McCrory v. Harris, 15-1262. Census in ways that diluted their influence. Several weeks ago, the Supreme Court A federal court ruled in February that race agreed to hear a similar case, in which was the predominant factor in drawing two challengers argue that a 2011 districting plan congressional districts, and ordered the state for Virginia’s House of Delegates packed to quickly produce a new map for North black voters into a dozen legislative districts,

478 strengthening Republican control of In the most closely watched of North neighboring territories. Carolina’s June congressional primaries, Republican U.S. Rep. George Holding The justices didn’t immediately set a date for defeated fellow incumbent Renee Ellmers hearing the two cases, which will likely be after outside groups poured in money for ads heard together or consolidated by the high questioning her conservative credentials. court, according to Rick Hasen, a professor Holding is expected to have a wide advantage who studies election law at University of over his Democratic challenger in November. California at Irvine.

Hasen wrote on his blog that five of the eight justices appear sympathetic to such claims brought by minority voters against

Republicans, based on a 2015 ruling in an Alabama case.

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“North Carolina redistricting delay denied”

SCOTUSblog Lyle Denniston February 20, 2016

Without an explanation, the Supreme Court setting aside an earlier plan for the primary on Friday night left intact a lower court on March 15. decision that had forced the North Carolina The approaching date of the March primary legislature to draw up a new election district was one factor that had led state officials to map for congressional seats, to cure “racial ask the Supreme Court to delay the district gerrymandering” in two of its districts. There court ruling. The panel had given the were no noted dissents from the order. lawmakers just two weeks — that is, until The Court acted within hours after it had been Friday — to come up with a remedy for the told that the legislature in a special session in constitutional violation in the two districts. Raleigh had approved a new plan for the two For years, those two districts have been districts — 1 and 12 — that a three-judge electing African-American candidates. district court had ruled unconstitutional as a District 1 is represented in the current result of “packing” more minority voters into Congress by Rep. George K. Butterfield, Jr., those areas. and District 12 by Rep. Alma S. Adams, both The Justices’ order was one of the first African-American Democrats. significant actions the Court had taken since At a time when District 1 had a population of the death of Justice Antonin Scalia. An eight- voting-age African Americans of 47.76%, member Court can deal effectively with such Rep. Butterfield won election in 2010 under matters, at least when the Justices are not split a prior map with somewhat more than fifty- four to four. nine percent of the vote. Under the 2011 The new North Carolina districting plan plan, however, with more minorities in his enacted Friday specified that it would not go district (now at 52.65%), he won with more into effect if the Supreme Court had granted than seventy percent in both 2012 and 2014. the request of the governor and state board of In District 12, another African-American, elections to postpone the district court’s order Mel Watt, who preceded Adams, won the mandating a new map. With the Justices’ 2010 election under a prior plan with 63.9% denial of the state’s challenge, the new map of the vote when African-Americans of will be in effect for the primary election in the voting age totaled 43.77%. Under the 2011 state — now set for June 7 under a separate plan, with more minorities in the district law, also passed by the legislature Friday,

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(then, 50.66), he won reelection with 79.6% before had moved up the primary date from in 2012. In the 2014 election, Rep. Adams May 2016 to March 15. Opponents of that won election in that district with more than plan argued that the governor and legislature seventy-five percent of the vote. were seeking to lock in the 2011 plan for this year’s congressional elections. Even though the results under the prior plan had indicated to the supporters of those The district court, after a trial, struck down candidates that their districts were already the boundary lines of Districts 1 and 12 on drawn in a way that assured that African- February 5, leading state officials to ask the American voters could choose candidates of Supreme Court to postpone that decision, their preference, the 2011 plan that the arguing that the process for holding the district court struck down significantly primary in March had already begun, and the increased the numbers of African-American state faced a chaotic situation if the 2011 plan voters in the two districts. were not allowed to remain in effect. Legislative sponsors of the plan sought to The Court got a reply from the challengers to justify the increased population of minorities the 2011 plan on three days ago, opposing in those areas by arguing that they needed to delay of the lower court mandate for a new push up representation of minorities in those map. Then, earlier Friday, each side notified districts above fifty percent, to satisfy the the Justices of the legislature’s new actions, federal Voting Rights Act. The district court, leading to the release of the denial of the stay however, ruled earlier this month that this in late evening. would not justify lines for those two districts The Supreme Court’s action did not judge the when race was the predominant factor in constitutionality of the 2011 plan, or of the dictating the boundaries of the new, oddly new replacement for it, focusing only on shaped districts. whether the Justices thought the state Although prior Supreme Court precedents officials might win if they went forward with allow some use of racial factors in a formal appeal of the lower court decision. redistricting election boundaries, the Court has barred the use of race as the predominant factor, outranking any other political or practical considerations. A voter from each of the North Carolina districts had challenged the increases in minority voters in a lawsuit filed in 2013, but the case did not move rapidly, and the 2011 plan was used in both the 2012 and 2014 elections. With a trial set to begin in October of last year on the challenge, the legislature a month

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“North Carolina's Congressional Primaries Are A Mess Because Of These Maps”

NPR Tom Bullock March 10, 2016

North Carolina voters are likely to be If you're not familiar with North Carolina's confused when they arrive at their polling congressional map, here's where the animal places on March 15. In addition to shapes come into play. presidential candidates, voters will see congressional primary candidates on the ballot. But thanks to a federal court decision, the districts those candidates represent no longer exist and any votes in those races won't count.

Thanks to three judges, two animal shapes and one hastily redrawn map of U.S. House Credit: Alyson Hurt/NPR seats, North Carolina politics have been The 1st District looks kind of like an octopus thrown into chaos. whose body hugs the Virginia border and It started to go off the rails Feb. 5 when a whose tentacles stretch east and west and panel of three federal judges determined that halfway down the state. the boundaries of the state's 1st and 12th The 12th congressional district is more congressional districts were drawn in such a snakelike — sometimes no wider than an way as to concentrate African-American interstate — and extends more than 80 miles voters and dilute their overall influence. from Charlotte to Winston-Salem. Coming just five weeks ahead of voting, The federal court decision surprised many in there was no choice but to "stop the current the state, especially because the U.S. election, go back, redraw the lines," said Josh Department of Justice approved the maps Lawson, general counsel for the North five years ago. Carolina State Board of Elections. Faced with the court order, the state's Redrawing The Animal Shapes Republican Legislature opted for a drastic

482 redrawing of North Carolina's entire "Under the current map, 46 people are congressional map, finishing the job in just currently running for Congress, but that two weeks. number would be expected to grow substantially," said Lawson, because the state "Eleven out of the 13 districts saw major has reopened the filing period to allow more changes," said Michael Bitzer, a political candidates to run in the newly drawn scientist at Catawba College. "Some sitting districts. members of Congress woke up the next morning after these maps had been released All of this takes time. So, state lawmakers and went, 'Oh, boy, I don't even live in the moved the primaries for U.S. House races district now.' " from March 15 to June 7. In fact, the home of Democratic U.S. Rep. However, the March 15 ballots have already Alma Adams in the old, snaking 12th District been printed and they include congressional is two hours away from the borders of the candidates. So election officials have urged newly redrawn, short and squat 12th District. North Carolina voters to fill out the entire ballot — even though votes for U.S. House Most of the other districts were also stretched candidates won't be counted. or shifted, which means that "lots of folks now have different representation than they It's an effort to avoid confusion, although did before," said Lawson. telling voters to cast votes in a race that isn't happening yet is a situation that Lawson Primary Chaos admits he did not foresee. The process has created a host of logistical The federal judges who threw out the original hurdles for elections officials in North congressional map still have to approve the Carolina, starting with a process known as one drawn by the state lawmakers. If the geocoding to determine who represents every judges reject it, they can tell the Legislature voter in the state. Next, officials need to to redraw the map, or the judges will reprint more than 4,500 different types of redistrict the state themselves. ballots. And then there's the question of who's on the ballot.

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Looking Ahead: Voter Identification

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“Supreme Court Blocks North Carolina from Restoring Strict Voting Law”

New York Times Adam Liptak August 31, 2016

A deadlocked Supreme Court on Wednesday liberal justices blocked North Carolina refused to revive parts of a restrictive North protections afforded by our sensible voter Carolina voting law that a federal appeals laws.” court had struck down as an unconstitutional effort to “target African Americans with The law’s critics welcomed the order. almost surgical precision.” “This decision opens the door for fair and full The court was divided 4 to 4, with the court’s access to the democratic process for all more conservative members voting to revive voters,” said Allison Riggs, a lawyer for the parts of the law. The court’s brief order Southern Coalition for Social Justice. included no reasoning. “Hundreds of thousands of North Carolinians will now be able to vote without barriers. The North Carolina’s law, which imposed an voting booth is the one place where everyone array of voting restrictions, including new is equal and where we all have the same say.” voter identification requirements, was enacted by the state’s Republican-controlled Civil rights groups joined with the Obama legislature in 2013. It was part of a wave of administration in filing suit against the law, voting restrictions enacted after a 5-to-4 arguing that, several parts of the law violated Supreme Court decision that effectively the Constitution and what remained of the struck down a central part of the federal Voting Rights Act. A trial judge rejected Voting Rights Act, weakening federal those claims in April, but in July a three- oversight of voting rights. judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Challenges to the laws have met with Va., disagreed. considerable success in recent months, and Wednesday’s development suggested that the The appeals court ruling struck down five current eight-member Supreme Court is not parts of the law: its voter ID requirements, a likely to undo those victories. rollback of early voting to 10 days from 17, an elimination of same-day registration and Gov. Pat McCrory, a Republican who is of preregistration of some teenagers, and its seeking re-election this fall, asserted that ban on counting votes cast in the wrong North Carolina had “been denied basic voting precinct. rights already granted to more than 30 states.” He noted that four justices had The court found that all five restrictions supported the state’s position and that “four “disproportionately affected African

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Americans.” The law’s voter identification ruling and that undoing it would lead to provision, for instance, “retained only those mistakes and confusion. types of photo ID disproportionately held by whites and excluded those disproportionately They added that the state’s lawyers had held by African Americans.” earlier told the appeals court that the state could comply with a ruling so long as it was This was so, the court said, even though the issued by late July. The appeals court ruled state had “failed to identify even a single on July 29. individual who has ever been charged with committing in-person voter fraud in North Changing course now, the administration Carolina.” But it did find that there is said, “would inflict irreparable injury on evidence of fraud in absentee voting by mail, minority voters.” a method used disproportionately by white voters. But the Legislature exempted The state asked the justices to act because it absentee voting from the photo ID said the appeals court’s approach would requirement. “threaten voter ID laws throughout the nation.” The court also found that the early voting restrictions had a much larger effect on black The Obama administration responded that the voters, who “disproportionately used the first appeal’s court’s ruling rested on “a careful seven days of early voting.” appraisal of overwhelming evidence specific to North Carolina.” The law, the court said, eliminated one of two “souls-to-the-polls” Sundays when black “The only voter ID laws that the decision churches provided rides to polling places. endangers are those proven through overwhelming evidence to have been adopted In an emergency application filed 17 days with racially discriminatory intent,” the brief after the appeals court ruling, state officials said. asked the Supreme Court to step in. Represented by Paul D. Clement, a former “This is a case about the use of race to United States solicitor general in the George achieve partisan ends.” W. Bush administration, the officials challenged only the parts of the appeals Justices Ruth Bader Ginsburg, Stephen G. court’s ruling that they said would create Breyer, Sonia Sotomayor and Elena Kagan confusion in the coming election. voted to reject the state’s arguments. Justice Clarence Thomas would have revived all of The state officials asked the justices to the contested provisions, while Chief Justice temporarily restore three parts of the law: its John G. Roberts Jr. and Justices Anthony M. voter-ID requirements, the reduction of early Kennedy and Samuel A. Alito Jr. would have voting days and preregistration of some reinstated the voter ID and early voting teenagers. provisions.

In response, the Obama administration and “This ruling means that thousands of voters civil rights groups said the state had moved who would have been disenfranchised will too slowly to challenge the appeals court’s now be able to participate in the presidential election,” said Dale Ho, director of the

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American Civil Liberties Union’s Voting “We respect the court, but are disappointed Rights Project, which represented several North Carolina will not be among the more plaintiffs in the case. than 30 other states with commonsense voter ID in place for the upcoming election,” Republican supporters of the tightened standards, who had suggested that the appeals House Speaker Tim Moore and Phil Berger, court’s judges might have been intending “to the president pro tempore of the North reopen the door for voter fraud,” took a Carolina Senate, said in a joint statement. measured tone on Wednesday.

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“Election Litigation 2016: Where Things Stand”

Election Law Blog Rick Hasen August 22, 2016

With 77 days to go until Election Day, and ordered a softening by the trial judge (as well early voting starting much sooner in some as a remand after the election to consider places, here is the major litigation affecting whether Texas acted with racially election procedures and voting that I’m discriminatory intent). Texas and the watching the most closely: plaintiffs agreed in the trial court on an affidavit requirement for softening to apply Wisconsin: One trial judge required in this election only, which seemed to settle Wisconsin officials to accept an affidavit things for November. But last week the Texas instead of one of the strict voter ids for AG left open the possibility of seeking voting. A 7th Circuit panel reversed that emergency relief with the Supreme Court to holding, and we are awaiting the entire 7th get the full voter id requirement reinstated for Circuit en banc to rule on this question. A November. Nothing’s been filed yet, and second trial judge struck a number of election given the lengthy delay and timing such a rollbacks in Wisconsin, including those request would almost certainly be denied. limited to early voting. The state has petitioned the 7th Circuit to stay that judge’s Ohio: We are waiting on a couple of cases order pending appeal. I expect we will hear out of the 6th Circuit over whether the Ohio something on this case this week. legislature’s rollback of early voting was permissible. Two lower courts said it was not. North Carolina: The 4th Circuit struck a Frankly, I’m quite surprised these rulings are number of challenged election rollbacks not out yet as time is tight—and the theories based upon a finding that North Carolina of the plaintiffs here seem the shakiest in passed the law with racially discriminatory terms of proving a violation. [Update: Only intent. The state will file a cert. petition in the one of these two pending cases is about the Supreme Court, and in the meantime it has early voting aspect of this law. The other asked the Supreme Court to reinstate some of deals with other aspects.] We are also the laws that the 4th Circuit blocked. Chief awaiting a 6th Circuit ruling on a so-far- Justice Roberts has asked the plaintiffs to file unsuccessful challenge to its voter purge a reply by this Thursday, the 25th. Expect a procedures, for removing people from the ruling the following week (and given the ballot who have not been active voters. slow pace set by the Chief, I do not expect the stay to be granted so close to the election). Arizona: Democrats are looking for a court order to make sure that the long lines that Texas: We thought things were done in materialized in the primary will not reappear Texas for the time being, after the 5th Circuit on election day. Awaiting a district court found that Texas’s strict voter id law violated ruling. Section 2 of the Voting Rights Act and

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Kansas/EAC: The D.C. Circuit is federal elections using the federal form. considering an appeal over the issue of There is also litigation over the “dual” voting whether an EAC bureaucrat exceeded his system that SOS Kobach has put in place over authority when he allowed Kansas and the objections of voting rights activists. Arizona to require documentary proof of [Update: There’s another one of these Kansas citizenship for voters who register to vote in cases pending before the 10th Circuit.]

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“As November Approaches, Courts Deal Series of Blows to Voter ID Laws”

National Public Radio Camila Domonoske August 2, 2016

All summer long, the clock has been ticking On July 20, a federal appeals court ruled that on voting rights cases. Judges don't like to Texas' voter ID law had a discriminatory change voting rules too near an election, and impact on voters, and ordered a lower court November iscreeping ever closer. to come up with a fix before elections in November. And the past two weeks, in particular, have been eventful: Five courts in five states ruled It's "probably the strictest voter identification against voter ID and proof-of-citizenship law in the country," as NPR's Pam Fessler laws. puts it, and activists say it disproportionately impacts black and Hispanic voters. There's still time for appeals and stays. But for now, advocates for voting access are The court agreed, although it stopped short of celebrating. concluding that Texas purposefully set out to disenfranchise minority voters, as the Two- "It's been like Christmas Day," one activist Way reported at the time: told CNN on Monday. "A district court had found not only Supporters of voter ID laws have argued they that the law discriminated, but that it are necessary to prevent voter fraud. But in was intentionally designed to do so. their responses, judges consistently The 5th U.S. Circuit Court of Appeals highlighted the rarity of voter fraud — particularly through in-person voting. saw some flaws in that conclusion and instructed the lower court to A federal judge in North Dakota went further: reconsider that element of the case "The undisputed evidence before the Court and rule again — preferably after reveals that voter fraud in North Dakota has Election Day." been virtually non-existent," he wrote, as he rejected a voter ID law justified by fears of So this case — which has been ricocheting such fraud. through the court system for years now — is far from over. Here's a look at the recent rulings: North Carolina Texas

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On July 29, a three-judge panel of the 4th passed by Republican state lawmakers, the U.S. Circuit Court of Appeals overturned Milwaukee Journal Sentinel reports. North Carolina's sweeping voter ID law (which included a host of other voting Among the provisions he overturned: limits restrictions, including shortening the early on early voting, a requirement that people voting period and banning same-day must live in a ward for 28 days before voting, registration). a prohibition on expired student IDs and a ban on emailing absentee ballots to voters. And — unlike in Texas — the appeals court The judge also required that anyone with ruled that North Carolina legislators had difficulty getting an ID must be granted a actually passed the law with discriminatory voting ID within 30 days, the Journal intent. Sentinel reports.

As the Two-Way reported then, "The appeals In his decision, U.S. District Judge James court noted that the North Carolina Peterson wrote: Legislature 'requested data on the use, by race, of a number of voting practices' — then, "The evidence in this case casts doubt on the data in hand, 'enacted legislation that notion that voter ID laws foster integrity and restricted voting and registration in five confidence. The Wisconsin experience different ways, all of which demonstrates that a preoccupation with disproportionately affected African mostly phantom election fraud leads to real Americans.' " incidents of disenfranchisement, which undermine rather than enhance confidence in The court wrote that the changes to the voting elections, particularly in minority process "target African Americans with communities. To put it bluntly, Wisconsin's almost surgical precision," and "impose cures strict version of voter ID law is a cure worse for problems that did not exist." than the disease."

Wisconsin Kansas

"Wisconsin's ID law has been the subject of On Friday, a judge ruled that Kansas citizens litigation ever since it was passed by the must be allowed to vote in state and local state's Republican-controlled Legislature in elections, even if they didn't show proof of 2011. Proponents said the law was needed to citizenship when they registered. prevent voter fraud, although there has been little evidence of voter impersonation at the This one's complicated. We'll let Pam polls," NPR's Pam Fessler reported in 2015. explain:

The Supreme Court declined to get involved, "Since 2013, Kansas has required and voters had to show ID in this year's residents to show proof-of- primaries. citizenship when they register to vote. But a number of courts have blocked But on Friday, a U.S. district judge struck that requirement when it comes to down several parts of the state's strict voter federal elections — for president or ID law — as well as other election laws members of Congress. In response, the state set up a two-tiered system

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where those who don't show proof-of- "The public interest in protecting the most citizenship can vote in federal cherished right to vote for thousands of elections, but not state or local ones. Native Americans who currently lack a But that arrangement was struck qualifying ID and cannot obtain one, down earlier this year by a state outweighs the purported interest and judge, for those who used a national arguments of the State," U.S. District Judge voter registration form. Still Daniel Hovland wrote. "No eligible voter, following? There's more. In May, a regardless of their station in life, should be federal judge ordered the state to start denied the opportunity to vote." registering approximately 18,000 voters whose registrations had been Almost a quarter of Native Americans in the held in suspension because they didn't state, otherwise eligible to vote, don't have show proof of citizenship. Kansas proper ID; that's only true for 12 percent of Secretary of State Kris Kobach has non-Indians, the AP reports. appealed. He argues that the law is needed to stop immigrants in the A question of timing country illegally from voting ... Kobach has ordered that the Voter ID laws aren't the only voting-rights suspended voters be registered, but cases that have landed in the courts this only for federal races." summer. Earlier in July, the Virginia Supreme Court ruled that Gov. Terry On Friday, just days before the primaries in McAuliffe didn't have the authority to restore Kansas' state elections, a county judge voting rights to hundreds of thousands of overturned Kobach's order. In his oral ruling, felons at once; McAuliffe has pledged to he said votes from people who didn't show restore those rights individually. proof-of-citizenship must be counted — even in local and state elections. In Ohio, judges ruled earlier this summer that the state couldn't eliminate a week of early If the same policy holds in November's voting or change laws governing how elections, 50,000 people could be affected, absentee and provisional ballots are counted. the Wichita Eagle reports. Those cases are currently being appealed.

North Dakota The spate of high-profile voting-rights cases isn't just a coincidence. For several of these On Monday, a federal judge blocked a law cases, the current legal battles can be traced requiring photo ID to vote in North Dakota, back to one Supreme Court decision. ruling that the law unfairly burdens Native Americans in the state. In 2013, the Supreme Court struck down a key provision of the 1965 Voting Rights Act. As The Associated Press reports, North The act said the federal government had to Dakota doesn't require voters to register, but approve any changes to the voting process in starting in 2004 it has required identity cards. certain states — ones with a history of There was an exception allowing people discrimination. without an ID to vote, as long as a poll worker could sign an affidavit vouching for them — In Shelby County v. Holder, the Supreme but in 2013, the exception was overturned. Court said the formula used to determine

492 which states qualify was outdated, and the and North Carolina — passed voter ID laws requirement couldn't be enforced until after that decision, as Frontline has reported. Congress comes up with a new standard. One result: More voting-rights lawsuits than Since then, a "blizzard" of changes have been usual. carried out by state and local authorities, as the New York Times reported over the "We have to go out and sue rather than weekend. blocking bad laws before they go into effect," the head of the voting rights unit of the And more conspicuously, states that would Justice Department told NPR's Carrie have needed pre-approval — including Texas Johnson this spring. "And that's been a big change for us."

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“Appeals Court Strikes Down Texas Voter ID Law”

USA Today Richard WolfJuly 20, 2016

A federal appeals court struck down Texas' "Requiring a voter to verify her identity with tough voter identification law as a photo ID at the polling place is a reasonable discriminatory Wednesday, giving civil requirement widely supported by Texans of rights advocates a crucial victory in advance all races and members of the public of the 2016 election. belonging to both political parties," they said. The majority ruling "fans the flames of The 9-6 ruling from the U.S. Court of perniciously irresponsible racial name- Appeals for the 5th Circuit, a generally calling." conservative court, represents the third consecutive decision against the Texas law The law was enacted in 2011, blocked by a and sets up a potential Supreme Court federal district judge in 2012 and then put showdown over the contentious issue of state into effect in 2013, when the Supreme Court photo ID rules. struck down a key part of the Voting Rights Act that had required Texas and some other The law could have left up to 600,000 voters states to get federal approval for voting without the proper identification in this fall's changes. Challengers have won every court elections, opponents claimed. Because of case since, but the law had remained in effect. that, the Supreme Court had invited voting rights advocates to seek a delay in the photo Texas Attorney General Ken Paxton ID requirement if the appeals court had not criticized the court ruling. "Preventing voter ruled by Wednesday. fraud is essential to accurately reflecting the will of Texas voters during elections," he The appeals court majority said the law was said, "and it is unfortunate that this common- not intended to discriminate but had that sense law, providing protections against effect on minority voters. fraud, was not upheld in its entirety.”

"The district court must ensure that any Gerry Hebert, executive director of the remedy enacted ameliorates (the law's) Campaign Legal Center — which discriminatory effect, while respecting the represented some Texas challengers legislature's stated objective to safeguard the — said "this law will no longer prevent integrity of elections by requiring more eligible voters from casting a ballot this secure forms of voter identification," the November.” court said. Other civil rights groups applauded the ruling Dissenting judges said the law was bur wished for more -- a ruling that Texas reasonable in both purpose and effect. lawmakers passed the law with a purpose to discriminate.

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“We believe that the evidence is clear that Act in 2013. Those laws impose new rules for (the law) was passed by a legislature that registering and voting that could limit access intended to discriminate and that the law to the polls for minorities and young people must be invalidated in its entirety," said in particular — the coalition that Sherrilyn Ifill, president of the NAACP Legal propelled Barack Obama to the White House Defense and Education Fund. in 2008 and 2012.

The Texas case and another challenge to Seventeen states have new voting procedures North Carolina's array of voting in place for the November election, more than restrictions are the leading contenders among half of which are being challenged in many voting rights cases to get to the court. Many require voters to show photo Supreme Court as early as next year, when identification, such as the Texas law. Others the justices could define what types of voting target rules for registering, early voting and changes are allowed and prohibited under provisional voting, such as the wide-ranging the Voting Rights Act. North Carolina law that caused confusion and long lines in March's primary. "There is not a lot of guidance from the Supreme Court on these vote dilution cases," Those wide-ranging restrictions came under Thomas Farr, a lawyer representing North attack as racially discriminatory before a Carolina before the 4th Circuit appeals court, three-judge panel of the U.S. Court of said last month. That court's decision is Appeals for the 4th Circuit in June. One judge expected soon. said the legislature's rush to impose limits after getting a green light from the The Supreme Court has itself to thank for Supreme Court in 2013 "looks pretty bad to some of the laws enacted after the justices me." struck down a key part of the Voting Rights

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“Appeals Court Upholds Wisconsin Voter ID Rulings”

Associated Press August 29, 2016

A federal appeals court has refused to The U.S. Supreme Court would have to reconsider a pair of rulings affecting intervene for any changes to happen before Wisconsin's voter ID law, meaning no more the Nov. 8 election. changes to the requirement are likely before the November election. The appeals court's upholding the earlier rulings means that Wisconsin voters will The 7th U.S. Circuit Court of Appeals on have to show an acceptable ID to vote, but Friday unanimously declined to have a full those having trouble getting it can get a panel of judges hear appeals of two recent rulings affecting the voter ID requirement temporary ID from the Division of Motor and a host of other election-related laws. Vehicles.

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“Appeals Court Strikes Down North Carolina’s Voter-ID Law”

The Washington Post Robert Barnes and Ann E. Marimow July 29, 2016

Voting rights activists scored legal victories particularly in minority communities. To put in key presidential election states Friday, the it bluntly, Wisconsin’s strict version of voter most important being a federal appeals court ID law is a cure worse than the disease.” The ruling that North Carolina’s epublican-led state will appeal both rulings. legislature enacted new voting restrictions in 2013 to intentionally blunt the growing clout In the North Carolina case, the 4th Circuit of African American voters. panel agreed with allegations that North Carolina’s omnibus bill selectively chose The unanimous decision by a three-judge voter-ID requirements, reduced the number panel of the U.S. Court of Appeals for the 4th of early-voting days and changed registration Circuit was an overwhelming victory for the procedures in ways meant to harm blacks, Justice Department and civil rights groups. who overwhelmingly vote for the Democratic Election law experts consider North Party. Carolina’s voter law one of the nation’s most far-reaching. “The new provisions target African Americans with almost surgical precision” In Wisconsin, where one federal judge and “impose cures for problems that did not already had eased restrictions on voter-ID exist,” Judge Diana Gribbon Motz wrote for requirements, a second judge found that the panel. “Thus the asserted justifications additional elements of the law passed by the cannot and do not conceal the State’s true legislature and signed by Gov. Scott Walker motivation.” (R-Wis.) were unconstitutional. The rulings — along with that of a state court U.S. District Judge James D. Peterson that halted an attempt in Kansas to require suggested he would strike the entire law if he proof of citizenship to register — marked were not bound by the Supreme Court’s important wins for opponents of restrictive decision that states may use properly written voting laws that are being challenged voter-ID laws to guard against voter fraud. throughout the country ahead of November’s presidential election. Put together, the “The evidence in this case casts doubt on the decisions suggest a growing judicial notion that voter ID laws foster integrity and suspicion of the wave of voting-restriction confidence,” Peterson wrote. “The legislation passed in recent years by - Wisconsin experience demonstrates that a Republican-led legislatures that said it was preoccupation with mostly phantom election necessary to combat voter fraud. fraud leads to real incidents of disenfranchisement, which undermine rather The decisions are likely to prompt the states than enhance confidence in elections, to ask the Supreme Court for emergency

497 action. But it is far from clear whether the Supreme Court justice nominated to the eight justices, evenly divided between federal circuit by Obama. conservative and liberal, would get involved. The proximity of an election is often reason Election law experts are skeptical there is for justices to let an appeals court ruling evidence of widespread cheating at the polls stand. in this country. In particular, they find that voting fraud is most often associated with Federal courts have been examining what are absentee balloting, rather than the kind of popular and, to some, seemingly common- impersonation voting that ID laws are meant sense laws — requiring photo ID, for to combat. instance — to see whether they favor one group over another. Speaking to reporters in Baton Rouge on Friday, U.S. Attorney General Loretta E. In North Carolina, for instance, the judges at Lynch praised the court’s ruling and said the oral arguments noted that government-issued Justice Department will continue to challenge driver’s licenses are an acceptable form of restrictive voting laws. “The ability of identification but that government-issued Americans to have a voice in the direction of public assistance cards — used their country — to have a fair and free disproportionately by minorities in the state opportunity to help write the story of this — are not. nation — is fundamental to who we are and who we aspire to be,” Lynch said. Republican leaders in North Carolina vowed an appeal to the high court. They issued a Democrats and civil rights groups have also fiery statement denouncing the ruling “by filed suits in Ohio and Arizona. three partisan Democrats” and suggested it was intended to help the Democratic The North Carolina decision by the candidates for president and governor. Richmond-based court on Friday reverses a 485-page ruling by District Judge Thomas D. North Carolina is considered a key swing Schroeder that upheld the voting measures state, and African American voters have passed in 2013. played an increasing role in making it competitive. North Carolina lawmakers overhauled the state’s election law soon after the Supreme “We can only wonder if the intent is to reopen Court’s decision in Shelby County v. Holder, the door for voter fraud, potentially allowing which freed certain states with a history of fellow Democrat politicians like Hillary discrimination from a Voting Rights Act Clinton and Roy Cooper to steal the requirement that they receive federal election,” said Senate Leader Phil Berger and approval before changing voting rules. North House Speaker Tim Moore. Carolina was one of the states.

Motz, 73, was nominated by President Bill Legislators quickly eliminated same-day Clinton. The other judges on the panel were voter registration, rolled back of a week of Henry Floyd, nominated to the federal bench early voting and put an end to out-of-precinct by President George W. Bush and elevated to voting. The appeals court’s ruling reinstates the 4th Circuit by President Obama, and those provisions that civil rights groups, led by the state NAACP, said were used James A. Wynn Jr., a former North Carolina

498 disproportionately by African American so — cumulatively and unmistakably reveal voters. that the General Assembly used [the law] to entrench itself.” Motz wrote that Schroeder’s comprehensive examination of the legislature’s action “Even if done for partisan ends, that “seems to have missed the forest in carefully constituted racial discrimination,” Motz surveying the many trees. This failure of wrote. perspective led the court to ignore critical facts bearing on legislative intent, including Such a finding could have meant that the the inextricable link between race and judges could order North Carolina back politics in North Carolina.” under federal supervision. But the panel declined to take that step, saying it was The panel seemed to say it found the enough to block the parts of the law it found equivalent of a smoking gun. “Before offensive. enacting that law, the legislature requested data on the use, by race, of a number of voting North Carolina Gov. Pat McCrory (R) issue a practices,” Motz wrote. “Upon receipt of the short statement that, like that of the race data, the General Assembly enacted legislative leaders, said the decision would be legislation that restricted voting and appealed, and he repeated claims about the registration in five different ways, all of partisan cast of the panel. “Three Democratic which disproportionately affected African judges are undermining the integrity of our Americans.” elections while also maligning our state,” said McCrory, who is in a tight reelection The panel found the law was passed with battle with Cooper, the state’s Democratic racially discriminatory intent, violating the attorney general. Constitution and the Voting Rights Act. It said that “intentionally targeting a particular Voting rights advocates applauded the ruling race’s access to the franchise because its and said it sent a strong message to members vote for a particular party, in a legislatures throughout the country. predictable manner, constitutes discriminatory purpose.” North Carolina was one of 17 states set to have more-restrictive voting laws in place for Motz added: “Our conclusion does not mean, this presidential election than in 2012. Laws and we do not suggest, that any member of in several states, including Wisconsin, Texas the General Assembly harbored racial hatred and Virginia, also are being challenged in or animosity toward any minority group.” court.

But she said the “totality of the circumstances In Wisconsin, a federal judge previously — North Carolina’s history of voting ruled that voters who lack the specific kind of discrimination; the surge in African identification the state requires be allowed to American voting; the legislature’s vote in November by signing an affidavit as knowledge that African Americans voting to their identity. In a separate lawsuit, groups translated into support for one party; and the asked Peterson to rule on other aspects of the swift elimination of the tools African law. Americans had used to vote and imposition of a new barrier at the first opportunity to do

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He struck part of the law restricting hours for a fix for the law in time for the November in-person voting before the election, saying it elections. intentionally discriminates. “The legislature’s immediate goal was to achieve a The appeals court, one of the most partisan objective, but the means of achieving conservative in the country, declined to strike that objective was to suppress the reliably down the law completely but said provisions Democratic vote of Milwaukee’s African must be made to allow those who lack the Americans,” Peterson concluded. specific ID the law requires to be able to cast a vote. The state has decided not to appeal In Texas, the entire U.S. Court of Appeals for that ruling to the Supreme Court, and a the 5th Circuit ruled that Texas’s strict voter- district judge is to rule soon on what ID law discriminates against minority voters, accommodations must be made. and it ordered a lower court to come up with

500

“Texas to Appeal Voter ID Ruling to Supreme Court”

The Hill Reid Wilson August 16, 2016

Texas will ask the U.S. Supreme Court to The negotiations between the state and keep the state’s controversial voter voting-rights groups seemed to hint that identification law in place, three weeks after Texas would live with the deal and not appeal an appeals court found that the law violated to the highest court. Voting-rights groups the Voting Rights Act. criticized Texas for reversing course on Tuesday. Texas Attorney General Ken Paxton’s office said on Tuesday that it would appeal the July “[Gov.] Greg Abbott, Ken Paxton and other 20 ruling by the 5th Circuit Court of Texas Republicans are terrified by the Appeals. prospect that every Texan who can vote might vote, so it’s no surprise that they will “To protect the integrity of voting in the state spend more Texans’ tax dollars to defend a of Texas, our office will appeal the Voter ID discriminatory law,” said Matt Angle, who ruling of the Fifth Circuit to the United States runs the Democrat-backing Lone Star Supreme Court,” Paxton’s communications Project. director, Marc Rylander, said in a statement. The Texas appeal comes just hours after The appeals court ruling that put Texas’s North Carolina Gov. Pat McCrory (R) said he voter identification law on ice directed the would appeal a 4th Circuit Court decision state and voting-rights advocates who overturning major parts of his state’s challenged the law to come up with a landmark 2013 election reform law. compromise. A U.S. District Court judge McCrory’s office said Monday that he would approved an agreement last week that would ask the Supreme Court for a temporary stay allow voters without identifications to cast and allow the law to remain in place as North ballots if they signed a declaration of Carolina mounts its appeal. citizenship and provided proof that they lived in Texas.

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“North Carolina Asks Supreme Court to Reinstate Voter ID Law”

Politico Josh Gerstein August 16, 2016

North Carolina officials are asking the U.S. The motion filed by the state and Republican Supreme Court to reinstate key parts of the Gov. Pat McCrory also says: “If a voter-ID state's voter ID law blocked last month after law can still be invalidated as intentionally a federal appeals court found that the measure discriminatory even when, as here, a State intentionally targeted African-Americans. has done everything possible to avoid discriminatory impact, then no voter-ID law is safe. Under the Fourth Circuit’s Lawyers for the state filed an emergency unprecedented analysis, by contrast, the mere application with Chief Justice John Roberts potential for retrogressive impact suffices to on Monday in an attempt to allow officials to give rise to an inference of discriminatory conduct this November's election using the intent—even if, as the District Court found law's the photo ID requirement and reduce here, retrogressive impact will not actually the number of early voting days from 17 to result.” 10. Roberts is likely to refer the application to the The motion, prepared by former George W. full court, which is operating shorthanded Bush administration Solicitor General Paul with just eight justices. The votes of five Clement, paints the 4th Circuit ruling as a justices will be needed to put the 4th Circuit deliberate and insubordinate assault on the ruling on hold. That seems to be an uphill Supreme Court's 2013 decision in Shelby fight, since granting the application will County v. Holder, freeing North Carolina and require the vote of at least one of the four areas in 14 other states from having to Democratic-appointed justices, all of whom "preclear" changes to voting rules under the dissented in Shelby County. Voting Rights Act. While the state is seeking to restore the photo "The ... fundamental problem with the Fourth ID rules, early voting days reduction and a Circuit’s decision is its complete ban on pre-registration of 16-year-olds, the misapprehension of the legal principles that application does not attempt to reinstate a ban govern an intentional discrimination on same-day registration and out-of-precinct inquiry,” the state's application says. “Left voting. standing, its decision not only will threaten voter-ID laws throughout the country despite North Carolina’s Democratic Attorney this Court’s decision in Crawford, but also General Roy Cooper, whose office will gut this Court’s decision in Shelby participated in the defense of the law at the County.” 4th Circuit, is not listed as counsel on the application filed Monday. A spokeswoman said his office is no longer involved in the

502 cases, which were brought by civil rights delay than many observers expected and groups and the Obama administration. McCrory indicated after the loss at the 4th They're expected to oppose the application. Circuit. The delay could make it less likely that the Supreme Court will step in by putting The request for an emergency stay came 17 any action even closer to this fall's election. days after the 4th Circuit ruling — a longer

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