Bethune-Hill v. Va. State Bd. of Elections

• Citation: 141 F.Supp.3d 505
• Decision Date: 22 October 2015
• Docket Number: Civil Action No. 3:14cv852.
• Parties: Golden BETHUNE–HILL, Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

141 F.Supp.3d 505

Golden BETHUNE–HILL, Plaintiffs,

v.VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.

Civil Action No. 3:14cv852.

United States District Court, E.D. Virginia, Richmond Division.

Signed Oct. 22, 2015.

John Kuropatkin Roche, Aria Christine Branch, Bruce Van Spiva, Pro Hac, Vice, Elisabeth Carmel Frost, Pro Hac, Vice, Marc Erik Elias, Perkins Coie LLP, Washington, DC, Abha Khanna, Pro Hac, Vice, Kevin John Hamilton, Ryan Spear, Pro Hac, Vice, William Benjamin Stafford, Pro Hac, Vice, Perkins Coie LLP, Seattle, WA, for Plaintiffs.

Jeffrey P. Brundage, Daniel Ari Glass, Pro Hac, Vice, Kathleen Angell Gallagher, Pro Hac, Vice, Eckert Seamans Cherin & Mellott LLC, Washington, DC, Anthony F. Troy, Eckert Seamans Cherin & Mellott LLC, Godfrey Thadeus Pinn, Jr., Harrell & Chambiss LLP, Richmond, VA, for Defendants.

MEMORANDUM OPINION

ROBERT E. PAYNE

, Senior District Judge:

This case challenges the constitutionality of twelve Virginia House of Delegates districts (the "Challenged Districts") as racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The case is ripe for decision following a four-day bench trial at which the parties presented oral testimony and offered numerous exhibits. Our findings of fact are based on our assessment of the record and are grounded in our determinations respecting the credibility of the witnesses.

Our conclusions of law address the several legal issues presented by the parties. In particular, we have determined that it is the burden of the Plaintiffs to prove by a preponderance of the evidence that race was the predominate factor motivating the decision to place a significant number of voters within or without a particular district in that, as to each of those districts, Virginia's General Assembly subordinated race-neutral districting principles to racial considerations when forming the district. Based on this legal standard and the record, we have concluded that, except as to House District 75, the Plaintiffs have not carried that burden and that race was not shown to have been the predominant factor in the creation of eleven of the twelve Challenged Districts.

We are satisfied that race was the predominant factor in the creation of House District 75. However, we have also concluded that, in using race, the General Assembly was pursuing a compelling state interest, namely, actual compliance with federal antidiscrimination law, and that, in the process, the General Assembly used race in a manner narrowly tailored to achieve that interest.

In the Memorandum Opinion that follows, the Court will review the procedural background of the case in Section I; provide a brief overview of the law relating to racial gerrymandering claims in Section II; and set out its findings on the factual background of the case in Section III. In Section IV, the Court will articulate its understanding of the relevant legal framework for evaluating racial gerrymandering (or "racial sorting") claims, set out additional factual findings of general applicability, and conduct a district-by-district analysis with district-specific factual findings and district-specific application of the relevant legal framework.

I. PROCEDURAL BACKGROUND

In the wake of the 2010 census, the Virginia General Assembly sought to redraw the legislative districts for the Virginia House of Delegates ("House") and the Senate of Virginia ("Senate"). The task of redistricting is one that carries great political and legal consequence. In a representative democracy, such legislation shapes more than the abstract boundaries of electoral districts; it shapes the character, conduct, and culture of the representatives themselves. On its face, the legislation recites a singularly tedious list of precincts and counties. But in application, few pieces of legislation have a more profound impact on the function of government and whether it acts as "the faithful echo of the voices of the people." Justice James Wilson, The Works of the Honourable James Wilson, L.L.D. 433 (Bird Wilson, ed., The Lorenzo Press 1804).

The political significance of redistricting is matched only by its legal complexity. Those shepherding redistricting legislation must traverse a precarious path between constitutional and statutory demands that are often in tension with one another and provide opaque interpretive standards rather than clear rules.

As to the 2011 redistricting, Delegate Chris Jones led this effort in the House. Delegate Jones played an instrumental role in the 2001 redistricting process and drew upon that experience to lead the 2011 redistricting efforts. Pls.' Ex. 35 at 46:18–48:21; Trial Tr. 272:24–274:7 (Jones). Because Virginia was a covered jurisdiction under Section 4 of the Voting Rights Act of 1965 ("VRA") at the time the redistricting legislation was prepared, and was therefore subject to the requirements of Section 5 of the VRA,¹ (Docket No. 83), it was necessary to ensure that the plan did not result in a "retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976)

. In an attempt to comply with this statutory command, Delegate Jones crafted a plan containing twelve majority-minority House Districts ("HDs" or "Districts").² These are the Challenged Districts: HDs 63, 69, 70, 71, 74, 75, 77, 80, 89, 90, 92, and 95.

On December 22, 2014, Plaintiffs filed a Complaint against the Virginia State Board of Elections, the Virginia Department of Elections, and various members thereof in their official capacities ("Defendants"), alleging that the Challenged Districts were racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment and seeking declaratory and injunctive relief prohibiting Defendants from implementing or conducting further elections based on the Challenged Districts. (Docket No. 1.)³ The Plaintiffs are twelve citizens of the United States and the Commonwealth of Virginia who are lawfully registered voters in the Commonwealth and each of whom resides in one of the twelve Challenged Districts. (Docket No. 83.) The Plaintiffs requested that the case be heard by a three-judge district court pursuant to 28 U.S.C. § 2284(a)

on the grounds that the action "challeng[es] the constitutionality of the apportionment of ... [a] statewide legislative body." (Docket No. 1.) That request was granted by the Chief Judge of the United States Court of Appeals for the Fourth Circuit. (Docket No 11.)

The Virginia House of Delegates and the Virginia House of Delegates Speaker William Howell ("Intervenors") moved to intervene in the case. (Docket No. 12.) That motion was granted. (Docket No. 26.)

A four-day bench trial began on July 7, 2015. (Docket Nos. 99–102.) Because the Defendants are "administrative agencies that implement elections" but "do not draw the districts," Trial Tr. 12:14–25 (Defendants), the Defendants allowed the Intervenors to carry the burden of litigation but joined the Intervenors' arguments at the close of the case, id. at 830:2–3. For ease of reference, the Defendants and Intervenors will be referred to as the Intervenors.

II. BASIC OVERVIEW OF RACIAL GERRYMANDERING CLAIMS

Before proceeding to the facts of the case and the substance of this litigation, a brief overview of the constitutional and statutory requirements pertinent to racial gerrymandering claims is appropriate. As noted above, these commands often cut counter to each other and require legislators to balance competing considerations. Tracing their evolution is therefore useful as a predicate for the decision that follows.

The Supreme Court has long observed that the right to vote is "fundamental" because it is "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)

. In Reynolds v. Sims, the Court recognized that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise" and held that the malapportionment of state legislative bodies in derogation of the "one person, one vote" principle violates the Equal Protection Clause. 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Because legislation affecting the right to vote "strike[s] at the heart of representative government," id., the "Constitution leaves no room for classification of people in a way that unnecessarily abridges this right," id. at 560, 84 S.Ct. 1362, and grants every citizen "an inalienable right to full and effective participation in the political processes of his State's legislative bodies," id. at 564, 84 S.Ct. 1362.

The decision in Reynolds only required state legislatures to comply with the equal population standard, but its language would come to stand for something more. The next year, in Fortson v. Dorsey, the Court suggested that a "constituency apportionment scheme" may not "comport with the dictates of the Equal Protection Clause" if it "would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." 379 U.S. 433, 438–39, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965)

. With Fortson, the Supreme Court first recognized that redistricting legislation may offend Equal Protection Clause principles when it distinguishes between voters on a racial basis.

Over time, the Supreme Court has come to recognize two types of racial gerrymandering claims under the Fourteenth Amendment: (1) claims of racial vote dilution, where the redistricting legislation is "conceived or operated as [a] purposeful devic[e] to further racial discrimination by minimizing, canceling out or diluting the voting strength of racial elements in the voting population," Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982)

(internal quotation marks omitted); and (2)...