Case 3:14-cv-00852-REP-AWA-BMK Document 234 Filed 06/26/18 Page 1 of 188 PageID# 8812 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division GOLDEN BETHUNE-HILL, et al., Plaintiffs, v. Civil Action No. 3:14cv852 VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. MEMORANDUM OPINION BARBARA MILANO KEENAN, Circuit Judge: The plaintiffs, 12 Virginia registered voters, filed this civil action in 2014, alleging racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. Dkt. No. 1; Am. Compl. ¶¶ 1, 7-18. They contend that the Virginia General Assembly (the legislature) predominantly relied on race in constructing 12 majority-black Virginia House of Delegates districts during the 2011 redistricting cycle. Am. Compl. ¶¶ 1-2. According to the plaintiffs, the legislature required each of these districts to achieve a minimum 55% black voting age population (BVAP), which BVAP requirement was not necessary for black voters to elect their preferred candidates under the mandate of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10101 through § 10702. Am. Compl. ¶¶ 2-3; 1st Trial Tr. at 5. 1 Case 3:14-cv-00852-REP-AWA-BMK Document 234 Filed 06/26/18 Page 2 of 188 PageID# 8813 After holding a bench trial in 2015, this Court issued a divided opinion upholding the redistricting plan. See Bethune-Hill v. Va. State Bd. of Elections, 141 F. Supp. 3d 505 (E.D. Va. 2015). The United States Supreme Court affirmed this Court’s decision regarding one district, but remanded for reconsideration of the question whether race was used as the predominant factor in drawing the 11 remaining districts. See Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017). After a second trial, and upon our consideration of the evidence presented at both trials, we hold that the plaintiffs have shown through telling direct and circumstantial evidence that race predominated over traditional districting factors in the construction of the 11 remaining challenged districts. We further hold that the intervenors have not satisfied their burden to show that the legislature’s use of race was narrowly tailored to achieve the compelling state interest of compliance with Section 5 of the VRA, 52 U.S.C. § 10304. I. We begin with an overview of the procedural history of this case.1 Following the 2010 decennial census, the legislature redrew the 100 Virginia House of Delegates districts to take effect beginning with the 2011 election cycle.2 Bethune-Hill, 137 S. Ct. 1 For purposes of Part I of this opinion, we take many of our facts from the Supreme Court’s opinion in Bethune-Hill, 137 S. Ct. 788. We also use the “id.” short form in reference to legal citations only. 2 Elections for the Virginia House of Delegates, as well as Virginia statewide offices, are held in odd-numbered years. 1st Trial Tr. at 276. 2 Case 3:14-cv-00852-REP-AWA-BMK Document 234 Filed 06/26/18 Page 3 of 188 PageID# 8814 at 795; see Pl. Ex. 65. Delegate Steven Christopher Jones3 was the chief patron of House Bill 5005, which set forth the re-drawn districts (the 2011 plan, or the 2011 map). Pl. Ex. 48 at 10-12; 1st Trial Tr. at 316, 376-77, 395. Jones was the chair of the House Committee on Privileges and Elections, and coordinated public meetings throughout the state regarding the 2011 redistricting process. Pl. Ex. 48 at 3, 6; 2nd Trial Tr. at 112. In this role, Jones also was the primary architect of the 2011 plan. 1st Trial Tr. at 397. To construct the map, Jones and others used “Maptitude” software to move census blocks and voting tabulation districts (VTDs) in and out of the proposed House of Delegates districts.4 1st Trial Tr. at 274; 2nd Trial Tr. at 36, 61. Maptitude reflected the demographic changes in each district resulting from the alterations of proposed boundary lines. 1st Trial Tr. at 40. The software also was available for the use of other legislators on computers located in the legislature’s Division of Legislative Services office. 1st Trial Tr. at 33, 40, 420, 444. To achieve population equality among the districts as required by the United States Constitution, the legislature determined that each House of Delegates district was required to have 80,000 residents, with a maximum population deviation of plus or minus 3 Jones represented District 76, which is not at issue in this case. 1st Trial Tr. at 331, 764. 4 A VTD is sometimes referred to colloquially as a voting “precinct.” 1st Trial Tr. at 8; 2nd Trial Tr. at 164. VTDs are the smallest unit at which election data is collected and reported by the Virginia Department of Elections. 2nd Trial Tr. at 371-72. VTDs are composed of “census blocks,” geographical units at which data from the federal census is reported. Pl. Ex. 69 at 7; 2nd Trial Tr. at 372. 3 Case 3:14-cv-00852-REP-AWA-BMK Document 234 Filed 06/26/18 Page 4 of 188 PageID# 8815 one percent.5 Pl. Ex. 16 at 1; 1st Trial Tr. at 29, 70; see also Bethune-Hill, 137 S. Ct. at 795. Both the 2001 and 2011 districting plans included 12 districts in which black residents constituted a majority of the districts’ voting-age population (the majority- minority districts, or the challenged districts).6 Bethune-Hill, 137 S. Ct. at 795. These districts were located in four distinct areas of the state: the greater Richmond/Tri-City region, the Southside area located along the North Carolina border, North Hampton Roads (the peninsula), including the cities of Newport News and Hampton, and, finally, South Hampton Roads, including the cities of Norfolk, Chesapeake, and surrounding areas. Pl. Ex. 50 at 69; Pl. Ex. 69 at 9, 41; DI Ex. 94; 1st Trial Tr. at 319. At the time of the 2010 census, the BVAP levels in the 12 majority-minority districts ranged from between 46.3% and 62.7%. Id.; Pl. Ex. 50 at 72. Because most of the 12 districts were underpopulated according to the 80,000-person population requirement, “any new plan required moving significant numbers of new voters into these districts in order to comply with the principle of one person, one vote.” Id. Under Section 5 of the VRA, 52 U.S.C. § 10304, then-applicable to Virginia’s redistricting efforts, any new plan was barred from “diminish[ing] the number of districts [compared to the prior plan] in which minority groups can ‘elect their preferred 5 For ease of reference, we will calculate the extent of each district’s over-, under-, or equal population by reference to the 80,000-person population requirement, not including the plus or minus one percent allowable deviation. 6 As discussed further below, by the time of the 2010 census, the BVAP in one of the majority-minority districts had fallen below 50%. See Pl. Ex. 50 at 72. 4 Case 3:14-cv-00852-REP-AWA-BMK Document 234 Filed 06/26/18 Page 5 of 188 PageID# 8816 candidates of choice’ (often called ‘ability-to-elect’ districts).” Bethune-Hill, 137 S. Ct. at 795 (quoting Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307 (2016)). Section 5 thus mandated that covered states “maintain a minority’s ability to elect a preferred candidate of choice.” Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1272 (2015). To comply with this “non-retrogression” requirement, the legislature determined that all 12 majority-minority districts were required to have a minimum 55% BVAP in the 2011 plan. Bethune-Hill, 137 S. Ct. at 795. Imposition of this racial threshold necessitated an increase in the BVAP in three districts, which had BVAP levels below 55% at the time of the 2010 census. Pl. Ex. 50 at 72. The selection of the 55% BVAP figure was based on Jones’ assessment of the needs of District 75, a rural majority- minority district located along the state’s southern border. Id. at 796; DI Ex. 94 at 7. The legislature also applied the 55% BVAP requirement to the remaining 11 majority- minority districts. Id. In April 2011, the legislature passed House Bill 5005 with broad bipartisan support, as well as support from a majority of the black members of the House of Delegates (the black caucus). Id. After Governor Robert McDonnell signed the bill into law, the United States Department of Justice “precleared” the plan in accordance with 5 Case 3:14-cv-00852-REP-AWA-BMK Document 234 Filed 06/26/18 Page 6 of 188 PageID# 8817 Section 5 of the VRA.7 Id.; Pl. Ex. 48 at 10-12; see infra note 12 (discussion of Section 5 preclearance). In 2014, the plaintiffs, registered voters in the 12 majority-minority districts, filed the present civil action against the Virginia State Board of Elections and some of its officials (the state defendants).8 See Dkt. No. 1; Am. Compl. ¶¶ 7-22. The plaintiffs challenged their districts of residence9 as racial gerrymanders in violation of the Equal Protection Clause. Id.; Am. Compl. ¶¶ 1-2. They sought declaratory and injunctive relief prohibiting the state from holding further elections based on the unconstitutional districts. Am. Compl. at 17. The initial three-judge district court, as well as the present three- judge panel, were constituted pursuant to 28 U.S.C. § 2284(a).10 Dkt. No. 11; see also Am. Compl. ¶ 24. 7 The first version of the 2011 plan, House Bill 5001, was vetoed by Governor McDonnell.