Virginia Lawyers Weekly VA Lawyers Weekly
Race predominated over traditional districting factors in construction of 11 challenged Virginia House of Delegates districts. This use of race was not narrowly tailored to achieve the interest of complying with the Voting Rights Act. Thus, the district divisions are unconstitutional and must be redrawn.
Background
Following the 2010 census, the legislature redrew the 100 House of Delegates districts, to take effect with the 2011 election cycle. Like the 2001 districting plan, the 2011 plan included 12 districts in which black residents constituted a majority of the voting-age population. Because most of the 12 districts were underpopulated with respect to population equality among districts, the new plan required moving significant numbers of new voters into the 12 districts to comply with the constitutional principle of “one person, one vote.”
In addition, under the Voting Rights Act as applicable at the time, any new plan was barred from decreasing the number of districts in which minority groups can elect their preferred candidates. Thus, the legislature determined that all 12 majority-minority district must have a minimum “black voting age population” of 55 percent. The benchmark was selected based on the needs of one rural majority-minority district, but applied to all 12. The plan passed with bipartisan legislative support and also satisfied the Department of Justice’s then-existing “pre-clearance” framework.
In 2014, the Plaintiffs – registered voters in the 12 majority-minority districts, filed this suit against the Virginia State Board of Elections and some of its officials. They challenged their districts as racial gerrymanders in violation of the Equal Protection Clause.
Predominance of race
Although the 55-percent threshold is not dispositive of the predominance question, the fixed requirement is evidence of the legislature’s motive.
Dr. Rodden, an expert in geospatial data analysis and its application to redistricting, created “dot density maps” to illustrate the density of white and black voting-age populations in each district. The maps reflected “telltale signs” of “race-based maneuvering,” and Rodden opined that the goals of population equality and a 55 percent black voting population couldn’t be achieved in the challenged districts without “considerable creativity” that in many cases worked against traditional districting principles. The legislature was forced to consider the racial make-up of individual precincts and split them according to racial composition. Rodden further noted that boundary lines between districts frequently were small residential roads separating predominantly white and predominantly black neighborhoods.
Rodden concluded that it was “simply not possible to devise a credible post-hoc explanation for these decisions that is not based on race.” The regional dot density maps showed that most significant concentrations of black voters were swept into one of the challenged districts. The district-level maps illustrated the precision with which district boundaries coincided directly with racial residential patterns.
Dr. Palmer, an expert in data analysis pertaining to redistricting, opined that race was the predominant factor in the manner that precincts, cities, and other political boundaries were split between challenged and non-challenged districts. Palmer’s analysis also showed that black voters were moved from non-challenged districts into challenged districts at a higher rate than white or Democratic voters. His data supported the conclusion that race was the predominant factor in moving populations between districts.
In light of this expert testimony, the court does not credit the testimony of demographer J. Morgan, who was hired by the Republican House majority to assist with the 2011 redistricting process, that he “really didn’t take race into account in splitting” the precincts in challenged districts. Morgan also asserted that he split certain precincts at the census-block level in District 95 to increase Republican voting strength in a neighboring district, but numerous other witnesses confirmed that election results and partisan affiliation data were not available at the census-block level. Moreover, this “partisan” approach would not result in precincts being split precisely to separate black and white neighborhoods. The only conclusion to draw from Morgan’s testimony is that, insofar as he sought to obtain partisan political advantage by splitting precincts, he did so by relying on race as a proxy for political preference. This assumption that members of a particular racial group vote a certain way is antithetical to Equal Protection principles.
In addition, testimony by Delegate Steven Jones – the primary architect of the 2011 redistricting plan – was directly undermined by other credible witnesses. For example, Jones testified repeatedly that he consulted most members of the House when drawing the 2011 plan and relied heavily on input from incumbent members of the black caucus who represented the challenged districts. But two such members specifically cited by Jones denied giving significant or even any input into the plan.
The court finds that the overall racial disparities in population movement and the splits of precincts and geographies along racial lines are strong evidence of racial predominance in the challenged districts.
Upon analysis of each individual challenged district, the court concludes that race was the predominant factor in constructing all 11. No consistent theory – including the constitutional need for population redistribution – otherwise explains the new boundaries. The court’s inquiry is whether the legislature placed race above traditional districting consideration in determining which persons were placed in appropriately apportioned districts.
The evidence showed that the 55-percent threshold had a predominating impact on the manner in which lines were drawn in each of the challenged districts. The legislature shifted huge numbers of voters between districts, in some cases replacing thousands of voters in adequately populated districts with the same number of new voters. These population shifts frequently exhibited stark splits in the racial composition of populations moved into and out of disparate parts of the districts.
Not narrowly tailored
Assuming without deciding that compliance with Section 5 of the Voting Rights Act was a compelling state interest, the court finds that the legislature’s application of a single, 55-percent threshold to all 12 challenged districts strongly suggests that it did not engage in narrow tailoring. The districts were highly dissimilar in character, spanning four large geographic regions of the state, including varied urban, suburban, and rural areas. They also exhibited significant differences in Democratic voting strength, electoral history, and the extent to which white and black voters supported the same candidates. The legislature adopted an across-the-board threshold irrespective of these defining differences.
In contrast to the justification of the 55-percent threshold offered (and approved by the U.S. Supreme Court) for District 75, there is no evidence that the legislature engaged in any analysis to determine the percentage of black voters necessary to comply with Section 5 in the remaining 11 districts. Jones admitted as much, including the fact that he didn’t consider whether the 11 other districts shared a critical feature of District 75 – namely, the presence of a substantial non-voting prison population.
The court has no testimony from a single member of the black caucus to the effect that the 55-percent threshold was imposed to allow black voters in those districts to elect a candidate of their choice. Based on Palmer’s analysis, the court finds as a matter of fact that a 55-percent threshold was not required in any of the remaining 11 districts in order for black voters to elect their preferred candidates.
The fact that the 2011 plan received preclearance from the Department of Justice does not alter this analysis. When race predominates, the court must ask whether the legislature had “good reasons to believe” that its use of race was justified. Selecting a black-voting-population threshold entirely without evidentiary foundation plainly does not satisfy this burden.
For the same reason, the court rejects the contention that because “no one” presented the legislature with evidence of white crossover voting at the time of redistricting, the threshold was justified. It is the state’s burden to justify their predominant use of race, and the Plaintiffs are not responsible for the state’s failure to seek relevant information at the time of redistricting that would support its decision. Accordingly the legislature did not have a strong basis in evidence for its use of the 55-percent threshold in the 11 remaining districts.
The predominant use of race in drawing the challenged districts is at odds with the guarantees of the Equal Protection Clause. The court will allow the Virginia General Assumbly until October 30, 2018, to construct a remedial districting plan that rectifies the constitutional deficiencies identified herein.
Dissent
(Payne, J.) I understand the record quite differently from my good colleagues in the majority. First, I assess the credibility of the relevant witnesses differently. Second, I disagree with the majority’s view as to whether the court may consider evidence that a map drawer sought to equalize population. Third, I find the majority’s “statewide evidence” to be of limited value. And finally, I do not believe that the district-specific evidence supports a finding of racial predominance by a preponderance of the evidence. Consequently, I dissent.
Bethune-Hill v. Va. St. Bd. of Elections, Case No. 3:14cv852, June 26, 2018. EDVA at Richmond (panel). VLW No. 018-3-262, 188 pp.
