Bethune-Hill v. Va. State Bd. of Elections
Bethune-Hill v. Va. State Bd. of Elections
Opinion of the Court
In June 2018, on remand from the Supreme Court of the United States, we held that eleven majority-minority Virginia House of Delegates districts were racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Bethune-Hill v. Va. State Bd. of Elections ,
The Virginia Department of Elections and its officials (collectively, the state defendants) have ceased defending the composition of the eleven unconstitutional districts. The House of Delegates and the Speaker of the House, who intervened in this action (the intervenors) and took primary responsibility at trial for defending the existing eleven challenged districts, see Bethune II ,
The parties and the interested non-parties now have submitted a total of seven proposed plans for our consideration in this remedial phase of the litigation. Dr. Grofman has filed his final report, in which he evaluated these plans and offered several alternative remedial plans. We also have received extensive briefing from the parties and the interested non-parties, and we have heard testimony from Dr. Grofman and oral argument from counsel.
Upon consideration of all the proposed remedial plans, as well as the special master's recommendations, we conclude that a map composed of four of the special master's regional proposals remedies the constitutional deficiencies identified in our prior opinion, complies with traditional districting criteria, defers to the priorities of the legislature, and does not undermine minorities' rights under the Voting Rights Act of 1965,
I.
The facts of this case are set forth in detail in our liability-phase opinion in Bethune II ,
The plaintiffs are Virginia registered voters living in twelve Virginia House of Delegates districts (the challenged districts).
After extensive briefing on remand, we held a second trial in October 2017, at which both the plaintiffs and the intervenors introduced substantial new evidence. Bethune II ,
We ordered the General Assembly to adopt a new redistricting plan to remedy the identified constitutional violations.
Dr. Grofman reviewed these seven proposed plans, submitted his report, and later filed four addenda to that report. In his report, detailed further below, Dr. Grofman declined to recommend any of the plans offered by the parties and the interested non-parties. Grofman Rep. App. A.
*876Instead, Dr. Grofman constructed alternative proposed remedial maps, which he presented in a regional "module" format. See infra p. 881-82.
After receiving additional briefing, we held a hearing on January 10, 2019 to address the remedial plans submitted by the parties and the interested non-parties, and the special master's proposals. At the hearing, Dr. Grofman testified under oath in response to questioning by counsel for the plaintiffs, counsel for the intervenors, and the court. We also heard extensive argument from the parties and the NAACP. At the end of the hearing, we ordered Dr. Grofman to submit a final report incorporating the information from his original report and all four addenda. Upon review of the final report of the special master, we ordered Dr. Grofman to submit a Final Remedial Plan incorporating four specific modules offered in his report and encompassing all 100 House of Delegates districts. Dkt. No. 353. For the reasons set forth below, we now adopt the Final Remedial Plan filed by the special master on January 29, 2019. Dkt. No. 355.
II.
We begin by reviewing the criteria that we apply in our evaluation of the proposed remedial plans. We later discuss the extent to which the plans proposed by the special master and the other submitted plans are consistent with these redistricting goals.
A.
The foundational purpose of the 2011 redistricting in Virginia was to redistribute population among the 100 House of Delegates districts to achieve the constitutional requirement of equal population based on the results of the 2010 census. See Reynolds v. Sims ,
During the 2011 redistricting process, the legislature determined that each House of Delegates district must have 80,000 residents, with a maximum population deviation of plus or minus one percent. Bethune II ,
During the remedial phase of this litigation, the parties agreed that the one percent figure also should govern the population distribution in our court-imposed plan. We therefore ordered the special master to construct all districts in his proposed *877remedial plans with 80,000 residents, with a maximum population deviation of plus or minus one percent. The special master's proposed plans, as well as those submitted by the parties and the interested non-parties, achieve this population-equality metric.
B.
In addition to the background principle of population equality, our chosen plan also must remedy the Equal Protection violations that we identified in the 2011 plan. As explained above, in Bethune II we concluded that the legislature had subordinated traditional districting criteria to racial considerations in the eleven invalidated districts, and had failed to show a "strong basis in evidence" for its race-based decisionmaking. See generally
Although we must ensure that our plan remedies the Equal Protection violations, we are mindful that redistricting "is primarily a matter for legislative consideration and determination." White v. Weiser ,
In the present case, the task of balancing these considerations is especially complex. The eleven invalidated districts are located in four distinct groupings, and some, but not all, of these groups of districts *878are adjacent to one another. The invalidated districts themselves frequently span multiple municipalities, and many cities and counties have been split between invalidated districts and surrounding non-challenged districts. In choosing a remedial plan, we endeavor to minimize the number of districts affected by our revisions, recognizing that districts immediately adjacent to the invalidated districts may be subject to significant changes. See Abrams ,
C.
Finally, we also seek to ensure that in remedying the identified Equal Protection violations, we do not select a plan under which black voters' rights are diminished when compared with the unconstitutional 2011 plan. We thus consider compliance with Section 2 of the VRA as an "equitable factor" in our redistricting process, and will "implement a plan that complies with federal policy disfavoring discrimination against minority voters."
With these principles in mind, we turn to identify the proposed plans that remedy the identified constitutional deficiencies while balancing these priorities that occasionally conflict with one another.
III.
A.
i.
We begin with general observations about the challenges inherent in this remedial process. As discussed above, the number of invalidated districts, and their proximity to and interconnectedness with one another, renders our task especially complex. A single change in one invalidated district will, at a minimum, impact an immediately adjacent district and could impact numerous other districts, both invalidated and non-challenged. We thus agree with Dr. Grofman's commonsense observation *879that, in practice, crafting a plan consistent with traditional districting criteria requires accepting certain tradeoffs among priorities. Grofman Rep. at 30. For example, the creation of a maximally compact district likely would require changing more boundaries than strictly necessary to remedy a particular Equal Protection violation.
We also observe that an inevitable shift of black voters will result from remedying the specific Equal Protection violations we identified in the 2011 plan. In Bethune II , we found that the legislature had sorted black voters into the invalidated districts predominantly on the basis of their race, thereby creating in the invalidated districts BVAP levels much higher than necessary to comply with Section 5 of the VRA.
ii.
We turn to consider Dr. Grofman's methodology. Consistent with his task of drawing remedial districts according to traditional districting criteria, Dr. Grofman identified the following nine criteria governing his construction of the proposed remedial maps:
(1) population equality;
(2) avoiding dilution in the voting strength of minorities and avoiding retrogression in minority groups' opportunity to elect preferred candidates, in compliance with Section 2 of the VRA and the Equal Protection Clause;
(3) avoiding using race as a predominant consideration;
(4) contiguity;
(5) avoiding splits of political subdivisions such as cities and counties;
(6) compactness;
(7) avoiding changes to the 2011 plan not required to remedy the identified constitutional violations, by limiting changes to the invalidated districts and immediately adjacent districts and by minimizing the number of non-challenged districts so affected;
(8) partisan neutrality;
(9) avoiding incumbency pairings, to the extent feasible.
Grofman Rep. at 25-28.
Among these criteria, Dr. Grofman was "especially attentive to issues of contiguity, compactness, and avoiding splitting of existing political subunit boundaries," because those political units represent identifiable communities of interest. Grofman Rep. at 32 & nn. 20-22, 53-54, 165 ("[T]he most appropriate way to remedy the constitutional violation ... is to replace the present unconstitutional districts with contiguous equipopulous districts with fewer city or county splits than are found in the 2011 plan and with at least as high average level of compactness."). He also viewed partisan neutrality as a "necessity" in any court-ordered plan. Grofman Rep. at 32-33. And finally, none of Dr. Grofman's proposed *880remedial maps paired any incumbent delegates who held office in 2017. Grofman Rep. at 175.
Dr. Grofman also sought to confine the impact of his proposals in recognition of our limited remedial role. First, the only non-challenged districts that Dr. Grofman changed are located adjacent to invalidated districts. Grofman Rep. at 60-61. Second, he made changes to adjacent, non-challenged districts only where such districts contained a portion of a city or county that also was included in one of the invalidated districts. Grofman Rep. at 61-62. Dr. Grofman concluded that these two constraints resulted in the creation of plans that adequately remedied the constitutional violations in the invalidated districts while avoiding unnecessary changes to non-challenged districts.
We reject the intervenors' assertion that Dr. Grofman's methodology used race improperly as the predominant criterion by applying a 55% BVAP "ceiling" to the invalidated districts. Throughout his report and testimony, Dr. Grofman emphasized under oath that he never sought to achieve a predetermined BVAP level in any of the proposed districts. Grofman Rep. at 51, 158-59, 166; Jan. 10, 2019 Tr. at 30-32, 66, 115. He averred that only after redrawing the invalidated districts according to traditional districting criteria did he seek to ensure that the new districts had not inadvertently resulted in minority vote dilution.
We also reject the intervenors' contention that Dr. Grofman intentionally sought to reduce voter support for certain Republican House leaders in their redrawn districts. Nothing in the record suggests that Dr. Grofman acted with animus toward any incumbents, or toward any party. We credit Dr. Grofman's contention that he constructed his proposals without regard to partisan outcome in the non-challenged districts, and that he treated all incumbents *881equally.
In view of our credibility findings and our approval of the special master's methodology, we adopt Dr. Grofman's recommendation that we reject the remedial maps proposed by the parties and the interested non-parties.
Dr. Grofman also criticized the proposed plans submitted by the parties and the interested non-parties as imposing "an excessive number of avoidable [political subdivision] splits," Grofman Rep. at 131, thereby unnecessarily dividing identifiable communities of interest. Because a plan that disregards political subdivision boundaries is inconsistent with traditional districting criteria, see Alabama ,
We proceed to consider the special master's various remedial maps. Dr. Grofman presented his proposals in a regional "module" format, in which he provided multiple versions of a remedial map for each geographical region in which the invalidated districts are located, namely, Petersburg, Richmond, North Hampton Roads (the peninsula), and South Hampton Roads (Norfolk). Grofman Rep. at 70. The creation of multiple modules allowed us to select the most appropriate module from each region to create a final remedial map that includes all 100 House of Delegates districts. See Grofman Rep. at 70-71.
B.
We begin with the Petersburg region, in which we must remedy the racial gerrymander in District 63. Non-challenged Districts 62, 64, 66, and 75
After considering the potential reconfigurations of District 63, we conclude that the "Petersburg 2" module offered by Dr. Grofman best remedies the constitutional violations we identified previously and complies with traditional districting criteria.
The Petersburg 2 module also substantially increases the compactness scores of District 63, more than doubling the Reock score from .25 to .57, and nearly doubling the Polsby-Popper score.
Based on the data in the record, we further conclude that black voters in Districts 63 and 75 will continue to have a reasonable opportunity to elect candidates of their choice. Under the 2011 map, racially polarized voting in these two districts was higher than in any of the other majority-minority districts. See Bethune II ,
Notably, Dr. Maxwell Palmer, who was qualified by this court as an expert witness in political science, testified credibly at the second trial that despite some racially polarized voting, black voters in the 2011 version of District 63 could elect their preferred candidates even at a 45% BVAP.
With respect to the Petersburg 2 module specifically, Dr. Grofman examined the vote share of black Democratic candidates in two recent elections, namely, President Barack Obama's 2012 general election and Justin Fairfax's 2013 primary election for Virginia attorney general,
Accordingly, upon our review of the voting practices in the Petersburg region, we are satisfied that our adoption of the Petersburg 2 module will not result in dilution of the voting rights of black voters. The Petersburg 2 module also remedies the identified constitutional violation and complies with traditional districting criteria. We therefore adopt the configuration of the districts in the Petersburg 2 module into our remedial map.
C.
We turn to consider the Richmond region, which includes invalidated Districts 69, 70, 71, and 74, as well as non-challenged Districts 27, 68, 72, and 73. Grofman Rep. at 76. In Bethune II , we identified numerous instances of race-based line drawing involving all four invalidated districts. In several cases, for example, high *884BVAP VTDs
We begin by highlighting two factors complicating our task in the greater Richmond area. First, given the dense population and the number of districts in the region, even a small change to an invalidated district may affect multiple nearby non-challenged districts. We therefore recognize the need to ensure that given changes actually are required to remedy the violations in the invalidated districts. Second, the population numbers would allow the drawing of between two and three districts wholly within Richmond's city boundaries. Grofman Rep. at 67. The 2011 map, however, split Richmond into five districts, with four 2011 incumbents living in the part of the city north of the James River. Grofman Rep. at 67, 75-76. As a result, the reallocation of parts of Richmond according to traditional districting criteria, while retaining incumbents in their districts, was challenging. We are mindful that we cannot "perfectly" achieve all desirable goals, but must balance competing considerations in pursuit of an adequate remedy. See Grofman Rep. at 30.
Upon review of the submissions of the parties, the interested non-parties, and the special master, we conclude that the "Richmond 1A" module offered by Dr. Grofman remedies the identified Equal Protection violations, avoids vote dilution, and complies with traditional districting principles in accordance with our remedial mandate. One feature of the Richmond 1A module is especially compelling in our evaluation. In this module, six of the eight districts in the region, including three of the four invalidated districts, are contained wholly within single political subdivisions. Grofman Rep. at 78. Specifically, reconfigured Districts 69 and 71 are located entirely within the city of Richmond, Districts 72, 73, and 74 are located entirely within Henrico County, and District 27 is located wholly within Chesterfield County. Grofman Rep. at 78. In contrast, in the 2011 map, only three of the eight districts, and none of the invalidated districts, were encompassed within a single political subdivision.
The NAACP and the intervenors assert that because the Richmond 1A module retains certain lines in the invalidated districts we have identified as racially motivated, the Richmond 1A module fails to remedy the constitutional violations in the Richmond region.
Additionally, as noted above, our mandate is circumscribed by our remedial role. We will not redraw a non-challenged district to improve its compliance with traditional districting criteria when such a change is divorced from the constitutional deficiencies we identified in the invalidated districts.
We further hold that implementation of the Richmond 1A module will not affect black voters' ability to elect their preferred candidates. In the 2011 map, the BVAP percentages in the four invalidated Richmond districts ranged from 55.19% in District 69 to 57.24% in District 74. Grofman Rep. at 76. In the Richmond 1A module, these BVAP levels decrease slightly, ranging from 52.29% in District 70 to 54.38% in District 69. Grofman Rep. at 78.
*886Despite these reduced BVAP levels in the Richmond 1A module, black voters will retain their ability to elect preferred candidates. Dr. Palmer estimated that with a 45% BVAP in the 2011 version of the Richmond-area invalidated districts, candidates preferred by black voters would win between 65.4% and an overwhelming 81% of the vote. Pl. Ex. 71 at 68. Consistent with this prediction, President Obama won between 72.38% and 86.72% of the vote in the reconfigured invalidated districts. Grofman Rep. at 78. Mr. Fairfax won majorities in all four redrawn invalidated districts as well. Grofman Rep. at 78. We easily conclude that the reduction in BVAP levels in the Richmond-area invalidated districts will not dilute the voting strength of black voters.
For these reasons, we conclude that the Richmond 1A module is drawn according to traditional districting criteria and remedies the Equal Protection violations we identified in Districts 69, 70, 71, and 74. Black voters will retain their ability to elect their candidates of choice in these redrawn districts. We therefore adopt the Richmond 1A module as part of our remedial map.
D.
We proceed to consider the North Hampton Roads area, commonly known as the peninsula. See Bethune II ,
At the outset, we observe that as a result of the patently race-based appendage in District 95, the 2011 version of that district shared borders with four other districts on the peninsula. See Grofman Rep. at 91; DI Ex. 94 at 14. Excising the appendage from District 95 will have a significant impact on the surrounding districts, a result that is required to remedy the racial gerrymander. See Grofman Rep. at 95. Upon review of the submitted proposals, we adopt the "Peninsula 2" module offered by Dr. Grofman as the appropriate remedy for the unconstitutional racial gerrymanders in Districts 92 and 95.
In the Peninsula 2 module, Districts 92 and 95 both are contained entirely within single municipalities, the city of Hampton and the city of Newport News, respectively. Grofman Rep. at 96. In the 2011 map, District 92 was split between Hampton and Newport News, and Hampton was divided into three separate districts (Districts 91, 92, and 93). Grofman Rep. at 92. District 95 improves significantly in compactness in our remedial plan, with the district's Polsby-Popper score more than doubling. Grofman Rep. at 92, 96. District 92 retains nearly identical compactness scores as in the 2011 map. Grofman Rep. at 92, 96.
With respect to surrounding non-challenged districts, District 94 previously was divided into four municipalities, but is now contained wholly within the city of Newport News. Grofman Rep. at 92, 96. Although Districts 91 and 93 now include more portions of municipalities than in the *8872011 map, the Peninsula 2 module reduces overall the number of political subdivision splits in the region from 11 in the 2011 plan to 10 in the remedial module. Grofman Rep. at 92, 96. Similarly, the mean compactness score of all the districts in the region improves according to both the Reock and Polsby-Popper measures.
Our consideration of potential vote dilution in the invalidated districts leads us to conclude that black voters will retain their ability to elect their preferred candidates in Districts 92 and 95 as drawn in the Peninsula 2 module. In the 2011 map, both districts had high BVAP levels of around 60%, and President Obama and Mr. Fairfax won nearly 80% of the vote in those districts. Grofman Rep. at 92. The Peninsula 2 module would reduce the BVAP in District 92 to 53.87%, and to 47.36% in District 95. Grofman Rep. at 96.
Although these are significant decreases in BVAP levels, Dr. Palmer found that candidates preferred by black voters would prevail with more than 60% of the vote with a BVAP of only 45% in the 2011 versions of Districts 92 and 95. Pl. Ex. 71 at 68. Consistent with this prediction, President Obama won 75.75% of the vote in District 92 as drawn in the Peninsula 2 module, and 72.42% of the vote in reconfigured District 95. Grofman Rep. at 96. Similarly, Mr. Fairfax won 77.9% of the vote in redrawn District 92, and 71.03% of the vote in redrawn District 95. Grofman Rep. at 96. Given these substantial margins of victory by two recent black Democratic candidates, the implementation of the Peninsula 2 module will not diminish black voters' ability to elect their preferred candidates.
For these reasons, we conclude that the Peninsula 2 module is an appropriate remedy for the identified constitutional violations in the peninsula region. We therefore adopt the Peninsula 2 module as part of our remedial plan.
E.
Finally, we turn to consider Dr. Grofman's remedial proposals for the South Hampton Roads region, encompassing the cities of Norfolk, Chesapeake, Portsmouth, and surrounding areas. Bethune II ,
*888Upon consideration of the proposed remedial plans, we adopt the "Norfolk 1A" module as the configuration that best remedies the identified constitutional violations in the region, is consistent with traditional districting criteria, and avoids diluting the voting strength of black voters. The benefits of the Norfolk 1A module are apparent. Notably, under this remedial plan, the four invalidated districts in the region now are contained wholly within single municipalities: District 77 within the city of Chesapeake; District 80 within the city of Portsmouth; and Districts 89 and 90 within the city of Norfolk. Grofman Rep. at 101.
By contrast, District 89 was the only invalidated district in the region contained within a single city under the 2011 map. Grofman Rep. at 99. District 80 was split in the 2011 map among the four distinct cities of Chesapeake, Norfolk, Portsmouth, and Suffolk, thereby "render[ing] the shape of the district bizarre on its face, resembling a sideways 'S.' " Bethune II ,
The Norfolk 1A module also improves the compactness of the districts in the region overall, increasing the average Polsby-Popper score from .24 to .35, and slightly improving the overall Reock score. Grofman Rep. at 99, 101. Invalidated Districts 77 and 80 increase substantially in both measures of compactness. By correcting the bizarre shape of District 80, that district's Reock score more than doubled and its Polsby-Popper score more than tripled. Grofman Rep. at 99, 101. Similarly, the Norfolk 1A module nearly triples the Reock score for District 77, and increases that district's Polsby-Popper score from just .15 to a highly compact .52. Grofman Rep. at 99, 101. Districts 89 and 90 also show marked improvement in their Polsby-Popper scores in this remedial module. Grofman Rep. at 99, 101. Given these significant improvements in compliance with traditional districting criteria, the Norfolk 1A module clearly remedies the violations we identified in South Hampton Roads.
We turn to evaluate whether black voters will experience vote dilution as a result of our implementation of the Norfolk 1A module. The BVAP levels in reconfigured Districts 77 and 90 are the lowest in any of the invalidated districts in our remedial map. See Grofman Rep. at 78, 89, 96, 101. The BVAP in District 77 decreases from 58.78% in the 2011 map to 40.23% in the Norfolk 1A module, the lowest BVAP in any invalidated district. Grofman Rep. at 99, 101. The BVAP in District 90 decreases from 56.59% in the 2011 map to 41.93% in the Norfolk 1A module. Grofman Rep. at 99, 101.
The plaintiffs, black voters who live in the affected districts, affirm explicitly that these relatively low BVAP figures do not risk diluting their ability to elect their preferred candidates. See Dkt. No. 328 at 7; Jan. 10, 2019 Tr. at 152. After examining the results of elections involving President Obama and Mr. Fairfax in the reconfigured versions of these districts, we agree with the plaintiffs' assessment. Dr. Grofman determined that in reconfigured District 77, both candidates won with substantial *889majorities, President Obama with 63.53% of the vote, and Mr. Fairfax with 73.03% of the vote. Grofman Rep. at 101. And, according to Dr. Grofman, in reconfigured District 90, President Obama won with nearly 70% of the vote and Mr. Fairfax earned nearly 60% of the vote. Grofman Rep. at 101. Additionally, Dr. Palmer estimated that, with a 45% BVAP level in the 2011 version of the districts, candidates preferred by black voters would receive 63.5% of the vote in District 77, and 66.2% of the vote in District 90. Pl. Ex. 71 at 68. Accordingly, despite the significant decrease in BVAP in some of the reconfigured districts in South Hampton Roads, black voters will retain their ability to elect candidates of their choice under the Norfolk 1A module.
In sum, we find that the Norfolk 1A module remedies the constitutional violations we identified in Districts 77, 80, 89, and 90, substantially improves compliance with traditional districting criteria, and does not dilute the voting strength of black voters. We therefore adopt the districts as drawn in the Norfolk 1A module into our remedial plan.
IV.
For these reasons and upon review of the proposed remedial plans, we adopt the Final Remedial Plan submitted by the special master [Dkt. No. 355], comprising modules Petersburg 2, Richmond 1A, Peninsula 2, and Norfolk 1A. The state defendants are directed to implement the Final Remedial Plan for use in the 2019 Virginia House of Delegates elections.
IT IS SO ORDERED.
ROBERT E. PAYNE, Senior District Judge, dissenting:
For the reasons set forth in Bethune-Hill v. Va. State Bd. of Elections ,
Dr. Grofman is the Distinguished Professor of Political Science and Jack W. Peltason Endowed Chair of Democracy Studies at the University of California, Irvine and a specialist on redistricting remedial plans. Grofman Rep. at 1.
On August 30, 2018, we denied the intervenors' motion for stay pending appeal to the Supreme Court, concluding that the intervenors had not satisfied their burden of showing a likelihood of success on the merits, and finding that a delay in implementing a remedial plan likely would result in the 2019 Virginia House of Delegates elections being conducted with unconstitutional districts. We later denied without prejudice the intervenors' renewed motion for stay. On January 8, 2019, the Supreme Court denied the intervenors' motion to stay filed in that court. Oral argument in the Supreme Court is scheduled for March 18, 2019.
The state defendants and the plaintiffs recommended Dr. Grofman for appointment as special master based on his experience serving as special master in Personhuballah v. Alcorn ,
Citations in this opinion to "Grofman Rep." refer to the Corrected Second Report of the Special Master submitted on February 5, 2019. See Dkt. No. 360. That report corrected certain typographical errors contained in the final report Dr. Grofman previously had submitted on January 17, 2019. See Dkt. No. 351.
The House Committee on Privileges and Elections adopted a resolution setting forth the following criteria governing the 2011 redistricting: (1) population equality; (2) compliance with the VRA; (3) contiguity and compactness; (4) single-member districts; and (5) maintaining communities of interest, considering "economic factors, social factors, cultural factors, geographic features, governmental jurisdictions and service delivery areas, political beliefs, voting trends, and incumbency considerations." The resolution specified that "[l]ocal government jurisdiction and precinct lines may reflect communities of interest to be balanced, but they are entitled to no greater weight as a matter of state policy than other identifiable communities of interest." Pl. Ex. 16; see also Bethune II ,
Section 5 of the VRA established a "non-retrogression" requirement, under which Virginia was not permitted to implement a redistricting plan that "diminishe[d] the number of districts in which minority groups c[ould] 'elect their preferred candidates of choice.' " Bethune-Hill ,
At trial, the intervenors asserted compliance with Section 5, and not Section 2, of the VRA as the compelling state interest justifying the predominant use of race. Bethune II ,
Contrary to the NAACP's contention, we do not apply an independent "minimum change" requirement to our remedial plan. Rather, we make changes as necessary to effectuate an adequate remedy. By confining our changes to boundaries of invalidated and adjacent districts, we respect our limited role in imposing a court-ordered redistricting plan, namely, to ensure only that the identified constitutional violations are fully remedied within the bounds of federal law, and nothing more.
The intervenors asserted at oral argument that, because this court did not credit the testimony of Delegate Steven Christopher Jones and John Morgan regarding their use of race in drafting the 2011 map, we should not accept Dr. Grofman's testimony that he did not apply a 55% BVAP ceiling. Jan. 10, 2019 Tr. at 118-21. Because this argument lacks a logical basis, we cannot respond to the argument directly. However, we have evaluated all witnesses' credibility in context, including the witnesses' demeanor and the quality of their recollection, as well as the plausibility of their testimony in light of all the other evidence. In our view, the fact that Dr. Grofman's proposed districts have BVAP levels below 55% is not evidence of racial motive, but rather is a foreseeable consequence of applying traditional districting criteria.
We note that Dr. Grofman considered "electability," i.e. , the strength of partisan preference, in the invalidated districts when evaluating whether minority voters in those districts would retain an opportunity to elect their preferred candidates under his proposed plans. Grofman Rep. at 65-66. This attention to race was required only to ensure that any court-ordered plan does not inadvertently dilute the voting strength of protected minority groups.
Dr. Grofman rejected outright the plans proposed by the William & Mary students due to several errors in census block assignments. Grofman Rep. at 23 n.15. For the same reason, we do not consider those plans.
The version of Dr. Grofman's plan we have selected includes changes to 25 districts.
As noted above, we found in Bethune I , and the Supreme Court affirmed, that the legislature predominantly used race to construct District 75, another majority-minority district located to the immediate south of District 63, but that this use of race was justified.
The plaintiffs, NAACP, and Princeton Gerrymandering Project agree that the Petersburg 2 module is the most appropriate module of the three that Dr. Grofman submitted for that region.
Although the Petersburg 2 module changes the boundaries of five districts, more than the number of boundaries altered in Dr. Grofman's other proffered modules, we conclude that these changes are necessary to remedy the constitutional violation. Grofman Rep. at 81. Dr. Grofman's modules "Petersburg 1A" and "Petersburg 1B" maintain, either entirely or in large part, the race-based split of Dinwiddie County. Grofman Rep. at 81. As this split was among the most egregious examples of racial sorting in the 2011 map, we decline to implement a remedial plan that does not correct that problem.
See Bethune I ,
Dr. Palmer did not identify a specific minimum BVAP percentage required for black voters to retain their ability to elect their preferred candidates in these or any other districts. 2nd Trial Tr. at 429-30.
Dr. Grofman explained that "the Fairfax vote share in a statewide contest recompiled within a (new) district boundary is a conservative estimate of potential minority support in a Democratic primary," because "a minority candidate residing locally with some degree of name recognition within the much smaller confines of a legislative district could be expected to win more votes (likely, considerably more votes) in the Democratic primary in the district [than] what was obtained by Mr. Fairfax." Grofman Rep. at 44.
President Obama and Mr. Fairfax were the candidates preferred by black voters in these elections. Grofman Rep. at 42-44; see also Pl. Ex. 71 at 26 ¶ 136 (noting that in all twelve challenged districts, black voters voted for Democratic candidates at an average rate of 95%).
The NAACP agrees that none of Dr. Grofman's proposed modules for any of the invalidated districts results in dilution of black voters' voting rights under Section 2 of the VRA. See Jan. 10, 2019 Tr. at 103.
See Bethune II ,
The 2011 version of non-challenged District 27 was located wholly within Chesterfield County, and non-challenged Districts 72 and 73 were located wholly within Henrico County. Grofman Rep. at 76.
In the Richmond 1A module, the city of Richmond is split into four segments. Grofman Rep. at 78. Although Dr. Grofman averred that he could have constructed a map in which Richmond was split into three segments, he declined to do so in order to avoid pairing any of the four 2017 incumbents residing within the city limits. Grofman Rep. at 67-68, 151.
In contrast, the intervenors' proposed plan, HB 7002, splits Richmond into five segments, a result that is not supported by the population of Richmond. Grofman Rep. at 126. HB 7002 also splits Chesterfield County into seven segments, compared with three segments in the Richmond 1A module. Grofman Rep. at 78, 126. These unnecessary city and county splits in HB 7002 lead us to favor the Richmond 1A module over the intervenors' proposal.
In contrast to our selected Petersburg and peninsula modules, see Grofman Rep. at 83, 89, 92, 96, the Richmond 1A module does not improve the overall compactness of districts in the region. Grofman Rep. at 76, 78. Although compactness is a traditional districting criterion and a desirable goal, other important considerations in drawing the Richmond-area districts precluded a remedy that offered more compact districts.
We observe that the intervenors assert both that the special master made unnecessarily extensive changes to the 2011 map, but also failed to make enough changes to remedy the identified constitutional violations. These contradictory positions taken by the intervenors underscore the delicate "balancing act" inherent in drawing remedial legislative districts.
For this reason, we decline to adopt the "Richmond 1B" module prepared by Dr. Grofman. The Richmond 1B module proposes substantial changes to non-challenged Districts 72 and 73 that Dr. Grofman concedes "are not required to effectuate a constitutional remedy," but instead improve the compactness of District 72. Grofman Rep. at 8, 73, 141 n.59.
Between Dr. Grofman's two proposed modules for the peninsula, the plaintiffs, NAACP, and Princeton Gerrymandering Project prefer the Peninsula 2 module.
Non-challenged District 91 is not contiguous by land in the Peninsula 2 module. See Dkt. No. 355 Ex. 3. However, Dr. Grofman testified that the district is contiguous by water based on the census block geography underlying the area of water contiguity. See Jan. 10, 2019 Tr. at 38-40; see also Grofman Rep. at 32 n.20, 162. Although water contiguity is not an ideal result, we are satisfied that, under the circumstances, District 91 is sufficiently contiguous in our remedial map to comply with traditional districting criteria. See Wilkins v. West ,
The BVAP levels in invalidated Districts 80 and 89 also decrease in the Norfolk 1A module, but remain above 50%. Grofman Rep. at 101. For the reasons explained above with respect to Districts 77 and 90, we conclude that the redrawn versions of Districts 80 and 89 will not impair black voters' ability to elect their preferred candidates.
Reference
- Full Case Name
- Golden BETHUNE-HILL v. VIRGINIA STATE BOARD OF ELECTIONS
- Cited By
- 4 cases
- Status
- Published