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Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 1 of 176 PageID#
2957
IN THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
OCT 2 2 2015
Richmond Division
CLERK, U.S. DISTRICT COURT

RICHMOND. VA
GOLDEN BETHUNE-HILL,
Plaintiffs,
Civil Action
V.
VIRGINIA STATE
ELECTIONS, ^
No.
3:14cv852
BOARD OF
al.,
Defendants.
MEMORANDUM OPINION
ROBERT E.
PAYNE,
This
case
Virginia
Senior District Judge:
challenges
House
of
Districts")
as
racial
Protection
Clause
Constitution
of
decision following a
presented
oral
constitutionality
Delegates
districts
gerrymanders
of
the
the
the
United
in
States.
(the
violation
Fourteenth
of
"Challenged
of
Amendment
The
case
twelve
is
the
Equal
to
the
ripe
for
four-day bench trial at which the parties
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
presented
by
the
parties.
that
is
the
burden
it
address
In
of
the
several
particular,
the
we
Plaintiffs
legal
have
to
issues
determined
prove
by

2958
preponderance
of
the
evidence
that
race
was
factor motivating the decision to place a
voters
within
each
of
or
without
those
subordinated
race-neutral
and
the
particular
districts,
considerations when
standard
record,
House District 75,
the
we
Virginia's
in
that,
General
as
to
racial
Based on this
concluded
that,
to
Assembly
principles
the district.
have
predominate
significant number of
district
districting
forming
the
except
legal
as
to
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
the
are
satisfied that
creation
of
House
race was
District
the
75.
predominant
However,
we
factor
have
in
also
concluded that, in using race, the General Assembly was pursuing
compelling
state
interest,
namely,
actual
federal
antidiscrimination law,
and that,
General
Assembly used
achieve that
In
the
review
the
provide
race
in
manner
in
compliance
with
the process,
narrowly
the
tailored
to
interest.
Memorandum
procedural
brief
Opinion
that
background
overview
of
of
the
follows,
the
law
case
the
in
relating
Court
will
Section
to
I;
racial
gerrymandering claims in Section II; and set out its findings on

the factual background of the case in Section III.
IV,
In Section
the Court will articulate its understanding of the relevant
legal framework for evaluating racial gerrymandering (or "racial

2

2959
sorting")
claims,
applicability,
set out additional factual findings of general
and conduct a
district-specific
district-by-district analysis with
factual
findings
and
district-specific
application of the relevant legal framework.

I.
PROCEDURAL BACKGROUND
In
the
Assembly
wake
sought
of
to
the
2010
redraw
the
Virginia House of Delegates

("Senate").
census,
legislative
{"House")
legislation
electoral
culture
Virginia
districts
General
for
the
and the Senate, of Virginia
The task of redistricting is one that carries great
political and legal consequence.
such
the
shapes
districts;
of
the
more
it
In a representative democracy,
than
shapes
representatives
the
the
abstract
character,
themselves.
On
boundaries
of
conduct,
and
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
Justice James Wilson,

L.L.D.
433
echo
of
the
voices
of
the
people."
The Works of the Honourable James Wilson,
(Bird Wilson,
ed.. The Lorenzo Press 1804).
The political significance of redistricting is matched only

by
its
legal
legislation
complexity.
must
traverse
Those
a
constitutional and statutory demands
shepherding
precarious
that
are
redistricting
path
often
between
in tension

2960
with
one
another
and
provide
opaque
interpretive
standards
rather than clear rules.
As to the 2011 redistricting,

effort in the House.
Delegate Chris Jones led this
Delegate Jones played an instrumental role
in the 2001 redistricting process and drew upon that experience
to lead the 2011 redistricting efforts.
Pis.'
48:21;
Because Virginia was
Trial Tr.
272:24-274:7
(Jones).
Ex.
35 at 46:18a
covered jurisdiction under Section 4 of the Voting Rights Act of

1965
("VRA")
prepared,
Section
at
and
5 of
the
was
time
the
therefore
the VRA,^
redistricting
subject
(Docket No.
to
83),
legislation
the
it
was
requirements
was
of
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
425 U.S.
the
125,
statutory
electoral
141
franchise."
(1976).
command.
Delegate
Beer v.
United States,
In an attempt to comply with this
Jones
crafted
plan
containing
twelve majority-minority House Districts ("HDs" or "Districts"}.^

These are the Challenged Districts:
77,
80,
89,
90,
^ See 52
92,
HDs 63, 69, 70, 71, 74, 75,
and 95.
U.S.C.
10303(b)
(formerly cited as 42 U.S.C.
1973b(b)).
^ "Majority-minority" districts are those with a racial or

ethnic minority population above 50% of the district's total
population.

2961
On
the
of
December 22,
Virginia
State
Elections,
capacities
Districts
2014,
Board
and
Plaintiffs
of
various
Elections,
members
("Defendants"),
were
Protection
racial
Clause
declaratory
and
implementing
or
alleging
the
injunctive
relief
conducting
twelve
United
of
the
in
Virginia
in
violation
of
the
and
Equal
seeking
Defendants
elections
States
official
Challenged
Amendment
1.)^
Department
their
the
prohibiting
further
(Docket No.
Complaint against
that
Fourteenth
Challenged Districts.
citizens
the
thereof
gerrymanders
of
filed a
based
from
on
the
The Plaintiffs are
and
the
Commonwealth
of
Virginia who are lawfully registered voters in the Commonwealth

and
each
of
Districts.
whom
resides
in
(Docket No. 83.)
one
of
the
twelve
Challenged
The Plaintiffs requested that the
case be heard by a three-judge district court pursuant to 28

U.S.C.
the
2284(a)
on
the grounds that the action "challeng[es]
constitutionality
of
the
statewide legislative body."
apportionment
(Docket No. 1.)
of
[a]
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
^ Plaintiffs filed a Corrected Amended Complaint on June 16,
2015
after one of the original plaintiffs
(Docket Nos.
66 & 71.)
changed residences.

2962
intervene
in
granted.
the
case.
(Docket No.
(Docket
No.
12.)
Because
motion
was
26.)
A four-day bench trial began on July 7,

99-102.)
That
the
Defendants
are
2015.
(Docket Nos.
"administrative
agencies
that implement elections" but "do not draw the districts," Trial
Tr.
12:14-25
Intervenors
(Defendants),
Intervenors'
arguments at the close of the case,
id.
For
reference,
referred to as
II.
the
the
burden
the
of
allowed
but
of
carry
Defendants
litigation
ease
to
the
Defendants
and
the
joined
the
at 830:2-3.
Intervenors
will
be
Intervenors.
BASIC OVERVIEW OP RACIAL GERRYMANDERING CLAIMS
Before
substance
proceeding
of
constitutional
this
and
to
the
facts
litigation,
statutory
gerrymandering claims
of
the
brief
requirements
is appropriate.
case
and
the
overview
of
the
pertinent
to
racial
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"
Yick Wo V.
Sims,
because
Hopkins,
the Court
118
it
U.S.
is
"preservative
356,
recognized that
370
(1886).
"the right
of
In
all
rights."
Reynolds
v.
of suffrage can be
denied by a debasement or dilution of the weight of a citizen's
vote
just
as
effectively
as
by
6
wholly
prohibiting
the
free

2963
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,
right
555
(1964).
Because
legislation
affecting
the
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,
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.

The decision in Reynolds only required state legislatures
to comply with the equal population standard, but its language

would
come
Fortson
v.
to
stand
Dorsey,
for
the
something more.
Court
suggested
The
that
next
year,
in
"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."

Fortson,
379 U.S. 433, 438-39 (1965).
With
the Supreme Court first recognized that redistricting
legislation may offend Equal Protection Clause principles when

it distinguishes between voters on a racial basis.
Over
types
of
Amendment:
time,
racial
(1)
the
Supreme
Court
gerrymandering
claims
of
has
claims
racial
vote
come
to
under
recognize
the
dilution,
two
Fourteenth
where
the

2964
redistricting
legislation
is
"conceived
purposeful
devic[e]
to
further
minimizing,
canceling
out
or
racial elements
U.S.
613,
claims
617
of
"though
(1982)
racial
sorting,
understood as
anything
where
on
districts
the
[a]
discrimination
by
voting
strength
I),
649
630,
redistricting
face,
than
on
sufficient
the
its
other
separation lacks
509 U.S.
diluting
as
Lodge,
the
an
basis
of
to
(2)
legislation,
rationally
effort
of
458
(internal quotation marks omitted); and
neutral
different
racial
operated
in the voting population," Rogers v.
race
into
or
cannot
be
separate voters
race,
justification," Shaw
and
v.
that
Reno
the
(Shaw
(1993) .
A. Racial Vote Dilution and the Fourteenth Amendment
The Supreme Court

for
unconstitutional
412 U.S.
755
first
racial
(1973).
There,
struck down a districting scheme
vote dilution
in White v.
Regester,
the Court stated:
The
plaintiffs'
burden
is
to
produce
evidence
to
support
findings
that
the
political processes leading to nomination
and
election
participation
that
did
its
were
not
equally
by
the
group
members
had
less
other
residents
in
in
open
opportunity
the
district
participate in the political processes

to elect legislators of their choice.
412 U.S.
at 765-66.
claim required a
At the time,
to
question
than
to
and
it was unclear whether such a
showing of discriminatory intent or could be
maintained based solely on discriminatory effect.
Several years later, in City of Mobile v. Bolden, the Court

8

2965
suggested in a plurality opinion that both discriminatory intent

and discriminatory effect were required to establish a
unconstitutional
racial
vote dilution.
446
U.S.
55,
claim of
66
(1980).
That holding was reaffirmed by a majority of the Court in Rogers
V.
Lodge,
458
U.S.
613
(1982).
Writing
for
the
majority,
Justice White confirmed that "a showing of discriminatory intent
has
long been
required
in
all
types
charging racial discrimination."

Therefore,
in
of equal
protection cases
Rogers, 458 U.S. at 617.
constitutional
racial
vote
dilution
case,
the plaintiff must show that the State has placed a burden upon
the right to vote by intentionally establishing or maintaining

devices or procedures that cause minority citizens to have less
opportunity than other citizens to participate in the political

processes
and
to
elect
legislators
of
their
choice.
This
dilutes the minority voter's ability to exercise the "full and

effective" right to vote.
B. Racial Sorting and the Fourteenth Amendment
The
sorting
other
claim
strand
such
of
as
"racial
the
one
gerrymandering"
presented
in
this
case
"analytically distinct" from a vote dilution claim.

Johnson,
515
claim alleges
device
U.S.
that
900,
911
the
(1995).
State has
"Whereas
enacted a
is
Miller v.
vote
racial
dilution
purposeful
^to minimize or cancel out the voting potential of racial
or ethnic minorities,'
the essence
of
(a
racial
sorting

2966
claim] is that the State has used race as a basis for separating
voters into districts."
In
Shaw
legislative
1,
the
Id.
(internal citations omitted).
Supreme
districts.
Court
509
U.S.
"Rorshach ink-blot test" or a
faced
at
two
patently
635.
One
"bug splattered on a
bizarre
resembled
windshield,"
while the other was "even more unusually shaped":
[The district]
is approximately 160 miles
long and, for much of its length, no wider
than
the
snakelike
financial
1-85
corridor.
It
winds
in
fashion through tobacco country,
centers,
and manufacturing areas
until it gobbles in enough enclaves of black

neighborhoods.
Northbound and southbound
drivers on 1-85 sometimes
separate
"trade"
districts
districts
in
find
one
when
themselves
county,
they
enter
only
the
in
to
next
county. Of the 10 counties through which

District 12 passes,
5 are cut into 3
different districts;
even towns are divided.
At one point the district remains contiguous

only because it intersects at a single point
with
two
other
districts
before
crossing
over them. One state legislator has remarked
that "if you drove down the interstate with

both car doors open, you'd kill most of the
people in the district."
Id.
at
635-36
omitted).
(citations
and
some
internal
quotation
marks
Although the text of the legislation was facially
neutral, the Court found that "it rationally can be viewed only
as
an
effort
to
segregate
the
races
for
purposes
of
without regard for traditional districting principles."

642.
10
voting,
Id.
at

2967
For
that
reason,
of
rather
than
requiring
discriminatory
the
purpose
plaintiffs
and
to
present
evidence
discriminatory
effect,
the Supreme Court treated the legislation as tantamount
to a suspect facial classification and employed strict scrutiny.

Id.
at
642-43
suspect
("Express
because,
racial
absent
classifications
searching
simply no way of determining what

or
^remedial'
and what
illegitimate
politics.
notions
Amendment
of
racial
Accordingly,
among
are
inquiry,
in
inferiority
there
is
^benign'
fact motivated by
or
simple
racial
we have held that the Fourteenth
state
legislation
citizens
immediately
classifications are
classifications
requires
distinguishes
judicial
are
because
of
that
expressly
their
race
to
be
narrowly tailored to further a compelling governmental interest.

These principles
apply not
only
to
legislation
explicit racial distinctions, but also to those

that,
on
although race neutral,
grounds
other
than
Heights v. Metro. Hous.
are,
race.'")
on their face,
(quoting
contains
'rare'
statutes
'unexplainable
Vill.
Dev. Corp., 429 U.S. 252
that
of
Arlington
(1977)).
In order to prove a racial sorting claim, a plaintiff must

show
that
neutral
the
legislature
districting
"subordinated"
principles
in
traditional
crafting
the
district's
boundaries:
The plaintiff's burden is to show, either

through
circumstantial
evidence
of
a
district's
shape and demographics or more
11
race-

2968
direct evidence going to legislative purpose,

that
race
was
the
predominant
factor
motivating
the
legislature's
decision
to
place a significant number of voters within
or without a particular district.
To make
this showing, a plaintiff must prove that the
legislature
subordinated
traditional
raceneutral districting principles, including but
not limited to compactness, contiguity, and
respect
for
political
subdivisions
or
communities
defined
by
actual
shared
interests, to racial considerations.
Miller,
515
standard
U.S.
is
"a
at
916
demanding
(emphasis
one."
added).
Indeed,
This
the
threshold
Plaintiffs
must
overcome a presumption that the legislature acted correctly and
in good faith.
State
has
Id.
relied on
Thus,
race
the plaintiff "must show that the
in
substantial
and traditional districting practices."

J.,
disregard of customary
Id.
at
928
(O'Connor,
concurring).
If
the
plaintiff
makes
the
requisite
showing,
the
State
must demonstrate that the redistricting legislation is narrowly

tailored
to
advance
compelling
state
interest.
In
redistricting cases where the State claims a compelling interest
in compliance with the VRA,

had a
"strong basis
based districting.
135 S.
must
Ct.
have
the legislature must show that it
in evidence"
to support
its use of
race-
Alabama Legislative Black Caucus v. Alabama,
1257,
1274
(2015).
"good
reasons
to
In other words,
believe"
that
its
the legislature
use
of
racial
classifications was "required" by the VRA, "even if a court does
12

2969
not
find
that
the
actions
compliance" after the fact.
were
necessary
for
statutory
Id. at 1274.
C. The Voting Rights Act
In
addition
redistricting
to
these
legislation must
constitutional
imperatives,
also comply with
the VRA.
"The
Voting Rights Act was designed by Congress to banish the blight

of
racial
discrimination
Katzenbach,
Ala.
V.
383
Holder,
Congress'
301,
133
S.
voting[.]"
308
Ct.
(1966)
2612
South
Carolina
133
S.
adopting plans
Section 2
or -
Ct.
at
that
(2013).
2619-21,
would
in
covered
of
the
v.
abrogated by Shelby Cnty.,

Enacted
pursuant
enforcement powers under the Fifteenth Amendment,
Shelby Cnty.,
from
U.S.
in
the
result
VRA prohibits
in
jurisdictions
vote
-
to
see
states
dilution
under
retrogression under
Section 5.''
Section
electoral
practice
or
VRA
prohibits
procedure
that
the
imposition
"results
in
of
any
denial
or
abridgement of the right of any citizen . . . to vote on account

of
race
violation
or
color
occurs
when,
."
52
based on
U.S.C.
the
10301(a).
totality of
circumstances.
In Shelby County, the Supreme Court struck down the

coverage formula in Section 4, thereby drawing into question the
status
of
covered
jurisdictions'
Section
5
compliance
obligations until such time that Congress enacts a new coverage
formula.
133
S.
Ct.
at
2631.
At
the
time
the
redistricting
plan at issue was developed and enacted, however, compliance

with Section 5 was still a necessary consideration in Virginia's
districting process.
See Alabama, 135 S. Ct. at 1263.
13

2970
the political process results in minority "members hav[ing]

opportunity than other members
less
of the electorate to participate
in the political process and to elect representatives of their

choice."
52 U.S.C.
effect"
prove
language
10301(b).
from
Regester
discriminatory
created
statutory
plaintiffs who
racial
vote
Shaw I,
intent
be
dilution
dilution of a
required
test"
otherwise
under
509 U.S. at 641
and omitting
as
"results
might
Voting Rights Act
By adopting the "discriminatory
the
unable
Equal
("In 1982,
to prohibit
that
any
by
Lodge,
could
to
requirement
be
[Congress]
Congress
brought
bring a
Protection
voting
by
claim of
Clause.
See
amended 2 of the
legislation that results
minority group's
to
strength,
in the
regardless
of
the legislature's intent.").
In order to prove a 2 violation, a plaintiff must satisfy
three
bloc
prerequisites:
voting.
demonstrate
compactness,
"First,
that
it
the
is
political
minority
group
sufficiently
large
cohesiveness,
must
and
be
able
and
to
geographically
compact to constitute a majority in a single-member district."

Thornburg
minority
v.
Ginqles,
group
cohesive."
Id.
must
at
478
be
51.
U.S.
able
to
"Third,
30,
50
show
(1986).
that
it
"Second,
is
the minority must
the
politically
be
able
to
demonstrate that the white majority votes sufficiently as a bloc

to enable it -
in the absence of special circumstances,
the minority candidate running unopposed 14
such as
usually to defeat the

2971
minority's preferred candidate."

are
often
Once
referred
these
to
Id.
collectively
prerequisites
have
These final
as
"racial
been
two factors
polarization."
satisfied,
the
court
evaluates the plaintiff's evidence based on the totality of the

circumstances.
with
The totality of circumstances must be considered
focus
on
whether
the
minority
denied "equal political opportunity."

U.S.
997,
1014
group
in
Johnson v.
"natural
number
floor"
of
based
districts
maintain
an
of
on
wherein
"equal
representatives
sufficiently
was
De Grandy,
514
(1994).
With respect to redistricting legislation,

a
question
the
State's
members
political
and
demographics
a
minority
for
group
opportunity"
their choice."
large
of
2 establishes
to
the
must
"elect
Where a minority group is
geographically compact
to
constitute
numerical majority in a hypothetical district, 2 requires the

creation
of
district
wherein members
of
that
group maintain
the equal ability to elect representatives of their choice.

Bartlett
v.
Strickland,
556
U.S.
1,
13
(2009).
Proving
See
this
hypothetical requires the plaintiffs to present an alternative

redistricting plan.
See Reno v.
U.S.
("Because the very concept of vote dilution
471,
implies
480
and,
'undiluted'
measured,
(1997)
indeed,
Bossier Parish Sch.
necessitates
the
Bd.,
existence
of
520
an
practice against which the fact of dilution may be

a
plaintiff
must
15
also
postulate
reasonable

2972
alternative
voting
practice
to
serve
as
the
the
other
hand,
purpose"
as
benchmark
'undiluted' voting practice.").

Section
of
the
changes
with
"any
changes
that
diminish
race,
color,
or
VRA,
on
discriminatory
the
language
ability
minority
preferred candidates of choice."

2621.
Sections
application.
and
Section
specified by Congress
procedures.'"
Beer,
well
citizens,
status,
on
"to
Shelby County,
"differ
applies
and
of
forbids
in
only
certain
as
account
133 S.
of
their
Ct.
purpose,
at
and
jurisdictions
ônly to proposed changes
in voting
Holder v. Hall, 512 U.S. 874, 883 (1994)
425 U.S. at 138)
voting
elect
structure,
in
voting
{quoting
(emphasis added).
Section 5 was enacted as "a response to a common practice
in some jurisdictions of staying one step ahead of the federal

courts by passing new discriminatory voting laws as soon as the
old
ones
had
been
struck
down."
Beer,
425
U.S.
at
140.
By
requiring that proposed changes be approved in advance. Congress

sought
" ^to
shift
the
advantage
of
time
perpetrators of the evil to its victim,'
and
by
inertia
from
the
'freezing election
procedures in the covered areas unless the changes can be shown

to be nondiscriminatory.'"
pp.
57-58
(1970)).
Id.
(quoting H.R.
Rep.
No.
94-196,
The purpose of this approach was to ensure
that "no voting-procedure changes would be made that would lead
to a
retrogression
in
the
position of racial minorities with

16

2973
respect to their effective exercise of the electoral franchise."

Holder,
512 U.S.
at 883.
"Retrogression,
by definition,
requires
comparison
jurisdiction's new voting plan with its existing plan.
of a
It also
necessarily implies that the jurisdiction's existing plan is the

benchmark
against
which
Reno,
520 U.S.
measured."
of
standard
ensuring
equal
of
creates
existing benchmark plan.
the
at
êffect'
478.
ability
a
of
voting
Unlike the
to
elect,
"relative
is
"natural floor"
the
floor"
changes
retrogression
based
upon
the
Under 5, the State must ensure that
the new plan does not "lead to a retrogression in the position
of racial minorities with respect to their effective exercise of
the electoral franchise" by diminishing the ability of minority

voters to elect their preferred candidates of choice as compared
to the State's existing plan.
Therein
lies
the
command (the VRA),
rub.^
To comply with
federal
statutory
the State must consider and account for race
in drawing legislative districts in order to craft a compliant

plan.
State
However, to avoid violating the federal constitution, the

must
not
subordinate
traditional,
neutral
principles
to
racial considerations in drawing district boundaries.
^ Apologies
William
to
Shakespeare,
Shakespeare
Hamlet,
Act
there's the rub.").

17
for
3,
the
misquotation.
Scene
1,
3:66
See
("[A]y,

2974
And,
"one
in
at the same time,
person,
one
Reynolds
v.
constitutional
Sims.
redistricting
predominance
vote"
That,
principle
inquiry,
constitutional
central
to
of
to
as
federal
the
the State must also comply with the
course,
be
is
makes
requirement
part
clear.
But
of
and
specified
traditional
as
that,
process
as
not
weighed
Alabama
redistricting
requirement
of
the
it
is
necessity,
that
is
a
is
highly
instrumental in the drawing of district boundaries.

It
is within
the context
of
this
legal
framework
that
the
Virginia General Assembly sought to design and enact a compliant

redistricting
resolution of
plan.
this
And
these
principles
are
central
to
the
case.
Before proceeding to the facts of the case, the Court feels

it necessary to pause and recognize that Delegate Jones, members
of the redistricting committee,
and other legislators involved
in
of
the
benefit
crafting
of
either
and
amendment
the
Supreme
HB
Court's
5005
did
guidance
not
in
have
the
the
recent
Alabama decision or the guidance provided in the opinion entered

here today.
record,
Based on the evidence and testimony provided in the
the Court believes that all of the legislators involved
proceeded
in
good
faith
attempt
to
constitutional and statutory demands,

the
time.
18
comply
with
all
relevant
as they understood them at

2975
Ill. Factual Background
A. The 2011 Redistricting Process

The
before
first
the
steps
in
the
United States
redistricting
process
Census
Bureau
released
and demographic data.
Trial Tr.
273:11
(Jones).
2010,
Cole
Delegate
subconunittee of
and
Elections
throughout
the
Mark
announced
the House of
had
scheduled
Commonwealth
redistricting process.
that
began
its
series
to
solicit
(Docket No. 85.)
of
the
six
input
population
On August 23,
redistricting
Delegates Committee on
a
well
Privileges
public
into
hearings
the
House
These public hearings
were held between September 8, 2010 and December 17, 2010.

Trial Tr. 273:14-19
McDonnell
signed
creating
the
(Jones).
Id.;
Following these hearings. Governor
Executive
Order
"Independent
31
Bipartisan
on
January
Advisory
10,
2011,
Redistricting
Commission" ("Governor's Commission") to develop plan proposals,
review
public
input,
and
analyze
stakeholders in the voting public.
recommendations
from
(Docket No. 85.)
Redistricting began in earnest in
February 2011 when the
2010 census data was released via Public Law 94-171.

276:4-21
(Jones).
Privileges
On March
and Elections
25,
2011,
adopted a
other
the
House
Trial Tr.
Committee
resolution setting out
on
the
The initial data released on February 3, 2011 contained an

error.
A corrected data set was provided a few weeks later.
Trial Tr.
276:4-21
(Jones).
19

2976
criteria
that
the
committee
redistricting plans.
Pis.'
established six criteria,
would
Ex.
48
at
follow
6.
in
The
reviewing
House Committee
which were as follows:
I.
Population
Equality:
The
population
of
legislative districts shall be determined
solely
according
to
the
enumeration
established by the 2010 federal census.
The
population of each district shall be as
nearly equal to the population of every
other district as practicable.
Population
deviations in House of Delegates districts
should be within plus-or-minus one percent.
II.
Voting Rights Act:

in
accordance
States
and
Districts shall be drawn
with
the
the
laws
of
Commonwealth
the
of
United
Virginia
including
compliance
with
protections
against the unwarranted retrogression or
dilution of racial or ethnic minority voting
strength.
be
Nothing in these guidelines shall
construed
to
require
or
permit
any
districting
policy
or
action
that
is
contrary to the United States Constitution
or the Voting Rights Act of 1965.
III. Contiguity and Compactness: Districts shall

be
comprised
of
contiguous
territory
including
adjoining
insular
territory.
Contiguity
by
water
is
sufficient.
Districts shall be contiguous and compact in
accordance with the Constitution of Virginia
as interpreted by the Virginia Supreme Court

in
506
the
cases
(1992)
of
Jamerson
and Wilkins v.
v.
Womack,
West,
244
Va.
264 Va.
447
(2002) .
IV.
Single-Member Districts: All districts

be single-member districts.
V.
Communities
based
on
of
Interest:
legislative
Districts
consideration
shall
shall
of
be
the
varied factors that can create or contribute

to communities of interest.
These factors
20

2977
may include, among others, economic factors,

social factors, cultural factors, geographic
factors,
governmental
jurisdictions
and
service delivery areas, political beliefs,
voting
trends,
and
incumbency
considerations.
.
.
.
Local
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.
VI.
Priority:
All of the foregoing criteria
shall
be
considered
in
the
districting
process,
but
population
equality
among
districts and compliance with federal and
state constitutional requirements and the
Voting Rights Act of 1965 shall be given

priority in the event of conflict among the
criteria.
Where the application of any of
the foregoing criteria may cause a violation

of applicable federal or state law, there
may be such deviation from the criteria as
is necessary,
but no more than is necessary,
to avoid such violation.
Pis.'
Ex.
16.
criteria
cycle,
These criteria were substantially similar to the
adopted
by
the
committee
with two exceptions.
in
Ints.'
the
Ex.
2001
27.
redistricting
First,
the 2001
criteria had permitted a population deviation of "plus-or-minus

two
percent,"
stated
vote
was
rather
altered
[standard]
275:10-19
include
Virginia
in
(Jones).
citation
in
Wilkins
than
to
one
better
the
percent,
"approximate
Virginia
the
to
decision
v.
Compactness" criterion.
West
as
2001
part
criteria
of
of
Id. at 275:13-15.
21
the
Delegate
the
the
Jones
one-person-one-
constitution."
Second,
the
which
were
Supreme
Trial
Tr.
updated
to
Court
of
"Contiguity
and

2978
B. The 55% Black Voting Age Population Floor
At
the
Challenged
ranging
below
the
Districts
from 4 6.3%
55%.
believed
the
time
2001
All
that
the
redistricting
had
to
black
62.7%.
others
were
twelve
redistricting
process
voting-age
began,
populations
twelve
("BVAP")
Three of the districts had BVAPs

above
55%.
Several
"ability-to-elect"
plan
the
(or
legislators
districts
"Benchmark
Plan")
found
in
needed
to
contain a BVAP of at least 55% in the 2011 redistricting plan to
avoid "unwarranted retrogression" under Section 5 of the VRA and
to comply with Criterion II of their own redistricting rules.

The existence of a
fixed racial threshold can have profound
consequences for the Court's predominance and narrow tailoring
inquiries in a racial sorting claim, so a substantial amount of

time at trial was devoted to questions related to this factual
topic.
However,
the most important question - whether such a
figure was used in drawing the Challenged Districts disputed.
was not
Rather, the parties disputed whether the 55% BVAP was
an aspiration or a target or a rule.
In the end,
it is not
relevant whether the 55% BVAP was a rule or a target because all
the parties
figure
whether
was
agree used
the
in
and the Court
finds
that the
structuring the districts
redistricting
plan
22
satisfied
and
55%
BVAP
in assessing
constitutional

2979
standards and the VRA,
and whether the plan would be precleared
by the Department of Justice

At trial,
dominated
included
two additional questions regarding the 55% figure
the
or
("DOJ")
discussion.
excluded
census process as
First,
those
who
whether
identified
the
BVAP
themselves
figure
in
ethnically Hispanic and racially black.
the
And
second, what the source of the 55% BVAP figure was.
The parties hotly debated whether
the
appropriate measure
of BVAP used in the redistricting process did or did not include

individuals
who
identified
^ Plaintiffs
as
introduced a
e-mail communications
rather than HB 5005.
racially
black
and
ethnically
fair amount of evidence,
such as
and floor debate, pertaining to HB 5001

For some purposes, such as whether the
drafters employed a 55% rule during redistricting, the evidence

pertaining to HB 5001 is equally relevant to HB 5005.
See
Ints.'
Ex.
7 at
3-8
("[MR.
ARMSTRONG:]
In order
for me not to
have to go through the extensive dialogue we did here the other

day on HB 5001, I would ask the gentleman would . . . his
answers to my questions per HB 5001 essentially be applicable to
HB 5005?
I
[MR. JONES]: Mr. Speaker, I would say to the gentleman
would believe that will be correct.
[MR.
ARMSTRONG]:
thank
the
gentleman
for
allowing me to
streamline
the
questions.").
For other purposes, such as whether the 55%
threshold
impacted
a
particular
boundary,
the
evidence
pertaining to HB 5001 cannot necessarily be applied to HB 5005.
Compare
Pis.'
Ex.
30
at
(e-mail
from
Delegate McClellan
to
Richmond Registrar Kirk Showalter regarding HB 5001, stating

"[T]he changes we discussed . . . would have pushed the [BVAP]
in
the
71st
District
down
to
54.8%.
The
target
criteria
was
55%, so the change can't be made.") with Ints.' Ex. 7 at 2-3

(floor testimony from Delegate Jones regarding HB 5005, stating,
"There was a request made by the registrar of Richmond City
working with the gentlewoman from Richmond to make some
adjustments to those boundaries, and we did split a precinct in

anticipation of moving a polling place this fall for the
upcoming elections.").
23

2980
Hispanic in the census data.

dispute
was
that,
black population
if
black
count,
The supposed importance of this

Hispanics
three
of
the
were
excluded
Enacted
from
the
Plan's majority-
minority districts would actually contain a BVAP percentage just

shy
of
55%.
Trial
(Intervenors).
finding
That,
Tr.
280:24-281:10
(Jones);
according to Intervenors,
that there was not a
55% BVAP floor
862:4-7
would support a
in deciding on the
twelve Challenged Districts.
The
the
record
shows
55% BVAP floor
that delegates
attempting to comply with
submitted their proposed changes using data
that included black Hispanics in the BVAP count.

33
at
46;
(Dance);
Ints.'
claimed
figure
this
Trial Tr.
40:10-25
Pre-Trial Brief at 8.
to personally
excluding
was
not
delegates,
(McClellan);
that
black Hispanics,
id.
believe
distinction
at
that
427:1-428:16
Trial
Tr.
Although
the
Trial
he
See Pis.'
use
286:8-16
discussed
& 490:2-4,
68:23-69:2
Delegate Jones
DOJ would
Tr.
Ex.
with
and
he
BVAP
(Jones),
any
other
repeatedly
asserted on the House floor that all majority-minority districts
in the proposed legislation had a BVAP of 55% or higher.

Ex.
35 at 42,
66,
108.
its
preclearance
Virginia,
in
represent
that all
least
BVAP.
be
55%
the
case.
Moreover,
Delegate Jones "assumed" that
submissions
to
the
12 majority-minority districts
Trial Tr.
Pis.'
Ex.
447:6-8
48
at
24
Pis.'
(Jones).
11
("All
This
12
DOJ,
would
contained at
turned out
black
to
majority

2981
districts were maintained
with greater than
55%
black VAP
a range of 55.2% to 60.7%.").

At
the
trial,
Division
show
that
of
The
spreadsheet
population by race,
at
13.
Services
Hispanics
in each column,
by ethnicity,
relied on
Legislative
including
erroneous.
and,
Intervenors
in
spreadsheet
("DLS")
the
contains
in
BVAP
rows
an
attempt
count
of
data
contains metrics such as
the
racial
and ethnic
would
be
by district
racial population by percentage,
adding
to
total population,
and ethnic population by percentage.
After
prepared by
population
Pis.'
population
Ex.
60
totals
column by column, the Intervenors dramatically revealed that the

number exceeded that of the district's total population.
Tr.
on
282:10-286:7
(Jones).
the part of the
measures a
data
are
But this exercise
Intervenors,
not
not
meant
to
be
added
in
reflects an error
DLS.
different variable than race,
Because ethnicity
the racial and ethnic
the
first
removes the ethnicity column from the count

that
Hispanic
their
figure
individuals
respective
is
Hispanics
racial
corrected.
who
are
black population
of any
columns),
That
racially
count
does
black
because
race
are
then
not,
place.
one
already counted
total
however,
so would
in
population
imply
excluded
that
from
the
undercount
the
number of black individuals in the BVAP percentage.
25
If
(on the assumption
the
should be
to do
Trial

2982
The
census
need
record
only
to
shows
has
craft
that
the
redistricting
ethnic
implications
majority-Hispanic
plus-Hispanic"
(or
data
districts
"coalition")
provided
by
the
in
states
or
majority-"black-
districts.
In
that may
states
such
as
Virginia, on the other hand, black Hispanics would count towards

the
total
black
purposes.
That
Id.
numbers
to
be
responses
races
(for
which
example,
alternatively
to
the
Latino
Pis.'
Ex.
9 at
category."
applies
7472-7473).
to
situations
"black-plus-Hispanic,"
individuals
would
avoid
district.
with
report
American),
at
district
as
either
counting
Trial Tr.
in
Latino
who
category
and
{admittedly
one
list
be
the
Reg.
Vol.
the
would
case
counting
black or
Hispanic
in
those
individuals
9,
presumably
be
majorityHispanic
alternating
(Ansolabehere).
race
(Feb.
black
twice
as
allocated
27
approach
more
race
minority
"alternating"
district
or
their
will
and
(76 Fed.
which
757:1-12
(Ansolabehere).
DOJ's
responses
4-5
where
the
retrogression
"If there are significant
Latinos
those
This
for
& 752:17-754:17
consistent
Black/African
2011)
guidance on this question:
of
minority
of
at 747:14-749:12
appears
confusing)
population
in
fashion
the
Thus,
same
the Court
finds that the proper count includes black Hispanics within the
BVAP percentage of each majority-minority district.
This method
The Court recognizes that "Hispanic" and "Latino" are not

interchangeable designations but has
unfortunate conflation by the record.
26
been
forced
into
this

2983
of counting results in a BVAP above 55% for all twelve majority-
minority districts,
Regardless,
heat
than
were
ranging from 55.2% to 60.7%.
this
light.
minute,
debate
The
and
like the
actual
both
first
differences
parties
in
generated more
BVAP
eventually
percentages
agreed
that
distinction was not one of great legal significance.

816:5-9
(Plaintiffs)
calculate[d]
...
what we call
it.
was
or
53
that
or
54
way,
it
(Intervenors)
is
55
("Do
is
isn't
significant
between
simply irrelevant,
or
just
in
distinction
They used a
numbers
a
("The
56,
matter.")
believe
the
reality
in
[these
are]
and whether that
and
difference
meaningful
how
you measure
doesn't
See id. at
and i t doesn't matter
racial target,
whether
the
this
id.
at
way or
862:8-11
between
actual
difference one way or
it
these
reality?
the
two
No,
other,
it
let's
be
candid.").
Unlike
question
legal
the
first
two
i.e.,
the
source
significance.
Delegate
Dance
questions,
of
Testimony
testified
the
the
55%
on
this
that
her
answer
rule
to
can
question
the
third
carry great
is
understanding
muddle.
came
from
Delegate Jones and that the 55% figure was necessary in order to
achieve
from
DOJ
the
approval,
House
understanding,
least
voting
id.
floor
see Pis.'
at
70:18-23
appears
Ex.
to
represent
33 at 45
African-Americans[.]").
27
(Dance),
but
it
her
as
speech
her
own
("[W]e need 55 percent at

Delegate
McClellan

2984
understood the committee's adopted criteria to require "each of

the majority-minority districts . . .
population
of
at
least
(McClellan),
and
"[t]hrough
conversations
55
to have a black voting-age
percent,"
testified that
she
with
came
her understanding came
90-2,
Ex.
B at
"as far as
57:5-8),
[he]
Delegate
98:1-2
Jones
from
Tr.
this
understanding
Jones
and
424:1-4
Delegate Spruill,
{Docket No.
the number was almost pulled out of

(Armstrong).
initially
(Jones)
indicated to us
candidate
of
that
their
with
Delegate Tyler testified
testified
that
the
figure
drawn from the public hearings held with the community.

at
33:1-4
and Delegate Armstrong testified that,
could tell,
thin air," Trial Tr.
to
Delegate
Legislative Services," id. at 33:6-8.

that
Trial
(55%
BVAP
they
felt
choice");
"is
what
would allow
id.
at
the
429:8-9
See id.
community
them to
("That
testimony that we heard during the public hearings.").
was
had
elect
the
was
the
Although
this testimony is consistent with his prior statements from the

House
floor,
support it.
see Pis.'
Ex.
At trial,
Delegate Jones admitted that he had not
read the transcripts
35 at 72,
the trial
record does not
from every hearing and could not
single instance of a member of the public requesting a

level.
Trial Tr.
442:18-443:9
(Jones).
Moreover,
recall
55% BVAP
most of these
hearings were transcribed and submitted as evidence.
A review
of the public hearing transcripts from the Fall of 2010 fails to

28

2985
reveal
any
mention
of
the
55%
figure.
See
Pis.'
Exs.
3-6,
55%
figure
came
from
Ints.' Ex. 1.
Delegate Jones also claimed that the
"Delegate
or
two
Dance,
othe[r]
Trial Tr.
Dance,
and
431:4-7
Tyler,
questioning,
that
and
Delegate Tyler,
African-American
(Jones).
and
Delegate Spruill,
members
of
and one
the
This was then narrowed to Delegates
Spruill.
Id.
at
490:5-13.
After
further
the 55% figure appears to have come from feedback
Delegate Spruill received from various groups in Virginia

from concerns
that
Delegate
her seat in HD 75 with a
495:1.
In
discussing
Delegate Jones
Tyler would be
unable to hold
lower BVAP percentage.
Delegate McClellan's
indicated that,
while
Id.
seat,
at 494 : 6-
by contrast.
"no one" was
leaving the BVAP percentage in HD 71 at 46%,
comfortable
"they felt that we
needed to have a performing majority-minority district,

the
House."
members
that
spoke
to,
they
north of 50 percent minimum."
Based
forth
on
below,
the
finds
that
it
needed
to
be
Id. at 293:6-16 {emphasis added).
foregoing
the Court
felt
and from
testimony,
-
based on
and
the
the
evidence
record
set
presented -
that the 55% BVAP floor was based largely on concerns pertaining
There
is,
admittedly,
one
comment
made
regarding
the
maintenance of 55 percent voting strength during a public

hearing held on April 4, 2011, Pis.' Ex. 31 at 20, but this was
the same day that the Joint Committee reported out a substitute
for
HE
5001,
floor was
(Docket
No.
85
at
3) .
in effect well before this

29
In
other
words,
the
lone comment was offered.
55%

2986
to
the
re-election
received
from
of
Delegate
Delegate
Tyler
Spruill
Delegates Dance and Tyler.
in
and,
HD 75
to
and on
feedback
lesser
extent.
That figure was then applied across
the board to all twelve of the Challenged Districts.

C. The Passage and Enactment of HB 5005
During
the
redistricting
process,
the
General
Assembly
initially considered three plans: HB 5001, HB 5002, and HB 5003.

HB 5001 was
HB
5002
the plan
and
HB
designed and proposed by
5003,
on
the
other
hand,
Delegate Jones.
were
designed
by
university students and proposed by other members of the House
of
Delegates.
Jones,
HB
contained
5002
Id.
at
paired
376:24-378:9.
According
somewhere between
six majority-minority
population deviation.
Id.
at
40
districts,
and
and
378:10-379:4.
to
48
Delegate
incumbents,
had over
HB 5003,
9%
on the
other hand, paired somewhere between 32-34 incumbents, contained

nine or ten majority-minority districts,
the
population
deviation
criteria.
and also did not meet
Id.
at
379:8-17.
The
Governor's Commission also designed two plans that contained 13

and 14 majority-minority districts,
plans
were
never
formally
respectively; however,
introduced
or
proposed.
those
Id.
at
379:18-380:11.
Once
the
House
was married with
ready
for
had
the
passage
coalesced
Senate's
and
5001
and
the
redistricting plan,
the
bill was
enactment.
30
around
On
HB
April
12,
2011,
plan
the

2987
Virginia
General
Assembly
passed
HB
5001.
(Docket
Based largely upon objections to the Senate plan,

Governor
Ints.'
plan
Ex.
Robert
Ex.
McDonnell
10.
After
and more
HB
5001
relatively minor
substantial
48 at 10,
vetoed
revisions
the
House
Senate plan.
Pis.'
the legislature passed HB 5005,
to
comply
Commonwealth
with
then
its
obligations
submitted the
the DOJ for preclearance.

June 17, 2011,
which was signed
(Docket No.
under
Enacted
2011,
(Docket
Plan
(or
the
VRA,
the
"the
Plan")
to
Id.
The DOJ precleared the Plan on
83),
and the first election under the
new districts was held on November 8,
2011,
(Docket No.
85).
ANALYSIS
The
questions
deceptive
in
questions
project
Supreme
that
this
considerations
traditional
racial
simplicity
limits
about
identity
Court
navigating
in
but
sorting
profound
claim
in
are
their
Resting at the crossroads of race, politics, and
constitutional
vital
raised
their
implications.
the
later.
83).
To
IV.
days
revisions
by the Governor and enacted into law on April 29,

No.
83.)
then-Virginia
three
to the
No.
has
federal
how
we
identify as
in
the
crafted
field:
to
of
the
halls
an
of
over
criteria.
31
the
the
raises
and how
legislature.
not
(i.e.,
to
this
allow
we
The
standard
must
If
claim
citizens
interpretive
legislature
predominate
redistricting
power,
for
racial
subordinate)
results
from

2988
attempted compliance with the VRA, the State must show a "strong
basis in evidence"
that its use of race was
necessary to comply
with a constitutional reading of the statute.
What
this
standard provides
in conceptual
it lacks in practical guidance.

to
signal
through
when
it
may
precinct
be
or
grace,
however,
For legislators, it does little
constitutionally permissible
move
boundary
line
to
to cut
alter
the
demographic composition of a district for purposes of complying

with
similarly
provides
that
an
can
mandatory
enticingly
drive
up
federal
vague
the
cost
standard
of
State's redistricting endeavor.

74,
118
(1997)
{Stevens,
law.
For
and
litigators,
invites
conducting
and
(unable to
the
See Abrams v. Johnson, 521 U.S.
J.,
refer,
litigation
defending
dissenting)
("Any
plan will generate potentially injured plaintiffs,

judges
it
say,
to intent,
redistricting
dilution,
[a]nd
shape,
or
some other limiting principle) will find it difficult to dismiss

those claims[.]").
amount
And for courts,
of
discretion
in
repeatedly
admonished
"represents
most
of
vital
local
field
functions."
it provides an uncomfortable
that
the
serious
Miller,
515
Supreme
Court
intrusion
U.S.
at
has
on
the
915.
By
asking courts attempting to identify predominance to engage in a

searching
factual
inquiry
applying strict scrutiny test
gives
the
judicial
and
comprehensive
balancing
before
and to justify strict scrutiny branch

32
the
relatively
broad
power
the
to

2989
strike
down
or
in
how
guidance
uphold
legislative
to
so,
do
districts
notwithstanding
without
much
exhortations
to
exercise "extraordinary caution" to the contrary.
the
Therefore,
to sharpen the
requisite
burden
redistricting
passage
legislation
between
redistricting,
understands
is
it
judicial inquiry,
satisfied,
has
and
successfully
constitutional
is
appropriate
the predominance
and
to proceed as a matter of law.
to
to ensure that
to
assess
navigated
and
the
narrow
unconstitutional
articulate
strict
whether
how
scrutiny
the
Court
inquiries
are
The statewide and district-by-
district evidence then will be assessed within that framework.
A.
The Racial Sorting Framework
The essence of the racial sorting analysis is quite easy to
articulate and comprehend.

considerations
First, courts examine whether racial
predominated
over
or
"subordinated"
traditional redistricting criteria.
If a court so finds,
the court applies
Second,
whether
the
strict scrutiny.
legislature
had
strong
then
the court examines
basis
in
believing federal law required its use of race,
evidence
for
assuming this is
the basis upon which the State seeks to justify its decision.
But,
details.
as
this
case
The parties
demonstrates,
actually have
regarding the "subordination" test.
33
the
devil
is
in
the
proposed conflicting rules
And each believes that the

2990
Supreme Court's recent Alabama decision reinforces its position.

But both cannot be right, and we think that neither is.
The
Plaintiffs'
case
and
our
colleague's
dissent
revolve
chiefly around the evidence that legislators employed a 55% BVAP

floor
when
crafting
Plaintiffs'
important
105) .
the
theory,
"race
criterion."
In
other
Challenged
predominates
Pis.'
words,
Districts.
Post-Trial
subordination
if
it
Brief at
"does
According
is
4
not
conflict with ^traditional' districting criteria."

Thus,
rule:
the
Plaintiffs,
the drafters'
verboten
and
standard.
the
dissent,
most
(Docket
require
No.
open
Id. at 5.
propose
per
se
use of the 55% BVAP floor in districting is
automatically
This,
the Alabama
like
the
to
satisfies
the Plaintiffs argue,
Miller's
predominance
is the central thrust of
case:
This
case
boils
down
to
a
very
simple
proposition:
May
Virginia's
General
Assembly utilize a fixed numerical racial
threshold in establishing district lines . .
The answer to this question has been
addressed and definitively settled by the
United States Supreme Court in its recent
Alabama
decision
which
unambiguously
condemned
the
use
of
racial
thresholds
in
redistricting[.]
Trial Tr.
811:1-10
Despite
its
(Plaintiffs).
tempting
simplicity
Court must reject this proposal.

condemned
the
use
of
unwritten
34
and
visceral
appeal,
the
Although the Alabama decision

racial
thresholds,
it
did
not

2991
establish
per
se
predominance
rule.
In
Alabama,
the
Court
accepted the lower court's finding that legislators had employed

BVAP
percentage
Alabama,
135
S.
floors
in
Ct.
1271
creating
the
technical
adviser,
maintain
redistricting
existing
district,
that
racial
insofar
thresholds
at
as
case
constituted
to
predominated.
the
("The
plan
believed,
in
and
in
each
If
predominance
per
See
charge
told
redistricting
percentages
of
their
goal
was
to
majority-minority
the
se,
use
then
of
those
there
would
the Supreme Court to have remanded
district
the
considerable
Court
evidence
court
to
impact
district's]
boundaries."
State]
prioritizing
districting
evidence that
on
the
determine
mechanical
out
this
that
goal
drawing
Id.
expressly
criteria
pointed
that
significant
whether
race
of
at
"[t]here
had
1271
(emphasis
adopted
and
applied
racial
(save
targets
one-person,
[was]
direct
least
at
some
of
added).
above
[the
"That
policy
all
one-vote)
and
of
other
provides
race motivated the drawing of particular lines in
multiple districts in the State."

The
legislators
primary
for
districts.
Id. at 1272.
Rather,
[the
challenged
feasible.").
have been little reason

the
the
Alabama
case
could
not
Id. at 1267
be
BVAP floors constitutes evidence of predominance.
But,
we do
not
35
clearer
(emphasis added).
that
use
of
racial
albeit significant evidence read Alabama
to hold that
use

2992
of
BVAP
merely
floor
because
satisfies
the
the
floor
Plaintiffs'
was
prioritized
districting criteria" in "importance."

of
the
racial
district.
floor
This
is
its
demands
predominance
Rather,
impact
"actual
"above
on
all
other
the significance
the
conflict
burden
creation
between
of
the
traditional
redistricting criteria and race that leads to the subordination

of the
per
former,
force
criteria
rather than a
results
have
State Bd.
been
in
the
conclusion
subordinated
of Elections,
(E.D. Va. 2015)
merely hypothetical conflict that
(Payne,
No.
J.,
to
and
the
rationale
race."
3:13CV678,
the
Page
2015 WL
Virginia
3604029,
for
the
Shaw
claim.
at
*27
The
district
despite any express
textual classification by race in the statute -
"it rationally
be viewed only as an effort to segregate the races for
purposes of voting,
principles."
treated
v.
one must remember the origin
boundaries in Shaw were so outlandish that -
[could]
traditional
dissenting).
To understand why this is so,

of
that
the
without
Shaw I,
regard
509 U.S.
legislation
as
for
at 642.
though
it
traditional districting
In response,
had
employed
the Court
a
facial
classification and subjected the legislation to strict scrutiny

rather
than
requiring
the
plaintiffs
to
prove
both
discriminatory purpose and discriminatory effect.
In
Shaw,
"balkanization"
the
and
Court
compared
"political
the
apartheid"
36
districts
and
to
racial
cautioned
that

2993
such
districts
threaten
expressive
harm
i.e.,
the
stigmatization of individuals "by reason of their membership in

a
racial
well
as
group"
and
the
incitement
representative
harm
of
i.e.,
"racial
the
hostility"
threat
that
as
elected
officials would begin to "believe that their primary obligation
is
to
represent
only
the
members
their constituency as whole."

Unlike
however,
the
producing
fact,
in
racial
Supreme
evidence
come
{observing
its
and
did
pass.
See
in
racial
vote
not
group,
643,
political
such
to
that
Id. at 657,
Court
that
of
vote
dilution
charge
Rogers,
dilution
than
648.
effects
458
case
cases,
plaintiffs
discriminatory
e.g.,
rather
U.S.
that
with
had,
at
in
625-27
"[e]xtensive
evidence was cited by the District Court to support its finding

that
and
elected
officials
insensitive
increases
the
to
of
the
needs
likelihood
(1986)
individual
County
of
that
equally open to blacks");

32
Burke
the
Davis v.
the
have
been
black
community,
political
Bandemer,
unresponsive
process
478 U.S.
which
was
not
109, 131-
(observing in political vote dilution case that "ta]n

or
group
of
individuals
who
votes
for
losing
candidate is usually deemed to be adequately represented by the

winning candidate and to have as much opportunity to influence
that
candidate
as
other
voters
in
the
district"
Court "cannot presume in such a situation,

to the contrary,
and
that
the
without actual proof
that the candidate elected will entirely ignore

37

2994
the interests of those voters")
is
not
necessary
racial
in
racial
classifications
are
(emphasis added).
sorting
claim because
immediately
subjected to strict scrutiny.
Shaw I,
Such evidence
"[e]xpress
suspect"
and
509 U.S. at 642.
are
This is
similarly true for the functional equivalents of express racial

classifications:
race"
or
statutes "unexplainable on grounds other than
statutes
discrimination."
that
See
id.
are
at
an
"obvious
pretext
for
racial
643-44.
No sooner had the inlc dried on the Supreme Court's opinion

in Shaw,
What
than it was
if
the
faced with a
district's
slightly different question.
boundaries
are
not
"bizarre"
or
"irrational," but still reflect a clear manifestation of racial

classification?
In
Miller,
the
Court
recognized
that
represented an "analytically distinct" claim,
515 U.S.
but
"require[d]
decided
Court]
further
necessary
915.
the
that
to
the
to
litigation
consider
sustain
this
before
the
equal
it
requirements
protection
of
at 911,
the
challenge,"
Shaw
[the
proof
id.
at
Rather than abandoning the claim's animating principles,

Court
altered
the
threshold
showing
and
clarified
that
parties bringing a racial sorting claim are "neither confined in

their
proof
to
evidence
regarding
the
district's
geometry
and
makeup nor required to make a threshold showing of bizarreness."

Id.
38

2995
The
those
district
found
in
challenged
Shaw,
but,
in
Miller
"when
its
was
shape
not
as
[was]
bizarre
as
considered
in
conjunction with its racial and population densities," it became

"exceedingly
obvious"
bridges"
"a
in
that
deliberate
into the district."
Id.
the
district
attempt
at
917.
to
employed
bring
There,
"narrow
black
land
populations
the district's various
spindly appendages contained nearly 80% of the district's total

black population.
Id.
These
facially evident
neutral districting conventions could only be
basis of race.
found
in
Id. at 918-19.^
Miller
still
lawmakers'
clear
raise
intent
explained on
the
specter
to
of
"us[e]
race
Id. at 911.
districts
kind
assumptions
"demeaning
the
and
Chatham
Equal
notion
In Miller,
reflect
that
the
the
Protection
members
Clause
of
expressive
or
on the face of the law,
separating voters into districts."

necessarily
from
Thus, districts such as the one
representative harms and still manifest,

the
deviations
the
of
as
basis
for
Moreover, these
"very
stereotypical
forbids;"
defined
namely,
racial
the
groups
the State conceded that "portions of Effingham
Counties"
would
not
have
been
added
"but
for
the
need
to
include
additional
black
population;"
that
"a
substantial reason for [the district's precinct splits] was the
objective of increasing the black population of that district;"
and that the addition of the district itself was "the product of
a desire by the General Assembly to create a majority black
district".
Furthermore, "Georgia's Attorney General objected to
the
Justice
Department's
demand
for
three
majority-black
districts on the ground that to do so the State would have to
'violate
all
reasonable
standards
of
compactness
and
contiguity.'" 515 U.S. at 918-19.
39

2996
ascribe to certain
^minority views'
those of other citizens."
However,
when
Id.
racial
at
that must be different from
914.
considerations
compromise of neutral districting norms,
sorting
claim
evaporates.
do
not
entail
the basis for a
Traditional,
neutral
the
racial
districting
principles reflect certain judgments about voters,
but these are
the same
as opposed to
judgments that animate all geographic -
proportional -
representation systems:
each
the
other
in
something
in
same
communities,
common,
representation
as
than racial or political -
districts
are
subject
theoretical
or
districting
criteria
mooring of
equivalence
distinct"
forcing
latent
facial
is
to
strict
conflict
the
to
defined
warrants
geographical
scrutiny because
between
unlash
classification
plaintiffs
that
cities
have
their
rather
unit.
would
of
and
holding that otherwise reasonably neutral
forfeited,
nature
counties,
something
reasonably
More importantly,
that those who live near
it
is
claim
prove
the
the
race
and
Shaw
claim
jurisprudence.
unclear
should
of
why
not
expressive
traditional
from
If this
the
the
legal
"analytically
unravel
or
merely
entirely,
representative
harms postulated in Shaw.
Admittedly,
one.
The
the issue presented in this case is a difficult
Supreme
Court
reserved
40
from
the
very
outset
the

2997
question of whether the intentional use of a
50% BVAP threshold
was sufficient to sustain a racial sorting claim:

It is unnecessary for us to decide whether
or how a reapportionment plan that, on its
face, can be explained in nonracial terms
successfully could be challenged.
Thus, we
express
no
view
as
to
whether
"the
intentional
creation
of
majority-minority
districts, without more," always gives rise
to an equal protection claim.
Shaw I,
V.
958
509 U.S. at 649.
Although the principal opinion in Bush
Vera attempted to put this question to rest,

(1996)
("Strict
intentional
(principal
scrutiny
creation
opinion),
does
of
Justice
not
apply
517 U.S.
...
majority-minority
Kennedy
expressed
952,
to
all
districts.")
some
doubts
in
his concurring opinion:
I
join
the
plurality opinion,
but
the
statements in . . . the opinion that strict
scrutiny would not apply to all cases of
intentional
creation
of
majority-minority
districts
require
comment.
I
do
not
consider
these
position on
predominant
dicta
to
commit
me
to
any
the question whether race

whenever
a
State,
is
in
redistricting, foreordains that one race be

the
majority
in
a
certain
number
of
districts or in a certain part of the State.
Id.
at
996
(Kennedy,
J.,
concurring)
(internal
citation
omitted).
Based
on
the
Supreme
the Court now appears

whether
BVAP
Court's
recent
to be divided,
thresholds
alone
41
are
or at
decision
least
sufficient
in
Alabama,
equivocal,
to
on
constitute

2998
predominance.
Compare Alabama,
135 S.
Ct.
at 1267
(noting that
the prioritization of "mechanical racial targets above all other

districting
criteria"
predominated)
Perry
only
with League
(LULAC) ,
548 U.S.
provides
evidence
that
Roberts,
the
399,
Justice
intentional
race
of United Latin American Citizens

517
(2006)
(Scalia,
J.,
in the judgment in part and dissenting in part,

Justice
that
Thomas,
use
of
and
50%
concurring
joined by Chief
Justice
BVAP
v.
Alito)
threshold
(arguing
necessarily
means race predominated).
Although the unwritten use of a racial floor by legislators

may
seem
repugnant
predominance
at
proposed
first
by
blush,
the
the
Plaintiffs
quite serious repercussions."
interpretation
and
the
dissent
of
has
If the use of a BVAP threshold -
any BVAP threshold - is sufficient to trigger strict scrutiny in

the
absence
through
the
principles,
-
of
facial
manifestation
subordination
of
fundamentally,
Amendment's
"
issues
the
lines
traditional
themselves
redistricting
then the constitutionality of the Voting Rights Act
as applied to redistricting -
More
in
Equal
the
would be drawn
compatibility
Protection
Clause
of
and
into question.
the
Fourteenth
the
Fifteenth
The dissent contends that we need not grapple with the

that
follow
because
we
are
faced
with
"more
narrow
question."
See post at 163-64.
But incrementalism does not
demand that the Court ignore the clear consequences of two
different judicial constructions when weighing which to adopt.
If one sets us on a path to constitutional conflict and one
avoids that path, we think that the latter is to be preferred.
42

2999
Amendment's
The
Court
Supreme
Enforcement
does
not
Court
Plaintiffs'
believe
precedent
view
of
the
its
purpose:
their face,
that
racial
be
the
either
drawn
strike
requires
and,
down
question.
Constitution
or
or
those
that
permits
therefore,
sorting claim extends
to
into
the
does
not
any further
than
districts
that,
on
reflect racial classifications.
Moreover,
racial
might
predominance
believe that
original
Clause
the Plaintiffs do not take umbrage at the use of
targets,
so
long
as
preserving minority voters'
those
targets
serve
ability to elect.
observed that,
in order to be narrowly tailored,
must
ask
what
only
purposeful
"[E]ven
if
extent
of
must
the
we
preserve
[Fifteenth]
discrimination,
the
prior
ends
of
Quoting from the
Alabama decision during their closing statement,
"to
the
the Plaintiffs
the legislature
existing
minority
Amendment
prohibits
decisions
of
th[e]
[Supreme] Court foreclose any argument that Congress may not,

pursuant to 2, outlaw voting practices that are discriminatory
in effect."
(1980).
City of
The
Rome
v.
United States,
ability-to-elect
standard,
446
U.S.
which
156,
173
inherently
utilizes racial floors in its redistricting applications, would

seem to provide just such a necessary and proper statutory
prophylaxis.
See id.
at 175,
177.
No one doubts that
redistricting legislation can threaten the right to vote on
account
of
race
in
defiance
of
the
Fifteenth
Amendment's
guarantee, see Gomillion v. Lightfoot, 364 U.S. 339, 346-48

(1960),
or
that
the
VRA protects
against
this
threat
of
deprivation, see Allen v. State Board of Elections, 393 U.S.
544, 569 (1969).
And, of course, "no one doubts" that "voting
discrimination s t i l l exists."
Shelby County,
133 S. Ct.
at
2619.
Therefore, unless the Enforcement Clause is to be read
with
a
rigidity
alien
to
all
other
positive
grants
of
legislative power, then the use of racial targets by states
acting under congressional mandate would not - by itself - seem
an appropriate per se trigger for strict scrutiny.
43

3000
percentages in order to maintain the minorities'

to
elect
the
(Plaintiffs)
inquiry
occurs
candidate
after
the
finding
again
choice."
135
targets
race
then
the
are
it
smuggled one
threaten
S.
Trial
Ct.
at
Tr.
is
If
of
But,
hard
the
justified only
targets
inquiry into
foundations
819:23-820:1
1274).
adequately
predominant.
subordination,
Plaintiffs have not

would
its
(quoting Alabama,
into whether
constitute
of
present ability
to
themselves
see
how
the next.
the
This
the VRA by making all
its redistricting applications subject to strict scrutiny^^ and

set up a
Equal
potential
conflict between the
Protection
Enforcement
Clause
and
Fifteenth
Amendment's
Clause.
After this
journey,
we thus arrive back where we started:
Miller's predominance test.

Plaintiffs'
the
Fourteenth Amendment's
burden
as
In Miller,
the Court described the
follows:
The plaintiff's burden is to show, either

through
circumstantial
evidence
of
a
district's shape and demographics or more
direct
evidence
going
to
legislative
purpose,
that
race
was
the
predominant
factor motivating the legislature's decision
to place
a
significant number
of voters
within or without a particular district.
To
make this showing, a plaintiff must prove
that
the
legislature
subordinated
Plaintiffs have occasionally flirted with this notion:

"The Shaw cases
.
.
. prohibit all unjustified race-based
redistricting, whatever form it may take."
Pis.' Post-Trial
Reply at 6.
That said, counsel for Plaintiffs has claimed that
there must be a floor of "50 percent plus one" under Section 2
of the VRA.
Trial Tr.
842:17-19
44
(Plaintiffs).

3001
traditional
race-neutral
districting
principles,
including but not limited to
compactness,
contiguity,
and
respect
for
political
subdivisions
or
communities
defined
by
actual
shared
interests,
to
racial
515
U.S.
at
considerations.
916
(emphasis
added).
Plaintiffs
would prefer we
stop reading Miller at this exact punctuation mark.

that
formulation,
proved
racial
used a
55% BVAP
leads
where
neutral
floor.
Court
must
and
are
Id.
upon
very
follow:
the
argue
proof
next
"Where
that
they
these
in Miller
or other
for
to
have
legislators
sentence
basis
subordinated
that
under
race-
redistricting
race,
State
can
district has been gerrymandered on racial
{quoting
The Court's
the
are
not
claim that a
plausibly
merely
But
considerations
lines.'"
added).
could
predominance
this
legislation,
'defeat a
they
And,
Shaw
I,
509
U.S.
quotation of Shaw in
at
this
647)
{emphasis
instance
rather
clearly reflects its intention:
[T]raditional districting principles such as

compactness,
contiguity,
and
respect
for
political subdivisions . . . are important .
. . because they are objective factors that
may
serve
to
defeat
claim that
district
has been gerrymandered on racial lines. . .

Put
differently,
we
believe
that
reapportionment
is
one
appearances do matter.
area
Shaw I, 509 U.S. at 647 (emphasis added).
in
which
Therefore, we rely on
the principal opinion in Bush, which stated that the "neglect of

traditional
districting
criteria"
45
is
"necessary,
[but]
not

3002
sufficient" for strict scrutiny to apply.
Bush, 517 U.S. at 962
(principal opinion)
(emphasis added); accord Miller, 515 U.S. at
928
concurring)
(O'Connor,
J.,
plaintiff must
show that
the
("To invoke strict scrutiny,
State
has
relied
on
race
in
substantial disregard of customary and traditional districting

practices.").
Our dissenting colleague advocates a different reading of

predominance.
The dissent views the 55% BVAP floor as a "filter
through which all line-drawing decisions had to pass" and argues

that
this
"racial
traditional
neutral,'
filter
criteria
that
otherwise
would
been
(emphasis added).
'race-
Post at 164.
filter is employed.
[55%
because
BVAP]
when
districts,"
the
this
legislators
"was
"intentionally
sufficient
to
was a predominant factor in its redistricting."
at
999-1000
{Thomas,
J.,
Post
The dissent takes the view that the
"application of strict scrutiny in this suit was never a

question"
all
"a legislative district necessarily is
^because of race'" when such a
at 167-68
rendered
have
tainted by and subordinated to race."
According to the dissent,

crafted
necessarily
concurring
in
the
show
Bush,
close
created
that
race
517 U.S.
judgment).
We
respectfully decline to adopt this reading of predominance.
First,
the
dissent's
interpretation
echoes
was rejected by the principal opinion in Bush v.
46
the
Vera.
view
that
See id.

3003
at 962 (principal opinion).
In his separate Bush concurrence.
Justice Thomas wrote:
In my view,
[the intentional creation of a
50%
district]
BVAP
means
that
the
legislature
affirmatively
undertakes
to
create a majority-minority district that
would not have
use of racial
words,
existed but for the express

classifications in other
that a majority-minority district is
created
"because
of,"
and
not
merely
"in
spite of," racial demographics.

When that
occurs, traditional race-neutral districting
principles are necessarily subordinated (and
race
necessarily
predominates) ,
and
legislature has classified persons on
the
the
basis of race.
The resulting redistricting
must be viewed as a racial gerrymander.
Id.
at 1001
citations
(Thomas,
omitted)
J.,
concurring in the judgment)
(emphasis
added).
Although
(internal
Justice
Thomas
recognized that this question was "expressly reserved" in Shaw

1,
he
believed that
subsequent cases."
Justice
decision
(1995),
in
as
the Court
it
in
Id. at 999.
Thomas
Adarand
had "effectively resolved
first
pointed
Constructors,
evidence
that
to
Inc.
"all
the
v.
Supreme
Pena,
515
governmental
classifications must be strictly scrutinized."
Id.
Court's
U.S.
200
racial
at 999-1000.
But this presumes what must in fact be proven: that the Virginia
legislature's facially neutral redistricting legislation was the
legal
equivalent
of
facially
racial
classification.
Predominance is itself the arbiter of this legal equivalency.
47

3004
In Adarand,
providing
the question was whether a contracting clause
"financial
controlled
by
individuals'
incentive[s]
'socially
and
the
violates
to
hire
economically
equal
federal
federal
individuals
Native
and other minorities[.]'"
retreads
Richmond
v.
Croson
Adarand,
the
J.A.
Croson
requiring
Americans,
Id.
dissent
expressly
at 204.
In
515 U.S.
the
clause
Mt]he contractor shall presume that socially and
Americans,
The
of
and expressly "require[d]
economically disadvantaged
Hispanic
component
law required the use of the clause in most
agency contracts,
to state that
disadvantaged
protection
the Fifth Amendment's Due Process Clause."
that case,
subcontractors
Asian
Black Americans,
Pacific
Americans,
at 205.
this
Co.,
Court
include
path
488
was
contractors
U.S.
faced
to
by
citing
469
with
to
City
of
(1989).
As
in
city
ordinance
subcontract
at
least
30%
of
their work on city contracts to "Minority Business Enterprises"

owned and controlled by "[c]itizens of the United States who are
Blacks,
Spanish-speaking,
Aleuts."
Croson,
488 U.S.
Orientals,
Indians,
Eskimos,
or
at 477-78.
We have no doubt that strict scrutiny is applied to all

express
help
racial
light
classifications,
our
path
to
but
neither Adarand
interpreting
nor
predominance.
Croson
Adarand
itself explicitly disclaimed any application to facially neutral
legislation,
stating
that
"this
48
case
concerns
only

3005
classifications based explicitly on
the
additional
facially
race
difficulties
neutral,
posed
result
in
race,
and presents none of
by
laws
that,
racially
although
disproportionate
impact and are motivated by a racially discriminatory purpose."

Adarand,
515 U.S. at 213
(emphasis added).
Justice Thomas next pointed to Miller and argued that the

State's
"concession
districts
was
that
sufficient
it
to
intentionally
show
that
race
motivating factor in its redistricting."

(Thomas,
relies
when
J.,
concurring
upon Miller
a
to
legislature
in
the
argue
is
demands
accidentally
cannot be
the
judgment).
that
strict
"motivated
impossible.
wander
into
was
Bush,
We
compliance
by,"
[50%
BVAP]
predominant,
517 U.S.
The
at 1000
dissent
scrutiny
"conscious of," race in its districting.
this
created
is
rather
also
warranted
than
merely
See post at 156.
cannot
with
ask
the
But
legislators
VRA,
and
to
Miller
read to invoke strict scrutiny whenever legislators
intentionally create a district with a predetermined BVAP floor.
In Miller,
there
was
considerable
evidence
showing
"that
the General Assembly was motivated by a predominant, overriding

desire to assign black populations to the Eleventh District and
thereby permit the creation of a third majority-black district."

515 U.S.
voters
on
criteria,
at 917.
the
that
It was the State's overriding assignment of
basis
made
of
race,
the
rather
third
49
than
other
districting
majority-minority
district

3006
constitutionally offensive.
that
the
intentional
constituted
If Miller stood for the proposition
creation
"predominance,"
of
then
50%
all
BVAP
three
district
majority-minority
districts would have constituted racial gerrymanders.
the
opinion
focused
on
the
Eleventh
alone
District,
Instead,
which
was
geographic "monstrosity" and required the State to add lengthy

appendages,
split
precincts,
and
abandon
standards of compactness and contiguity."

The
Miller
"statutes
are
Protection
decision
subject
Clause
classifications,
face,
U.S.
to
not
but
does,
strict
just
also
when
when,
they are motivated by a

at
913.
But
it
is
of
course,
they
Miller's
race
917-19.
recognize
under
contain
though
reasonable
Id. at 909,
scrutiny
racial
"all
that
the
Equal
express
neutral
racial
on
their
purpose or object."
subordination
test
515
itself
that
mans the floodgates to ensure that the predominance exception to
traditional
the
facial
standing
facially
rule
neutral
classification
that
Equal
statutes
jurisprudence does
Protection Clause
usually
require
not
claims
plaintiffs
swamp
against
to
prove
discriminatory purpose and discriminatory effect.

Subordination
in
the
enacted
subordination of hypothetical plans)

that
reflects
neutral
conventions
on
plan
(rather
than
is required because a map

its
face
eliminates
the
assumption of expressive and representative harm found in Shaw I
without
necessarily
imposing
50
any
other
constitutionally

3007
cognizable harms in its stead.
The Supreme Court recognized as
much in Regents of the Univ.
of Cal. v.
Bakke,
438 U.S.
265
(1978) .
In Bakke, the Supreme Court struck down a higher education

admissions program that reserved a specific number of seats for
minority applicants.
See 438 U.S. at 275.
this
it
scheme
was
that
"prefer[red]
the
The problem with

designated minority
groups at the expense of other individuals who [were]

foreclosed
from
seats [.)"
As
competition
for
the
16
at 305 {opinion of Powell,
Justice
individual
Powell
wrote,
opportunities
"[w]hen
or
benefits
J.)
admissions
(emphasis added).
classification
denies
enjoyed by others
because of his race or ethnic background,

suspect."
special
totally
an
solely
it must be regarded as
Id.
Justice
Powell
contrasted
this
holding
with
the
Supreme
Court's holding the previous year in United Jewish Organizations

v.
Carey
(UJO) ,
430
U.S.
144
(1977).
In
the
State
of
New
York had redrawn its voting districts "to enhance the electoral
power of
of the
U.S.
certain
[DOJ]
at
affirmed
^nonwhite'
voters"
and
"meet
[the]
under 5 of the Voting Rights Act [. ]"
304-05
the
distinguishable
(opinion
plan.
"as
of
Powell,
According
case
in
to
J.) .
The
Justice
which
the
objections
Bakke,
Supreme
Powell,
remedy
438
Court
UJO
for
was
an
administrative finding of discrimination encompassed measures to

51

3008
improve
the
previously
participate,
without
other
from
group
disadvantaged
excluding
enjoyment
group's
individuals
of
the
ability
belonging
relevant
reflects
added).
When
traditional,
legislature
neutral,
crafts
districting
to
any
opportunity
meaningful participation in the electoral process."
(emphasis
to
Id. at 305
plan
conventions
that
and does
not intentionally dilute any group's meaningful participation in

the
electoral
process,
offense to be found.
See
UJO,
430
there
no
The use of a
U.S.
reapportionment
is
at
cannot
162
violate
constitutionally
cognizable
quota does not change this.

(principal
the
opinion)
Fourteenth
or
("[^J
Fifteenth
Amendment merely because a State uses specific numerical quotas
in establishing a
certain number of black majority districts.
Our cases under [Section] 5 stand for at least this much.")."

From this
vantage,
the
second problem with
the dissent's
reading comes into view: an interpretation of predominance that
ignores "discriminatory effect" and deploys strict scrutiny when

a
neutral
statute
is
adopted
"because
of"
race-based
motives
would allow claims to proceed on "racial purpose" alone.
Such
Justice Powell also emphasized that Congress has "special

competence . . . to make findings with respect to the effects of
identified
past
discrimination"
and
special
"discretionary
authority to take appropriate remedial measures."
Bakke,
438
U.S.
at
302
n.41
(opinion
of
Powell,
J.).
This
too
distinguishes the case at hand from those cases wherein a school
or municipality,
acting on its own impulse,
quota.
52
employs a racial

3009
an interpretation raises vexatious justiciability and balance of

powers questions.
A redistricting
motivations
of
the
plan
men
facial content or effect
as
the
down
"solely
it"
regardless
of
the
"of
its
who
voted
. would presumably be valid as soon
for
because
legislature or relevant governing body repassed it
different
25
struck
reasons."
See
Palmer v.
(1971).
That
is
because
legislative
content
of
the
content of
the
motivations
of
showing
"purpose
of
entire
discriminatory
only"
equal
the
403
offense
enactment
legislators.
an
Thompson,
but
U.S.
is
only
217,
not
in
for
224-
in
the
the
mental
Although divining the amalgamated
legislature
effect
may
further
protection
be
tolerable
girds
claim would
the
when
inquiry,
courts
to
require
rest judgment upon the thoughts of a coequal branch alone.

We decline to take that path.
As Chief Justice Burger once
wrote,
The seductive plausibility of single steps

in a chain of evolutionary development of a
legal rule is often not perceived until a
third, fourth, or fifth 'logical' extension
occurs. Each step, when taken, appeared a
reasonable
preceded
result
is
seriously
step
it,
in
relation
although
one
that
considered
the
would
in
the
to
that
aggregate
never
first
which
or
have
end
been
instance.
This kind of gestative propensity calls for

the 'line drawing' familiar in the judicial,
as in the legislative process:
not beyond.'
53
'thus far but

3010
United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S.
123,
127
(1973).
logical
step
The dissent's
in
the
"predominance" test.
interpretation might
evolution
of
the
equal
be a
protection
But we think it would be one step too far.
Predominance requires that racial considerations manifest in the
enacted plan itself through the actual subordination of other

districting criteria.
examining
the
That determination cannot be made without
respective
roles
of
both
race
and
the
other
redistricting factors in the actual plan before the Court.
For the foregoing reasons, we reject the invitation to read

the unwritten use of a 55% BVAP floor as a per se satisfaction
of
the
course,
predominance
evidence
examining
Cromartie
and
517 U.S.
50%
thresholds
that
districting
II),
racial
532 U.S.
is
sorting
still
exhibit
Of
significant
when
deviations
from
234,
254
See
(2001)
Easley
v.
(noting that
racial threshold was "significant" evidence in

Page,
(1996),
with
claim.
principles.
2015
WL
3604029
at
*35
(noting the significance in Shaw v.
899
districts
neutral
Miller) ;
dissenting)
such
in
districts
(Cromartie
the use of a
Bush
of
those
traditional,
inquiry
50%
of a
BVAP
(Payne,
Hunt
J.,
(Shaw II),
concession by the State to create two

thresholds) .
Shaw
II,
for
example,
recognized that racial deviations from neutral principles cannot

be
saved by
U.S.
at
later
resort
to
non-racial
907.
54
explanations.
See
517

3011
According to the dissent,
predominance whenever
Shaw II
non-racial
compels a finding of
factors
"consistent with the racial objective."

district
at
issue
in
Shaw
II
are only considered

Post at 158.
was
"highly
But the
irregular
and
geographically non-compact by any objective standard that can be

conceived."
Shaw II,
II
was
faced
such
as
Court
goals
advanced
was not
despite
joined
read
the
at 905-06.
situation wherein
balance
qualitative
Simply put,
could
some
situation wherein
"race-neutral"
still
predominance
the Shaw
of
be
partially
race,
but
it
racial districting goals
conflict with neutral districting criteria whatsoever.

Moreover,
Vera,
with
partisan
faced with
posed
517 U.S.
the
the
author
principal
of
opinion
Shaw
II,
issued
Chief
the
Justice
same
day
suggesting that these two opinions can -
in
harmony.
Rehnquist
The
explicitly
Bush
opinion
rejected
joined
the
Rehnquist,
Bush
v.
and should -
be
by
in
Chief
interpretation
Justice
that
the
dissent now attributes to his opinion in Shaw II.
We adopt a reading consistent with Shaw II, as evidenced by

our
finding
of
racial
predominance
district predominantly on the basis
in
of
HD
75.
A State
race and then
cannot
insulate
such racial line drawing by pointing to other non-racial goals

advanced by the racial sort.
Alabama,
holds
that
like
its
racial
predecessors
thresholds
55
in
the
constitute
Shaw-Miller
line,
evidence,
not

3012
dispositive proof/ of racial predominance.
If the thresholds
employed by the legislators crafting the bill do not manifest in

the formation of the enacted district, then there is no facial
classification
equivalent
upon
which
to
rest
Shaw's
were
not
enough,
"analytically distinct" framework.
If
one
strict
predominance
rule
Intervenors advance a counter-theory that they claim is derived

from Alabama.
As
the
Intervenors
stated during their closing
argument:
"tT]he
question
you
must
answer
to
get
to
strict scrutiny . . . is whether the use of

race resulted in any district which violated
Virginia law or traditional redistricting
criteria
of the
state,
or,
as
the
state did
here, their specifically adopted criteria."

Trial
Tr.
16:8-13
attention to a
"talk[ed]
so
it
Intervenors
drew
the
passage in the Alabama decision where
about
guidelines,
(Intervenors).
[the
State]
transgressing
its own state criteria."
Id.
the Court
its
own
at 853:15-854:9.
did:
There
is
considerable
evidence
that
racial
thresholds]
had
a
direct
significant
least
some
impact
of
on
the
District
26's
Transgressing
their
drawing
[the
and
of
boundaries.
own
at
.
redistricting
guidelines,
the
drafters
split
seven
precincts
between
the
majority-black
District 26 and the majority-white District
25, with the population in those precincts
clearly divided on racial lines.
56
Court's
state
And

3013
Alabama, 135 S. Ct. at 1272 (emphasis added).
But, as is clear
from the cited passage, the drafters' transgression of their own

redistricting guidelines - like their informal use of a racial
threshold -
is evidence of predominance,
not dispositive proof.
That is because ^'subordination" is not the same as a
or
"transgression."
degree
to
Subordination
determine
whether
requires
non-racial
"violation"
balancing
criteria
or
of
racial
criteria predominated.
For
example,
"transgression"
Compactness,
no
it
is
of
difficult
"compactness"
like temperature,
professional
consensus
More
Trial Tr.
importantly,
about
what
would
degree
what
even
of
entail.
and there is
departure
(from
is enough to say a district is
716:15-18
the
understand
falls along a range,
any of more than twenty measures)

"not compact."
to
(Hofeller).
"traditional"
criteria
discussed
in
the Shaw-Miller cases are informed by, but not defined by, state
law.
Rendering the predominance inquiry subject to state law
would
make
15
One
the
of
existence
Intervenors'
of
federal
experts,
for
constitutional
example,
found
claim
"no
issues" with every last one of the Challenged Districts, Trial

Tr. 708:15-709:21 (Hofeller), despite testifying that there is
no professional consensus on what is and is not compact.
Id. at
716:10-18.
Meanwhile, Plaintiffs' expert found some of the
districts "not compact" based upon a .20 Reock "rule of thumb,"
Pis.' Ex. 50 at 18, that other experts disputed as having any
meaningful basis. Trial Tr. 716:5-25 (Hofeller).
57

3014
dependent upon an individual state's resolutions/ statutes, or

constitution.
The
determinative
individualized
whether
districting
traditional,
districting
question
not
requirements
neutral
criteria
is
have
*11
("To
establish
show
that
that
been
the
race
from,
its
own
predominance
State
do
so
stated
analysis,
in
but
order
every
to
constitute
Alabama
make
does
out
other
not
to
2015 WL 3604029
Plaintiffs
disregarded
can
and
but
"subordinated"
A State's violation of,
criteria
State's
"violated,"
See Page,
predominated.
criteria
generally
legislature
districting principle.").
are
districting
racial considerations on the whole.
at
whether
need
traditional
or departure
evidence
require
racial
not
in
the
that
the
sorting
claim.
Intervenors' proposed interpretation is, accordingly, rejected.

1.
As
Predominance Analysis
common
courtesy
holds,
one
should
not
shoot
suggestion without offering an approach to replace it.
down
Although
"predominance," "subordination," "dilution," and "retrogression"

are
all
standards
not
amenable
to
hard
rules
or
safe
harbors,
the Court does have an obligation to the parties to explain its

reasoning
as
clearly and
definitively
as
possible.
Therefore,
the Court will walk through each of the steps of the analytical
framework that it has applied to arrive at its conclusions with
respect to the Challenged Districts.
58

3015
A racial sorting claim is "one area in which appearances do

matter."
exhibit
Shaw
doctrine's
U.S.
evaluate
509
"substantial
districting
515
I,
U.S.
at
928
each
647.
disregard
practices"
central
at
in
to
with
(O'Connor,
Challenged
of
order
concern
Because
customary
animate
facial
J.,
and
the
must
traditional
racial
sorting
classification,
Miller,
concurring),
District
district
the
Court
will
for
"subordination"
in
three
the
district
basis
steps.
First,
its
the
compliance
including,
and
Court
with
will
review
traditional,
but not limited to,
adherence
to
boundaries
neutral
by
the
districting
compactness,
provided
on
criteria,
contiguity,
political
of
nesting,
subdivisions
and natural geographic features.
Second,
the
Court
will
examine
those
aspects
of
the
Challenged District that appear to constitute "deviations" from
neutral criteria.
These may be particular,
the district's boundary,
or -
on occasion -
may seem facially questionable.
and
testimony
ascertain
the
determining
provided,
the
underlying
the
neutral criteria,
reasons
it will
be
the district itself
Based on the evidence submitted
Court
rationale
for
isolated areas along
will
for
deviations
necessary
examine
those
from
the
record
deviations.
the
to
In
traditional
to determine whether a
deviation was caused in part or entirely by the need to comply
59

3016
with
the
one-person,
one-vote
precepts*
or
by
political
circumstances such as protection of incumbents.
Third,
and
the
Court
determine
will
whether
weigh
racial
the
totality of
the
considerations
evidence
qualitatively
subordinated all other non-racial districting criteria,

a.
racial
Neutrality
sorting
claim
requires
State subordinated traditional,
racial
districting
Traditional
compactness,
contiguity,
communities
"defined by
515
U.S.
at
916;
Shaw
neutrally advance
than
responsiveness,
to
racial
principles
find
that
actual
considerations.
include,
I,
shared
509
U.S.
inter
interests."
at
647.
inherent in a
system
of
accountability,
the
and other non-
alia,
respect for political subdivisions,
the values
proportional
Court
neutral criteria,
criteria
districting
the
See Miller,
These
conventions
geographic -
representation,
familiarity,
and
ease
rather
such
of
as
access,
ease of administration, and political engagement.

The
specific
traditional
criteria
outlined
in
Miller
and
Shaw are not constitutionally required.
See Shaw I, 509 U.S. at
647;
735,
Gaffnev
("[C]ompactness
v.
Cumminqs,
or
Of course,
goals
412
attractiveness
U.S.
has
752
never
n.l8
been
(1973)
held
to
evidence of compliance with equal population
is not weighed against
evidence of
racial
consideration,
but it may be important in determining why a district appears to

deviate from neutral criteria.
60

3017
constitute an independent federal constitutional requirement for
state
legislative
districts.").
Rather,
these
criteria
are
important because they reflect the neutrality that is central to

a redistricting statute that complies with the Equal Protection
Clause.
Reynolds,
377 U.S. at 558.^"'
Traditional, neutral
conventions are important to evaluate in a racial gerrymandering

claim
"because
they
are
objective
factors
that
may
serve
to
defeat a claim that a district has been gerrymandered on racial

lines."
Shaw I,
Of
course,
districting
states
may
principles,
thereto
would
defeat
districting
509 U.S. at 647
also
claim
be
of
for
redistricting
neutral
to
State's
considered
an
"evolved
renders
purposes
Bush,
these
is
develop
objective
the
517 U.S.
guiding
that
they
at
neutral
adherence
factor
Existing
over
new
consistent
gerrymandering.
political process" itself.
What
continue
and
conventions
dissenting).
(emphasis added).
to
help
traditional
years
through
the
1073
(Souter,
J.,
principles
observe
important
and
advance
democratic values.
"[T]he concept of equal protection has been traditionally

viewed as requiring the uniform treatment of persons standing in
the same relation to the governmental action questioned or
challenged.
With respect to the allocation of legislative
representation,
all voters,
as citizens of a
State,
stand in the
same
relation
....
Any suggested criteria
for the
differentiation of citizens are insufficient to justify any
discrimination, as to the weight of their votes, unless relevant
to the permissible purposes of legislative apportionment."
61

3018
The
its
fact
face
that a
does
not,
district deviates
however,
racially motivated.
also
be
used
to
demonstrating
criteria
Other,
defeat
that
that
those
deviations
claim
of
racial
district's
are attributable to
gerrymandering
deviations
from
race-neutral motives.
S.
Ct.
at
During
the
examines
face
first
stage
whether
the
raises
basis
of
it
appears
traditional,
of
about
(such as
to
the
See Alabama,
predominance
redistricting
questions
individualized criteria
whether
neutral
1270.
Court
or
by
Chief among
these are political and incumbency considerations.

135
were
non-racial districting criteria may
the
mean
from neutral criteria on
be
the
legislation
use
race,
of
on
its
or incumbency)
explainable
geographic
the
discriminatory,
politics,
predominantly
neutral,
inquiry,
criteria
on
the
(such
as
compactness, contiguity, or respect for political subdivisions}.
In
reviewing
the
Challenged
Districts,
the
Court
will
consider neutral criteria in the following manner:

i.
As
Justice
"geographical
facilitates
Compactness
Stevens
stated
compactness
political
serves
organization,
constituent representation."
in
Karcher
independent
electoral
462 U.S.
725,
v.
Daggett,
values;
it
campaigning,
and
756
(1983)
(Stevens,
J.,
concurring).
Although "non-compact" districts may sometimes
be
necessary
serve
to
these
values
62
such
as
when
"major

3019
transport
corridor might
representative
departures
amiss."
travel
at 758,
universal
districting.
are
the
travel
district"
signal
that
time
-
for
"drastic
something may be
All of
surprisingly
a
ethereal
guiding
given
its
principle
for
acceptance
as
the expert
testimony provided reveals one
how to measure
(Katz) .
minimum[ize]
around
is
deep conceptual dilemma:

result,
n.20.
compactness
seemingly
from compactness
Id.
Yet,
to
no one can agree what it is or,

it.
See,
e.g..
Trial Tr.
There are "at least 20" measures,
as a
535:19-536:8
not one of which can
claim any greater legitimacy than its peers.
Id.
at 555:16-17.
The Reock test measures geographical dispersion and therefore is

sensitive to Id.
at
and its
136:13-23
scoring punishes
(Ansolabehere).
elongated districts.
The
Polsby-Popper
measures perimeter dispersion and therefore
is
test
sensitive to -
and its scoring punishes - oddly shaped district boundaries with

large numbers of indentations.
test
looks
at
"a
normalized
Id.
Meanwhile, the Schwartzberg
standard
deviation
of
the
distance
from every point to the center of the district," id. at 558:4-7

(Katz),
and
inertia"
or
the
the
"how
district,"
scientist
variants
has
of
Boyce-Clark
far
id.
is
at
quipped
"the
the
test
measures
farthest
voter
537:12-538:6.
that
all
of
intraocular test":
63
One
these
"people
the
from
"center
the
notable
measures
look
at
of
center
of
political
are
just
distric[t]

3020
maps,
they figure out which districts they think look ugly,
then
they
choose
their eyeball
See
also
the
view of
id.
at
compactness
measure
the mapping."
697:20-698:9
measurement of compactness
Id.
(Hofeller)
which
at
comports
542:14-24
(noting
that
and
with
(Katz).
"the main
. while you are drawing a map is
to look at the shapes of districts, so-called eyeball test").

But compactness is not important for its own sake.
compactness
is
important
because
geographic representation.
corridor"
district
that
discussed
driving
might
time).
irregular
538:14-19
or
lines,
id.
(Katz);
neutral criteria,
not a
judicial concern.
so
much
neutral
as
its
Justice
by
Stevens
district
that
would
measure
adheres
(such
to
559:18-21
(Katz);
identifiable
geographic
features,
(Hofeller),
might
fare
its purposes in a
another
as discussed below.
other
does
of
as
highly
687:1-4
id.
at
score poorly on the
but would enhance the values served by those
these
Nor
values
at
687:1-4
Polsby-Popper test,
by
reflected
easily
certain
but would serve
Meanwhile,
county
(Hofeller),
be
serves
Therefore, the "major transportation
poorly on the Reock metric,

manner
it
Rather,
criteria
district's
"relative"
is
If the price of advancing
compactness,
"absolute"
score.
The
then
compactness
Court's
the
score
cost
is
matter
examination
of
district's compactness measure may be informed by the average in

the
State
(which
is
important
64
to
take
account
of
State's

3021
inalterable
features),
Virginia's
irregular
features),
may be
see
Ints.'
shape,
Ex.
county
14
at
lines,
informed by the average
12
(discussing
and
geographic
in the nation
(which
is important to take account where a State's own averages may be
far above or far below the national average),
3604029
at
*33
("A
highly
compact
see Page,
district
in
2015 WL
state
that
adheres closely to compactness principles may be both the least

compact in the state and among the most compact in the nation.")
(Payne,
J.,
averages
dissenting),
(which
compactness
560:2-10
over
(Katz)
compactness
state").
is
and
may
important
several
it
"in
These are all
to
informed
account
districting
(noting
measures
be
is
"perfectly
two
that
historical
for
cycles),
comparing
factors
by
see
trends
in
Trial
Tr.
reasonable"
maps
for
courts must
to
the
use
same
consider when
evaluating this criterion.

In short,
scores
in
evaluative
vacuum,
tools
"absolute"
State's
in
adherence
the
attributable
but
the
that
to
definitions
key
to
is
does
not
predominance
compactness,
compactness
rather,
the Court would be remiss to
"relative"
its
own
(although
whether
something
render
them
inquiry.
constitutional
these
may
be
compactness
such
useless
The
compactness,
meaningful,
65
look at compactness
key
or
or
is
even
not
a
statutory
illuminating);
deviations
as
as
other
are
neutral

3022
criteria or a legitimate use of non-neutral criteria.^

Hofeller stated at trial,
echoing Justice Stevens'
sage advice,
compactness is "more like a flag than a conclusion."

684:17-18
As Dr.
Trial Tr.
(Hofeller).
ii.
Contiguity,
like
Contiguity
compactness,
serves
important
democratic
purposes, binding geographic communities together and helping to

enable effective representation.
the
Virginia
constitution's
division by water,
this
In upholding a district under
contiguity
provision
despite
its
the Supreme Court of Virginia reflected upon
raison d'etre:
Although
the
record
shows
that
travel
between [some] precincts and the remainder
of
the
district
requires
travel
through
another district, there is nothing in this
record
showing
that
such
access
is
unreasonable,
unduly
burdensome,
or
adversely impacts the ability of residents
to secure meaningful representation of their
interests
or
effective
communication
with
their elected representative.

Wilkins
court
V.
West,
reminded,
principles are
required,'
but
264
Va.
447,
"contiguity
465-66
and
other
(Va.
2002).
traditional
As
the
Page
districting
împortant not because they are constitutionally

rather
^because
they
are
objective
factors'
Virginia's constitutional compactness requirement only

demands that districts not be "clearly erroneous, arbitrary, or
wholly unwarranted."
Wilkins v. West, 264 Va. 447, 465-66 (Va,
2002).
That standard informs the Court's inquiry, but does not
resolve
it.
66

3023
courts may consider in assessing racial gerrymandering claims."

2015 WL
3604029 a t
*11.
A district split by water has not "violated" contiguity for
the purposes of a racial sorting claim any more than a district

connected by a
See Shaw I,
that
single point on land has "respected" contiguity.
509 U.S.
case
at 636
"remain[ed]
{noting that one of the districts in
contiguous
only because
it
intersect[ed]
at a single point with two other districts before crossing over

them").
As
with
compactness,
contiguity
admits
of
degrees.
Districts that are not divided by water are more contiguous than
those that are,
water crossing
districts
because
such
are
as
not.
is determinative,
understanding
between
that
it
and districts
that are at
bridge
Land
least
are more
contiguity
but because
it
connected by a
contiguous
is
than
important
not
reflects the common
that bodies of water may mark the natural divide
communities
of
interest
or
constitute
barriers
to
the
effective function of democratic activities.^

Of course,
adherence
lie
to
across
outward
deviations from land contiguity may also reflect
other
rivers
from
the
neutral
or
districting
around
central
harbors
focal
point
criteria.
and,
of
Many
indeed,
the
cities
are
community:
built
the
As one Norfolk resident put it during the legislature's

public hearings:
"Please deep six this specious concept of
contiguity by water.
To put [these communities] in the same
district . . . is patently ridiculous."
Pis.' Ex. 3 at 36:8-11.
67

3024
waterfront.
In
such
cases,
body
of
water
that
"divides"
community may actually be the primary factor that unites it.

Other words,
a
In
"deviation" from "contiguity" standards may be an
attempt to respect a distinct community of interest or political
subdivision.
like
The
compactness,
subordination
simply a
of
factor
contiguity
that
conventions
the Court must
is,
consider
in conducting its predominance analysis.

iii.
A common
respect
for
and
F o l i t i c a l Subdivisions
significant
political subdivisions,
"Subdivision
boundaries
Residents
political
counties
neutral
of
often
develop
tend
units
a
districting
criterion
is
such as counties or cities.
to
remain
such
as
community
stable
townships,
of
interest,
over
time.
cities,
and
particularly
when the subdivision plays an important role in the provision of

governmental services."
concurring).
facilitate
and
Moreover,
are
districts
As
Justice
that
administratively
confuse the voters.");

Powell
at
758
enhance democratic
administrative
("[L]egislative
462 U.S.
(Stevens,
J.,
adherence to subdivision boundaries can
civic engagement,
increase
boundaries
Karcher,
id.
accountability,
convenience.
do
not
convenient
at 787 n.3
See
cross
and
(Powell,
subdivision
less
J.,
likely
to
dissenting).
once wrote:
Most voters know what city and county they

live in, but fewer are likely to know what
[legislative] district they live in if the
68
id.

3025
districts split counties and cities. If a

voter knows his [legislative] district, he
is
more
likely
to
know
who
his
representative is.
This presumably would
lead to more informed voting.
It also is
likely to lead to a representative who knows
the
needs
of
his
district
and
is
more
responsive to them.
Id.
at 787 n.3
(Powell,
J.,
dissenting)
(internal citations and
quotation marks omitted).

When
artificial
with,
legislative
unit
the
voters
J.,
from,
is
and
communities
cannot
cannot
(Powell,
divorced
various
legislators
district
represent
exercise
the
dissenting).
"nothing
indeed
often
established
their
ballot
more
in
in
the
constituents
than
conflict
State,"
properly
intelligently.
Id.
an
at
and
787
A report produced by the Governor's
Commission distilled the overarching themes that were repeatedly
voiced
during
its
public
As the Commission noted,

jurisdictions
the
who
drew
difficulties
to
hold
the
that
forums
around
the
Commonwealth.
"the splitting of municipal and county
ire
of
citizens,
citizens
accountable,
should coordinate or
from
have
and
lead the
who
in
who
knowing
among
who
several
representation
county interests in the General Assembly."
of
pointed out
to
contact,
legislators
local
city and
Pis.' Ex. 23 at 8.
In evaluating whether neutral criteria were subordinated,
legislature's
an
important
adherence
reference
to
city
point
69
and
for
county
boundaries
courts
provides
undertaking
the

3026
predominance
analysis.
often will,
to
need
comply
neutral
to
neutral
federal-
criterion
precinct
explain
or
criteria
can
may,
and
subdivision borders
population
the Court will look to whether
such
method
often
legislature
state-mandated
boundaries,
the
the
from political
In such situations,
boundaries,
helps
course,
deviate
with
constraints.
another
to
Of
as
or
of
form
compactness,
communities
of
departure.
In
for
"backstop"
when one criterion cannot be fully satisfied,
geographic
interest
this
manner,
one
another
thus ensuring that
neutral criteria are still predominating in the balance.

Iv.
Geographic
may
also
be
districting
mark
the
features,
used
to
point
as
Oftentimes,
of
of
representatives.
such
provide
process.
boundaries
provide
Natural Geography
In
distinct
boundary
these
geographic
for
cases,
ranges
neutral
communities
reference
many
mountains
of
voters,
these
or
rivers,
during
indicators
interest
or
candidates,
natural
the
boundaries
can
and
may
already constitute the basis for governmental subdivision lines.

See,
e.g.,
"[m]any
Ints.'
county
Ex.
lines
14
follow
at
12
(noting
riverbeds,
and
that,
the
in
Virginia,
State's
western
boundary runs along 400 miles of mountain ridges and rivers").

Over
similar
time,
role.
generate distinct
artificial
Major
geography
transportation
communities of
70
may
also
come
thoroughfares
to
may
play
slowly
interest on either side of
the

3027
divide,
for
or the marker may be
voters,
candidates,
used as
and
useful
representatives
understand their own district's boundaries.
factors
to
consider,
reference
especially
when
point
seeking
to
These are important
adherence
to
traditional
subdivision lines is not possible.

V.
Nesting
districts
within
voters
refers
of the
each
Nesting
to
lower
district
readily
the
chamber of
of
to
practice
the
corresponding representatives,
foster
voter
(Powell,
may
J.,
House
two
or
more
legislature wholly
chamber.
"By
voting
permitting
districts
and
nested plan can be expected to

Bandemer,
concurring in part,
in
putting
state
their
participation."
result
the
upper
identify
of
478
dissenting
district
U.S.
at
179
in part).
boundary
n.l8
Nesting
that
appears
inexplicable by neutral criteria until the corresponding Senate

district is laid atop.
vi.
Precincts
and
Precincts
Voting
Tabulation
Districts
("VTDs")
are
often the smallest objectively identifiable geographic groupings

that
may
legislators
occasionally
use
to
organize
correspond
to
identifiable
communities
"governmental
jurisdictions"
234:11-16
(Ansolabehere);
legislative
towns,
of
neighborhoods,
interest,
in
605:4
71
their
districts.
own
(Hood).
but
they
right.
In
or
They
other
are
not
Trial
Tr.
Virginia,
VTDs

3028
generally
correspond
to
voting
precincts.
Id.
at
253:14-17
(Ansolabehere).
Given
their
small
boundaries alone will

neutral
criteria.
together
into
short,
This
is
because
could
precinct
easily
or
little
be
VTD
democratic
splitting
any
strung
regard
subdivisions,
advancing
avoid
can
having
political
criteria
district
with
VTDs
formations
contiguity,
neutral
compliance
rarely be sufficient to show adherence to
grotesque
compactness,
important
size,
or
for
other
values.
VTDs
but
In
remain
highly suspicious on its face.

For
provide
these
flag
same
for
reasons,
further
of several VTDs in a
however,
inquiry.
VTD
The
splits
will
often
unexplained splitting
single district can call into question the
criteria guiding that district's construction.

vii.
Among
concept
traditional,
of
enigmatic.
often
respecting
On
the
considered
principles.
the
interest" may involve
neutral
districting
"communities
one
On the
Communities of I n t e r e s t
hand,
of
interest"
respect
for
such
light
of
the
guiding
other hand,
defining
straddling the
discriminatory criteria.
principles,
fence
For example,
some
is
the
the
most
communities
other
is
neutral
"communities of
between neutral
and
communities of interest
may be defined by relatively objective factors,
such as service
delivery
transit
areas,
media
markets,
72
or
major
lines.

3029
Similarly,
as
communities may be somewhat objectively characterized
rural,
suburban,
criteria,
and
(principal
opinion)
"major
upon
rely
upon
These
"urban
largely unavailable
and
the
it.
See
(discounting
can
be
lines"
to
the
factors
Bush,
valid
"shared
because
neutral
not
U.S.
that
media
the
legislature
did
517
argument
character,"
transportation
created"
urban.
assuming that legislators actually have access to this
information
relied
or
possess
953
legislature
sources,"
"supporting
before
at
the
"the
and
data
were
district
same
was
degree
of
correlation to district lines that racial data exhibit").

The
"communities
neutral,
however,
"religious"
into
one
considers
of
individualized
qualification
that
for
515 U.S.
delineation,
it
interest
is
metric
important
when
the
This
districting
916.
defined
the
have
boundaries
to
or
morph
Miller
Court's
principles
include
by
actual
be
shared
to this elusive
demonstrable
cannot
less
"social,"
tendency
To give effect
to
becomes
"cultural,"
explains
communities
at
criterion
interest.
traditional
interests."
shared
interest"
communities
more
"respect
when
of
evidence
explained
on
of
an
objective or neutral basis.

viii.
State Criteria
For the reasons discussed above,
plaintiff does not need
to prove that a State "violated" its own districting criteria in

order
to
prove
predominance.
A State's
73
deviation
from
its
own

3030
constitutional,
statutory,
or
adopted
criteria
does,
however,
constitute evidence that is probative of subordination.

b.
If
the
Deviations
Challenged
Districts,
Challenged
Districts,
consistent
application of
the
appear
or
inexplicable
traditional,
Court
will
examine
the
Deviations
from
neutral
criteria
of
individual
by
neutral
basis
potential subordination and lay the
claim; namely,
significant
for
signal
parts
of
the
reference
to
the
principles,
those
the
foundation
then
departures.
presence
for
the
of
sorting
that the districts reflect racial classifications

voters
and do
not
constitute
neutral,
geographic
representative units.
The Supreme Court has cited several
sources of direct and
circumstantial evidence that courts can rely upon in identifying

racial deviations,
including:
[S]tatements by legislators indicating that

race
was
a
predominant
factor
in
redistricting;
evidence
that
race
or
percentage of race within a district was the
single redistricting criterion that could
not be compromised;
.
.
.
use of land
bridges in a deliberate attempt to bring
African-American population into a district;
and
creation
of
districts
that
exhibit
disregard for city limits,

local election
precincts, and voting tabulation districts.
Page,
2015 WL 3604029,
at *7
Because traditional,
democratic
values
and
(internal citations omitted).
neutral principles advance fundamental
neutral
state
74
interests,
districts
that

3031
substantially disregard these

disruption
517
U.S.
of
traditional
974
(principal
principles
forms
of
can
"caus[e]
political
opinion).
In
Bush
severe
activity."
Bush,
v.
Vera,
Justice
O'Connor described the impact that such districts can have:
Campaigners
seeking
to
visit
their
constituents "had to carry a map to identify
the
district
borders
lines,
would
because
move
from
so
block
often
to
the
block";
voters "did not know the candidates running

for office" because they did not know which
district they lived in.

In light of [the
State's] requirement that voting be arranged
by precinct, with each precinct representing
a community that shares local, state, and
federal
representatives,
administrative
it
headaches
for
also
created
local
election
officials[.]
Id.
at 974.
Such complaints have been echoed by local election
officials in Virginia who "end up taking the brunt of complaints

from
voters
who
old precinct,
can't
why
they
holders on the ballot,

a
relative
who
lives
understand why
can't
find
any
they
of
can't
their
vote
in
current
their
office
and why they are in the same district as

nowhere
near
them[.]"
Pis.'
Ex.
26
at
17:6-18.
Of
does
course,
not
satisfy
"subordination"
traditional,
the
presence
of
the
requires
neutral
deviations
predominance
inquiry
"substantial
disregard"
districting
of any identified deviations
identifiable
criteria.
and whether
75
The
it
is
alone
because
for
substantiality
sufficient to

3032
support
finding
of predominance
is
examined when
the Court
weighs the evidence as a whole in the final stage.

In
reviewing
consider
the
evidence
deviations.
bearing
Deviations
considerations,
following:
but
on
may
Districts,
be
equality,
and incumbency.
the
legislators'
attributed
legislators
population
preference,
Challenged
race,
will
bases
for
any
number
to
typically
Court
rely
political
the
of
upon
the
affiliation
or
The Court will evaluate these bases
for deviation in the following manner:

i,
"[A]n
equal
Population
population
redistricting
background,
whether
race,
or
other
determination
as
to
met."
Alabama,
population
is
goal
considered
However,
population
135
the
is
in
not
the
appear to deviate
is
as
at
...
a
1270.
balancing
relevant
given,
population
traditional
to
is
predominate
equal
Ct.
requirement
goals
taken
factors,
how
S.
goal
that
comply
to
part
when
in
legislator's
achievement
redistricting
determines
with
assessing
from neutral criteria.
This
will
of
factor
be
the
that
predominance.
federally
why
the
determining
objectives
Thus,
of
imposed
district
may
is particularly
true where the census data shows significant losses or gains of

population in certain geographic areas of a State.
The Court's analysis does not change just because the State
has decided to adopt a lower percentage deviation threshold than
76

3033
constitutionally
"a
more
required.
rigorous
In Alabama,
deviation
standard
the
than
our
found necessary under the Constitution."

as
here,
BVAP
it
seems
targets
that
and
"[c]ompliance
1%
population
to
create
stringent
Brown V.
districts[.]"
districts
than
the
of
Thomson462 U.S.
deviations
predominance
from
neutral
inquiry
held
842
the
(1983),
have
There,
two
rule
goals"
-
"posed
the State's
efforts
population"
generally
basis
1263.
"legislative
equal
principles.^"
examines
But
approximately
835,
at
these
adopted
precedents
deviation
Id.
5% deviation
Id.
with
particular difficulties with respect to

majority-minority
legislature
more
permissible
in
cannot explain away
Id.
upon
at
which
sorted into appropriately apportioned districts.
1270.
voters
Id.
The
were
at 1271.
Where apportionment by political subdivision must be sacrificed

to equal population goals,
for example,
other neutral principles
Nor can the fact that a benchmark district possesses

"almost exactly the right amount of population," Trial Tr,
147:19-148:19,
(Ansolabehere),
taken alone,
provide evidence
that changes to the district were based on race.
If adequately
populated districts were presumptively required to stay the
same, the remaining districts on the map would need to wrap
around them in violation of neutral principles.
Id. at 688:20689:10
(Hofeller) .
Of
course,
if
a
district
exhibits
unexplained
deviations
from
neutral
principles
and
the
population changes for that district reflect "remarkable feats"
of racial math, then this would constitute strong evidence that
race predominated in the drawing of the district boundaries.
See Alabama, 135 S. Ct. at 1271 {noting that "(o]f the 15,785
individuals
that
the new
redistricting
laws added to the
population of [the district] , just 36 were white a remarkable
feat given the local demographics").
77

3034
such
the
as
compactness
slack.
therefore,
and
precinct
substantial
boundaries
deviation
from
can
often
neutral
only admits of answer by other,
pick
up
principles,
non-neutral criteria,
such as race or political affiliation.

ii.
One
explanation
Racial Deviations
for
district's
districting criteria may be voters'

consideration
decisions
support
Clause.
does
of
race
by
on
its
not,
claim
Shaw I,
of
race.
own,
economic status,
variety
of
consciousness
other
does
646
discrimination.").
prove
that
course,
of
if
race
It
lead
other districting
districting
the
Equal
Protection
("[T]he legislature always

lines,
factors.
inevitably
takes more
predominated
legislators'
their
just as
use
over
of
criteria,
than
race
That
to
and
of
race
impermissible
race
traditional
it must
sort
consideration of
entailed
is
it is aware
religious and political persuasion,
demographic
not
in
under
aware of race when i t draws district
of age,
neutral
provide sufficient evidence to
sorting
at
from
The mere awareness or
legislators
racial
509 U.S.
deviations
the
race to
factors.
Of
subordination
be adequately
justified
under the strict scrutiny regime.

iii.
Another
P o l i t i c a l Deviations
explanation
for
district's
neutral districting criteria may be voters'

affiliations,
and beliefs.
As with race,
78
deviations
political
from
opinions,
the mere awareness or

3035
consideration of voters'
political affiliation by legislators is
both unavoidable and constitutionally permissible.
U.S. at 753-54
political
("It would be idle, we think,
consideration
reapportionment plan is
taken
into
fair'
considerations
are
apportionment.").
political
result
to
may
consider.
be
from
135
S.
and
on
more
political
the
at
and
basis
criterion
Ct.
a
The
districting
legitimate
Alabama,
different a
districting
fashioning
Politics
inseparable
affiliation
legislature
....
Accordingly,
in
invalidate it.
very essence of districting is to produce a

^politically
412
to contend that any
account
sufficient to
Gaffney,
1270
for
of
the
(citing
Bush for the proposition that legislators may rely on "political

affiliation"
in
districting);
(principal opinion)
Bush,
517
U.S.
at
964-65
(citing Gaffney)
However, deviations from neutral districting principles

on the basis of political affiliation or preference may not
always be constitutionally permissible.
See Gaffney, 412 U.S.
at 754
("What is done in so arranging for elections, or to
achieve political ends or allocate political power,
is not
wholly
exempt
from
judicial
scrutiny
under
the
Fourteenth
Amendment."); LULAC, 548 U.S. at 413-14 (holding that political
gerrymandering is unconstitutional) ; Arizona State Legislature
V. Arizona Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658
(2015)
(reaffirming
that
"partisan gerrymanders
.
.
.
are
incompatible with democratic principles" and present justiciable
claims)
have
this
(internal brackets omitted).
not
raised
Court
*20 n.33
the
need not
issue
consider
of
As
political
it
further.
(Payne, J., dissenting).

79
in Page,
the Plaintiffs
gerrymandering,
See
2015 WL
and
so
3604029 at

3036
The
Intervenors
Challenged
have
Districts
raised the
have
argument
political,
that
rather
some
than
of
the
racial,
justifications
iv.
Yet
neutral
In
another
would
explanation
districting
Gaffney
be
v.
Incxombency Deviations
criteria
Cummings,
idle,
we
the
for
may
be
district's
incumbency
Supreme
think,
to
deviations
Court
considerations.
observed
contend
that
incumbents
against
one
another
or
Accordingly,
S.
Ct.
at
legislators
for the
1270
may
political
reapportionment
make
very
difficult
412 U.S.
the
at 753-
district's impact on an incumbent may be a
legitimate criterion
135
"It
Redistricting may pit
election of the most experienced legislator."

54.
that;
any
consideration taken into account in fashioning a

plan is sufficient to invalidate it.
from
legislature to consider.
(citing
Bush
consider
for
the
"incumbency
Alabama,
proposition
that
protection'
districting).
See,
e.g.,
Ints.'
Pre-Trial
Brief
at
18
("HD95
was
crafted carefully to avoid taking HD94's Republican precincts

and instead take Democratic-leaning population left behind by
HD93 and reach into precincts surrounded by HD93 to dilute
Democratic
voting
strength
in
that
area.");
id.
at
25
("The
changes on the eastern border to HD75 were drawn to load heavily

Republican precincts
into the district of Democrat William
Barlow (who subsequently lost to a Republican in the 2011
election by 10 percentage points)[.]").
80

3037
However,
neutral
always
as
with
districting
principles
permissible.
protection,
at
In
least
interest
(principal
"aim[s]
as a
the
deviations
incumbency
Court
limited
purposes
recognized
form of
(emphasis
maintaining
are
not
'avoiding contests
517 U.S.
added).
existing
from
"incumbency
legitimate state goal."
opinion)
at
deviations,
for
Bush,
in the
between incumbent[s],'
964-65
political
This
relationships
at
state
between
incumbent congressmen and their constituents and preserv[es]
the
seniority the members of the State's delegation have achieved in

the
United
412
U.S.
States
House
of
783,
792
(1973),
of
the
voters.
province
"[I]ncumbency
districting,
can take various

constituents."
Here,
but
protection
but
the
Districts'
Representatives,"
As
can
experience
forms,
548
does
440-41.
Intervenors
allege
deviations
that
have
e.g.,
motive of this plan[.]").

in
residences
304:6-21
to
drawing
avoiding
(Jones).
Court
incumbency
the
advised:
factor
Trial
in
protection
of
the
Tr.
825:5-7
Challenged
protection"
(Intervenors)
That's the predominate
Some of these deviations
district
pairing
Other
many
"incumbency
("This was an incumbent-protection plan.
interest
invade
legitimate
that
Weiser,
not all of them in the interests of the
U.S.
See,
LULAC
teaches
v.
necessarily
the
be
at
justifications.
not
White
lines
between
incumbents.
deviations,
81
however,
See,
reflect
an
incumbents'
e.g.,
reveal
an
id.
at
effort

3038
to
fence
in
the
incumbent's
incumbent's
detractors
325:19-326:23
or
not
issue.
be
decided
See Weiser,
That said,
voters
challengers.
(Jones).
Whether
"incumbency protection"
need
preferred
states
here
412 U.S.
See,
this
latter
legitimate
because
no
or
fence
out
the
e.g.,
id.
at
definition
of
government
one
has
interest
presented
that
at 792.
we share the dissent's concern over Intervenors'
"implicit suggestion that approval by incumbent legislators" can

somehow "rescue"
Post
at
168.
Protection
from a
We fully
Clause
individual voter,
in
plan
are
finding
agree
that
intended
to
of
racial predominance.
"[t]he
[VRA]
protect
the
and
the
rights
Equal
of
the
not to promote the self-interest of incumbents
majority-minority
districts."
Post
at
168.
And,
to
be
clear, the framework we adopt today condones no such thing.

For
voters
purpose
added),
example,
into
of
if
legislators
particular
protecting
the
attempt
to
"*pac[k]'
majority-minority
district
incumbent,"
at
169
for
the
{emphasis
this would still constitute racial sorting regardless of
the "goal" of incumbency protection,

precisely what we
the
see post at 85-86.
find occurred in HD 75,
predominated accordingly.
On
post
minority
other
hand,
This is
and we hold that race
See post at 117-21.
if
legislators
attempt
to
pack
supporters into their districts or attempt to remove detractors

or challengers,
then i t could hardly be said that race drove the

82

3039
districting deviation.
This
does
not
imply
are inunune from constitutional challenge.
Court
has
pairing
only
sanctioned
prevention,"
challenge
to
definition
the
of
the
state
Plaintiffs
Commonwealth's
"incumbency
that
simply
protection."
actions
Although the Supreme
interest
alleged
such
in
did
"incumbency
not
interest
Thus,
raise
in
we
any
wider
are
in
no
position to decide that constitutional question.
Simply
put,
if
incumbency
interests
constitute
the
predominate criterion driving the construction of the district,
then a claim of racial gerrymandering must fail.
does
face
not
a
imply that
similar
claim of political
gerrymandering would
fate.
c.
The
That, however,
final
Weighing
step
in
the
predominance
inquiry
of
racial
sorting claim involves the weighing of the evidence in toto to

determine
whether
"predominate"
over
the legislature,
all
deviations
other
attributable
districting
criteria
to
race
employed
by
including both neutral criteria and deviations
attributable
to
predominance,
the
"subordinated"
the
non-racial
or
Plaintiffs
exhibited
motives.
must
show
"substantial
To
that
demonstrate
the
legislature
disregard"
for
these
Court
"must
other criteria.
In
be
making
sensitive
to
its
predominance
the
complex
determination,
interplay of
83
the
forces
that
enter

3040
legislature's
redistricting
extraordinary caution."
court
review
of
calculus"
Miller,
districting
515 U.S.
at
legislation
and
"exercise
915-16.
"Federal-
represents
intrusion on the most vital of local functions,"
the
Plaintiffs'
at 928
of
J. ,
concurring).
legislature
correctness and good faith,
should
balancing
Miller,
be
915,
Id. at 915
noted,
example,
the
entitled
the redistricting
to
presumption
however,
that
rather
challenged
the
predominance
than quantitative.
district
employed
however,
id.
the
predominant,
decision
to
at
Appendix
district
B.
Looking at
court
found
that
the
picture,
.
the
overriding factor explaining the General Assembly's

attach
to
the
[district]
containing dense majority-black populations,"
In
was
but
See id.
complete
"[r]ace
In
gangly
the district's overall shape was not far from routine.
917;
of
(majority opinion).
arms at various points to capture black population centers,
at
and
and the burden is upon the plaintiff
inquiry is qualitative
for
Therefore,
are
to dislodge that presumption.

It
at
serious
burden is understandably "a demanding one," id.
(O'Connor,
enactments
id.
conducting
the
predominance
various
appendages
Id. at 920.
balancing,
two
particular
issues warrant the Court's careful attention.

i.
Racial
& Political Correlation
Occasionally, a deviation may appear equally explainable by
racial or political motivations.

84
Because the State is presumed

3041
to
have
acted
lawfully
and
in
provide evidence that race -
good
faith,
the
plaintiff
rather than politics -
the primary basis for the classification.
represented
Evidence may include
the sources of data relied upon in drawing the district,
of
fixed
floors,
(or
and
"aspirational")
statements
from
political
legislators
must
or
racial
regarding
the use
targets
the
or
relative
priority of their racial and political goals.

A political
of
race
as
objective,
basis
for
however,
does
classification
not
immunize
because
used as a proxy for political characteristics.

968
(principal
opinion),
even
between
race
and
political
because
"to
the
extent
if
preference
that
political characteristics,
scrutiny is in operation."
there
race
is
Bush,
is
in
the
used
race
the
use
cannot
be
517 U.S.
at
proven correlation
state.
as
This
proxy
is
for
racial stereotype requiring strict
Id.
This is consistent with the Supreme Court's holding in Hunt

V.
Cromartie
(Cromartie
I) .
The lesson of Cromartie
was
that
a political classification would not be considered racial simply

because
541,
542
the
Democratic voters
(1999)
("[A]
to be
black.
526 U.S.
jurisdiction may engage in constitutional
political gerrymandering,
loyal
happened
even if it
so happens that the most
Democrats happen to be black Democrats and even if those
responsible
fact.").
for
The
drawing
lesson
was
the
not
district
that
85
are
racial
conscious
of
that
classification
would

3042
be considered political simply because black voters happened to

be
Democrats.
In
about
act
the
latter
individuals
of
using
stereotype.
scenario,
based on
race
as
the
the
State
color
proxy
still
of
that
their
makes
skin.
constitutes
decisions
It
an
is
the
offensive
The fact that a stereotype might have some basis in
fact - or is relied upon to achieve "non-racial" purposes - does

not render i t any less offensive.
Evidence
of
racial
argument that race,
floor
will
also
rather than politics,
particular deviations
lend
support
to
the
can be attributed for
from neutral principles.
Although such a
floor will not result in per se predominance where a district is

formed predominantly on
can
buttress
reason
for
the basis
plaintiff's
of neutral
argument
deviation where
race
that
criteria,
race
was
and politics
the
its
use
primary
would otherwise
seem equally plausible.
Lastly,
statements
districting goals may
or
the
relative
priority
constitute evidence to support a
of racial predominance.
requirements
about
the
Taken alone,
acknowledgment
of
finding
the parroting of federal
that
certain
compliance
obligations are "mandatory" or "nonnegotiable" does not lend any

weight in the predominance balance.
If it did,
start
an
the
However,
predominance
if
evidence
is
balancing
provided
86
at
that
the State would
immediate
disadvantage.
demonstrates
legislators

3043
held
false
belief
fixed
BVAP floor
then
statements
that
certain
were
by
artificial
necessary
those
to
criteria
comply
particular
with
such
federal
legislators
as
law,
regarding
compliance are relevant evidence in the predominance inquiry.

ii.
Core
retention
boundaries" -
Core Retention
or
values,
electoral
accountability,
however,
such
not
core
inhabitants."
district
as
increased
and
retention
directly
retention
administrative
enhanced
voter
ease,
awareness
be
relevant
used
holds
special
place
and
in
That is because "core preservation
Alabama,
may
to
135
to
the
S.
origin
Ct.
insulate
at
the
of
the
1271.
new
the
.
district
Moreover,
original
basis
core
for
the
boundaries.
Thus,
where
district
predecessor
districts
predominate,
courts
justification
for
Legislators'
use
the
of
lines
or
track
where
should
the
core
path
"core
also
original
examine
lines
similar
retention"
or
retention
certainly receive some degree of deference.

a
district
Unlike the other neutral criteria identified above,
predominance balance.
is
existing
appears to be facially neutral and serves neutral
political
engagement.
"respecting
to
seems
the
to
underlying
original
district.
principle
But,
their
should
the inquiry in
racial sorting claim examines the basis upon which voters were
placed "within or without
particular district."
87
Miller,
515

3044
U.S.
at
916.
"That's
neutral response,
The
all
of
Court
the
the
way we've always
done
it"
may be
but it is not a meaningful answer.
applied
evidence
in
the
foregoing
the
record
principles
and
in
when
weighing
ascertaining
whether
voters were sorted into a district predominantly on the basis of

their
race.
2.
Strict Scrutiny Analysis
Having
that
the
applied
these
Plaintiffs
predominant
in
the
met
precepts
their
formation
to
the
burden
of
to
HD 75,
evidence,
prove
making
apply strict scrutiny as to that district.
scrutiny,
found
race
was
necessary
survive
to
strict
the redistricting statute must be narrowly tailored to
a compelling state interest.

familiar
that
it
To
we
test
takes
on
In the redistricting context,
somewhat
different
appearance,
this
which
the Court will now examine.
a.
In
prior
deciding,
can
this
cases,
that
suit,
compelling
opinion)
results
the
compliance
constitute a
U.S. at 915
Compelling Interest
with
Court
federal
compelling state
("We assume,
that
Supreme
interest[.]");
with
Bush,
assumed,
without
antidiscrimination
interest.
arguendo,
compliance
has
See Shaw
laws
II,
517
for the purpose of resolving
517
[of
U.S.
the
at
VRA]
977
could
be
(principal
("[W]e assume without deciding that compliance with the
test
[of
the
VRA]
.
88
can
be
compelling
state

3045
interest.").
Various
members
of
the
Court
their separate views on the matter.

{O'Connor,
J.,
concurring)
compelling
interest
have
See Bush,
("In my view
in complying with
the
also
517
in
J.,
part,
concurring in the
joined
Justice
Alito)
by
("I
Chief
at
990
results
test
[of
548 U.S.
the
at 517
judgment in part and dissenting
Justice
would hold
U.S.
the States have a
VRA] as this Court has interpreted it."); LULAC,
(Scalia,
expressed
Roberts,
that
Justice
compliance
Voting Rights Act can be [a compelling state]
Thomas,
with
of
and
the
interest.").
This already complex posture was rendered even less certain

by
the
Court
VRA,
recent
struck down
but
2631.
"issue[d]
the
in
Shelby
coverage
County.
formula
no holding on
There,
the
under Section
itself[.]
Supreme
4 of
133 S.
Ct.
the
at
The Supreme Court did not help matters in Alabama when it
stated,
Holder,
"[W]e do not here decide whether,
continued
interest[.]"
Here,
both
decision
compliance
135 S. Ct. at 1274
remains
compelling
(internal citation omitted).
the Intervenors claim compelling interests founded on
Section
and
Section
compliance with the VRA was a

enactment,
the
Court
finds
Scalia
his
LULAC
opinion
in
with
given Shelby County v.
Justice
Scalia
wrote,
Roberts,
Justice Thomas,
in
of
VRA.
To
resolve
whether
compelling interest at the time of

the
the
rationale
offered
convincing.
passage
joined
and Justice Alito:

89
As
by
to
by
Justice
Section
Chief
5,
Justice

3046
We long ago upheld the constitutionality of
5 as a
proper exercise of Congress's
authority
under
2
of
the
Fifteenth
Amendment
to
enforce
that
Amendment's
prohibition on the denial or abridgment of

the right to vote.
If compliance with 5
were not a compelling state interest, then a
State could be placed in
the
impossible
position
of
having
to
choose
between
compliance with 5 and compliance with the
Equal Protection Clause.
54 8 U.S.
at 517
(Scalia,
and dissenting in part,

Thomas,
find
and
this
Justice
J.,
joined by Chief Justice Roberts,
Alito)
reasoning
concurring in the judgment in part
(internal
persuasive,
citations
with
the
Justice
omitted).
proviso
that
We
the
State's interest must be in actual compliance with the standards
articulated in
the
federal
This
Supreme
federal
antidiscrimination
law as
interpreted by
courts.
distinction
Court
is
an
stipulated
antidiscrimination
laws
important
that
cannot
one.
In
"compliance
justify
Miller,
with
race-based
the
federal
districting
where the challenged district was not reasonably necessary under

a
constitutional
reading
and
application
of
those
laws."
515
This reasoning is persuasive with respect to Section 2 as

well.
See Bush, 517 U.S. at 990-92 (O'Connor, J., concurring)
(noting that the Supreme Court has repeatedly enforced the
obligations of 2, lower courts have unanimously affirmed its
constitutionality,
and states would be "trapped between the
competing hazards of liability" if 2 were not a compelling
interest).
Because only a
compelling interest in actual
compliance with the non-retrogression standard of Section 5 is
necessary
to
the
resolution
of
this
need not address Section 2 at length.

90
case,
however,
the
Court

3047
U.S.
at 921.
That fundamental limitation remains applicable.
drafting redistricting legislation,

law
that
complies
constitution.
with
Thus,
compelling.
If
demands of a
federal
federal
law
and
the
state
federal
the goal of "actual compliance" is clearly
the
constitutional,
both
the State must pass a
In
State
achieves
statute,
then
there
actual
and the
can
be
compliance
federal
little
with
statute is
doubt
that
the
itself
the
state
law is similarly constitutional.

The
denial
goal
State
under
of
also
Section
"defensive
interest.
has
See,
an
(or
interest
liability
compliance,"
e.g.,
id.
at
compliance could often entail
itself:
subordinating
districting
criteria
921-27.
a
racial
avoiding
under
however,
This
neutral
preclearance
Section
is
not
2) .
This
compelling
is because defensive
violation of
traditional,
to
in
constitutional
criteria
considerations.
See
and
law
other
Harris
v.
Arizona Indep. Redistricting Comm'n,
993 F. Supp. 2d 1042, 1054-
55
"[s]everal
(D.
Ariz.
2014)
{noting
preclearance process .
that
aspects
of
the
, . may work together to . . . encourage
a state that wants to obtain preclearance to overshoot the mark,
particularly if it wants its first submission to be approved") .

But
Section
does
not
require
and
cannot
be
read
to
require - states to subordinate traditional, neutral districting
91

3048
principles to race in the redistricting process.The DOJ's own
regulations
Reg.
state
this
27
(Feb.
Vol.
explicitly.
9,
Pis.'
2011)
Ex.
at
7472)
retrogression under Section 5 does not require

violate
that
Shaw v.
finds
Reno
itself
and
related cases.").
engaging
in
fulfill
an
interest
in
forfeit
any
credible
interest
in
(76
jurisdictions to
racial
compliance
preventing
Fed.
("[P]reventing
Therefore,
predominant
defensive
at
will
state
sorting
to
begin
to
retrogression
and
may be said to have adopted an interpretation of Section 5 that
would itself render Section 5 unconstitutional as applied.

In
sum,
we
compliance with
the
hold
that
standards
Virginia's
of
federal
interest
in
actual
antidiscrimination
law
- as the federal courts have interpreted them - was a compelling
Nor does Section 2 require states to engage in such

behavior.
That is because Section 2 requires a plaintiff to
first prove that the minority group was "geographically compact"
and
could
have
constituted
a
numerical
majority
in
a
hypothetical single-member district.
See Shaw II, 517 U.S.
916; LULAC, 548 U.S. at 433; Bartlett, 556 U.S. at 26.
at
The conceptual difficulty with the compelling interest

arises when the State attempts actual compliance but does not
achieve actual compliance.
But this is not a dispute about
whether the interest is compelling; it is a dispute about
whether the State's attempt was "narrowly tailored."
If the
State's goal was actual compliance with a proper reading of a
constitutional
compelling.
federal
Only the
standard,
federal
courts
then
the
interest
is
can ascertain whether the
State "achieved" actual compliance with a constitutional reading

of those statutes, so the State can only "attempt" actual
compliance.
92

3049
interest
at
the
time
the
2011
redistricting
plan
was
designed
and enacted.
Apart
from
interest that
is
capable
cycle.
question,
the
is compelling at a
of
As
that
the
Court
believes
that
an
redistricting plan's inception
sustaining
the
plan
district
court
in
until
the
Alabama
next
stated,
districting
"We
evaluate
the plans in the light of the legal standard that governed the
Legislature when i t acted,
Supreme
under
V.
[the
of
the
[VRA]."
Alabama,
989
F.
later decision of the
State]
See
Supp.
2d
from
Alabama
1227,
future
coverage
Legislative
1307-08
vacated and remanded,
Black
(M.D.
135 S. Ct.
Ala.
1257
Because the legislature possessed a compelling interest
actual
compliance
interpreted
enacted,
to
exempted
(three-judge court),
(2015).
in
that
section
Caucus
2013)
Court
not based on a
by
the
with
federal
federal
antidiscrimination
courts
at
the
time
the
laws
plan
as
was
and because redistricting plans are inherently subject
periodic
revision
on
reasonable,
decennial
basis,
we
conclude that the compelling interest underlying the statute at

enactment
remains
compelling
interest
during
its
effective
duration.
b.
Narrow Tailoring
The next question in the analytical calculus is whether the

State's
redistricting
compelling interest.
statute
was
"narrowly
In particular,
93
tailored"
to
this
the question is whether a

3050
State's
"attempt"
"reasonably
at
911
Supreme
actual
necessary
application of
U.S.
at
compliance
under
could
constitutional
[federal antidiscrimination]
{citing Miller,
Court
explained
515 U.S.
that
be
at
narrow
tailoring
as
reading
and
Shaw II,
517
In Alabama,
the
laws."
921) .
viewed
is
satisfied
if
there is a "strong basis in evidence" for the predominant use of

race in drawing a challenged district.
135 S. Ct. at 1274.
The conceptual difficulty for the narrow-tailoring
is
this:
if
finding
of
predominance
subordinated other considerations,

of
the
antidiscrimination
subordinate
other
unconstitutional
the
interest
racial
standards
reading of
saves
The
answer
criteria
could
does
the
is
have
race
require
how
race
can
to
an
statute by the State be
State's
this:
not
then
federal
that
constitutional reading
considerations,
that
gerrymander?
and a
means
inquiry
unconstitutional
if
the
reasonably
disregard
been
viewed
racial
for
non-
as
not
substantial, and the State shows a strong basis in evidence that
its
deviations
with
been
the
appeared
federal
considered
necessary
standard,
reasonably
then
to
the
ensure
actual
district
could
necessary
under
compliance
still
have
constitutional
reading of the statute.
Therefore,
"preponderance"
apply
as
the
standard
"sufficiency"
finder
during
standard
94
of
the
fact,
we
predominance
during
the
employ
inquiry,
narrow
a
but
tailoring

3051
inquiry.
this
Justice
Breyer's
dissent
in Abrams
v.
Johnson makes
rationale clear:
This legal distinction - between whether a

plan
really violates
2 or might
well
violate 2 - may seem technical.
But it is
not.
A legal rule that permits legislatures
to take account of race only when 2 really
requires them to do so is a rule that shifts
the power to redistrict from legislatures to
federal courts (for only the latter can say
what 2 really requires) .
A rule that
rests upon a reasonable view of the evidence
(i.e., that permits the legislature to use
race
if
it
has
a
"strong
basis"
for
believing i t necessary to do so) is a rule
that
leaves
at
least
modicum
of
discretionary
(race-related)
redistricting
authority in the hands of legislators.
521 U.S.
court
at 114
was
endeavor,
the
already
J.,
dissenting).
required
to
In Abrams,
undertake
the
a federal
districting
so Justice Breyer's dissent was unavailing.
lower
court
majority-black
principles,
opinion).
(Breyer,
decided
that
district
it
declined
to
it
could
not
create
without
subordinating
do
Id.
so.
at
84-85
Because
a
second
neutral
(majority
This does not mean, however, that a court reviewing a
State's plan
cannot
long as
legislature had a
the
accept
the
State's alternate
strong basis
judgment,
for believing
so
its
plan was compliant.
Therefore,
for predominance,
matter of fact,
the
criteria.
narrow
For
the
inquiry is whether,
as a
State substantially disregarded non-racial
tailoring,
95
the
inquiry
is
whether
the

3052
state had good reason to believe that its actions were required
for actual compliance with the non-dilution or non-retrogression
standard.
is
Because substantial disregard of non-racial criteria
not
required
standard,
this
under
inquiry
constitutional
necessarily
reading
entails
also
of
either
asking
whether
the State had good reason to believe that its own departure from
non-racial c r i t e r i a was not substantial.
Because the
standards
tension,
standards
of non-dilution
of
and
the
racial
sorting claim and the
non-retrogression
twin demands" and provide a
the State's objectively reasonable efforts.
990 (O'Connor, J., concurring).

reasonably
the
in
avoid
legislature
had
dilution
Bush,
fairway for
517 U.S.
at
There may be a variety of plans
reasonably respect traditional,

If
stand
the Court must recognize that the State is attempting
to "toil with the[se]
that
often
and
retrogression
and
also
neutral districting principles.
strong
basis
in
evidence
for
its
districting decision and reasonable individuals could have come
to a
different
conclusion,
then the court
should accept that
reasonable judgment during the narrow tailoring stage.
Thus, the question a court must ask at the narrow-tailoring

stage is whether the legislature has shown
reasons"
to
evidence
for
necessary
believe
to
believing
achieve
i.e.,
that
that
actual
96
it
its
had
that it had "good

a
actions
compliance
strong
were
with
basis
in
reasonably
federal

3053
antidiscrimination
standards
of those standards.
Or,
based
on
constitutional
reading
could a reasonable legislator have come
to the conclusion that the challenged district violated neither

federal law nor any constitutional limitations upon that federal
law.
This
formulation
Intervenors
proposed
inquiries.
had a
also
explains
seemingly
'strong
different
basis
in evidence
Districts
needed
to
for
meet
BVAP target to avoid retrogression."
Intervenors
question
is
criteria."
Both
the
Plaintiffs
narrow
argued
at
much
that
"how
Trial Tr.
of
these
trial
exceed
Pis.'
that
district
855:20-21
inquiries
believing that all

or
[it]
of
the
predetermined
Post-Trial Brief at
the
narrow
violates
(Intervenors)
are
and
tailoring
Plaintiffs argue that the State "must show that
Challenged
28.
why
tailoring
the
state's
(emphasis added).
necessary,
but
neither
is
sufficient.
The narrow tailoring inquiry asks whether "the legislature

ha[d]
'strong
basis
in
evidence'
based) choice that it has made."

This
standard
in
support
of
the
Alabama, 135 S. Ct. at 1274.
does
not
demand
that
State's actions
actually be
necessary to
achieve a compelling state interest in order
to
be
constitutionally
valid.
And
legislators
evidence
order
have
to
good
required,
may
to
have
use
comply
racial
with
reasons
even if a
to
basis
in
classifications
strong
in
statute
believe
when
such
court does not

97
(race-
they
use
is
find that

3054
the actions
compliance.
Id.
were
(emphasis added).
this
necessary
for
statutory
With respect to Section 5,
for
example,
inquiry into whether the "race-based choice" had a
basis
in
and
because
evidence"
a
reaches
both
the
constitutional
does not require subordination -
standard
of
retrogression
interpretation
of
retrogression
the standard of subordination.
With respect to subordination,

that
the extent of a
not
irrelevant
"exhibit[s]
[the VRA]
opinion)
to
of
narrow
racial
could justify."
(emphasis
("[C]ompliance
tailoring
inquiry"
manipulation
Bush,
added).
with
the Supreme Court has noted
State's disregard of neutral criteria "is

the
level
"strong
517 U.S.
Accord
federal
that
at
exceeds
980-81
Miller,
when
it
what
(principal
515
U.S.
antidiscrimination
laws
at
921
cannot
justify race-based districting where the challenged district was

not
reasonably
necessary
under
application of those laws.").

that
district
compliance
standard
with
entails
is
constitutional
In other words,
narrowly tailored
constitutional
showing
that
to
an
reading
the
reading
part of showing
interest
of
the
district
and
is
in actual
retrogression
one
that
reasonable legislator could believe entailed only reasonable and

minor deviations from neutral districting conventions.
Nor
is
"strong basis
an
inquiry
into
in evidence"
whether
that
98
its
the
actions
State
were
possessed
necessary to

3055
"prevent retrogression" limited to the BVAP percentages in the

Benchmark
Plan's
Congress
amended
decision
in
existing
majority-minority
Section
Georgia
v.
5,
it
rejected
Ashcroft,
539
the
U.S.
"adopted the views of the dissent."
Alabama,
(citing
68-69,
H.R.
Rep.
No.
109-478,
pp.
districts.
Supreme
461
Court's
(2003),
135 S. Ct.
and
When
n.
183
and
at 1273
(2006)).
The dissent "made clear that courts should not mechanically rely
upon
numerical
percentages
but
significant circumstances."
U.S.
no
at 493,
argument
particular
498
(Souter,
that
dissenting)
(noting
simple
of
alone
J.,
decrease
dispositive
the
in
about
1273
"locks
Ashcroft,
that
at
take
of
all
(citing Ashcroft,
539
dissenting)}.
retrogression
district.
fact
Id.
should
539
entire
Thus,
in"
U.S.
the
at
Court
[BVAP]
in
whether
account
there can be
BVAP
498
each
(Souter,
agrees
some
of
that
districts
proposed
J.,
"the
is
plan
not
is
retrogressive") .
The
retrogression
standard
also
does
not
specific number of majority-minority districts.
"lock
in"
See id. at 492
("I agree with the Court that reducing the number of majority-
minority districts within a State would not necessarily amount

to retrogression barring preclearance under 5 of the Voting
Rights Act of 1965."); Texas v. United States, 831 F. Supp. 2d

244,
260
suggested
(D.D.C.
that
2011)
the
("[T]he Supreme Court
inquiry
required
99
by
Section
has never
can
be
3056
satisfied
by
districts.
is
examining
In fact,
complex
create
within
the
the
same
deviations
from
of
majority-minority
the Court has acknowledged that the inquiry
State,
number
Section
at
number
This
holds
true
but as a matter of logic.
performing
U.S.
the
undertaking.").
legal principle,
changes
only
of
it
simply
neutral
may
must
districting
only
as
not
be
feasible
districts
also
avoid
criteria.
to
because
unreasonable
See Miller,
515
910.
retrogression
significant
retaining
candidate
analysis
circumstances,"
Section
of
5's
choice,"
See 52 U.S.C.
10304(b)
that
Alabama,
Ashcroft,
This mandate
adopting changes
must
is
S.
account
Ct.
reference
529
now
"take
135
"anchoring
dissenting).
U.S.
part
at
of
at
1273,
to
all
while
electing
493
the
of
{Souter,
statute
a
J.,
itself.
(prohibiting covered jurisdictions from
"ha[ve]
the purpose of
or will
have the
effect of diminishing the ability of any [minority] citizens .

. to elect their preferred candidates of choice[.]").
'ability to elect'
Supp.
Based on demographic
majority-minority
districts
not
is the statutory watchword."
"Clearly,
Texas,
831 F.
2d at 260.
Therefore,
strong
basis
in
once a
court finds
evidence
standard
legislature had good reasons

employed in the district
for
that race predominated,
the
asks
the
not
only
believing the BVAP percentage
as v/ell as the district

100
whether
itself -
was
3057
necessary to avoid retrogression,

is
one
that
reasonable
but also whether the district
legislator
could
respected neutral districting principles.

reminded:
may
district,
Ct.
at
of
be
unclear;
claims
and,
about
with
they often require
voting
respect
behavior;
to
any
subordination
This
as
applies
well.
tailoring"
to
In
inquiry
reasonable
the
state
context
permits
of
the
the
particular
judges may disagree about the proper outcome."
1273.
"narrow
controverted
generally
As the Alabama Court
"The standards of 5 are complex;
evaluation
evidence
believe
135 S.
judgments about
redistricting,
State
to
the
overshoot
the
bull's-eye, so long as it hits the target.

The
sorting
foregoing
claim
legal
provides
framework
the
for
guidepost
analyzing
for
the
racial
statewide
and
district-by-district findings that follow.

B.
Evidence Of General Application To All Districts
"A
racial
boundaries
of
gerrymandering
individual
"district-by-district"
However,
across
the
all
districts"
basis.
Plaintiffs
districts.
claim
and
Alabama,
provided
Therefore,
some
the
must
135
applies
be
S.
the
proven
Ct.
evidence
Court
to
will
on
at
that
1265.
applied
assess
that
evidence before proceeding to its district-by-district analysis.

Id.
("Voters, of course,
can present statewide evidence in order
to prove racial gerrymandering in a particular district.").
like
fashion,
the
Commonwealth's
101
evidence
may
apply
In
across
3058
districts.
credibility
with
the
Our
determinations
record
First,
findings
as
on
the
and
how
evidence
are
particular
based
evidence
on
our
squares
whole.
the Intervenors frequently discussed the substantial
population changes experienced on both a
the Challenged Districts.
19-20 (Docket No.
104).
See,
e.g.,
statewide level and in
Ints.'
Post-Trial Brief at
That evidence has a role to play in the
predominance analysis, but it is a limited one.

As the Supreme Court held in Alabama,
goal
is
not
use of race
Ct.
at
one
among others to be weighed against the
to determine whether race
1270.^
background,
factor
Instead,
"it
taken as a given,
other factors,
"an equal population
is
^predominates.'"
part
of
the
135 S.
redistricting
when determining whether race,
or
predominate in a legislator's determination as to
how equal population objectives will be met."
Id.
The predominance question "concerns which voters the

legislature decides to choose[.]" Alabama, 135 S. Ct. at 1271.
That
is because,
like compliance with the VRA,
it
is a
"demand" that the State does not have the option of ignoring.
See Page, 2015 WL 3604029 at *26 (Payne, J., dissenting).
"Indeed, in light of the Constitution's demands, that role may
often prove ^predominant' in the ordinary sense of that word.
But,
.
.
.
gerrymandering
^predominance'
in
claim is special.
the
context
of
It is not about
a
racial
whether a
legislature believes that [a goal] takes ultimate priority."

Alabama, 135 S. Ct. at 1270-71; accord Page, 2015 WL 3604029 at
*26 (Payne, J., dissenting) {"[T]here is a difference between a
State's 'paramount concern' with complying with federal law and
a State's use of [a factor] as a ^predominant criterion' for
allocating voters between districts.").
102
3059
Although
the
equal
population
goal
is
not
traditional
factor to be considered in the balance in deciding predominance,
its
"background" role
is nonetheless
important in assessing why
certain redistricting actions were taken.

losses in population affect where in a
pertinent
cannot -
to
which
neutral
gains or
State new districts must
be created or where old districts cannot
is
For example,
stand.
redistricting
That,
criteria
in turn,
can
or
be fully satisfied.
Second,
in Section
for
III
the reasons provided in the factual discussion
above,
the Court
finds
that
55%
BVAP floor was
employed by Delegate Jones and the other legislators who

hand
in
believed
crafting
this
the
Challenged
necessary
to
Districts.
avoid
Those
retrogression
had a
delegates
under
federal
law, and we do not doubt the sincerity of their belief.^

Third,
the
Plaintiffs'
testified about his

particular.
Dr.
expert.
Dr.
Stephen
Ansolabehere,
analysis of VTDs in the Commonwealth.
Ansolabehere
used statistical models
In
to examine
the movement of VTDs into and out of the Challenged Districts
The
quota
dissent
.
believes
raises
even
that
more
Virginia's
serious
"one-size-fits-all
concerns"
than
the
mechanical
racial
targets
in
Alabama
because
the
Alabama
legislature "sought to maintain preexisting racial percentages
specific
to
each
district
with
the
aim
of
avoiding
retrogression[.]"
Post at 162-63.
But, the legislators in
Alabama mistakenly believed that any decrease in existing BVAP
percentages would constitute retrogression.
Any patina of
district-specific treatment was no more than the residue of this
misconception.
103
3060
and
opined
whether,
in
his
view,
those
predominantly "racial" or "political."
movements
See id.
were
at 14 9:19-152:6
(Ansolabehere).
With respect to Dr.
Ansolabehere's analysis
regarding race
and politics as
"predictors" of the likelihood of inclusion of
VTDs
the
in
one
initial
of
technical
concerns about
his
views
Challenged
concerns
Districts,
and
more
to
the
reasons
for
Court
fundamental
the method employed that
as
the
cause us
has
both
substantive
not
VTD placement.
to credit
First,
even
though Dr. Ansolabehere's analysis provides a "regional" control

to avoid examining VTDs that could not have feasibly found their
way
into
the
(Ansolabehere) ,
region
region
could
en
contiguity
does
to
and
not
the
conventions,
(Katz)
a
Districts,
considered
route
that
district"
that
be
514:23-515:13
assumes
Challenged
VTD
that
account
to
"hop"
target
see
id.
(noting
"can
be
"doing
for
at
whether a
over
another
district
in
at
that
the
same
VTD in
violation
of
assigned
by
VTD
that
the
analysis
analysis]
163:19-25
in
503:9-504:3
independently
[the
id.
(Katz)
and
incorrectly
to
given
subregions
doesn't solve that problem").^
Admittedly,
Dr.
Katz's
approach
which
includes
variable for distance from the center of the target district is, by his own description, "not a perfect fix" and a sort of
"crude or poor approximation."
Trial Tr.
504:18-24
(Katz).
Nonetheless, it offers a more reliable approach to the issue
than Dr. Ansolabehere's analysis.
104
3061
More
versus
fundamentally,
politics"
consider
the
opinions
extent
to
however.
Dr.
miss
the
mark
the
boundaries
which
Ansolabehere's
because
"race
they
do
not
themselves
are
justifiable by neutral criteria or any other motivation besides

race or political disposition.
not,
for
example,
cultural factors,
and
consider
The models
"economic
geographic factors,
service delivery
areas."
Id.
that
he employed do
factors,
social
factors,
governmental jurisdictions
at
230:14-21
(Ansolabehere).
If a district is intentionally designed as a performing district
for Section 5 purposes,

movement
of
even
to
VTDs
race
into
or
statistically
composition
that
there should be little surprise that the
of
the
out
of
the
significant
population.
"predominated"
for
district
degree
This
the
does
purposes
is
correlated
with
not
the
mean,
of a
racial
racial
however,
sorting
claim.
The predominance question requires an inquiry into whether

the
movement
of
other criteria
857
F.
156
Supp.
(2012).
just does
Dr.
not
VTDs
factors
determining
and
out
in the process.
2d 553,
Dr.
565
provide
(D.S.C.
including
whether
district's
105
district
v.
sum,
analysis,
aff'd,
the
133 S.
most
into this
analysis,
steady
subordinated
South Carolina,
for
insights
correlation
party
Backus
2012),
any specific
partial
of
See
Ansolabehere's
Ansolabehere's
other
into
can
be
deviations
part,
inquiry.
which
holds
considered
from
Ct.
in
neutral
3062
criteria may be more

157:24-158:5
assessing
reasons
attributable
(Ansolabehere),
not
for
refuting
using
reliable,
approximation
equally
particular
Moreover,
Dr.
susceptible
but
it
race
can
testimony
deviations
Katz's
the
being
least
with
respect
that
to
crude,
included
at
considered
in
neutral
limitation
the
be
id.
provides
from
statistical significance of the racial

at
or politics,
only
admittedly
for
to
to
in
principles.
but
that
every
non-racial
nonetheless
VTDs
are
not
district,
the
justification disappears,
question
of
whether
race
politics is a more significant predicator of VTD placement.

Ints.'
Ex.
16
at
("Statistically
Ansolabehere's
21,
Table
1;
are
these
analysis
on
Trial
Tr.
505:22-510:25
tie.").
On
the VTD issue
is
not
or
See
(Katz)
balance.
Dr.
reliable proof
on the predominance issue.

Lastly,
the
Court
finds
that
some
"statewide"
compactness
information is useful as a point of comparison for the districtby-district
Challenged
average
analysis
set
Districts,
Polsby-Popper
out
the
in
Section
average
Score
Reock
was
Schwartzberg score was 2.365.^
IV.C.
score
.192,
Pis.'
Ex.
below.
and
was
In
.320,
the
the
the
average
51 at 12, Table 2.^^
Dr. Katz utilized a modified Boyce-Clark measure in his

analysis.
Trial Tr. 537:2-4
(Katz).
The Court declines to
analyze the districts separately using this measure.
Dr. Katz
appeared to employ the Boyce-Clark measure simply to prove the
more academic point that there is no agreed-upon standard and
that
different
measures
can
lead
106
to
different
outcomes.
Id.
at
3063
In
the
.360,
Non-Challenged
the average
Districts,
Id.
the
districts.
Challenged
the
"top
721:8-12
Reock
.243,
score
was
and the average
Under the Reock and Polsby-
higher scores represent more compact districts.
Id.
Of
Districts
lowest Reock scores

in
Id.
Under the Schwartzberg measure,
compact
average
Polsby-Popper Score was
Schwartzberg score was 2.128.
Popper measures,
the
50"
are
and
with
the
the
100
in
five
lower scores represent more
House
the
districts,
"bottom
50"
seven of
with
the
of the Challenged Districts are
highest
Reock
scores.
Trial
Tr.
(Hofeller).
With these generally applicable findings in mind,
the Court
now advances to the requisite district-by-district analysis.

so doing,
the analysis is guided by the legal principles and the
framework outlined in Section
C.
As
have
IV.A.
above.
District-by-District Analysis
with
the
generally
our district-by-district
we
In
based
on our
applicable
analysis
examination
factual
itself
of
the
is
record
findings
factual
as
above,
one
whole
that
and
on
our assessment of the credibility of the witnesses.
540:19-542:9 (Katz).
This point is not disputed.
None of the experts disputed the compactness calculations

provided by the Plaintiffs.
However, the Court reiterates that
compactness is "more of a flag than a conclusion" and rejects
the suggestion by Dr. Ansolabehere that districts under .20 on
the Reock scale are presumptively "non-compact."
See ante at 57
n.l5.
107
3064
1. D i s t r i c t 63
HD
63
is
represented
by
redistricting
contained
of
in
the
all
Dinwiddie-Greensville
then-Delegate
process.
of
Chesterfield.
Plan,
found
Under
Dinwiddie
Pis.'
Rosalyn
Ex,
the
and
50
at
Dance
Benchmark
Petersburg
69,
Table
area
during
and
the
was
2011
Plan,
the
district
City,
and
part
1.
of
Under the Enacted
the district now contains all of Petersburg City and parts
Chesterfield,
Dinwiddie,
Hopewell,
and
Prince
George.
Id.
This increased the number of county and city splits from 1 to 4

and increased the number of split VTDs
50
at
69-70,
percentage
Tables
of
80.2,
1,
2.^^
Ints.'
HD
Ex.
14
from 0
63
at
has
83,
to 8.
and
Pis.'
core
is
Ex.
retention
contiguous
by
land.
On
its
chopping
face,
Dinwiddie
the
County
district tends
to
until
through
it
Dr.
cuts
district
in
is
half,
unusually
the
southern
follow precinct boundaries

Dinwiddie
Ansolabehere and
Dr.
precinct
Hood come
This
is because Dr.
After
border
from west
along
of
the
to east
Interstate
to different
conclusions regarding the number of VTD splits.

15 at 6 n.5.
shaped.
85.
statewide
See Ints.'
Ex.
Hood counts the number of VTDs
that are split, whereas Dr. Ansolabehere counts the number of

splits in VTDs.
The latter method accounts for VTDs that are
split
multiple
times.
We
are
not
convinced
that
Dr.
Ansolabehere's approach is entirely sound.
See Pis.' Ex. 51 at
15 n.3.
But, because Dr. Hood only provides statewide splits
data, the Court will rely upon Dr. Ansolabehere's district-bydistrict splits data, thereby giving Plaintiffs the benefit of
the doubt.
The Court expresses no opinion regarding the
appropriate counting measure.
108
3065
After
that,
the
New
Hope.
around
configuration
district
line
After
around
constricts,
brief
Petersburg
return
City,
the
carving
to
out
rather
district
hook
normal
narrows
to
avoid the Jefferson Park area and the homes of Delegates Cox and
Ingram.
It
George,
into
James River.
then
continues
various
parts
See Pis.'
Ex.
in
of
narrow
Hopewell,
66 at 1;
form
and
Ints.'
through
Prince
terminates
Ex.
at
94 at 1.
The district had Reock and Polsby-Popper scores of

.48
under
scores
of
the
.25
15, Table 9.
of
any
Benchmark
and
district
Ex.
The
criteria
under
and
the
experienced
Enacted
Plan.
steep
Ints.'
. 61 and
drop
Ex.
15
to
at
This marks the largest Reock compactness reduction
(Ansolabehere) .
Pis.'
.16
Plan
the
in
the
The
Enacted
district's
Plan.
Trial
Schwartzberg
Tr.
score
is
140:7-9
2.506.
51 at 11, Table 1.
district's
begin
with
deviations
the
from
splitting
of
split appears to be avowedly racial.
neutral
Dinwiddie
redistricting
County.
This
Delegate Dance testified
that the southern half of Dinwiddie "went to Delegate Tyler to

try to get her number
55 percent."
Trial Tr.
are two sub-deviations:
[o]f African-American voters up to
80:11-17
(1)
(Dance).
Within this deviation
the splitting of Dinwiddie precinct;
and (2) the hook that wraps around New Hope precinct.
The Dinwiddie precinct is split along 1-85, but this is not
listed
among
the
redistricting
criteria,
109
which
undermines
its
3066
explanatory value as a
S.
Ct.
at
1271-72.
districting criterion.
See Alabama,
Although established transit
corridors may
split areas into "communities of interest" over time,

no
evidence
that
this
precinct
is
comprised
communities on either side of the highway.
the
artificial
border
provided
by
1-85
On
may
135
there was
of
distinct
the other hand,
provide
clear
boundary to voters and candidates alike that reside in Dinwiddie
precinct and wish to
know their House district.
In the absence
of any further explanation by the Intervenors or the Plaintiffs,

however,
for
this
the Court declines to identify any particular rationale

"sub-deviation," meaning
that
the
Plaintiffs have not
carried their burden of attributing it to race.
The other "sub-deviation" -
decidedly not racial.

finds
that
the
prevention"
and
the hook around New Hope -
After reviewing the evidence,
purpose
for
"incumbency
this
deviation
protection."
was
This
325:24-25
(Jones).
Delegate
Jones
testified
accounted for "the bulk of the splits in

id. at 326:18-19,
tremendous
had
"challenger
that
[the 75th]
was
Trial Tr.
the
cutout
district,"
that New Hope was retained in HD 63 because "a
amount
constituents
the Court
deviation
negotiated between Delegates Dance, Tyler, and Jones.
is
of
family"
[Delegate
there,
id.
Dance's]
at
employees
326:5-10,
and
or
that
Delegate Dance had "a potential primary opponent she wanted to

draw
out
of
her
district,"
id.
110
at
326:11-12;
accord
id.
at
3067
858:4-7
{Intervenors);
Ints.'
Pre-Trial
Brief at
looks like the hook is reaching for something,
20.
So,
if
it
that's because it
is: a potential threat to the incumbent.

Thus,
at this point
configuration
of
HD
63
the
was
record is that one reason for

racial
and
one
reason
was
the
purely
political.
The other component of HD 63's

north
and east
from
U.S.
4 60
to
unusual
the
James
shape
River
is
in
its
a
reach
way that
runs through both Prince George County and the City of Hopewell.
In
so
doing,
localities
splits
this
in
component
of
district
from
the
number of VTDs.
at 79:23-80:3
(Dance).
HD
Trial
63
three
Tr.
increases
to
the
five,
140:16
number
and
it
of
also
(Ansolabehere);
id.
According to Delegate Dance's testimony,
"that's what it took to get
[Delegate Tyler]
strength of African-American
voters."
Id.
to the 55 percent
at
81:15-18
(Dance).
Not only did this help satisfy the 55% threshold in District 75,
it
also
helped
maintain
population in District
Prince George
then
...
However,
other criteria,
water
record
in
[a]nd
concentration of African-Americans
shows
the
in
(Dance).
that
the
eastern
both neutral and political.
crossing
African-American
Delegate Dance "picked up parts of
at 81:21-83:6
the
substantial
to get more African-Americans
picked up the
Hopewell[.]"
the
63.
Benchmark
111
HD
border
advanced
In order to unwind
74,
Delegate
Jones
3068
decided to move precincts in Hopewell City out of HD 74 and into

HD 63.
Thus,
adherence
465
to
HD
63's
eastern
contiguity
configuration
conventions.
See Wilkins,
precincts
eastern
in
HD 63
boundary
detriment
Ints.'
63's
HD
264
74's
Va.
at
(examining whether HD 74's water continuity was permissible
under the Constitution of Virginia).
the
improved
Ex.
unusual
avoids
of
92
rather
than
solving
Republican
at
2.
shape
Thus,
can
HD
be
Moreover,
62
the
or HD 64,
water
districts
it
either
that
on
the
District's
crossing
on
appears
explained
by placing these
this
problem
side.
aspect
neutral,
to
See
of
racial,
HD
and
political basis.
It
is
the
considerations
neutral
Plaintiffs'
subordinated
criteria
provided thus
and
far
is
other
burden
all
to
show
other
non-racial
in equipoise,
that
the
criteria,
criteria.
and the
The
racial
including
evidence
Plaintiffs have not
yet satisfied their burden on the predominance issue.

Plaintiffs
rely
complete their task.
on
testimony
To begin.
in compactness scores but,
flag
the
than a conclusion.
Dr.
of
Dr.
Ansolabehere
to
Ansolabehere notes the drop
as discussed above,
that is more of a
If compactness has been sacrificed to
enhance contiguity or serve political ends,
then race alone has
not subordinated this criterion.
Dr. Ansolabehere also analyzed
VTD movements
above,
account
for
but,
other
as
discussed
criteria
that
112
may
be
that
analysis
shaping
the
fails
to
district,
3069
such as
incumbency considerations
in nearby districts.
of VTD splits.
incumbency
Finally,
or solving contiguity issues
Dr. Ansolabehere notes the number
But the majority of splits are attributable to
considerations
rather
than
race.
Moreover,
splits appear to be attributable to Delegate Jones'
some
twin aims of
solving the water crossing and limiting population deviations to
1%.
to
In sum,
be
we find Dr. Ansolabehere's testimony on each point
unconvincing.
Plaintiffs
dislodge
in
Thus,
their
his
obligation
the presumption of
evidence
to
lawful
prove
did
not
help
predominance
action
to which
the
and
to
the General
Assembly's redistricting plan is entitled.

Based
have
on
not
the
record,
satisfied
considerations
districting
the
their
subordinated
criteria
basis of the record,
in
Court
finds
that
burden
to
prove
all
the
other
formation
the Court holds,
neutral
of
HD
the
Plaintiffs
that
and
63.
racial
race-neutral
And,
on
as a matter of fact,
the
that
race did not predominate in the drawing of HD 63.

2. D i s t r i c t 75
HD
75
is
represented
found
by
in
Delegate
contained all
of
Sussex
and parts of Brunswick,

and
Southampton.
the
Pis.'
Dinwiddie-Greensville
Roslyn
Under
the
County,
Tyler
Benchmark
Greensville,
Franklin City,
Ex.
50
113
at
during
area
and
the
was
2011
Plan,
the district
and
Emporia City
Isle of Wight, Lunenberg,

69,
Table
1.
Under
the
3070
Enacted Plan,
Greensville
Isle
the district
and
of Wight,
parts
of
Lunenberg,
now contains all of Emporia City and

Brunswick,
Dinwiddie,
Southampton,
Surry,
Franklin
City,
and Sussex.
Id.
This increased the number of county and city splits from 5 to 8

and increased the number of split VTDs from 4 to 13.
50 at 69-70,
of 78.64,
Ints.'
On
despite
Pis.'
Tables 1,
its
Ex.
2.
HD 75 has a
14 at 83,
face,
the
Ex.
66
at
6.
The
Ex.
core retention percentage
and is contiguous by land.
district
its odd tendency to
Pis.'
appears
leak across
district
had
relatively
compact,
county and city lines.

Reock
and
Polsby-Popper
scores of
.42 and
.22 under the Benchmark Plan,
which shifted to
scores
.41
.19
Ints.'
of
15, Table 9.
Ex.
51
at
under
the
Enacted
Plan.
Ex.
The district's Schwartzberg score is 2.282.

11,
compactness
Trial Tr.
and
Table
remained
141:4-5
1.
"about
Although
the
the
same
(Ansolabehere),
district's
between
the
15
at
Pis.'
technical
two
plans,"
Delegate Tyler testified that
her district has "[v]ery irregular borders" and is "not an easy

district to follow,"
(Docket No.
90-2, Ex. B,
23:2-7).
A review of HD 75's boundaries suggests that she is right.
Although the district has a clear southern border,

no
solace
population
because
her
equality
district
and
VRA
borders
compliance,
just mandatory; they admit no variation.

are
nullity
in
the
predominance
114
North
Carolina.
state
borders
As such,
balance.
that provides
Unlike
are
not
state borders
The
only
other
3071
county
boundaries
bordering
seemingly
Mecklenburg,
counties.
Pis.'
addition
of
Ex.
the
Nottoway,
66 at
at
6.
are
Prince
those
George,
Notable in this
district's
Brunswick County whole.

94
respected
lower
left
Trial Tr.
and
is
which
(Jones);
the
makes
Ints.'
Ex.
7.
Delegate
Dance
testified that
the
creation of
HD 75
us a little trouble to try to get to the 55 percent."

741:1-15
(Dance).
"required
herself
some
To
drastic
testified
that
get
to
the
55%
BVAP,
maneuvering[.]"
she
"was
Id.
concerned
the
the
"gave
Trial Tr.
district
Delegate
about
number of black people in my district."

B,
Suffolk
regard,
corner,
323:8-10
segments
Tyler
decrease
(Docket No.
90-2,
in
Ex.
88:15-16.)
Although the irregularity of the district boundaries can be

seen to buttress
"drastic
floor,
the
maneuvering"
the
district's
in
appears
choice
to be
Tyler's]
percent."
order
to
comply
irregular
borders."
Dinwiddie County was

population.
the
go
case
north,
number
Id.
.
at
Trial
the
55%
BVAP
was
Tr.
323:2-4
was
115
Jones
"to
(Dance).
(Jones).
That
underpopulated.
try
[o]f African-Americans
80:11-17
Delegate
for
split because the district
because HD 75
however,
.
with
have offered their own explanations
"very
need of
to
in
Intervenors
testified that
was
Delegate Dance's testimony that HD 75 required
to
get
voters
The
[Delegate
up to
Therefore,
55
while
3072
underpopulation may help explain the changes to the district,
it
cannot be weighed against race in the predominance analysis.
The district's irregular eastern and western borders can be

also
attributed
to
race
because,
moving coherently to the

Americans,
55
"east
according
[or]
to
Delegate
Dance,
west would have been Euro-
and she needed some African Americans to get to that
percent."
Id.
at
80:21-24
(Dance).
Delegate
Jones'
testimony did not contradict that assessment.
Delegate Jones testified that many of the changes,

swapping
out
the
Franklin City,
done
on
Tyler
See
the
did
id.
and
Dendron
precincts,
splitting
and excluding the Berlin and Ivor precincts were

basis
not
at
Wakefield
such as
of
receive
"member
many
323:11-16;
request"
votes
324:12-16;
in
or
those
325:1-5
because
Delegate
removed
precincts.
(Jones).
Delegate
Jones accepted these changes even though adherence to political
subdivisions
process.
whole
not
See
until
Dendron]
and
id.
out.");
been
compactness
at
.
323:11-16
she
rather
to
than
"member
answers,
because
I
requests"
the
that
subordinated
had
we
two
swap
other
in
the
counties
[Wakefield
and
{"I would have never done that had i t
jurisdictional boundaries as
changes
be
{"[W]e
requested
325:14-16
requested
would
wanted
could(.]").
or
relevant
racial or political?
116
to
split
as
few
But attributing the
performance
question:
concerns
was
the
begs,
request
3073
Like in HD 63, the evidence admits of both a racial purpose
and a political purpose.

testified that
For instance, Delegate Jones himself
Delegate Tyler's request to swap Wakefield and
Dendron was based on "real concerns" stemming from the fact that
she "didn't break 51 percent" in a general election race "with a

Caucasian" and that she "won by less than 300 votes" in a "five-
way race in a primary with two Caucasians."

(Jones).
That bespeaks an effort to both protect the incumbent
and prevent retrogression.

"[S]he
Id. at 323:19-324:3
was
worried
Similarly,
about
too
low
Delegate Jones testified:

of
black
voting-age
population for her to be able to be successful in an election."
Id.
at
322:10-12.
incumbent
while
This
also
too
reflects
preserving
an effort
minority
to protect
voters'
ability
the
to
elect their candidate of choice.
Unlike in HD 63,
the
basis
Trial
upon
Brief
which
relies
however,
voters
upon
here there is no ambiguity about

were
the
sorted.
overlapping
Intervenors'
racial
purposes to argue that race did not "predominate."
the
Intervenors,
Delegate
crystal clear her view that

time
blacks
purpose
vote
90-2, Ex. B,
Ints.'
Mw]hat
Democratic,'
of ensuring
elected.'"
Tyler's
55
and
percent
deposition
that
'in
to
Post-Trial Brief at 30-31
117
and political
According to
testimony
"made
I'm saying is most of the
BVAP was
62:17-25 & 63:19-23).
Post-
[her]
help
mind,
Democrats
the
be
(citing Docket No.
But, attributing a political
3074
purpose to somehow
or justification for -
render
it
non-racial
the 55% BVAP floor does not
classification.
changes were made to comply with Section 5,
performance,
or protect the
made based on voters'
Weighing
record,
all
the
changes were
and
testimony
provided
principles
Jones,
objective
Achieving a
55%
reflected
Delegate Jones,
impact
BVAP
on
on
still
the
on
the
that racial considerations subordinated

and
other
in the creation of HD 75.
Delegates
overriding
the
enhance Democratic
was
Tyler,
to
and
achieve
floor
required
face
of
would not
the
for
Dance,
a
55%
non-racial
The testimony
three delegates primarily responsible
district,
is
evidence
districting
districting criteria
from the
the
the
skin color.
the Court finds
traditional
incumbent,
Whether
shaping
shows
BVAP
in
that
the
HD
75.
"drastic maneuvering"
district
and,
the
that
according
to
otherwise have been undertaken due to
traditional
county
boundaries.
Delegate
Tyler
herself found the boundaries "very irregular," worried about her

ability to
cover
her district
with
ease,
and was
"concern[ed]
about the decrease in number of black people in [her] district."

Intervenors attempt
to explain the boundary deviations by
ascribing a political purpose to them.
successful.
75,
race
was
As in Bush,
used
by
But that attempt is not
the record shows that,
Delegate
Tyler
herself
in building HD
as
proxy
for
Democratic voters in an effort to protect her own position as an

118
3075
incumbent at the expense of traditional districting principles.

517 U.S.
voters
at 972-73
by
(principal opinion).
political
affiliation
When a legislator sorts
or
performance,
then
deviation from neutral principles is a political one.

a
legislator
sorts
voters
by
the deviation
is a
racial one.
of
was
that
Cromartie
race,
for
that
racial
because
using
Cromartie
political
the
race
deviation
black
as
I,
proxy
526 U.S.
would
voters
be
happened
for
But, when
purpose,
As explained above,
deviation
considered racial simply because the

to be black.
whatever
the
the
would
then
lesson
not
be
Democratic voters happened

at
542.
The lesson was
considered
to
political
be
political
Democrats.
affiliation,
simply
That
an
not
is
approach
that is prohibited.
As to HD 75,
to
Dr.
the Plaintiffs have proved
Ansolabehere's
criterion
leading
forming HD 75.
to
testimony)
the
Moreover,
that
disregard
race
of
(without reference
was
the
neutral
predominate
conventions
in
to the extent that political interests
See Bush, 517 U.S. at 968-73 (principal opinion) ("If

district lines merely correlate with race because they are drawn
on the basis of political affiliation, which correlates with
race, there is no racial classification . . , But, to the extent
that race is used as a proxy for political characteristics, a
racial stereotype requiring strict scrutiny is in operation. . .

. the fact that racial data were used in complex ways, and for
multiple objectives, does not mean that race did not predominate
over
other
considerations.
The
record
discloses
intensive
and
pervasive use of race both as a proxy to protect the political

fortunes
of adjacent
incumbents,
and for
its own sake in
maximizing the minority population of [the District].").
119
3076
were
considered
and
achieved,
it
appears
were secondary to,
and only satisfied by,
BVAP
II,
floor.
addressed
Shaw
these
517
interests
U.S.
at
does
not
907
in
that
those
criteria
adherence to the 55%

("That
any
the
way
legislature
refute
the
fact
that race was the legislature's predominant consideration.").^''

Based on the
was
the
foregoing analysis,
predominate
configuration
decision
is
scrutiny,
of
criterion
HD
75;
subject
the
to
driving
and,
To
the
that race
formation
the
scrutiny.
show that
finds
the
therefore,
strict
Intervenors must
the Court
and
legislature's
survive
strict
legislature had a
"strong basis in evidence" for its racial districting decisions.

The
that,
First,
Court
finds
that
accordingly,
HD
Delegate
Jones'
environs)
reflected
75
this
burden
survives
has
the
determination
an
been
satisfied
Plaintiffs'
that
"ability-to-elect"
HD
75
district
and
challenge.
(or
its
requiring
protection against retrogression was a reasonable determination.
As
Plaintiffs
The
themselves
dissent
point
argues
out,
that
HD
75
our
appeared
to
interpretation
be
of
predominance will allow legislators to "mask" racial sorting and

only permit plaintiffs to challenge districts that "manifest
extreme line-drawing unexplainable on race-neutral grounds, like
the district at issue in Shaw I."
Post at 158, 166.
Our
holding with respect to HD 75 should put these fears to rest.
The boundaries of HD 75 not only simultaneously advance racial
and non-racial
goals,
but
they are
hardly egregious
or
"extreme."
the actual
predominance
That has not prevented us from carefully examining

basis upon which voters were sorted and finding
satisfied
where
subordinated in fact.
120
non-racial
criteria
were
3077
performing
ability-to-elect
redistricting efforts.
Pis.'
Ex.
50
at
85,
district
Pis.'
before
the
State's
Table
14).
Therefore,
{citing
retaining
this
ability to elect reasonably can be viewed as necessary to ensure

actual compliance with the federal non-retrogression standard.
Next,
as
to
HD 75,
the
55%
BVAP
floor
is
grounded
in
"strong basis in evidence" because the primary source of the 55%
BVAP threshold appears to have been an analysis of HD 75 itself.

For example,
Delegate Jones testified that he did not feel a 52%
BVAP threshold
on .
for
Tr.
example,
430:2-9
"real concerns."
met
with
districts
Delegate
and
the
(Jones).
Id.
at
would be
as
[minority voters]
for her district."
These
were
"probably
she
felt
election
close
(Jones).
half
it
acceptable
"based
had done using the Tyler
Tyler general
323:19-324:3
Tyler
configure her district

for
all
. the functional analysis that I
primary,
Trial
across
races,
in
2005."
prompting
Delegate Jones
dozen
needed
to be
times
to
configured
to elect a candidate of their choice
Id. at 322:6-12
(Jones)
The
Court
does
not
suggest
that
those
designing
redistricting plans can always just add more BVAP every time a
meaningful challenger appears.
Like Section 2, Section 5 does
not
"guarantee
minority
voters
an
electoral
advantage,"
Bartlett, 556 U.S. at 20, it only requires that the system not
effect a retrogression in minority voters' effective electoral
franchise.
Interpreting the VRA to allow more than this would
render it an instrument in service of the same discriminatory
practices it was designed to eliminate.
This would be contrary
to
the
plain
language
of
the
Fifteenth
121
Amendment
itself,
let
3078
Delegate
467:7-11
Jones
(Jones),
examined
an
particularly concerned,
Delegate
Jones
Id.
at
the
kinds
"[i]n
id.
knowledge
464:7-465:5;
of
issue
considered
relied upon his
about
the
of
that
whether
rates
which
at 463:12-16
in
the
prison
(Jones).
ability
id.
Tyler
at
was
In addition.
population
electoral
and
history.
These are precisely
are
to
75,
Delegate
the district's
legislators
HD
(Jones).
district's
458:18-459:18
evidence
determining
turnout
encouraged
elect
to
use
in
the
exists
benchmark plan and whether it continues in the proposed plan[.]"
Pis.'
Ex.
9 at 3
("[E]lection
jurisdiction,
(76 Fed.
history
voter
Reg.
and
Vol.
27
(Feb.
voting
registration
and
9,
patterns
turnout
2011)
at 7471)
within
the
information,
and
other similar information are very important to an assessment of
the actual effect of a redistricting plan.").^
alone the precepts of equal protection.

Where an application of
the VRA cannot reasonably be said to have gone beyond the
"remedial," however, it is this Court's duty to uphold it.
Delegate
Jones
primarily
testified
about
the
2005
election.
See, e.g.. Trial Tr. 458:15-459:18 (Jones).
There
were more recent elections in 2007 and 2009, but Delegate Tyler
ran unopposed in those elections.
See Pis.' Ex. 50 at 85, Table
14.
The dissent suggests that these unopposed races "cas[t]
significant doubt" on the contention that a 55% BVAP level
remained necessary to prevent retrogression.
Post at 173.
But
short of hiring a statistical analyst, it's hard to see how much

useful
information
can
be
gleaned
from
the
uncontested
races.
Should legislators have lowered the target by 1%, 2%, or 3%?

Any preference for a 53% target instead of a 55% target would
seem to rest upon speculation, not a stronger basis in evidence.
122
3079
Plaintiffs dispute the need for raising the BVAP percentage

in
HD
75,
arguing
Section 5 district
that
the
Ex.
50
strengthens
at
the
85,
Pis.'
55.4%.
Intervenors'
Id.
redistricting,
already
at
14).
Here,
that
hand.
Under
the
evidence
performing
34.
Considering
the
into
(citing
argument
only
Benchmark
Under the Enacted Plan,
Plan,
BVAP in HD 75
intricacies
of
the new HD 75 could effectively be considered to
have the "same" BVAP level as the old HD 75.

the
Table
BVAP in HD 75 was 55.3%,
was
was
for minority-preferred candidates going
the 2011 redistricting.

Pis.'
district
relied
upon
by
Delegate
And,
Jones,
considering
it
appears
abundantly clear that he had "good reasons" for holding the BVAP
in HD 75
just above 55% to ensure that the district remained a
performing Section 5 district for minority-preferred candidates,

as Plaintiffs' themselves suggest.
Alabama, 135 S. Ct. at 1274.
Nor does the 55% floor appear unreasonable when subjected

to expert review.
Plaintiffs'
75 "exhibit high rates of

majorities
of
Whites
own expert noted that HD 63 and
[racial]
vote
in
the
polarization because large

opposite
way
as
large
majorities of African Americans."
Pis.' Ex. 50 at 51, 84, Table
14.
observing that
Intervenors'
expert
agreed,
the 2011
2013 elections held in HD 75 were racially polarized.

Ex. 16 at 24, Table 4.
and
Ints.'
Dr. Ansolabehere ultimately opined that
a 55% BVAP threshold was not necessary in HD 75, Pis.' Ex. 50 at

123
3080
55, but ex post statistical analyses cannot upset the State's ex
ante
judgment
so
long
as
that
decision
was
"reasonably
necessary" based on strong evidence.In this case,

based.
"good
Alabama,
135
reasons"
necessary
to
retrogress
to
in
HD
maintaining
prevent
actual
preclearance),
at
that
minority
and
the
Simply
55%
BVAP
voting
Court
put,
there
were
threshold
was
influence
will
not
did
upset
not
that
Id. at 1274.
that legislators had good reason to believe
55%
BVAP
level
retrogression
and
1273.
that
75,
The Court finds
Ct.
believe
ensure
reasonable judgment.
that
S.
it was so
that
in
{and
this
was
HD 75
not
was
just
achieved
necessary
to
by
deviations from traditional redistricting criteria
to
attain
reasonable
(judged by a
The Court does

not credit the
racial polarization
analysis conducted by Dr. Ansolabehere.
His analysis drew from
on-year statewide elections data (rather than off-year House of
Delegates elections data).
Trial Tr.
516:7-25
(Katz).
We find
that the use of the wrong elections led to unreliable results.

Dr.
Ansolabehere
also
relied
on
an
ecological
regression
analysis (rather than an ecological inference analysis), which
"doesn't
make
use
of
all
available
information"
and
results in "blatantly incorrect answers."

Id. at 521:10-14.
As
Dr. Katz testified, ecological regression "was great technology
in 1950" when it was developed, but "[t]he world has come a long
way in those intervening six decades."
Id. at 519:11-22.
too makes Dr. Ansolabehere's testimony unreliable.
The Plaintiffs offered Dr.

racial polarization as pertinent
even though it would
This
Ansolabehere's testimony on
to the predominance analysis
(were the Court to accept it as reliable -
which it does not) be more probative of the narrow tailoring

analysis.
But, either way, his testimony on racial polarization
is flawed and cannot be credited.
124
3081
sufficiency standard).
basis in evidence"
configuration
Because the State has provided a "strong
for
of
HD
constitutional muster
its use of race-based districting in its

75,
the
under
Court
the
holds
Equal
that
HD
75
passes
Protection Clause
of the
Fourteenth Amendment.
3. D i s t r i c t 69
HD 69^ is found in the Richmond area and was represented by

Delegate
Betsy
Carr
during
the
2011
redistricting
process.
Under both the Benchmark Plan and the Enacted Plan,
the district
contains parts of Chesterfield and Richmond City.
Pis.'
at
69,
Table 1.
remained
the
Ex.
50
Although the number of county and city splits
same,
redistricting
increased
the
number of
split
In Wilkins, the Supreme Court of Virginia found that race

did
not
predominate
over
other districting
criteria
under
Virginia's state constitution in Districts 69, 70, 71, 77, 80,
89, and 90.
264 Va. at 477-79.
This Court finds the rationale
and outcome stated in Wilkins, with respect to these districts,
informative but not determinative.
First, perhaps the simplest
explanation is that the 2011 map is not the 2001 map, several
similarities
notwithstanding.
Second,
the
Wilkins
court
observed that the "trial court did not reference any specific
evidence or make any specific findings
for any of these
districts to support a conclusion that race was the predominant
factor in creating each district."
Id.
at 477.
That is
precisely the analysis this Court undertakes today.
Third, the
Wilkins court included population and core retention among the
balancing criteria, which are either verboten or called into
question by the Alabama decision.
Compare id. at 478 with
Alabama,
135 S. Ct. at 1270, 1271.
Finally,
there was no
evidence before the Wilkins court suggesting the use of a racial
floor in the subject districts.
125
3082
VTDs
from
to
4.
Pis.'
Ex.
50
at
69-70,
has a core retention percentage of 74.7.

On
its
compact
of
the
James
scores
increased
Ints.'
is
the
swath
south of
Popper
face,
Ex.
Richmond
of
to
district
.37
of
.20
.52
under
and
15 at 15, Table 9.
1.712.
Pis.'
testified,
Ex.
the
to
Fan
The district
and
scores
Ints.'
appears
below
River.
51
Tables
.34
Reock
Benchmark
the
at
11,
Table
1.
As
and
to
on
district's
and
Polsby-
Plan,
which
Enacted
Plan.
Delegate
face
to
have
enhanced
the
{Jones),
at
Jones
which appears
alignment
distinct political subdivision and community of interest,

94
the
the changes from the Benchmark Plan made the district

309:1
Ex.
large,
The district's Schwartzberg score
more "Richmond centric," Trial Tr.
its
HD 69
Ex. 14 at 83.
District
under
2.
reflect
had
the
1,
with
Ints.'
2.
The Plaintiffs recognize that HD 69 has become more compact

and retained its "core," but argue that the district has become
more
compact
communities
Post-Trial
"only
at
the
Reply
by
incorporating
outskirts
at
15.
of
the
heavily
benchmark
Delegate McClellan
African-American
district."
also
trial that HD 69 had to satisfy the 55% BVAP floor,

Delegate Jones.
Trial Tr.
largely irrelevant.
consideration
traditional,
of
29:5-13
(Jones).
Pis.'
testified
at
according to
But all of this is
The question is whether the Commonwealth's

race
neutral
or
criteria.
126
racial
floor
Plaintiffs
have
subordinated
offered
no
3083
evidence to show subordination,
relying instead on the erroneous
view that proof of a 55% BVAP floor would be sufficient to carry

their burden.
As explained previously,
it is not.
With respect to potential deviations from neutral criteria,

i t should be noted that HD 69 is not contiguous by land.
Ex.
94
at
2.
However,
crossings,
id.,
Plaintiffs
to
distinct
show
no
that
communities
community
of
provided
any
representation
such,
and
interest.
district
evidence
the
has
district
interest
that
been
this
multiple
provided
improperly
rather
Moreover,
evidence
contains
the
than
by
the
combines
two
uniting
one
Plaintiffs
split
for communities on either side of
has
river
have
not
diminished
the James.
As
there is no evidence that contiguity was "subordinated" to
non-neutral
criteria.
In short,
the
Plaintiffs have failed to carry their burden
of proof with respect

matter of fact,
HD
of
the
Ints.'
to HD
69,^ and the Court
holds,
as a
that race did not predominate in the drawing of
69.
If anything, HD 69 seems to reflect the kind of district

might well be amenable to resolution on a motion for
that
summary judgment based on a more structured understanding of the
predominance inquiry, as provided above.
See Abrams, 521 U.S.
at 118 (Stevens, J., dissenting) {"Any redistricting plan will
generate potentially injured plaintiffs,
.
.
.
[a]nd judges
(unable to refer, say, to intent, dilution, shape, or some other
limiting principle)
will find it difficult to dismiss those
claims[.]").
127
3084
4. D i s t r i c t
HD 70
70
is found
in
the Richmond area and was represented by
Delegate Delores McQuinn during the 2011
contains
parts
Pis.'
Ex.
city
splits
of
Chesterfield,
50 at 69,
Table 1.
remained
the
Henrico,
2.
Ex.
HD 70 has a
14
at
On
the
3,
face,
perhaps
district.
City,
same,
redistricting
most
precinct
Reock
Pis.'
Ex.
the
with
HD
district
the
70
of
the
exception
straddles
Ints.'
Polsby-Popper
of
the
the
therein
Ex.
scores
94
of
district
its
became
more
Ex.
"turret"
drawn
at
.47
Ints.'
Plan.
15 at
15,
slightly more
convoluted
and
and
intersection
Enacted
of
67.31.
coherent
which shifted to scores of
some
the
50 at 69-70, Tables
and Henrico County,
boundaries
and VTD lines,
and
appears
Benchmark Plan,
the
increased
core retention percentage of
Chesterfield County,
with
City.
Ints.'
83.
its
compact,
Richmond
Although the number of county and
number of split VTDs from 2 to 3.

1,
and
the district
Table
3.
top
Ex.
66 at
basis
The district
and
.14
of
Richmond
the
under
of
had
the
.40 and .19 under the

9.
elongated,
irregular
In other words,
but
also
boundaries
process.
51 at 11,
Table 1.
128
on
of
Pis.'
on
generally
removed
in
the
Pis.'
Ex.
3085
As
the
Plaintiffs contend,
the redistricting "pull[ed]
the
district substantially out of the city of Richmond and pull[ed]

it
into
the
Trial Tr.
Chesterfield area
142:7-10
and deeper
(Ansolabehere).
disregard for core retention,
16,
this
"core
is precisely the
retention"
nature,
arguments
involves
completely
the
abandoned
Pis.'
Post-Trial Reply at
reason the Court
above.
changing
its
Henrico County."
Plaintiffs believe that this
shows a
but
into
cautioned about
Redistricting,
of
prior map
districts.
and
started
by
its
If
from
very
state
scratch,
hypothetical new "HD 70" might bear no resemblance whatsoever to

the
benchmark
"HD
suspicious.
70,"
but
Moreover,
that
such
would
not
taken
hypothetical
alone
would
be
entail
"removing" the entire population of HD 70 and then "adding" that
entire
number
back.
Again,
nothing
about
that
would
be
inherently suspicious.
The question is whether the boundaries -
the
boundaries
neutral
that
criteria.
HD
represent
70's
supports
has]
Here,
suburban
Trial
Tr.
that
justifiable
overall
and to cede more

71.
are
they
by
reference
are.
Delegate
configuration
interests
or the changes to
was
point.
at
traditional,
Jones
altered
testified
to
better
where population had expanded -
Richmond-centered population
310:18-311:21
to
(Jones).
142:11-20
substantially shifted from being

129
The
to HD
Plaintiffs'
(Ansolabehere)
[a]
69 and HD
case
("[HD
70
plurality urban
3086
district
to
being
plurality
suburban
district.").
These
represent objectively identifiable conununities of interest.
Plaintiffs
before
added
the
26,000
the
discussed
that
and
district."
presumptively
need
See
(Jones).
Nor
particularly
shift
ante
is
at
wrap
77
the
shocking.
locations,
then
it
General
about
around
Assembly
26,000
Reply
people
in
16.
As
at
districts
then
them
all
(in
were
the
other
substantial
in order to achieve population

accord
substitution
under-populated
populated
n.20;
If
"the
untouched,
disregard of neutral principles)

equality.
not
Post-Trial
remain
to
was
but
properly
to
70
removed
Pis.'
if
required
would
HD
process,
people
above,
districts
argue
redistricting
about
redrawing
also
properly
will
Trial
in
Tr.
310:7-311:2
population
populated
necessarily
numbers
district
"remove"
must
large
amount of people from its old location and "add" the same amount
from i t s new location.
That
result seems
With respect to deviations,
by the James,
3.
And
but contains a
like
HD
69
HD 70 -
rather obvious.
like HD 69 -
river crossing.
Plaintiffs
have
is divided
Ints.'
offered
no
Ex.
94
at
evidence
to
suggest that this has had any effect on representation or local

communities
of
interest.
As
such,
there
is
no
evidence
that
contiguity was "subordinated" to non-neutral criteria.
The only facially odd deviation sits atop the northern edge
of
the
district.
This
"turret"
130
appears
to
deviate
from
3087
districting
Richmond
norms,
City
especially
lines.
insofar
However,
as
Intervenors
non-racial explanation for this deviation:

incumbent,
lives there.
not
there,
lived
District
in
the
pokes
offered
have
of
simple,
Delegate McQuinn,
actually
Richmond
across
As Delegate Jones testified:
could
city
it
had
because
all
the
"[H]ad she
of
could
the
have
71st
taken
these couple of precincts and there wouldn't have been any going
into the Radcliffe

Tr.
311:3-17
In
precinct
in Henrico County
for
71."
Trial
(Jones).
weighing
the
evidence,
the
Court
recognizes
that
Delegate McClellan testified that HD 70 was drawn to comply with

the
55%
BVAP
legislature's
floor,
id.
pursuit
of
at
this
29:5-13
goal
(McClellan),
is
not
the
that
traditional,
deviation
HD
70
is
neutral
largely
districting
therefrom
is
pairing prevention."
explained
criteria,
explainable
As a
result,
by
on
the
the
"predominate"
criterion employed unless i t subordinates all others.
finds
but
The Court
reference
and
that
basis
of
this Court holds,
the
to
only
"incumbent
as a matter
of fact, that race did not predominate in the drawing of HD 70.

5. D i s t r i c t 71
HD 71 is found in the Richmond area and was represented by
Delegate
Jennifer
McClellan
process.
Under both
the
during
Benchmark
the
Plan
and
2011
the
redistricting
Enacted
the district contains parts of Henrico and Richmond City.

131
Plan,
Pis.'
3088
Ex.
50 at
splits
69,
Table 1.
Although the number of county and city
remained the same,
redistricting increased the number of
split VTDs from 1 to 3.
Pis.'
71
percentage
has
core
retention
Ex.
50 at 69-70,
of
78.31,
Tables 1,
Ints.'
2.
Ex.
HD
14
at
83, and is contiguous by land.

On
its
face,
generally follows
had
Reock
and
Benchmark
the
district
normal
which
the Enacted Plan.
Ints.'
remains
scores
increased
Ex.
Schwartzberg score is 2.045.
district
quite
compact
districting conventions.
Polsby-Popper
Plan,
appears
bounded
to
to
of
.24
scores
Table 9.
Pis.'
51 at 11,
the
south by
.19
.33
15 at 15,
Ex.
The district
and
of
the
and
under
and
.24
the
under
The district's
Table 1.
James
River
The
natural geographic boundary -
and became "more Richmond centric"
with
thanks
the
2011
redistricting
Court,
Hilliard,
edge.
Trial Tr.
The
and
305:2-7
district
Richmond's
Stratford Hall
precinct
in
removal
precincts
includes
and
the
continues
eastern
Henrico
Fan,
up
district contains the majority of the
one
the
from
of
Summit
its
western
east
through
(Jones).
itself
downtown,
to
to
moves
Church
North Side,
County.
Id.
Hill.
The
and contains
at
24:22-25:1
(McClellan).
The
only
facially
eastern border.
the
701,
702,
Here,
evident
deviations
are
along
HD
71's
the district's one Henrico precinct and
and 706 VTDs seem to

132
form a
set of "horns" on the
3089
eastern side of the district.

94
at
Ex.
66 at
4;
Ints.'
Ex.
4.
In
that
examining
the
these
the
argued
deviations,
northern-most
Ratcliffe precinct,
to
See Pis.'
boundaries
that
VTDs
horn
it
should
adheres
to
the
of
VTDs
701
and
African
43:15-18
(McClellan).
701,
702
American"
The
702,
and
testified
were
and
of
included
"very
Plaintiffs
because
densely
as
the
have
they
were
populated."
Id.
Plaintiffs have not discussed whether
that
districting decisions
bear
noted
boundaries
706.
Ratcliffe was added to capture black voters.
Plaintiffs
be
whereas the two other horns appear to adhere
"heavily
McClellan
first
the
55%
to HD 71,
burden
of
id.
Although Delegate
BVAP
rule
29:5-13
showing
affected
the
(McClellan),
that
the
the
decision
subordinated neutral criteria in the process.

Plaintiffs have not
offered a
As
Delegate McQuinn lives
of VTDs 703 and 705.
of
the
have
Delegate Jones
far more convincing reason for HD 71's eastern horns.
discussed above.
McQuinn]
satisfied that burden.
not lived
71st
taken
Ex.
[in Richmond],
District
these
Ints.'
in
couple
the
of
94
at
right on the border
4.
"[H]ad
[Delegate
I could have actually had all
city of
precincts
Richmond
and
because
there
wouldn't
could
have
been any going into the Radcliffe precinct in Henrico County for
71."
Trial Tr.
311:3-17
(Jones).
133
3090
Plaintiffs
also
noted
previously wholly within
("That
was
densely
split
so
populated,
neighborhood.").
from
neutral
that
and
principles,
that
got
of
Id.
at
the
VCU
[Delegate
Although
demonstrated
split
HD 71.
VTD
decision
505,
potion
got
constitutes
to
split
split
was
(McClellan)
which
the
such as compactness.
this
which
42:20-43:4
Carr]
VTD split
the
other neutral principles,

not
the
is
very
Oregon
Hill
deviation
505
advanced
Plaintiffs have
"subordinated"
such
neutral
principles.
Delegate McClellan also spoke extensively about the removal
of
precinct
neighborhood.
the
207
Id.
from
at
her
district,
39:14-20
Fan neighborhood where
which
split
the
Fan
("207 and 208 are a majority of
live,
and
207
was
taken
out[.]").
Precinct 207 had "highly democratic voter turnout," and Delegate

McClellan had "quite a base there[.]"
But
this
split
neutral principles
does
on
not
its
appear
face.
Id. at 39:21-24.
to
substantially disregard
A local
resident might
why the Fan straddled two House districts,
the map would
see
that
precinct
207
was
wonder
but any observer of
removed
and
replaced
As
Delegate
with precinct 204, making the district more compact.

Nor does
that
swap appear obviously
racial.
McClellan testified, precinct 204 is "demographically similar to

207
that
racially."
she
Id.
couldn't
at
keep
42:17-20.
"any
Delegate McClellan testified
portion
134
of
207"
because
it
would
3091
"push
55%
the
[BVAP]
BVAP
goal
principles
below
could
on
the
55
be
percent,"
achieved
whole,
it
id.
at
without
does
40:1-9,
but
subordinating
not
matter
what
if the
neutral
Delegate
McClellan's personal preferences were.

And
here,
her
personal
preferences
with those of another legislator:

to Delegate Jones,
strong
Id.
Delegate Loupassi.
conflict
According
former ward abutted precinct 207 where he
support,
district."
in
Delegate Loupassi used to be on the Richmond
City Council and his

had
appeared
at
so
he
"wanted
305:15-307:12
that
(Jones).
precinct
in
his
Delegate McClellan
argued that adding precinct 207 to Delegate Loupassi's district
"didn't
help him"
(McClellan),
has
"a
because
he
is
Republican,
id.
42:2-11
but Delegate Jones testified that Delegate Loupassi
broad base
of
support
from
the
democratic
side
aisle" and had a personal "community of interest" partisan - connection to the area,
There
at
is
difference
id. at 485:7-14
between
pruning
the
political thicket and striding headlong into it.
of
the
rather than
(Jones).
edges
of
the
By verifying a
district's overall compliance with neutral criteria that do not

discriminate
between
individualized
constitutional
citizens
based
characteristics,
duty
Equal
to
ascertain
Protection
on
the
their
Court
whether
Clause.
or
fulfills
state
Court
other
its
legislation
violates
the
however,
become embroiled in a credibility dispute between two

135
The
race
should
not,
3092
legislators,
unnecessary
drawing
especially when
to
of
find
the
substantially
principles,
that
neutral
district
these principles
that
is
criteria
not
for
71
neutral
the
subordinated to
issue
predominated
HD
traditional,
sufficient
"factual"
Court
in
does
is
the
not
districting
to
find
that
race.
The existence
of a 55% BVAP floor does not disturb that fact.''"
Therefore, the
Court holds,
were
that
boundaries.
disregard
and
resolving
that race did not predominate
in the drawing of HD 71.

6. D i s t r i c t 74
HD 74 is found in the Richmond area and was represented by
Delegate Joseph Morrissey during the 2011 redistricting process.

Under the Benchmark Plan,
City and parts of Henrico,
the district
contained all of Charles
Hopewell City,
and Richmond City
well as part of Prince George containing no population).

Ex.
50 at 69,
Table 1.
(as
Pis.'
the district now
contains all of Charles City and parts of Henrico and Richmond
City.
Id.
"
This decreased the number of county and city splits
The Plaintiffs
also observe that a request
from the
Richmond Registrar was denied in HB 5001, and it is alleged that

this change was rejected because the BVAP in HD 71 would have
dropped to 54.8%.
Pis.' Ex. 30.
This provides strong evidence
that a firm 55% BVAP rule was employed, as this Court has
already held.
See ante at 23 n.7.
But that finding does not
imply that race "predominated" over neutral criteria in the
drawing
of
HB
5005,
especially
because
that
particular
"deviation"
See
Ints.'
appears
Ex.
at
to
have
been
2-3.
136
addressed
in
HB 5005
itself.
3093
from 4 to 2,
Pis.'
Ex.
with the number of split VTDs
50 at
69-70,
percentage of 80.08,
Tables 1,
Ints.'
2.
Ex.
HD 74
14 at 83,
remaining the same.

has a
core retention
and is contiguous by
land.
On its face,
the ax-shaped district arouses some suspicion.
The "blade" of the ax encompasses all

eastern "handle" is curious.
Popper
scores
remained
of
almost
.16
identical
the Enacted Plan.
Schwartzberg
and
Ints.'
score
is
but the
The district had Reock and Polsby-
.10
-
of Charles City,
under
with
Ex.
the
scores
15 at 15,
2.839,
Benchmark
of
.16
and
Table 9.
Pis.'
Ex.
These low scores reflect the district's
51
Plan,
which
.12
under
The district's
at
11,
Table
1.
substantially elongated
shape.
Despite
its
elongation,
however,
unreasonable as it first appears.
tracks the Henrico county line,

entirely
Jones'
retained
revision
county lines
within
"put some more
district
is
not
while the lower edge is almost
the
County.
upper
edge
In
fact.
to
Delegate
track
good Republican precincts
Henrico
in
that the gentleman in the 97th did not want to lose[.]"
Tr.
317:13-17
neutral
Ints.'
(Jones).
metrics
Ex.
14 at
over
60.
the
as
The north edge of the handle
Henrico
permitting
the
The
district
last
three
In particular,
137
has
also
districting
there
Trial
improved
cycles.
on
See
the 2011 plan removed the
3094
water crossing discussed in Wilkins v.

465-66;
Trial Tr.
316:15-25
West.
See 264
Va.
at
(Jones).
The Intervenors also noted that the BVAP percentage in the

district had been lowered substantially from the Benchmark Plan.
See
Trial
Tr.
313:3-315:6;
Pis.'
Ex.
50
at
that the BVAP percentage dropped does not,
that
race
was
not
the
predominate
district's construction.
black
population
ceded
72.
But
taken alone,
criterion
HD
74
went
to
fact
indicate
influencing
As the Plaintiffs observe,
from
the
the
much of the
other
Challenged
Districts, such as HD 63 and HD 71.
See Pis.' Post-Trial Reply
at
dilution
17.
Unlike
predominance
in
racial
inquiry does
not
vote
necessarily
claim,
concern
racial
itself with
whether the BVAP went up or down.
A district formed primarily
to
employ
eject
black
voters
would
the
same
racial
classification as a district formed primarily to include black

voters.
In the end, however, the primary objection to this district
amounts
to a
criticism that
the district
is
too
long.
But
predominance is not merely a beauty contest centered on Reock-
style compactness.
earn high marks
Although this district certainly does not
in a qualitative predominance analysis,
the
Plaintiffs have failed to demonstrate that neutral criteria were

substantially
district
disregarded
contains
all
in
the
of Charles
138
formation
of
City
for
and,
HD
74.
most
The
of
its
3095
length,
has
readily
shifting
of
black
improved
HD
74's
identifiable
population
compliance
boundaries.
into
HD
with
63
Moreover,
and
neutral
HD
71
the
largely
criteria,
such
as
contiguity and compactness.

Moreover,
shape
since
retention
the
district
has
1991.
Trial
Tr.
alone
district,
but
cannot
it
be
is
used
worth
retained
roughly
315:19-318:25
to
save
holding
an
in
the
otherwise
the
relationships
and
communities
election of delegates."
On
the
whole,
of
interest
Court
finds
that
the
Core
offensive
balance
Wilkins, 264 Va. at 466,
the
long
(Jones).
familiarity of the boundaries has "allow[ed for the]

of
same
if
the
development
relative
to
476.
Plaintiffs
have
failed to meet the predominance inquiry's "demanding burden" to

show
that
racial
considerations
subordinated
both
neutral
criteria and other race-neutral explanations in the formation of

HD 74.
Therefore,
the Court holds,
as a
matter of fact,
that
race did not predominate in the drawing of HD 74.

7. D i s t r i c t 77
HD 77 is found in the Portsmouth area and was represented
by
Delegate
process.
Lionel
Under both
Spruill
the
during
Benchmark
the
Plan
and
2011
redistricting
the Enacted
the district contains parts of Chesapeake and Suffolk.

Ex.
50 at 69,
Table 1.
Plan,
Pis.'
The number of county and city splits
remained the same, and the number of split VTDs decreased from 4
139
3096
to
3.
Pis.'
Ex.
50
at
69-70,
retention percentage of 74.4.

At
first
suspect.
glance,
However,
this
Tables
Ints.'
jagged
1,
2.
HD 77
on
the
and
elongated
upon closer inspection,
lower
side
boundaries
and precincts
elongated.
The district
of
that
core
Ex. 14 at 83.
is
while many curious
the
district
are
themselves
had Reock and
district
the top-right corner
of the district hews to strange county lines,

features
has
track
natural
rather
water
jagged and
Polsby-Popper scores of
.18 and .17 under the Benchmark Plan,
which shifted to scores of
.19 and .15 under the Enacted Plan.
Ints.'
9.
Ex.
15 at 15,
11, Table 1.
Table
Pis.' Ex. 51 at
With respect to neutral criteria, it appears that
compliance therewith could still result in an inherently oddlyshaped district, but the record lacks guidance in this regard.
The
record is similarly unclear and incomplete respecting
deviations
from
traditional
criteria.
The
district's
large
western chunk is admittedly attributable to a single precinct,

but that does not answer why that whole half of the district is
thrust so far into HD 76 as to nearly sever it in half.
Ex.
91 at 152.
As
Delegate Jones observed,
Ints.'
the 76th and 77th
districts share the most geographical boundary area on the map.

Trial Tr. 334:2-4
Based on
the Plaintiffs,
the
(Jones).
alternative
see,
e.g.,
districting plans
Pis.'
140
Ex.
23 at 40,
referenced by
it appears that
3097
it
was
possible
districts
leap.
So
floor
at
in
to
this
was
create
region
this
or
was
this
same
without
deviation
(in which case,
15,
the
resorting
necessary
deviation
motivated
this
overall
by
structure
performing
this
reach
the
55%
desire
remove
see Ints.'
to
to
district
Ex.
the
considerations
performance
might
predominate.
might
predominate,
or
These are all questions
burden of answering.
The Court
is
that
not
(in
"knock-on"
predominate,
racial
92
92 at 14?
effects of avoiding pairing incumbents in this region?

incumbency
BVAP
Ex.
attributable
westward
see Ints.'
from Delegate Jones'
which case politics might predominate),

is
to
of
to
race might predominate),
Democrat performing precincts
Or,
number
If so,
political
considerations
might
Plaintiffs bore the
in a
position to guess
based on the skimpy evidence submitted.
But,
strange
the
2001
record
design
does
was
show
that
somewhat
the
district's
ameliorated
in
already-
HB
5005
moving the "Airport District" precinct from HD 77 to HD 7 6,

at
336:7-12
(Jones),
and
"reuniting"
Norfolk" at Delegate Spruill's request,
the
"old
city
of
id.
at 334:8-10
by
id.
South
(Jones),
which allowed segments of the new district to more closely track

county boundaries
changes
also
primarily
Trial
Tr.
and water boundaries.
served
Republican,
336:7-12
political
so
this
(Jones),
Pis.'
ends.
The
transfer
whereas
141
Ex.
Airport
helped
the
at
"old
7.
These
District
Delegate
city
of
is
Jones,
South
3098
Norfolk" surrounds Delegate Spruill's residence,

as
politically
Although
the
contained
Norfolk
advantageous
for
neighborhoods
meaningful
Highlands,
him as
added
black
around
River,
Ints.'
and
Ex.
id.
Delegate
populations,
Indian
majority-white precincts.
well,
which was seen

at
Spruill
Tanglewood,
Johnson
336:1-4.
Park
also
Oaklette,
were
all
92 at 15.
The Court also observes that the district is not contiguous
by land and does
not
its
Pis.'
Ex.
offered
no
bounds,
Plaintiffs
see
have
appear
to possess
66
at
7;
water crossing within
Ints.'
substantive
Ex.
evidence
94
on
at
9,
but
whether
this
deviation relates in any way to the attainment of the district's

BVAP level,
50
at
which
is
58.8%
in
the Executed
Plan,
see Pis.'
Ex.
72.
Based on the testimony,

cannot
ascertain
from
the
evidence,
record
and arguments,
whether
race,
the Court
politics,
or
other criteria predominated in the formation of HD 77.
Frankly,
if
has
the
meaning,
presumption
it
is
simply
point
floor,
evidence
of
correctness
applicable
to
the
racial
that
race
to prove
based
explanation
to
this
threshold's
of
score
in
show
and
The
attainment
predominated.
if
faith
instance.
correlation,
how,
good
at
and
of
There
all,
the
any
Plaintiffs
55%
BVAP
low compactness
is
the
no evidence-
racial
floor
impacted the boundaries of HD 77 or why voters were placed there
142
3099
in
the
redistricting
process.
The
Plaintiffs
cannot
hand
the
Court a stone and expect back a sculpture.
It
is
at
districting
composition
least
as
factors
of
HD
likely
account
77
as
it
that
politics
for
the
is
that
and
traditional
configuration
race
was
and
responsible.
Because the Plaintiffs have failed to provide evidence as to the

ways in which racial considerations might have had a "direct and
significant impact" on the District's formation,
that
the
Plaintiffs
have
required to show that
failed
to
meet
the
race predominated in
the Court finds

burden
of
proof
the construction of
HD 77.
8. D i s t r i c t 80
HD 80 is found
in the Portsmouth area and was
represented
by Delegate Matthew James during the 2011 redistricting process.

Under
the
Chesapeake,
1.
Benchmark
Norfolk,
Plan,
Norfolk,
district
and Portsmouth.
Chesapeake,
the
Pis.'
contained
Ex.
parts
50 at 69,
of
Table
the district now contains parts of
Portsmouth,
and
Suffolk.
Id.
This
increased the number of county and city splits from 3 to 4 but

decreased the number of split VTDs from 2 to 1.
69-70,
59.94.
At
Tables 1,
Ints.'
trial,
honestly that
Ex.
2.
Pis.'
Ex.
50 at
HD 80 has a core retention percentage of
14 at 83.
Intervenors
stated,
this district
looks
143
"I
a
think
little
it's
fair
irregular."
to
say
Trial
3100
Tr.
349:3-5
little
bit
(Intervenors) .
of
an
But
"a
little
understatement."
The
irregular"
district
is
is
"a
quite
unusually configured.
The district had Reock and Polsby-Popper
scores
.26
of
.39
experienced a
and
under
substantial
the Enacted Plan.
drop to
Ints.'
Ex.
Pis.'
Because
Ex.
the
scores
of
identify
what
identify what
split
by
makes
little
is
now
"deviation"
twice
without
any
rational
66 at 8;
(14.9%),
high
(48.8%)."
district's
racial
around
as
because
it
such
attainment
explanation
considerations
of
as
that
the
is
hard
to
The district is
crossing
enabling
on either occasion.
that
BVAP
and
Post-Trial
it is hard
See
94 at 10.
low
(8.3%),
precincts
Pis.'
Ex.
correctly note
Churchland
BVAP
detailed
Ints.'
Plaintiffs
way
sense
To begin,
apparent
Pis.'
its
under
the Court will move directly to ascertaining
to stay within the district
"winds
.11
the highest of all the Challenged
residents
The
and
which
The district's
is now the core of the district.
water
Ex.
.26
Table 9.
the predominant purpose of the deviations.

to
Plan,
51 at 11, Table 1.
district
geographical unit,
Benchmark
15 at 15,
Schwartzberg score is 3.054 Districts.
the
HD 80's
precincts
Fellowship
Yeates
Brief
19.
BVAP floor,
might
lead
subordinated
144
all
the
like
and
border
Silverwood
(14.2%)
(56.3%)
at
western
to
capture
Taylor
Road
Considering
this
is
Court
others.
the
to
In
the
kind
find
this
of
that
case,
3101
however,
other
the
Plaintiffs'
"dominant
and
racial
explanation
controlling"
must
contend
considerations:
with
incumbency
protection as well as geographic features and a naval base.

In addition to the constraints
the
Atlantic
Ocean,
and
the
imposed by the James River,
Norfolk
naval
base,
the
district
needed to retain the residence of Delegate James while avoiding
the
residences
of
Delegate
Johnny
Joannou
(HD 89).
Ints.'
Post-Trial Brief at
and relatively simple -
problem was "a loss
Delegate Kenneth Alexander
34.
of
The general population"
boundaries
to
"from
capture
problem
in
the
the
far
Alexander,
Joannou,
proximity.
Ints.'
and
Ex.
the
back
Trial
more
350:23-24
and
oceanfront
population.
became
Trial Tr.
area
complex,
Jones
(Jones),
to
however,
live
79)
in
and
move
western
349:6-11
all
94 at 10.
need
Tr.
(HD
sufficient
number of
neck
of
the
...
district
Delegates
relatively
close
To avoid pairing incumbents,
residents
resulting
Thus, the map needed to "roll the
to make
before
This
the westward shift of the districts
in the distortion found here.

around
Suffolk"
(Jones).
had to wrap around the residences of the incumbents,
population
district
to
because
then-
sure
in his
leaping
Delegate
district"
further
Joannou
and narrow the
out
westward
avoid Delegate Joannou while capturing Delegate James.

350:10-20.
145
had a
Id.
to
at
3102
That
explanation
subordinated,
but
it
addresses
does
not
why
neutral
provide
the
criteria
basis
were
upon
voters were sorted into the corresponding districts.
which
"Incumbent
pairing prevention" may have resulted in "population rolls," but

an equal population goal itself is not part of the predominance
balance.
whether
Alabama,
the
135
S.
legislature
districting
considerations
placed
appropriately
in
Ct.
at
placed
in
1271
("[Predominance
race
determining
apportioned
above
which
asks]
traditional
persons
districts.")
were
(internal
quotation marks omitted).
"Incumbency protection," on the other hand,

explanation
80.
for
the
amalgamation
of
precincts
does provide an
selected
As the Intervenors explained:

Although HD80 could have been drawn to take
territory
from
Delegate Jones -
HD7 6
represented
by
the precincts there were
Republican strongholds,
and neither Jones
nor HDBO's representative, Democrat Matthew
James, wanted that trade.
Drawing HD80 into
the former territory of HD79 gave those
Democratic-leaning precincts to James, and
not Jones.
This arrangement made HD80 less
compact than i t would have been had i t taken
territory from Jones, but it was politically

preferable.
HD80 was also drawn to protect
other incumbents, Johnny Joannou (HD79) and
Kenneth
Alexander
{HD89),
who
resided
near
the borders they shared with HD80, making it

impossible for HDBO to take territory to the
north
and
northeast
without
pairing
incumbents.
146
for
HD
3103
Ints.'
Pre-Trial
appears
just
as
Brief
at
16-17.
likely that
Based
precincts
highly Democratic and avoided for

Ints.'
Ex.
92
being
highly
Caucasian,
Democrats
political
at 16,
id.
happen
at
to
the
be
subordinated
Court
finds,
black
the Court
of
neutral
in
as
districting
80
was
for
it
being
see
does
being
"the
not
transformed
highly
most
mean
into
loyal
that
racial
at 551.
that
the
that
Plaintiffs
racial
criteria
and
have
not
considerations
other
non-racial
including incumbent pairing prevention and

Although the existence of the BVAP floor
of
matter of
"dominant and controlling"

HD
finds
for
because
Democrats"
demonstrating
favor
selected
avoided
just
526 U.S.
incumbency protection.
weighs
And,
Cromartie I,
districting criteria,
itself
and
thereby
burden
record,
being highly Republican,
is
On the whole,
carried
17.
gerrymander
gerrymander.
were
this
as it is that precincts were selected for
African-American
see
on
incumbency
racial
fact,
predominance
that
finding,
the
qualitatively -
the
factor dictating the
protection,
and
construction of
that
race
did
not
predominate in the drawing of HD 80.

9. D i s t r i c t 89
HD 89 is found in the Norfolk area and was represented by

then-Delegate
process.
Kenneth
Under both
Alexander
the
during
Benchmark
Plan
the
and
2011
the
the district is contained wholly within Norfolk.

147
redistricting
Enacted
Pis.'
Plan,
Ex.
50
3104
at
69,
Table
1.
There
were
no
county
or
city
splits
and
number of split VTDs remained the same under both plans.

Ex.
50
at
69-70,
Tables
percentage of 76.86.
On
its
generally
had
Reock
face,
follows
and
1,
Ints.'
the
2.
Ex.
HD
appears
lines
Polsby-Popper
has
core
Pis.'
retention
14 at 84.
district
precinct
89
the
reasonably
within
scores
Norfolk.
of
.58
and
compact
and
The district
.31
under
the
Benchmark Plan,
which dropped to scores of .40 and .20 under the
Enacted
Ints.'
Plan.
Ex.
15
Schwartzberg score is 2.263.
Although
the
at
15,
Table
9.
district
is
at 9; Ints.' Ex. 94 at 11.
Tr.
for
the
district's
144:9-145:1
not
contiguous
by
Ints.'
Ex.
In
94
at
close
Delegate
explained,
relative drop
to
the
border,
Alexander.
Virginia
legislators,"
does
Ex.
66
in compactness.
Trial
The added precinct - Berkley -
Delegate
Alexander's
92 at 19, but is
residence,
see
"pipe"
to
its
owned
by
11.
addition,
northernmost
it
One of these crossings is largely to
(Ansolabehere).
relatively
land,
See Pis.'
contains a high BVAP percentage, see Ints.' Ex.
also
district's
Pis.' Ex. 51 at 11, Table 1.
contain water crossings within the district.
blame
The
many
district
which
includes
Trial
state
of
added
Tr.
funeral
345:1-5.
legislators
whom
small
regularly
As
are
Delegate
"part-time
interact
constituents in their professional capacities.

148
home
with
Jones
citizen
their
Id. at 346:2-18.
3105
As
such,
having
business
within
the
district
enables
incumbents to more readily engage with their constituents.

Weighing
all
evidence,
it
appears
that
couple
of
small
deviations possibly could be attributable either to racial or to

incumbency
considerations,
predominantly
Therefore,
attributable
but
to
the
district's
traditional,
composition
neutral
is
principles.
the Court holds that the Plaintiffs did not carry the
burden of proving
that
race predominated
in
the drawing
of
HD
89.
10.
D i s t r i c t 90
HD 90 is found in the Norfolk area and was represented by

Delegate
Algie
process.
Under the Benchmark Plan,
of Chesapeake,
Howell,
Norfolk,
Under
the
Jr.
during
the
1.
Enacted
parts
of Norfolk and Virginia
redistricting
the district contained parts
and Virginia Beach.
Table
2011
Plan,
the
Beach.
Pis.'
Ex.
district
Id.
This
50 at 69,
now
contains
decreased the
number of county and city splits from 3 to 2 and the number of

split VTDs remained the same.
2.
14
Pis.'
Ex.
50 at 69-70,
HD 90 has a core retention percentage of 63.21.

at
Tables 1,
Ints.' Ex.
84.
On its face,
compact
Popper
the district appears to represent a reasonably
geographic
scores
of
unit.
.35
shifted to scores of
and
The
.24
.46 and
district
under
the
had
Reock
Benchmark
and
Plan,
.20 under the Enacted Plan.

149
Polsbywhich
Ints.'
3106
Ex.
15
2.221.
at
15,
Pis.'
Apart
Table
Ex.
9.
The
51 at 11,
from
the
district's
Ex.
traditional,
district's
66
at
however,
10;
neutral
Ints.'
must
be
viewed
redistricting plan
"political
two
Id.
Beach
tracks
Moreover,
is
94
Even
at
12.
context.
these
by
removing
line
on
Pis.'
"deviations,"
the
2011
compliance with
appendage
county
See
Specifically,
district's
southern
the
Virginia
HD 90 seems to largely comply
criterion
the
into
conventions.
improved the
And,
extensions
districting
in
subdivisions"
Chesapeake.
Virginia
Ex.
score
Table 1.
Beach and lack of land contiguity,
with
Schwartzberg
that
its
the
segment
from
reaches
into
western
border.
one of the district's jumps across water connects
parts of Norfolk.
simultaneously
Id.
serves
As
to
such,
unite
this
a
land-contiguity failure
political
subdivision
and
community of interest.
On
the
record
predominate.
Virginia
exhibit
Beach
Even
submitted,
if
were
the
enough
"substantial
neutral
criteria
southern
appendage
for
district
the
disregard"
for
neutral
appear
reaching
as
to
into
whole
to
principles,
it
hardly appears that this offending piece of land could be viewed
as
racially driven.
contains
district.
some
of
the
See Ints.'
In
fact,
lowest
Ex.
that
segment
of Virginia
BVAP
percentages
92 at 21.
Therefore,
in
the
Beach
entire
the Court holds
that the Plaintiffs did not carry the burden to prove that race
150
3107
predominated
satisfies
in
the
55%
11.
HD 92
Delegate
the
drawing
BVAP
of
HD 90,
notwithstanding
D i s t r i c t 92
is
found
Jeion
in
Ward
the
Hampton area
during
the
2011
contained wholly within Hampton.
1.
The
district
redistricting
contains
lowered the
from 3 to 0.
and was
represented by
redistricting
Pis.'
Ex.
no
Pis.'
county
On the whole,
of
50 at
69-70,
districting
Popper
scores
increased
that
principles.
of
to
.28
scores
of
.15
.34
Ints.' Ex. 15 at 15, Table 9.

is 1.970.
Pis.'
Ex.
51 at 11,
50 at
more
356:13-20
Moreover,
the
compact,
(Jones),
under
most
waterfront
follows
of
and
the
in
the district
2.
HD 92 has a
Ex. 14 at 84.
with
had
the
.26
traditional,
Reock
and
Benchmark
under
the
downtown
eliminated
of
the Hampton boundary,
neutral
Polsby-
Plan,
which
Enacted
Plan,
Table 1.
district's
much
and
The district's Schwartzberg score
reunified
and
Table
splits,
As a result of the 2011 redistricting process,
became
69,
it hard to imagine a better
district
and
process.
the district
city
Tables 1,
complies
The
and
or
Ints.'
the Court finds
district
Ex.
number of split VTDs
core retention percentage of 77.27.
example
it
floor.
is
that
the
all
southern
district's
the district
Hampton,
Trial
precinct
border
is
western
Tr.
splits.
marked by
border
now
making it easily identifiable to

151
3108
voters.
the
See Pis.'
district
crossings
district
holds,
Ex.
is
to
not
voters
traversing
not race -
by
to
Ex.
land,
travel
other
94 at 13.
it
contains
between
districts.
parts
Id.
that traditional,
Although
water
of
The
the
Court
neutral criteria -
predominated in the construction of HD 92.

12.
HD 95
Delegate
Ints.'
contiguous
allow
without
66 at 11;
D i s t r i c t 95
is
found
Mamye
in
BaCote
the Hampton area
and was
during
redistricting
the
2011
represented by

contains parts of Hampton and Newport News.
Pis.'
process.
the district
Ex.
50 at 69,
Table 1.
Although the number of county and city splits remained
the same,
redistricting increased the number of split VTDs from
to 6.
Pis.'
retention
Ex.
50 at
percentage
of
69-70,
Tables 1,
62.15,
Ints.'
2.
HD 95 has a
Ex.
14
at
84,
core
and
is
contiguous by land.
Their
proximity
little in common.
encompassing
from
any
northwest,
the
HD
From bottom to top,

full
observable
notwithstanding,
width
neutral
of
Newport
criteria.
92
and
HD
95
share
the district begins by

News
As
but
the
soon
departs
district
moves
sliver attributable to the River precinct extends
into HD 94 before the district works its way entirely over into
Hampton City.
There
it
remains
for
period before extending
briefly back into Newport News via the South Morrison precinct.
152
3109
After
retreating
back
into
water and York County,
Hampton
City
the
district
then
which it weaves around before running up
through the middle of Newport News in a narrow spike.

Ex.
66 at 12;
neutral
Ints.'
explanation
informed.
The
hits
Ex.
for
94
the
district
at 14.
route
had
See Pis.'
If there is any reasonably

followed,
Reock
and
this Court was
Polsby-Popper
not
scores
of
.43 and .28 under the Benchmark Plan, which dropped to scores of
.14 and .14 under the Enacted Plan.
9.
Ints.'
Ex.
15 at 15,
Table
This rendered HD 95 the least compact district on the map
under the Reock metric.
See
Ints.'
Ex.
14

Table
at
76-78,
Pis.'
Ex.
Table
9.
51 at 11,
1.
Rather
neutral
than
attempting
criteria,
the
to
explain
Intervenors
the
themselves
district
through
acknowledge
that
the construction of the district was "significantly political."
Trial Tr.
359:6-8
(Jones).
According
to
Delegate
Jones,
the
district's movement north follows
heavily Democratic precincts
and
two
then
narrowly
jumps
through
Republican
precincts
in
order to capture another strongly Democratic voting area at its

northernmost
tip.
Id^
at
369:1-4;
Ints.'
Ex.
92
at
24.
Moreover, the district's eastward "zig" followed by its westward
"zag" managed to avoid including the residence of Delegate Robin

Abbott in HD 95.
female
Democratic
See Ints.' Ex. 94 at 14.

incumbents
and,
153
in
This avoided pairing

conjunction
with
the
3110
partisan
maneuvering
heavily Republican
As
Intervenors
above,
placed
swing seat.
explained:
Delegate
Trial Tr.
"HD95
was
Abbott
in
369:6-372:12
more
(Jones).
crafted carefully to
avoid
taking HD94's Republican precincts and instead take Democraticleaning population left behind by HD93 and reach into precincts
surrounded by HD93 to dilute Democratic voting strength in that
area."
Ints.'
The
Pre-Trial
Court
finds
Brief at
that
18.
explanation
persuasive.
is a correlation between race and party,

Plaintiffs
sorted
to
dislodge
predominantly
than
race.
data
as well
the legislature]
evidence
the
Jones
racial
closing argument:
voters
on
Delegate
as
the
basis
data.
that
political
As
the
there
the burden is upon the
showing
had access
Where
to
voters
preference
political
were
rather
performance
Intervenors asked during
"[I]f race was the principal factor,
why
[did
pass by all these areas which have more black
[in the southern part of the peninsula and]
go up there
[to the northern tip of the district]? . . . We don't hear any

analysis
from
the
other
contradictory testimony."
the evidence
submitted,
performance data)
has
side
on
Trial Tr.
political
been
controlling
consideration
boundaries.
As a result,
shown
that
point.
827:6-19
advantage
to
guiding
There's
no
(Intervenors).
On
(based on partisan
have
been
the
district's
the Court holds,
the
dominant
unorthodox
that race did not predominate in the construction of HD 95.

154
and
3111
V,
CONCLUSION
For the foregoing reasons,

twelve
Challenged
Districts
the Court holds that each of the
withstands
under the Equal Protection Clause,

for
the
It
Defendants
is
and
the
constitutional
scrutiny
and judgment will be entered
Intervenor-Defendants.
so ORDERED.
/s/
/s/
Robert E. Payne
Senior U.S. District Judge
Gerald Bruce Lee

U.S. District Judge
Richmond, Virginia
Date:
October 22,
2015
BARBARA MILANO KEENAN,

Today,
the
despite
mechanical
court
upholds
use
the
Supreme
of
racial
Court's
targets
clear
in
racial
legislative districts.
based
on
quota
to
twelve
warning
against
redistricting,
the Virginia General Assembly's
one-size-fits-all
districts
Circuit Judge, dissenting:
this
application of a
highly
dissimilar
This quota was used to assign voters to

the
color
of
their
skin
without
the
constitutional protection afforded by strict scrutiny.

I
recognize that the legislature in this case did not have
the benefit of the Supreme Court's decision in Alabama,

155
and I do
3112
not doubt that individual legislators acted in good faith in the
enactment
vote,
has
Nevertheless,
affected
Virginia
the
resulting
citizens'
legislative
fundamental
in violation of the Equal Protection Clause.
right
to
Accordingly,
I would invalidate Virginia's 2011 redistricting plan.
I.
Redistricting
"consciousness of
decisions
race,"
are
Bush v.
(principal opinion of O'Connor,
necessarily
Clause,
result
see
However,
in
Miller
when
considerations,
Vera,
J.),
Johnson,
517 U.S.
of
515
is
inherently
the
asserting
made
952,
Equal
U.S.
900,
"motivated"
suspect
satisfy the rigorous
515 U.S.
always
with
958
(1996)
and such awareness does not
violation
legislature
this
Miller,
A plaintiff
v.
classification must
scrutiny.
almost
system
Protection
916
(1995).
by
racial
of
racial
requirements of strict
at 916.
a
race-based
equal
protection
claim
in a redistricting case has the burden of proving "that race was
the predominant
place
factor motivating the legislature's decision to
significant
particular
predominance
district."
test,
number
Id.
of
voters
(emphasis
plaintiff must
show
within
or
added).
that
without
Under
this
"the legislature
subordinated traditional race-neutral districting principles .

.
to
racial
considerations."
Id.;
156
see
also
Ala.
Legislative
3113
Black
Caucus
v.
Alabama,
'predominance'
decides
to
question
choose,
predominantly
uses
factors
doing
when
legislature
has
customary
S.
Ct.
concerns
and
1257,
which
specifically
race
as
so."
"relied
and
135
opposed
race
traditional
("[T]he
the
legislature
whether
the
legislature
in
in
(2015)
voters
to
(emphasis
on
1271
other,
'traditional'
original)).
substantial
districting
When
disregard
principles,"
traditional principles have been subordinated to race.

515 U.S. at 928
Strict
factor
scrutiny
that
neutral
(O'Connor, J,,
is
districting
explained,
when "[r]ace was
was
As
factors
race
accorded
factors.
traditional
have
the
considered
made."
also
Shaw
Page
3604029,
v.
v.
at
"only
after
Hunt,
517
Va.
*7
Bd.
(E.D.
redistricting plan may

criteria,
that
plan
of
Va.
the
U.S.
such
Miller,
Elections,
June
reflect
5,
race-
Court
has
to
race
could
race-neutral criteria
decision
(1996)
No.
Thus,
subject
been
II);
3:13cv678,
2015).
remains
had
(Shaw
certain traditional
nevertheless
over
State's view,
race-based
907
predominant
subordinated
in the
899,
the
Supreme
been
the criterion that,
was
priority
not be compromised," and when traditional,

were
of
concurring).
required when
categorically
see
2015
WL
while
districting
to
strict
scrutiny when those criteria have been subordinated to a process

that has sorted voters primarily by race.
157
3114
Contrary to the majority's view,
does
not
require
boundaries
criteria.
be
in
Maj.
Op.
correlates
partisan
that
with
the
use
of
"conflict"
at
36.
other
preference,
race
with
In fact,
districting
incumbency
interest.
See Bush,
517 U.S.
conclusion
logically
follows,
frequently
will
be
not
this predominance
in
in
district
traditional
districting
the race of a
voter often
considerations,
protection,
at
drawing
inquiry
964
and
including
communities
(principal opinion).
therefore,
"conflict"
that
with
racial
these
of
The
sorting
and
other
districting criteria.
Because
such
racial sorting,
the
test
Under
for
that
districting
criteria
can
be
used
to
mask
courts must carefully examine the evidence under
predominance
test,
race
articulated
necessarily
in
Miller
and
predominates
Shaw
when
II.
the
legislature has subordinated traditional districting criteria to

racial
goals,
such
as
when
criterion and other factors

with the racial objective.
race
is
the
single
immutable
are considered only when consistent

Shaw II,
517 U.S. at 907.
II.
This
case
predominance,
in
presents
which
criterion employed in
be compromised.
the
textbook
uniform
racial
example
quota
redistricting process
of
was
racial
the
only
that could not
This one-size-fits-all quota automatically made

158
3115
racial
sorting
Although
faith,
priority
legislature
over
is
any
entitled
other
to
districting
presumption
factor.
of
good
this presumption must yield when the evidence shows that
citizens
have
been
assigned
based on their race.
WL 3604029, at *8
to
legislative
districts
515 U.S.
915-16;
See Miller,
at
primarily
Page,
2015
("[T]he good faith of the legislature does not
excuse or cure the constitutional violation of separating voters

according
disagree
to
race."
with
quota
merely
hold
that
the
is
the
{citation
majority's
omitted)).
conclusion
"evidence"
of
existence
of
For
that
predominance,
such
this
reason,
uniform
and
widely
racial
instead
applied
would
quota
establishes predominance as a matter of law.

A.
first
semantical
observe
debate
"aspirational
that while
whether
target"
or
the parties have engaged in a
the
55%
"rule,"
BVAP
the
threshold
evidence
was
presented
an
at
trial clearly established that the legislature employed the 55%

BVAP figure as a
delegates
fixed,
testified
non-negotiable quota.
regarding
mandatory nature of the quota."

Trial
Tr.
McClellan);
at
70
Trial
(Sen.
Tr.
at
their
PI. Ex.
Dance);
92
(Del,
Trial
Three individual
understanding
of
the
33 at 45 {Sen. Dance);
Tr.
Armstrong).
at
29-30
And,
{Del.
despite
Delegates Dance and Armstrong no longer serve in the

House of Delegates, though Dance currently serves as a senator
in the Virginia Senate.
Trial Tr. at 65, 90.
159
3116
Delegate
merely
plan
Jones'
an
trial
testimony
"aspirational
during
the
House
of
that
rule
the
of
Delegates
55%
BVAP
thumb,"
floor
figure
was
he promoted
the
debates
as
having
achieved a 55% minimum BVAP for all majority-minority districts.

Trial
Tr.
at
491;
legislators'
operated
fact
15
that,
satisfied
at
Ex.
subjective
as
challenged
PI.
42,
66,
floor
further
the
plan,
the
2011
districts
55%
converged
BVAP
70,
understanding
mandatory
in
the
35 at
floor.
Pi.
that
was
BVAP
toward
in
50
108,
the
113.
55%
most
of
while
at
72
by
the
each
Table
The
figure
corroborated
55%
Ex.
72,
the
twelve
district
4;
DI
Ex.
14.
B.
The "disregard of individual rights" is the "fatal flaw" in

such
V.
race-based
Bakke,
also
City
(1989)
classifications.
438 U.S.
of
265,
Richmond
(opinion
of
320
v.
(1978)
J.A.
O'Connor,
Regents
the
Univ.
of
(opinion of Powell,
Croson
J.)
of
Co.,
488
(explaining
U.S.
that
the
Cal.
J.) ;
see
469,
493
"rights
created by the first section of the Fourteenth Amendment are,
its terms, guaranteed to the individual.

are personal
22
rights."
(1948))).
the
color
by
The rights established
(quoting Shelley v.
Kraemer,
334
U.S.
1,
By assigning voters to certain districts based on
of
their
skin,
states
risk
"engag[ing]
in
the
offensive and demeaning assumption that voters of a particular

race,
because
of
their
race,
160
think
alike,
share
the
same
3117
political interests,
polls."
U.S.
Miller,
630,
omitted).
racial
and will prefer the same candidates at the
515
647
U.S.
(1993)
Quotas
911-12
(Shaw
are
stereotypes,
at
(quoting
I) )
(internal
especially
because
they
Shaw v.
quotation
pernicious
threaten
Reno,
Here,
(opinion of O'Connor,
marks
embodiments
citizens'
of
"'personal
rights' to be treated with equal dignity and respect."''^

488 U.S. at 493
509
Croson,
J.).
the plan contravened the rights of individual voters
by applying a one-size-fits-all racial quota for black voters in

twelve
highly
characteristics
quota thus is a
dissimilar
of
the
districts,
voters
or
of
without
their
regard
communities.
to
the
The
55%
classic example of race-based stereotyping and
unequal treatment prohibited by the Equal Protection Clause.
The Supreme Court's

standing.
See
skepticism of
generally Croson,
aside program for
whether
U.S.
construction contracts);
(higher education admissions).

decide
488
racial
use
of
However,
469
is
long
(minority
Bakke,
438
U.S.
set265
the Court has yet to
one-size-fits-all
legislative redistricting plan or,
quotas
racial
in particular,
quota
in
use of such a
Because individual voters suffer the harm alleged in a

racial sorting claim, I disagree with the majority's contention
that
"intentional[]
dilut[ion]
[of
a]
group's
meaningful
participation in the electoral process" is required to sustain
an equal protection challenge like the one the plaintiffs have
raised in this case.
Maj. Op. at 52 (emphasis omitted).
See
Miller,
515 U.S.
at
911-13.
161
3118
quota
of
well
exceeding
50%,
establishes
predominance
as
matter
law under Miller.
The
Court
mechanical
in
recently
racial
has
targets
redistricting.
cautioned
above all
Alabama,
against
"prioritizing
other districting criteria"
135
S.
Ct.
at
1267,
1272-73.
Although the Court in Alabama did not decide whether the use of
a
racial
quota
predominance,
well
exceeding
the Court made
50%,
clear
targets" are highly suspicious.
(discussing
racial
analysis).
After
several
errors
in
the
that
itself,
such
can
establish
"mechanical
racial
Id. at 1267; see id. at 1272-73
targets
issuing
of
as
part
this
of
narrow
admonishment
district
court's
and
tailoring
identifying
analysis,
the
Court
ultimately remanded the case to the district court to reconsider
the question of predominance."^

The
uniform
racial
Id. at 1270-74.
quota
employed
in
the
present
case
is
more suspicious on its face than the racial thresholds at issue
in
Alabama.
The
legislature
in
Alabama
preexisting
racial
percentages
specific
sought
to
each
the aim of avoiding retrogression under Section 5.
In
contrast,
I
the
racial
disagree
with
quota
the
used
in
majority's
the
to
maintain
district
with
Id. at 1263.
present
case
was
conclusion
that
the
Supreme Court in Alabama would not have remanded the case if the
use of racial
thresholds
in that case constituted predominance
as a matter of law.
See Maj. Op. at 35.
Appellate courts
frequently remand issues to trial courts for reconsideration
when
trial
court
initially has
analysis.
162
employed an
incorrect
legal
3119
applied indiscriminately to all twelve districts irrespective of

the particular characteristics of those districts.
plan's
one-size-fits-all
concerns
that
the
quota
thus
legislature's
raises
The Virginia
even
districting
more
serious
decisions
were
driven primarily by race.
In
view
of
the
Virginia
legislature's
application
of
single racial quota to numerous districts in the case before us,

this
court
is
not
presented
with
the
question
particular
fixed
BVAP percentage would
trigger
if
to
single
district.
is
strict
scrutiny
applied
decide
whether
legislature
See
Bush,
intentionally creates
517
U.S.
at
998
the question); Alabama,
the
absence
of
proof
Latin
(Scalia,
in
part)
J.,
Am.
that
Citizens
scrutiny
court
asked
to
required
every
time
majority-minority district.
J.,
concurring)
at 1272
(reserving
{declining to decide
districting
even in
principles
triggers strict scrutiny"); League of

v.
Perry,
548
U.S.
399,
517
(2006)
judgment in part and dissenting
legislature
majority-minority district,
this
traditional
concurring in the
("[W]hen
strict
use of race in redistricting,
were subordinated to race,

United
is
(Kennedy,
135 S. Ct.
whether "the intentional
Nor
whether
intentionally
creates
race is necessarily its predominant
motivation and strict scrutiny is therefore triggered.").

Instead,
the
more
narrow
question
before
this
court
is
whether strict scrutiny is required when a uniform racial quota

163
3120
of
55%
has
been
applied
legislative districts
Here,
because
see
that
traditional
solely insofar as
floor,
by
Shaw
517
in
drawing
twelve
are highly dissimilar in character.

districting
they did not
II,
legislature
U.S.
criteria
interfere
at
907,
with
the
were
this
quota
considered
55% minimum
operated
as
filter through which all line-drawing decisions had to pass.''^

Such a
the
racial filter necessarily had a discriminatory effect on
configuration
traditional
neutral"
U.S.
the
at
of
criteria
916
basis
been
that
tainted by and
districts,
otherwise
because
would
subordinated to
it
have
race.
rendered
been
all
"race-
See Miller,
515
(holding that when "race-neutral considerations are
for
redistricting
subordinated to race,
has
the
legislation,
State can defeat a
gerrymandered on
quotation marks omitted)).
racial
lines"
and
are
claim that a
(citation
not
district
and
internal
Under these circumstances,
although
I therefore disagree with the majority's contention that

this question was answered by the principal opinion in Bush and
by the majority in Shaw II.
Maj. Op. at 46, 55.
Neither Bush
nor Shaw II presented the unique factual circumstances at issue
in this case, namely, the application of an across-the-board 55%
racial quota to twelve variable districts.
Although
the
majority
is
correct
that
the
district
at
issue in Shaw II exhibited more facial irregularities than the

districts here, such distinctions do not preclude application of
relevant principles from the case.
Shaw II, 517 U.S. at 905-06.
Maj. Op. at 55.
As the Court noted in Shaw II, the fact that a
legislature is able to achieve certain traditional districting

goals in a race-based plan "does not in any way refute the fact
that
race was the legislature's predominant consideration."
Shaw II,
517 U.S.
at
907.
164
3121
legislature
criteria,
may
race-neutral
impossible
and
Therefore,
take
matter
all
into
application
decisions
law
under
of
those
necessarily are
Miller
legislative drawing
of
would
scrutiny
of
traditional
districting
criteria
becomes
affected by
race.
would hold that the plaintiffs have established as
of
apply
account
strict
each of
that
the
in
race
predominated
in
challenged districts,
examining
the
the
and
constitutionality
those d i s t r i c t s .
III.
In
accepts
doing
stark
the
so,
plaintiffs
the
drawing
effectively
alternative
drawn
contrast,
use
the
to
of
majority
show
of
that
would
burden,
places
the
without
however,
an
racial
unwarranted
quota
the
map
predominance
suspicious
had
district
require
legislative
majority's
facially
particular
differently
onerous
this
the
plaintiffs
how
lines
imposing
the
55%
exceeds
burden
The
showing
far
quota.
identifiable
lines.
the
analysis
on
required
have
an
been
Such
showing
on
thus
present
could
quota.
the
effects
majority
to
In
an
for
establishing predominance.^
I further observe that the plaintiffs presented testimony

from Delegate McClellan that she did not propose certain desired
changes to the plan because the resulting lines would not comply
with the 55% quota.
Trial Tr. at 41.

165
3122
Additionally,
under the majority's test,
visual inspection
of a district would be fatal to an equal protection claim if the

district's
criteria,
boundaries
appear
to
be
consistent
majority's analysis,
actual
future
traditional
irrespective of direct evidence that the line-drawing
was racially motivated at the outset.
in
with
as a
result of the
and its requirement that the use of race be
"conflict"
plaintiffs
Thus,
with
traditional
asserting
racial
districting
sorting
criteria,
claim
will
restricted to challenging districts that manifest extreme

drawing unexplainable on race-neutral grounds,
at
issue
As
that
in Shaw
the
is
Supreme
by
above,
the
being
sorted
Miller,
racial
that
of
Court
in
the
has
shape
Equal
into
purpose
districts
state
is
not
harm
at 911-15
of
emphasized,
Protection
constitutional
515 U.S.
criteria,
actually
the
like the district
results
district
constitutional
Clause.
based on
Rather,
from
the
harm
as
stated
individual
voters
color
of
their
skin.
(explaining that it is "the presumed
action,
"conflict"
majority's
however,
the
not
its
[is] the constitutional violation").
race
line-
I.
bizarre
prohibited
be
with
predominance
stark
By requiring that use
traditional
test
often
identify constitutionally suspect racial sorting.
166
manifestation,
redistricting
will
fail
to
3123
IV.
In reviewing a
whether
such
as
there
plan
complies
with
traditional
and
evidence
racially motivated
509 U.S.
of
at 647
contiguity,
serve
to
defeat
but
in
evidence
shape,
that
principles,
rationale
913.
that
race
was
claim
in drawing
Here,
fact
for
the
factors,
evaluating
decision
that
its
"may
own
be
face
of
motivation
the
majority
by
the
and
not
dominant
has
direct
of
is
not
been
circumstantial
other districting
and
controlling
Miller,
relies
use
that
legislative district is
lines."
overwhelming,
evidenced
See
factors
on
515 U.S.
shape
and
traditional districting factors to uphold the 2011 plan,

the
whether
making.
district
persuasive
sake,
legislature's
the
When a
its district
however,
when
"they are objective
gerrymandered on racial lines").

bizarre
districting
(traditional districting factors are not
constitutionally required,
may
courts typically examine
compactness
is
Shaw I,
redistricting plan,
evidence
of
one-size-fits-all
at
other
even in
racial
racial
quota.
The
Bush.
inquiry
majority's
In
as
boundaries
analysis
Cromartie
requiring
were
drawn
II,
the
plaintiffs
"because
other districting criteria.
257
(2001)
Court
of
aided
described
to
show
race
Easley v.
(emphasis omitted).
Cromartie
the
that
rather
II
and
predominance
a
than
Cromartie,
However,
167
by
district's
because
532 U.S.
of"
234,
legislative district
3124
necessarily is crafted "because of race" when a
the
single
filter
through which all
racial quota is
line-drawing decisions
are
made.
Similarly,
the
" [s]ignificant
.
convey
message
predominantly
opinion).
caused
manifests
cause
that
import
racial
itself
any observer.
from
Bush,
of
odd
But
the
present
resulted
in
"convey[ed]
be,
the
message
also
disagree
approval
districts
by
somehow
predominance.
Protection
Clause
individual voter,
(principal
The
when
racial
that
are
harm
sorting
visible
to
In
harm,
use
of
because
political
racial
that
identity
is,
quota
methodology
or
should
Id.
the
rescues
Voting
are
980
be,
district that is odd in shape.
incumbent
The
should
not
that
with
they
harm is
constitutional
the
as
obvious.
boundaries
legislature's
predominantly racial."
I
that
case,
or
incidence of constitutional
limited to the presence of a

the
is
that
districting
insofar
at
apparent
district
explained
is,
U.S.
language
is
harm
identity
517
this
Bush
traditional
political
stereotyping
in
in
constitutional
racial."
The
by
opinion
deviations
principles
the
principal
the
intervenors'
implicit
suggestion
legislators
in
challenged
plan
Rights
intended
to
from
Act
finding
(VRA)
protect
the
the
and
of
the
rights
racial
Equal
of
the
not to promote the self-interest of incumbents
in majority-minority districts.
See League of United Latin Am.

168
3125
Citizens,
means
548
U.S.
excluding
at
some
440-41
voters
("If
from
the
incumbency
district
simply
they are likely to vote against the officeholder,

to
benefit
the
officeholder,
contrary,
immunizing
them
overwhelmingly
in
representatives'
not
incumbents
safe
the
from
protection
because
the change is
voters.").
challenge
districts
To
could
and
the
entrench
undermine
accountability to their constituents.
the
One can
easily imagine how such entrenchment could harm minority voters

by
discouraging
challengers
from
running
and
by
preventing
voters from electing a new candidate who better represents their

interests.
"Packing"
majority-minority
minority
district
for
voters
the
into
purpose
incumbent also can reduce minority voters'
of
particular
protecting
the
ability to influence
elections in nearby districts.''^

A
fact
true
that,
predominance
at
the
time
challenged districts
Ex.
15
at
13-14
analysis
of
the
also
2010
already had a
& Table
8;
PI.
Ex.
is
not
census,
nine
BVAP of
50
at
affected
55%
9
of
the
by
twelve
or higher.
17,
72
the
Table
DI
4.
Even assuming that such figures could protect the configuration
I recognize that the plaintiffs in this case do not raise

a vote dilution claim under Section 2 of the VEÂ, but instead
bring an "analytically distinct" racial sorting claim under the
Equal Protection Clause.

See Miller, 515 U.S. at 911 (citing
Shaw I, 509 U.S. at 652) .
I note the potential detrimental
effects of the plan only to highlight that a so-called "benign"
racial quota, ostensibly intended to benefit minority voters,
may in fact have the opposite effect.
169
3126
of
those
nine
districts
in
the
2011
plan,
the
three
remaining
districts still would be subject to strict scrutiny.
given
the
significant
challenged
the
districts,
population
our
legislature decide[d]
inquiry
deficits
must
focus
in
most
on
"which
Ct.
at
1271
decision
to
preexisting
{emphasis
move
55%
in original).
certain
BVAP
of
the
voters
to choose" when moving voters between
districts in order to achieve population equality.

S.
Moreover,
voters
floor
in
Here,
in
the
order
the
new
Alabama,
135
legislature's
to
plan
maintain
is
still
"mechanically numerical" method of redistricting that is subject
to strict scrutiny.
See id. at 1273.
therefore
conclude
that
the
majority's
approach
effectively and improperly places on plaintiffs asserting racial
predominance
Supreme
will
in
Court.
be
redistricting
Under
required
to
motivation
through
districting
criteria,
presented
the
majority's
show
never
when
direct
the
plaintiffs
now
with
plaintiffs
evidence
by
evidence
conflict"
such
assigned
analysis,
circumstantial
"actual
dispositive
burden
that
of
racial
traditional
already
the
have
legislature
assigned race a priority over all other districting factors.
V.
Even
upon
applying
its
the majority concludes that
heightened
predominance
race was the predominant

170
standard,
factor
in
3127
the
drawing
of
District
majority's test,
the
75.
would
hold
that,
under
same conclusion of predominance holds
the
true
for neighboring District 63 as well.

As a
result of the "drastic maneuvering"
55% BVAP in District
District
63
majority
agrees
Maj.
at 109.
Op.
District
were
portions of a
shifted
was
into
"avowedly
District
county previously in
75,
racial."
Trial
move
Tr.
that
the
74,
80;
at
The plan compensated for this loss of BVAP in
63 by adding to the district new areas with high BVAP
concentrations.
2011
75,
required to reach
plan.
Trial Tr.
District
compactness
and
an
counties,
and VTDs.
70
2,
Table
71
63
DI Ex.
the
Due to the changes in the
experienced
increase
Table
implementation of
at 81-83.
in
the
15 at
3.
This
55%
racial
startling
number
of
15 Table 9;
and
other
quota
reduction
split
PI.
Ex.
evidence
had a
cities,
50 at 7,
showed
marked
in
that
impact
on
the configuration of both Districts 63 and 75.
VI.
can
further
survive
conclude
the
test
that
of
none
of
the
strict
challenged
scrutiny,
districts
because
the
legislature's use of the 55% quota was not narrowly tailored to

achieve
districts.
compelling
See
state
Miller,
515
interest
U.S.
at
in
any
920.
of
the
Evidence
tailoring in this case is practically non-existent.

171
challenged
of
narrow
3128
Assuming that compliance with the VEÂ is a compelling state

interest,
attempts at such compliance "cannot justify race-based
districting
necessary
federal
where
under
law.
(principal
the
challenged
district
constitutional
Id.
at
opinion).
921;
reading
see
Thus,
was
also
narrow
and
not
application"
Bush,
517
tailoring
reasonably
U.S.
requires
of
at
977
that
the
legislature have a "strong basis in evidence" for its race-based

decision,
racial
that
is,
"good
classification
reasons
was
evidence
any of
had
supporting
the
figure.
District
only
75.
"functional
need
evidence
Delegate
of
election results in 2005,

population
in
imposition of a
458-59,
Jones'
and,
for
articulating
analysis"
462-67,
that
application
the
431,
the
VRA.
Jones
of a
55% BVAP in
Delegate Jones even
original
source
443,
Delegate
of
the
55%
490-95.
of
any
testified
Tyler's
tailoring
that
he
primary
involved
conducted
and
general
and considered the significant prison
district,
PI.
with
chosen
In fact,
suggestive
55% racial
494;
comply
the
the intervenors presented virtually no
Trial Tr. at 429,
The
to
that
(emphasis omitted).
the challenged districts.
difficulty
believe"
required
Alabama, 135 S, Ct. at 1274

In the present case,
to
Ex.
which
floor.
40
at
together
Trial
39
Tr.
(Del.
supported
at
323-24,
Tyler).
the
430,
However,
statements were merely general and conclusory in nature
therefore,
fell far short of demonstrating a "strong basis

172
3129
in
evidence"
did
the
for
2005
but
casting
75
candidate
required
Jones
Tyler
occur
ran
significant
District
was
2011 onward.
application
elections
redistricting,
since,
the
so
at
See PI.
of
six
Ex.
racial
years
unopposed
doubt
on
competitive
least
55%
quota.
prior
in
the
Jones'
that
BVAP
to
Not
to
two
only
the
2011
elections
contention
that
minority-preferred
be
50 at 85 Table 14.
re-elected
And,
from
critically,
failed to provide any explanation of how his "functional"
review
led
him
to
conclude
that
55%
BVAP was
required
in
District 75 to ensure compliance with the VRA.

The evidence supporting the use of the 55% racial quota in
the
remaining challenged districts
was
even
weaker.
The House
of Delegates did not conduct an analysis regarding the extent of

racially polarized voting in any of these districts.
at 4 69.
Trial Tr.
Although Delegate Jones stated that he was aware of low
registration rates among black voters,
he also admitted that he
did not review voter registration figures when drawing the plan.
Trial Tr. at 4 62-64.
in most
Nor did he examine minority turnout rates
of the challenged districts,
districts,
congressional maps,
or consider state Senate
or other maps that had been pre-
cleared or rejected by the Department of Justice.
462-69.
And,
in attempting
BVAP quota in District 63,

was
primary"
in which
to
Trial Tr.
justify imposition of the
Jones stated that he "tthought]

Delegate
173
Dance
ran
as
an
at
55%
there
independent,
3130
which
results
results
led
Trial Tr.
he
him
reviewed,
to
select
at 4 66-68.
but
he
did
55%
BVAP
not
specify
threshold
in
how
those
District
63.
Such unsubstantiated and general comments
plainly do not constitute the strong basis in evidence required

to satisfy strict scrutiny.
Finally,
favor
of
do not
either
testimony/
think that
party,
is
the outcome of this case,
dependent
on
any
of
the
in
expert
However, I pause to note that I find the testimony
offered by Dr.
Katz to be singularly unpersuasive on the issue
of narrow tailoring.
Dr.
Katz admitted that he provided only a
"crude" analysis of the likelihood that a candidate preferred by

minority voters would be elected.
to
Dr.
Katz,
this
"crude"
Trial Tr.
method
at 531.
demonstrated
that
According
a
55%
correlates with an 80% chance of electing a black candidate.

Ex.
16 at 18-19; Trial Tr.
Dr.
First,
Katz'
it
crude
DI
at 532.
analysis
underrepresents
BVAP
the
exhibits
likelihood
two
that
glaring
the
flaws.
preferred
candidate of minority voters would be elected by evaluating only

the likely success of black candidates, when minority voters had
I
agree
with
the
majority's
criticism
that
Dr.
Ansolabehere did not consider any factors other than race and
politics as predictors of VTD inclusion in the challenged
districts.
Maj. Op. at 105.
Nevertheless, my conclusion, that
the legislature's use of the 55% racial quota per se establishes

predominance
opinions
as
matter
regarding
VTD
of
law,
movement
predominance analysis.
174
renders
Dr.
superfluous
Ansolabehere's
to
proper
3131
elected
non-minority
districts.
Trial
delegates
Tr.
at
532-34,
more fundamentally.
Dr.
Katz'
does
the
success
not
guarantee
race in a
voters
given election.
do not
"have
in
549-51,
of
the
769-71.
challenged
Second,
and
analysis is flawed because the VRA

of
Rather,
less
certain
candidate
of
particular
the VRA ensures that minority
opportunity than
other members
of the
electorate to participate in the political process and to elect

representatives
retain
their
candidates.''
Citizens,
135 S.
For
these
to
evidence"
their
existing
Ct.
at
choice,"
ability
52 U.S.C.
548 U.S.
Alabama,
fails
of
428
reasons,
that
for
using
challenged districts.
to
that
elect
minority
their
voters
preferred
10301(b); League of United Latin Am.

(VRA Section 2);
at 1272
show
and
the
the
52 U.S.C.
10304(b);
(VRA Section 5).
would
find
legislature
55%
had
racial
Accordingly,
that
the
a
quota
would
record
"strong
utterly
basis
in
in
any
of
the
hold
that
all
the
districts fail the test of strict scrutiny.
Although my conclusions do not depend on the testimony of

Dr. Ansolabehere, I am not persuaded by the majority's dismissal
of Dr. Ansolabehere's racial polarization analysis.
See Maj.
Op. at 124 n.37.
In particular, I credit Dr. Ansolabehere's
conclusion that none of the challenged districts required a 55%
BVAP in order to ensure minority voters' opportunity to elect
their preferred candidate.
Trial Tr. at 203.

175
3132
VII.
The promise of the Equal Protection Clause is the guarantee

of true equality under the
protection
of
governmental
racial
our
citizens
entity.
quota
principle
in
supporting
its
in
The
this
the
law,
irrespective
Virginia
case
absence
race-based
enforced by our courts
this
strong
decision.
Virginia's 2011 redistricting plan.
the
core
basis
Thus,
Barbara Milano
Keenan
U.S. Circuit Judge
Date:
October 22,
2015
176
power
of
any
use
of
the
constitutional
in
would
evidence
invalidate
I respectfully dissent.
/s/
Richmond, Virginia
the
legislature's
violated
of
of
for

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Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 1 of 176 PageID#

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

CLERK, U.S. DISTRICT COURT

Senior District Judge:

four-day bench trial at which the parties

findings of fact are based on our assessment of the record and

Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 2 of 176 PageID#

factor motivating the decision to place a

House District 75,

Plaintiffs have not carried that burden

in the creation of eleven of the twelve Challenged Districts.

concluded that, in using race, the General Assembly was pursuing

gerrymandering claims in Section II; and set out its findings on

the Court will articulate its understanding of the relevant

legal framework for evaluating racial gerrymandering (or "racial

Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 3 of 176 PageID#

set out additional factual findings of general

district-by-district analysis with

application of the relevant legal framework.

Virginia House of Delegates

and the Senate, of Virginia

The task of redistricting is one that carries great

political and legal consequence.

legislation recites a singularly tedious list of precincts and

few pieces of legislation have a

more profound impact on the function of government and whether

Justice James Wilson,

The Works of the Honourable James Wilson,

ed.. The Lorenzo Press 1804).

The political significance of redistricting is matched only

constitutional and statutory demands

Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 4 of 176 PageID#

rather than clear rules.

As to the 2011 redistricting,

Delegate Chris Jones led this

Delegate Jones played an instrumental role

in the 2001 redistricting process and drew upon that experience

to lead the 2011 redistricting efforts.

Because Virginia was

covered jurisdiction under Section 4 of the Voting Rights Act of

ensure that the plan did not result in a "retrogression in the

position of racial minorities with respect to their effective

In an attempt to comply with this

twelve majority-minority House Districts ("HDs" or "Districts"}.^

HDs 63, 69, 70, 71, 74, 75,

(formerly cited as 42 U.S.C.

^ "Majority-minority" districts are those with a racial or

Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 5 of 176 PageID#

The Plaintiffs are

Virginia who are lawfully registered voters in the Commonwealth

(Docket No. 83.)

The Plaintiffs requested that the

case be heard by a three-judge district court pursuant to 28

the grounds that the action "challeng[es]

statewide legislative body."

That request was

granted by the Chief Judge of the United States Court of Appeals

The Virginia House of Delegates and the Virginia House of

^ Plaintiffs filed a Corrected Amended Complaint on June 16,

after one of the original plaintiffs

Case 3:14-cv-00852-REP-GBL-BMK Document 108 Filed 10/22/15 Page 6 of 176 PageID#

A four-day bench trial began on July 7,

arguments at the close of the case,