Moon v. Meadows, Civil Action No. 3:95CV942.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Merhige
• Citation: 952 F.Supp. 1141
• Parties: Donald MOON, et al., Plaintiffs, v. M. Bruce MEADOWS, Defendant, and Curtis W. Harris, et al., Defendants-Intervenors.
• Decision Date: 07 February 1997
• Docket Number: Civil Action No. 3:95CV942.

Page 1141

952 F.Supp. 1141 Donald MOON, et al., Plaintiffs,
v.
M. Bruce MEADOWS, Defendant,
and
Curtis W. Harris, et al., Defendants-Intervenors. Civil Action No. 3:95CV942. United States District Court, E.D. Virginia, Richmond Division. February 7, 1997.

Page 1142

Paul Loy Hurd, Monroe, LA, Bill Helfand, Hirsch, Robinson, Sheiness & Glover, Houston, TX, Douglas Markham, Houston, TX, Stephen A. Katsurinis, Hirsch, Robinson, Sheiness & Glover, Richmond, VA, for Plaintiffs.

Rita Marie Sampson, Francis Snead Ferguson, Gregory E. Lucyk, James Walter Hopper, Office of Attorney General of Virginia, Richmond, VA, Mary Elizabeth Shea, Office of the Attorney General, Criminal Law Division, Richmond, VA, James Stuart Gilmore, III, Attorney General of Virginia, Richmond, VA, David E. Anderson, Frank S. Ferguson, Office of the Attorney General, Richmond, VA, for Defendant.

Stephen Barkai Pershing, ACLU Foundation of Virginia, Richmond, VA, Elaine Ruth Jones, NAACP Legal Defense & Educational Fund, Inc., New York City, Neil Bradley, Maha S. Zaki, M. Laughlin McDonald, American Civil Liberties Union, Atlanta, GA, Mary E. Wyckoff, American Civil Liberties Union, New York City, Theodore M. Shaw, Norman J. Chachkin, Penda Hair, NAACP Legal Defense & Educational Fund, Inc., New York City, Pamela S. Karlan, Charlottesville, VA, J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, Cassandra Q. Butts, NAACP Legal Defense & Educational Fund, Washington, DC, for Intervenors-Defendants.

Before WIDENER, Circuit Judge, MERHIGE, Senior District Judge, and ELLIS, District Judge.

MEMORANDUM

MERHIGE, Senior District Judge:

The primary issue before this Court is the constitutionality of Virginia's allegedly racially-gerrymandered Third Congressional District. This action arises under Articles I, II and IV, § 2, of the United States Constitution; the First, Fifth, Fourteenth and Fifteenth Amendments; 42 U.S.C. § 1973, et seq., and 42 U.S.C. §§ 1981 and 1983. Since all Defendants, including intervenors, reside and vote in the Commonwealth of Virginia, and Plaintiffs suffered their alleged injuries in the Eastern District of Virginia, venue is appropriate under 28 U.S.C. § 1391(b). The Court has jurisdiction pursuant to 28 U.S.C.

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§§ 1331, 1343(a)(3) and (4). Because Plaintiffs challenged the constitutionality of the apportionment of Virginia's Third Congressional District, pursuant to 28 U.S.C. § 2284 a district court panel of three judges presided over the case, and its disposition is now ripe.

The sole remaining original Defendant is M. Bruce Meadows, Secretary of the State Board of Elections and a member of that Board. The Board of Elections is responsible for coordinating the conduct of elections in the Commonwealth and issuing certificates of elections. Mr. Meadows is sued on behalf of the Board and in his official capacity.

The results of the 1990 decennial census entitled Virginia to an additional seat in the House of Representatives which is the subject of the present controversy. Plaintiffs seek a declaratory judgment that Va.Code § 24.2-302, which sets out the geographical boundaries of each of Virginia's congressional districts, is unconstitutional. They further seek a judgment that 42 U.S.C. § 1973 is of no further force and effect insofar as it requires the Commonwealth of Virginia to seek preclearance of its statewide redistricting plans. Plaintiffs' challenge to Va.Code § 24.2-302 must, except for that portion of the statute dealing with the Third Congressional District, fail for lack of standing.

The Court, having considered all of the evidence introduced by each of the parties, including intervenors, all exhibits entered in the record, stipulations, argument, and proposed Findings of Fact and Conclusions of Law concludes as follows:

That portion of the Complaint in which Plaintiffs pray that the Court declare 42 U.S.C. § 1973 to be of no further force and effect, insofar as it requires the Commonwealth of Virginia to seek preclearance consistent with constitutional requirements, is unsupported by any evidence as to jurisdiction or the merits. This claim will be dismissed for failure to prosecute.

Each of the Plaintiffs votes and resides in the Third Congressional District and therefore has standing only to challenge that District as violating the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Plaintiffs claim that they have been subjected to "the deliberate segregation of voters into [a] separate and bizarre-looking district[s] on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment." See Shaw v. Hunt, ___ U.S. ___, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); Bush v. Vera, ___ U.S. ___, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); Miller v. Johnson, ___ U.S. ___, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); United States v. Hays, ___ U.S. ___, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995).

BACKGROUND:

Between the years 1980 and 1990, Virginia's population grew from 5,346,818 to 6,187,35 — approximately 15.7%. The black population during the decade grew by about 154,326, so that they now constitute 18.9% of the state's population. Because this population increase entitled Virginia to an additional seat in the United States House of Representatives the General Assembly began redistricting the state to create an eleventh Congressional district. The Chairman of the Joint Privileges and Elections Committee of the Virginia Senate and House of Delegates invited the National Association for the Advancement of Colored People ("NAACP"), the American Civil Liberties Union ("ACLU"), and Virginia's Congressional delegation to use the General Assembly's computer-assisted redistricting system for preparing suggested Congressional district plans and to submit them for the Committee's consideration.

The Virginia NAACP and the ACLU presented similar proposals for a majority black Congressional district which would combine black populations concentrated in urban areas (Henrico County and the Cities of Richmond, Petersburg, Norfolk, Newport News, Hampton, Portsmouth, and Chesapeake) linked by more rural areas along the James River. The ACLU's proposed district contained 66.2% total black population and 63.1% black Voting Age Population ("VAP"). The NAACP's proposed district had 65.4% total black population and 62.1% black VAP.

The Democratic Party Chairman of the 8th Congressional District and Chairman of the

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American Party each offered statewide proposals. Analysis by the Virginia Division of Legislative Services staff revealed that the latter two proposals each advocated one black majority district with approximately a 54% total black population.

Then State Senator Robert Scott, a Democrat and a member of the Black Caucus, along with Delegate Kenneth Melvin, (also a Democrat and a member of the Black Caucus, as well as a member of the Virginia House Privileges and Elections Committee) each suggested a 55% black majority district and a 45% black influence district as an alternative to one 65% majority district.

Between October 11 and November 20, 1991, the General Assembly conducted hearings and considered additional working draft plans. Of the ten plans receiving consideration, no less than seven proposed that more than 65% of the total population of District 3 be composed of blacks. No plan suggested a District population with a black percentage of less than 60.35%.

On November 20, 1991, the General Assembly of Virginia passed the first version of the statute in issue, providing for a 61.48% black majority of the total population of the new Third Congressional District and a 58.5% black VAP. Following the legislative action, the Act was forwarded to the Governor for his consideration. The Governor, as his right, proposed several revisions including an increase in the black population from 61.48% to 63.98% and an increase in the black percentage of VAP from 58.50% to 61.17%. Additionally, the Governor suggested a shift of predominately black Norfolk precincts from District Two to District Three with a total population of 28,525, 72.5% of whom were black. The Governor also suggested shifting predominately white Norfolk precincts from District Three to District Two. The population affected by this shift was 38,539, 25.93% of whom were black.

The General Assembly adopted the Governor's changes, enacted the plan in Va.Code § 24.2-203 and submitted it to the United States Department of Justice. By letter dated February 18, 1992, the Department of Justice precleared the plan as submitted.

The General Assembly twice enacted technical modifications to the approved bill complying each time with General Assembly Guidelines. These Guidelines required that any proposed changes not substantively change the boundaries of the district and that "no change will reduce the black percentage of total or voting age population in the majority black district (District 3)".¹ The Governor approved the plan and the newly established Third Congressional District elected Senator Scott as its first Congressman.

The District has been aptly described as follows:

The Third Congressional District, as presently configured, is an amalgamation principally of African-American citizens contained within the legislatively determined boundaries for the obvious purpose of establishing a safe black district. The district is anchored in the tidewater cities of Norfolk, Suffolk, and Portsmouth. It crosses the Chesapeake Bay to include portions of the cities of Hampton and Newport News where the African-American population is the majority, using only the open water of the Chesapeake Bay and the James River to connect the disparate and non-contiguous portions of these two small cities. The District then crosses the James River into the largely rural Surry County, recrossing the James River to take in all of the African-American majority Charles City County. In Charles City County...