Page v. Va. State Bd. of Elections

• Decision Date: 05 June 2015
• Docket Number: Civil Action No. 3:13cv678
• Court: U.S. District Court — Eastern District of Virginia
• Parties: DAWN CURRY PAGE, et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.

DAWN CURRY PAGE, et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.

Civil Action No. 3:13cv678

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

June 5, 2015

MEMORANDUM OPINION

DUNCAN, Circuit Judge:

In the political landscape prior to the Supreme Court's June 25, 2013, decision in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), the Virginia legislature undertook the task of crafting United States congressional districts with the overarching goal of compliance with the Voting Rights Act of 1965 ("VRA") as it was then interpreted. In describing the methodology used in drawing the abstract lines currently under consideration, Delegate William Janis, the architect of that legislation, explained it thus:

I focused on the [Third] Congressional District and ensuring, based on recommendations that I received from Congressman Scott[, the representative from the Third Congressional District,] and from all 11 members of the congressional delegation, Republican and Democrat--one of the paramount concerns andconsiderations that was not permissive and nonnegotiable under federal law and under constitutional precedent is that the [Third] Congressional District not retrogress in minority voter influence.

And that's how the lines were drawn . . . . [T]he primary focus of how the lines in [the redistricting legislation] were drawn was to ensure that there be no retrogression in the [Third] Congressional District. Because if that occurred, the plan would be unlikely to survive a challenge either through the Justice Department or the courts because it would not comply with the constitutionally mandated requirement that there be no retrogression in the minority voting influence in the [Third] Congressional District.

Pls.' Trial Ex. 43, at 25.¹ Delegate Janis's efforts were successful. His proposed legislation was approved by the United States Department of Justice ("DOJ"), which found that it did not effect any retrogression in the ability of minorities to elect their candidates of choice.² As we explain below, however, the Supreme Court's Shelby County decision significantly altered the status quo.

Before turning to a description of the history of the litigation and an analysis of the issues it presents, we wish toemphasize at the outset what we hope will be clear throughout. We imply no criticism of Delegate Janis or Defendants, and do not question that all attempted to act appropriately under the circumstances as they understood them to be at the time. We must nevertheless determine whether the Virginia legislation passes constitutional muster, particularly in the wake of Shelby County.

I. THE LITIGATION

Plaintiffs Dawn Curry Page, Gloria Personhuballah, and James Farkas³ ("Plaintiffs") brought this action against Defendants Charlie Judd, Kimberly Bowers, and Don Palmer--in their respective official capacities of Chairman, Vice-Chair, and Secretary of the Virginia State Board of Elections⁴--and Intervenor-Defendants Eric Cantor, Robert J. Wittman, Bob Goodlatte, Frank Wolf, Randy J. Forbes, Morgan Griffith, Scott Rigell, and Robert Hurt⁵--all Congressmen in the Commonwealth ofVirginia--(collectively, "Defendants")⁶ challenging the constitutionality of Virginia's Third Congressional District as a racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On October 7, 2014, this court issued a ruling in which we concluded that compliance with Section 5 of the VRA ("Section 5"), and accordingly, consideration of race, predominated in the drawing of the congressional district boundaries, and that the redistricting plan could not survive the strict scrutiny required of race-conscious districting because it was not narrowly tailored. Page v. Va. State Bd. of Elections, No. 3:13-cv-678, 2014 WL 5019686 (E.D. Va. Oct. 7, 2014), vacated sub nom. Cantor v. Personhuballah, 135 S. Ct. 1699 (2015).

Intervenor-Defendants appealed this decision to the United States Supreme Court,⁷ and on March 30, 2015, the Court vacated our judgment and remanded this case to us for reconsideration inlight of Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). Cantor, 135 S. Ct. 1699. Obedient to the mandate, we have reconsidered this case and, once again, conclude that Virginia's Third Congressional District is unconstitutional. We incorporate in this opinion the parts of our now-vacated opinion that are consistent with the Supreme Court's decision in Alabama.

Resolution of the issues before us involves an analysis of the interplay between the VRA and Virginia law governing voting rights and the redistricting process. We therefore begin by laying out the framework that will guide that analysis. We then set out the factual background and procedural history of this litigation, before proceeding to the issues at hand.

A. Voting Rights Act Background

A brief description of the history and purpose of the VRA, and its impact on Virginia, is a useful predicate for the discussion that follows. The VRA, passed in 1965, "was originally perceived as a remedial provision directed specifically at eradicating discriminatory practices that restricted blacks' ability to register and vote in the segregated South." Holder v. Hall, 512 U.S. 874, 893 (1994) (Thomas, J., concurring). The VRA "is a complex scheme of stringent remedies aimed at areas where voting discriminationhas been most flagrant." South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966), abrogated by Shelby Cnty., 133 S. Ct. 2612.

Section 4 of the VRA outlines "a formula defining the States and political subdivisions to which [the statute's] . . . remedies apply." Id. This "coverage formula" includes states or political subdivisions with the following characteristics: 1) as of November 1964, they maintained a test or device as a prerequisite for voting or registration; and 2) 1964 census data indicated that less than 50% of the voting-age population was registered to vote. See 52 U.S.C. § 10303(b)(formerly cited as 42 U.S.C. § 1973b). Section 5 contains specific redistricting requirements for jurisdictions deemed covered under Section 4. See id. § 10304(a).

In November 1964, Virginia met the criteria to be classified as a "covered jurisdiction" under Section 5. See id. § 10303-10304. As such, Virginia was required to submit any changes to its election or voting laws to the DOJ for federal preapproval, a process called "preclearance." See id. § 10304(a). To obtain preclearance, Virginia had to demonstrate that a proposed change had neither the purpose nor effect "of denying or abridging the right to vote on account of race or color." Id.

The legal landscape changed dramatically in 2013, when the Supreme Court ruled that Section 4's coverage formula, describedabove, was unconstitutional. Shelby Cnty., 133 S. Ct. at 2631. The Court concluded that the formula, although rational in practice and theory when the VRA was passed in 1965, was no longer justified by current voting conditions. Id. at 2627. As a result of the invalidation of the coverage formula under Section 4, Virginia is no longer obligated to comply with the preclearance requirements of Section 5. See id. at 2631.

B. Factual Background

We turn now to the Virginia constitutional and statutory scheme. The Virginia Constitution requires the state legislature to reapportion Virginia's United States congressional districts every ten years based on federal census data. Districts must be "contiguous and compact territory . . . constituted as to give, as nearly as practicable, representation in proportion to the population of the district." Va. Const. art. II, § 6.

Virginia's Third Congressional District was first created as a majority African-American district in 1991. See Va. Code §§ 24.1-17.303 (1991); 24.1-17.303 (1992); 24.2-302 (1993). At that time, the Third Congressional District had an African-American population of 63.98%, and a black voting-age population ("BVAP," the percentage of persons of voting age who identify as African-American) of 61.17%. Moon v. Meadows, 952 F. Supp. 1141, 1146 (E.D. Va.), aff'd, 521 U.S. 1113 (1997).

The 2010 federal census showed that Virginia's population grew 13% between 2000 and 2010. Pls.' Trial Ex. 1, at 18. Because the growth was unevenly distributed, Virginia had to redraw its congressional districts in order to balance population totals within each district. See id. Pursuant to that goal, Virginia's Senate Committee on Privileges and Elections adopted Committee Resolution No. 2, establishing goals and criteria concerning applicable legal requirements and policy objectives for redrawing Virginia's congressional districts. See Pls.' Trial Ex. 5. The criteria included: 1) population equality among districts; 2) compliance with the laws of the United States and Virginia, including protections against diluting racial minority voting strength and putting minority voters in a worse position than they were before the redistricting change ("retrogression"); 3) contiguous and compact districts; 4) single-member districts; and 5) consideration of communities of interest. Id. at 1-2. The Virginia Senate noted that, although "[a]11 of the foregoing criteria [would] be considered in the districting process[,] . . . population equality among districts and compliance with federal and state constitutional requirements and the [VRA] [would] be given priority in the event of conflict among the criteria." Id. at 2 (emphasis added).

Delegate Janis used the 2010 census data to draw a new plan for Virginia's United States congressional districts. Delegate Janis presented his plan, House Bill 5004, to the House of Delegates on April 6, 2011; the House adopted it six days later. Pls.' Trial Ex. 8, at 7. The Virginia Senate, however, rejected Delegate Janis's plan and replaced it with a plan sponsored by State Senator Mamie Locke. Id. The House and Senate were unable to reconcile the...