Holloway v. City of Va. Beach

Citation531 F.Supp.3d 1015
Decision Date31 March 2021
Docket NumberCIVIL ACTION NO. 2:18-cv-69
Parties Latasha HOLLOWAY et al., Plaintiff, v. CITY OF VIRGINIA BEACH, et al., Defendant.
CourtU.S. District Court — Eastern District of Virginia

Joseph Gerald Hebert, Christopher DeSean Lamar, Pro Hac Vice, Dana Paikowsky, Pro Hac Vice, Danielle Marie Lang, Pro Hac Vice, Erin Rebecca Chlopak, Pro Hac Vice, Paul March Smith, Pro Hac Vice, Robert Neil Weiner, Pro Hac Vice, Simone Tyler Leeper, Pro Hac Vice, Campaign Legal Center, Washington, DC, Annabelle Elizabeth Harless, Pro Hac Vice, Campaign Legal Center, Chicago, IL, Ruth Merewyn Greenwood, Pro Hac Vice, Campaign Legal Center, Cambridge, MA, for Plaintiff.

Gerald Logan Harris, Joseph Martin Kurt, Christopher Scott Boynton, Virginia Beach City Attorney's Office, Virginia Beach, VA, Katherine Lea McKnight, Richard Bryan Raile, Baker & Hostetler LLP, Washington, DC, Patrick Thomas Lewis, Pro Hac Vice, Baker & Hostetler LLP, Cleveland, OH, for Defendants City of Virginia Beach, Virginia, Virginia Beach City Council, Louis Jones, Jessica Abbott, James Wood, Robert Dyer, Barbara Henley, John Moss, Rosemary Wilson, Donna Patterson, Aaron R. Rouse, Sabrina Wooten, Patrick Duhaney.

Gerald Logan Harris, Joseph Martin Kurt, Virginia Beach City Attorney's Office, Virginia Beach, VA, Katherine Lea McKnight, Richard Bryan Raile, Baker & Hostetler LLP, Washington, DC, Patrick Thomas Lewis, Pro Hac Vice, Baker & Hostetler LLP, Cleveland, OH, for Defendants Guy Tower, Michael Berlucchi.

MEMORANDUM OPINION AND ORDER

Raymond A. Jackson, UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

I. PROCEDURAL HISTORY ...1026

II. JURISDICTION AND STANDING ...1028

III. STIPULATED FACTS ...1028

IV. THE COURT'S FINDINGS OF FACT ...1031

V. CONCLUSIONS OF LAW ...1043

A. Voter Dilution Claims ...1043
B. The Voting Rights Act 1982 Amendments and Senate Factors ...1043
C. The Gingles Factors ...1045
D. The Deferential Fourth Factor ...1046
E. Minority Coalitions May Bring Aggregated Section 2 Claims ...1047

VI. DISCUSSION ...1048

A. Minority Community May Bring Section 2 Claims ...1048
B. Plaintiffs Have Established the Three Gingles Preconditions ...1056
1. Minority Group is Sufficiently Large and Geographically Compact ...1056
2. Minority Group is Politically Cohesive ...1064
3. White Majority Votes Sufficiently as a Bloc ...1076
4. The Deferential Fourth Factor ...1078
C. The Totality of the Circumstances Inquiry ...1079
1. Senate Factor One: History of Official Discrimination ...1080
2. Senate Factor Two: Voting in City Council Elections is Racially Polarized ...1083
3. Senate Factor Three: Discriminatory Voting Practices or Procedures ...1083
4. Senate Factor Four: Exclusionary Slating Process ...1085
5. Senate Factor Five: Minorities Bear the Effects of Discrimination ...1086
6. Senate Factor Six: Overt or Subtle Racial Appeals ...1090
7. Senate Factor Seven: Minorities Elected to City Council ...1093
8. Senate Factor Eight: Unresponsive Elected Officials ...1096
9. Senate Factor Nine: Unjustified Methods of Election ...1101

VII. CONCLUSION ...1102

Before the Court is Plaintiffs’ claim under § 2 of the Voting Rights Act of 1965, as amended, see 42 U.S.C. § 1973, alleging that the City of Virginia Beach dilutes the voting strength of Black, Latino, and Asian American voters ("Minority Voters") and therefore prevents minority voters from participating in the political process and electing representatives of their choice. The Court held a six (6) day bench trial beginning on October 21, 2020. The Court, having heard the arguments, read the submissions of counsel, and considered the evidence including court-room testimony, deposition testimony, and exhibits, and based on the following findings of fact and conclusions of law enters judgement for the Plaintiffs

I. PROCEDURAL HISTORY

On November 20, 2017, Plaintiff Latasha Holloway a United States citizen, an eligible and registered voter, and an African American resident of Virginia Beach, initiated a pro se suit against the City of Virginia Beach under Section 2 of the Voting Rights Act of 1965 ("VRA"). ECF No. 1; see also ECF No. 190 at ¶ 2 ("Stipulated Facts"). On November 13, 2018, Plaintiff Holloway, along with co-Plaintiff Georgia Allen, an unsuccessful Black candidate for an at-large seat on the City Council, retained counsel and filed an Amended Complaint against the City of Virginia Beach, the Virginia Beach City Council ("City Council"), individual members of the City Council, the City Manager, and the Director of Elections (collectively, "Defendants"). ECF No. 62. Plaintiff Georgia Allen is a United States Citizen, an eligible and registered voter, and an African American resident of Virginia Beach. ECF No. 190 at ¶ 4. According to Plaintiffs’ Amended Complaint, the City of Virginia Beach's at-large election for City Council violates Section 2 of the VRA by diluting the voting strength of Black, Hispanic, and Asian American voters ("Minority Voters") and, therefore, preventing minority voters from participating in the political process to elect representatives of their choice. Id. Plaintiffs’ request that the Court (1) declare Virginia Beach's at-large method of electing members to the City Council violates Section 2 of the VRA; (2) enjoin Defendants from administering any future elections in the City of Virginia Beach under the current at-large method; (3) order implementation of an election system for City Council that complies with Section 2 of the VRA; and (4) order all future elections for the City of Virginia Beach to comply with Section 2 of the VRA. Id. at 16. On January 24, 2019, Defendants filed an Answer denying Plaintiffs’ claims. ECF No. 67.

On October 19, 2020, Defendants filed a Motion for Summary Judgment which Plaintiffs opposed. ECF Nos. 114, 115, 118, 121, 122. On March 11, 2020, the Court denied DefendantsMotion for Summary Judgment, finding genuine dispute as to material facts and, therefore, Defendants were not entitled to judgment as a matter of law. ECF No. 126. On June 30, 2020, Defendants filed a Motion to Dismiss for Lack of Jurisdiction which Plaintiffs opposed. ECF No. 149-150, 158. On August 17, 2020, the Court denied DefendantsMotion to Dismiss holding that Plaintiffs’ claims were ripe, Plaintiffs have standing, and that the Court would not issue an advisory opinion. ECF No. 168. From October 6, 2020 to October 14, 2020, the Court held a bench trial on this matter. ECF Nos. 209, 212, 213-216. The next election for City was held on November 3, 2020. Upon conclusion of the bench trial, both parties submitted proposed findings of fact and law. ECF Nos. 237-238.

On March 22, 2021, Defendants filed a Notice of New Authority indicating that on March 18, 2021, the Governor of the Commonwealth of Virginia signed House Bill 2198 into law. ECF No. 204 at Exhibit 1. The law amends Section 24.2-222 of the Virginia Code to prohibit at-large voting for candidates "in a city or town that imposes district-based or ward-based residency requirements for members of the city or town council." Id. The law will take effect on January 1, 2022, before the next City Council election on November 8, 2022. Id. Defendants also argued that this Court's adjudication of the instant case is moot because HB 2198 invalidates the City's current at-large system. Id. In response, Plaintiffs argued that HB 2198 did not make the instant case moot because the at-large system Plaintiffs challenged is still in effect in violation of Section 2 of the Voting Rights Act, the bill does not remedy the Section 2 violation, and Defendants have not shown that " ‘the alleged behavior could not reasonably be expected to recur.’ " ECF No. 241 (citing Porter v. Clarke , 852 F.3d 358, 364 (4th Cir. 2017) (internal quotes omitted)).1

II. JURISDICTION AND STANDING

The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345. Standing has both constitutional and prudential components. Bishop v. Bartlett , 575 F.3d 419, 423 (4th Cir. 2009). To satisfy the constitutional component of standing, a party must meet three elements: (1) an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of – the injury has to be "fairly traceable to the challenged action of the defendant"; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife , 504 U.S. 555, at 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Here, Plaintiffs have established constitutional standing. The purpose of Section 2 of the VRA is to prevent voter dilution and preclude racial discrimination in voting. Plaintiffs claim that although the Hispanic, Black, and Asian communities (collectively "Minority Community") votes cohesively for candidates of choice, these shared political preferences are submerged by the at-large electoral system. ECF No. 62 at ¶¶ 7–8. According to the Complaint, Plaintiffs both identify as Black and are part of the Minority Community which has allegedly suffered a dilution of their votes. Id. at ¶¶ 14–15; See Allen v. State Bd. of Elections , 393 U.S. 544, at 557, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (recognizing that aggrieved voters have standing to enforce their right to vote); see also, Wilson v. Minor , 220 F.3d 1297, 1303 n. 11 (11th Cir. 2000) (citing United States v. Hays , 515 U.S. 737, at 742, 115 S.Ct. 2431, 132 L.Ed.2d 635, (1995) and stating "the essential point remains that in order to have standing one must reside in the area directly affected by the allegedly illegal voting scheme"). Plaintiffs therefore have sufficiently pleaded an injury in fact, that is neither conjectural nor hypothetical, and the type of injury Section 2 of the VRA was designed to protect. Plaintiffs have also demonstrated that this injury is fairly traceable to the challenged conduct of Defendants since Plain...

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    ...their councilmembers from individual districts, with only a minority – at most – elected at-large. Holloway v. City of Virginia Beach , 531 F. Supp. 3d 1015, 1032–33, 1084 (E.D. Va. 2021). In addition, seven of the Council's members, though elected at-large, were required to reside in desig......
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