Motion to Dismiss or Affirm — Virginia House of Delegates, et al., Appellants v. Golden Bethune-Hill, et al.

Supreme Court briefOct 9, 2018

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No. 18-281

IN THE

Supreme Court of the United States

————

VIRGINIA HOUSE OF DELEGATES,

M. KIRKLAND COX,

Appellants,

GOLDEN BETHUNE-HILL, et al.,

Appellees.

————

On Appeal from the

United States District Court

for the Eastern District of Virginia

————

MOTION TO DISMISS OR AFFIRM

————

KEVIN J. HAMILTON

ABHA KHANNA

RYAN SPEAR

WILLIAM B. STAFFORD

PERKINS COIE LLP

1201 Third Avenue

Suite 4900

Seattle, WA 98101-3099

(206) 359-8000

MARC E. ELIAS

Counsel of Record

BRUCE V. SPIVA

ARIA C. BRANCH

PERKINS COIE LLP

700 Thirteenth Street, N.W.

Suite 600

Washington, D.C. 20005-3960

(202) 654-6200

MElias@perkinscoie.com

Counsel for Appellees Golden Bethune-Hill, Christa Brooks,

Chauncey Brown, Thomas Calhoun, Atoy Carrington,

Wayne Dawkins, Alfreda Gordon, Cherrelle Hurt,

Atiba Muse, Nancy Ross, Tavarris Spinks,

Mattie Mae Urquhart, and Sheppard Roland Winston

October 9, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

The question presented is as follows:

1. Whether the three-judge panel committed clear

error in concluding that Virginia House of Delegates

Districts 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95

are racial gerrymanders in violation of the Equal

Protection Clause of the Fourteenth Amendment?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

STATEMENT ......................................................

ARGUMENT ........................................................

I. Race Predominated in the Challenged

Districts .....................................................

A. The Panel’s findings of racial

predominance are amply supported

by the record ........................................

B. Appellants identify no legal error in

the Panel’s predominance analysis .....

C. The Panel’s credibility determinations are not clearly erroneous ...........

II. The Challenged Districts Are Not

Narrowly Tailored .....................................

A. The Panel rightly concluded that

Appellants failed to meet their

narrow tailoring burden ......................

B. Appellants

cannot

avoid

the

requirements of strict scrutiny ...........

CONCLUSION ....................................................

APPENDIX ..........................................................

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Perez,

138 S. Ct. 2305 (2018) ............................... 27, 33

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) ..............................passim

Ala. Legislative Black Caucus v. Alabama,

989 F. Supp. 2d 1227 (M.D. Ala. 2013) ....

Anderson v. City of Bessemer City,

470 U.S. 564 (1985) ................................... 18, 24

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017) ................................passim

Burns v. Uninet, Inc.,

211 F.3d 1264 (4th Cir. 2000) ...................

Bush v. Vera,

517 U.S. 952 (1996) ...................................

Cooper v. Harris,

137 S. Ct. 1455 (2017) ..............................passim

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) ...................................

Easley v. Cromartie,

532 U.S. 234 (2001) ...................................

Georgia v. Ashcroft,

539 U.S. 461 (2003) ............................................. 31

In re Sanford Fork & Tool Co.,

160 U.S. 247 (1895) ...................................

League of United Latin Am. Citizens

v. Perry,

548 U.S. 399 (2006) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Miller v. Johnson,

515 U.S. 900 (1995) ................................. 6, 8, 17

Ne. Ohio Coal. for the Homeless v. Husted,

No. 2:06-CV-896, 2016 WL 3166251

(S.D. Ohio June 7, 2016), aff’d in part,

837 F.3d 612 (6th Cir. 2016) .....................

Page v. Va. State Bd. of Elections,

No. 3:13cv678, 2015 WL 3604029 (E.D.

Va. June 5, 2015) ......................................

Shaw v. Reno,

509 U.S. 630 (1993) ............................... 8, 17, 30

Shaw v. Hunt,

517 U.S. 899 (1996) ................................... 8, 16

State Indus., Inc. v. Mor-Flo Indus., Inc.,

948 F.2d 1573 (Fed. Cir. 1991) .................

United States v. Aptt,

354 F.3d 1269 (10th Cir. 2004) .................

United States v. Hammoud,

381 F.3d 316 (4th Cir. 2004), vacated on

other grounds, 543 U.S. 1097 (2005) ........

Wittman v. Personhuballah,

136 S. Ct. 1732 (2016) ...............................

CONSTITUTION

U.S. Const. amend. XIV ...............................

STATUTES

Voting Rights Act of 1965,

§ 5, 42 U.S.C. § 1973(c) ............................passim

TABLE OF AUTHORITIES—Continued

COURT FILINGS

Page(s)

Brief of the NAACP and Virginia NAACP

as Amici Curiae Supporting Appellants,

Bethune-Hill v. Va. State Bd. of Elections,

No. 15-680, 2016 WL 4937777 (Sept. 14,

2016) ..........................................................

Brief for Appellees, Bethune-Hill v. Va.

State Bd. of Elections, No. 15-680, 2016

WL 6123732 (Oct. 17, 2016) .....................

OTHER AUTHORITIES

Guidance Concerning Redistricting Under

Section 5 of the Voting Rights Act; Notice,

76 Fed. Reg. 7470 (Feb. 9, 2011) ..............

STATEMENT

This is the second time that Virginia’s House of

Delegates districting plan has come before the Court

this redistricting cycle. In the first appeal, this Court

held that the three-judge panel below (the “Panel”)

had applied the wrong legal standard to Appellees’

claims. It therefore vacated the decision in part and

remanded for the Panel to apply the correct standard

to determine whether House Districts 63, 69, 70, 71,

74, 77, 80, 89, 90, 92, and 95 (the “Challenged

Districts”) are unconstitutional racial gerrymanders.

Meanwhile, this Court affirmed the Panel’s determination that, while race was the predominant factor

in District 75, that use of race was narrowly tailored.

On remand, the Panel reopened discovery and held

a second trial. After carefully considering the evidence, the Panel applied the correct legal standard

and concluded that the Challenged Districts are

unconstitutional. The result was unsurprising.

This case began with an admission by John Morgan,

a redistricting consultant for Virginia’s General

Assembly, in a racial gerrymandering case challenging

Virginia’s Third Congressional District. Morgan testified that Virginia’s General Assembly “enacted ‘a

House of Delegates redistricting plan with a 55%

Black [Voting Age Population] as the floor for blackmajority districts,’” and that it “acted in accordance

with that view” when adopting its congressional

plan. Page v. Va. State Bd. of Elections (“Page II”),

No. 3:13cv678, 2015 WL 3604029, at *9 (E.D. Va. June

5, 2015) (quoting Morgan’s expert report), appeal dismissed sub nom. Wittman v. Personhuballah, 136 S.

Ct. 1732 (2016). Based in part on Morgan’s testimony

about the legislature’s use of this fixed racial

threshold, the Page II court declared the Third

Congressional District unconstitutional. Having

learned that a 55% Black Voting Age Population

(“BVAP”) floor was used to draw the Challenged

Districts as well, Appellees filed this lawsuit.

Remarkably, much of the first trial in this case was

consumed by Appellants’ argument that there was no

55% BVAP floor applied to the Challenged Districts.

Appellants also asserted that race could not predominate unless Plaintiffs established an “actual conflict”

between the mapdrawers’ racial goals and traditional

redistricting principles.

On appeal, this Court rejected both arguments. The

Court affirmed the finding that the 55% BVAP rule

“was used in structuring the districts.” Bethune-Hill v.

Va. State Bd. of Elections, 137 S. Ct. 788, 795-96

(2017). The Court also rejected Appellants’ claim that

race could not predominate unless it resulted in a

specific “deviation” manifesting “actual conflict” with

traditional redistricting principles. Id. at 799-800.

Appellants therefore stood at a decided disadvantage on remand. The law of the case already provided

strong evidence of racial predominance in the use of

a fixed racial floor to structure 12 districts (the

Challenged Districts and District 75). See Cooper v.

Harris, 137 S. Ct. 1455, 1468-69 (2017) (when a legislature announces a “racial target that subordinated

other districting criteria and produce[s] boundaries

amplifying divisions between blacks and whites,” a

court “could hardly . . . conclude[] anything but” that

“race predominated”). Moreover, while the 55% BVAP

floor was narrowly tailored to one district—District

75—the General Assembly had applied that same

racial target “across the board” to 11 other districts.

Bethune-Hill, 137 S. Ct. at 796.

Accordingly, Appellants insisted on another round

of discovery and a new trial to rehabilitate their case.

In so doing, Appellants maintained that “[t]he District

Court is best positioned to determine . . . both the questions of predominance and narrow tailoring” given its

ability “to weigh testimony and assess credibility.”

Dkt. No. 146 at 9-10 n.4 (internal quotation marks

omitted).

The Panel did just that—and found that Appellants’

key witnesses were not credible. As to the primary

mapdrawer, Delegate Chris Jones, the Panel was

struck by the many instances in which his testimony

from the first trial was proven inaccurate and/or

thoroughly rebutted by testimony from the second

trial. See, e.g., J.S.App. 37-38 (“[W]hen faced at the

second trial with new witnesses challenging material

aspects of his previous testimony, . . . Jones was unable

to produce convincing explanations for the discrepancies.”). Likewise, in the second trial, Morgan testified

that although Voting Tabulation Districts (“VTDs”)

“were split with exacting precision separating predominantly black and white residential areas,” he had

not considered race, and the resulting pattern of stark

racial sorting was “mere happenstance.” J.S.App. 3334. The Panel found that testimony “simply is not

credible.” J.S.App. 34.

By contrast, Appellees presented additional testimony further illustrating the degree to which the 55%

BVAP rule shaped the Challenged Districts. With the

benefit of two trials, voluminous expert and lay testimony, and scores of trial exhibits, the Panel weighed

the evidence, gauged credibility, and applied this

Court’s clarification of the proper legal standard. It

found both direct and circumstantial evidence of the

General Assembly’s race-based motives with respect to

the Challenged Districts—evidence it summarized for

dozens of pages. J.S.App. 16-86. The Panel further

found that the General Assembly’s use of a 55% BVAP

floor in each Challenged District was not narrowly

tailored to avoiding retrogression under Section 5 of

the Voting Rights Act (“VRA”), as the General

Assembly had engaged in no analysis “of any kind” to

determine the percentage of black voters necessary to

maintain an ability to elect their preferred candidates.

J.S.App. 88.

Appellants do not attempt to address most of the

evidence on which the Panel relied. Indeed, Appellants

studiously avoid any reference to the Panel’s detailed,

district-specific findings regarding each Challenged

District, which comprise most of the Panel’s racial

predominance analysis. J.S.App. 33-80. Instead, they

mischaracterize the record and the Panel’s findings

and complain that the Panel should have credited their

witnesses’ testimony over Appellees’. Contrary to

Appellants’ mischaracterizations, the Panel’s Opinion

is firmly rooted in this Court’s jurisprudence and well

supported by the factual record. The Court should

dismiss or summarily affirm.1

Appellants intervened in this case. Although both they and

the Virginia State Board of Elections defended the map below,

the Board has not appealed and contends that Appellants lack

standing to appeal independently. See Dkt. No. 246. Appellees

agree. But even assuming Appellants have standing, the absence

of a substantial question warrants dismissal. Alternatively, the

Panel’s well-supported judgment should be summarily affirmed.

ARGUMENT

I. Race Predominated in the Challenged

Districts

A. The Panel’s findings of racial predominance are amply supported by the record

The Panel’s Opinion rests on extensive factual

findings—derived from two trials, 12 expert reports,

17 witnesses, and nearly 200 exhibits. See J.S.App. 14

(“Our consideration of the legislature’s true motivations in drawing the districts is highly fact-specific,

and involves numerous credibility findings.”). Those

factual findings are subject to clear error review. See

Cooper, 137 S. Ct. at 1465; Easley v. Cromartie, 532

U.S. 234, 242 (2001) (“[W]e . . . will not reverse a lower

court’s finding of fact simply because we would have

decided the case differently. Rather, a reviewing court

must ask whether, on the entire evidence, it is left

with the definite and firm conviction that a mistake

has been committed.”) (internal quotation marks and

citations omitted).

The Panel’s Opinion was a straightforward application of this Court’s recent decisions. J.S.App. 9-16.

Specifically, the Panel recognized that “[a]lthough the

application of a mandatory BVAP requirement for a

district does not alone compel the conclusion that race

predominated, such a requirement is evidence of the

manner in which the legislature used race in drawing

the district’s boundaries.” J.S.App. 10 (citing BethuneHill, 137 S. Ct. at 788, and Ala. Legislative Black

Caucus v. Alabama, 135 S. Ct. 1257, 1267 (2015)). “For

example, if a legislature made line-drawing decisions

for the predominant purpose of complying with such a

BVAP requirement, and the evidence shows that these

race-based decisions dwarfed any independent consid-

eration of traditional districting criteria, a court could

conclude that the legislature ‘relied on race in substantial disregard of customary and traditional districting

practices.’” J.S.App. 11 (quoting Miller v. Johnson, 515

U.S. 900, 928 (1995) (O’Connor, J., concurring)).

As the Panel found, that is precisely what happened

here. First, despite Appellants’ persistent efforts

to deny it, the fact that an inflexible 55% BVAP

threshold was used to configure each of the Challenged

Districts is “now settled.” J.S.App. 18. Ensuring that

all Challenged Districts met this requirement was no

easy feat, as demonstrated by the pattern of deviations

from traditional districting criteria among the Challenged Districts as a whole, see, e.g., PX50 at 21-22

(2011 plan increased VTD splits among Challenged

Districts and District 75 at more than twice the rate

of increase in VTD splits found in 88 remaining

districts); id. at 18 (average compactness of Challenged Districts and District 75 dropped five times as

much as that of other districts), and individually,

see, e.g., J.S.App. 299 (District 63 suffered “the

largest Reock compactness reduction of any district”);

J.S.App. 336-37 (District 95 increased from 1 to 6 VTD

splits and is now the least compact district).

The resulting pattern of racial sorting is “stark,” to

say the least. Bethune-Hill, 137 S. Ct. at 800. Cities,

towns, VTDs, and even a military base were divided

with near uniformity along racial lines, with higher

BVAP areas moved to the Challenged Districts and

lower BVAP areas moved to the non-challenged

districts. PX71 at 4-16. African-American voters were

moved into Challenged Districts at a higher rate than

white voters, Democratic voters, and the population as

a whole—and moved out at a lower rate than all these

groups. Id. at 19-20. VTD splits tracked racial lines

with “exacting precision,” J.S.App. 33, which is

especially probative because only racial data—and not

political data—are available below the VTD level,

J.S.App. 26-27. Furthermore, race proved a far more

powerful predictor than party of which VTDs were

placed in the Challenged Districts, both among the

Challenged Districts overall, see J.S.App. 28-32, and

in individual districts, see, e.g., PX51 at 32 (BVAP

differential between VTDs included in and excluded

from District 95 is 20 percentage points higher than

partisan differential).

Appellees’ expert further demonstrated that “unsplitting” several VTDs between Challenged Districts

meant all the difference between satisfying the 55%

BVAP threshold and falling fatally short of it. See, e.g.,

PX71 at 12 (returning VTD 703 to its benchmark

district would have dropped District 71’s BVAP to

54.9%); id. (returning Brambleton VTD to its

benchmark district would have dropped District 89’s

BVAP to 54.7%). The testimony of the lead mapdrawer

and incumbent delegates confirmed that the

nonnegotiable racial rule drove the placement of

voters within and without the Challenged Districts.

See, e.g., 2nd Tr. 532:9-33:4 (with “certainty,” the 55%

BVAP rule required eastward expansion of District

71); id. 36:15-21, 39:14-20 (VTD 207 was removed from

District 71 in service of the 55% BVAP rule).

Tellingly, the 11 Challenged Districts exhibit the

same hallmarks of racial predominance found in

District 75, where “race did predominate,” BethuneHill, 137 S. Ct. at 794. As with District 75, direct

testimony confirmed that mapdrawers sought to

satisfy the 55% BVAP floor by, among other things,

drawing “irregular borders,” dividing political subdivision boundaries along racial lines, and “drastic[ally]

maneuvering” African-American populations. J.S.App.

304-07. Appellants argued that the racial disparities

in and around District 75 resulted from population

demands, member requests, and political concerns.

J.S.App. 305-06. Those arguments fell flat in the

analysis of District 75, see, e.g., J.S.App. 306

(“[A]ttributing a political purpose to—or justification

for—the 55% BVAP floor does not somehow render it

a non-racial classification.”), and they fared no better

in the Panel’s analysis of the Challenged Districts.

The record fully supported and, indeed, compelled

the conclusion that race predominated in each

Challenged District.

B. Appellants identify no legal error in the

Panel’s predominance analysis

Confronted with detailed factual findings, Appellants

try to evade the clear error standard by ginning up

“erroneous legal principles” in the Panel’s predominance analysis. J.S. 8. But the “erroneous legal

principles” Appellants identify are all based on this

Court’s explicit directions.

1. Appellants claim the Panel erred because it

supposedly “did not consider ‘all of the lines.’” J.S. 8

(quoting Bethune-Hill, 137 S. Ct. at 800). If Appellants

mean to suggest that a court commits reversible legal

error unless it explicitly discusses each and every

boundary “line,” they are incorrect. This Court never

discusses “all of the lines” in a given district. See, e.g.,

Cooper, 137 S. Ct. 1455; Shaw v. Hunt (“Shaw II”), 517

U.S. 899 (1996); Miller, 515 U.S. 900; Shaw v. Reno

(“Shaw I”), 509 U.S. 630 (1993).

In any event, Appellants’ selective quotation of this

Court’s previous decision is misleading. In the Panel’s

first opinion, at Appellants’ urging, the Panel adopted

a novel predominance test in which (a) a district was

not subject to scrutiny unless it manifested “deviations” from traditional redistricting criteria and (b)

any review was limited to determining the reason for

such “deviations.” Bethune-Hill, 137 S. Ct. at 798-99.

In rejecting that analysis, this Court emphasized that

the ultimate question is “the legislature’s predominant motive for the design of the district as a whole.”

Id. at 800. “Concentrating on particular portions in

isolation may obscure the significance of relevant

districtwide evidence, such as stark splits in the racial

composition of population moved into and out of

disparate parts of the district, or the use of an express

racial target.” Id. at 800. The proper “holistic”

analysis, therefore, does not require the court to

explicate every jot and tittle of a district but, instead,

to examine the broader context of each district,

including its overall demographics and the principles

that drove its configuration.

Here, after explicitly referencing this Court’s guidance on appeal, the Panel considered both statewide

and district-specific evidence in exhaustive detail. See

J.S.App. 16-86. For example, with respect to District

71, the Panel detailed (a) the benchmark version of the

district and how it was altered in the 2011 redistricting; (b) the district’s division of a Richmond neighborhood along racial lines; (c) testimony from the mapdrawer

and the incumbent that the district’s configuration

was “required to ensure [it] had sufficient BVAP to

meet the 55% number”; and (d) the 50 percentage

point BVAP difference between the populations moved

into and out of the district. J.S.App. 40-45. This is

precisely the kind of holistic analysis this Court

demanded.

In any event, Appellants fail to identify a single

“line” that the Panel should have considered but did

not. Instead, Appellants’ real complaint is that the

Panel gave insufficient weight to “core retention,”

which they claim was “the predominant factor” behind

the Challenged Districts. J.S. 9. That claim fails.

First, Appellants’ suggestion that core retention

negates evidence of racial predominance makes no

sense given the record. District 75 retained 78.8% of

its core, and race predominated. See IDX15 at 16. That

is a higher retention percentage than all but three

Challenged Districts (Districts 63, 71, and 74, which

retained about 80% of their cores).

Second, the record does not support Appellants’

post hoc attempt to elevate core retention to the

predominant consideration. The formal criteria adopted

by the House of Delegates to govern redistricting place

compliance with the VRA (which was equated with the

55% BVAP rule) above all other factors in importance

other than population equality. PX16. “Core retention,” meanwhile, appears exactly nowhere in the

criteria. Id. The Panel did not commit clear error by

rejecting Appellants’ claim that the most important

factor for each Challenged District went unmentioned

in the criteria that guided redistricting. See BethuneHill, 137 S. Ct. at 799 (“The racial predominance

inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post

hoc justifications the legislature in theory could have

used but in reality did not.”).

Third, Appellants ignore this Court’s admonition to

consider “the significance of . . . stark splits in the

racial composition of populations moved into and

out of disparate parts of the district.” Id. at 800

(emphasis added). This Court recently rejected a

similar argument that race did not predominate where

the legislature focused on “preservi[ng] the core of the

existing [d]istrict,” noting that core retention “is not

directly relevant to the origin of the new district

inhabitants.” Alabama, 135 S. Ct. at 1257 (internal

quotation marks and citation omitted). Courts routinely find that race predominates where a district was

drawn in the benchmark’s footprint. See Cooper, 137

S. Ct. at 1474 (race predominated where legislature

“further slimm[ed] the district and add[ed] a couple of

knobs to its snakelike body”).

Fourth, Appellants’ claim that “core preservation”

predominates if an undefined portion of a district’s

core is kept would lead to absurd results. Few

mapdrawers rip up the benchmark map entirely. By

Appellants’ logic, a legislature could announce that a

district wherein 80% of the core was “preserved” would

be “filled” only with voters of a certain race, and race

could not predominate.

Finally, in attempting to identify some evidentiary

basis for this post-hoc argument, Appellants mischaracterize the testimony of Appellees’ expert Dr. Palmer.

J.S. 9. Dr. Palmer’s analysis reveals that VTDs from

the benchmark Challenged Districts were likely to

remain in a Challenged District, not the same

Challenged District, see PX71 at 21, further highlighting the General Assembly’s approach of shuffling

black voters between and among Challenged Districts

in service of a single, uniform racial threshold.

2. Appellants next argue the Panel erred by

(supposedly) “disregard[ing] the geographic location of

population disparities in assessing population movements.” J.S. 9. This Court squarely rejected that

argument in Alabama, holding that population equality demands are not germane to the predominance

inquiry. Alabama, 135 S. Ct. at 1271 (population

equality “is a background rule against which redistricting takes place[,] . . . not a factor to be treated like

other nonracial factors when a court determines whether

race predominated”). Accordingly, the Panel held here

that “[a]lthough the need for population redistribution

in the challenged districts was undisputed, the need

for population equalization does not explain why the

legislature selected certain boundary lines over

others.” J.S.App. 80-81. The Panel then found, as a

matter of fact, that the General Assembly repeatedly

selected populations based on racial considerations.

Appellants’ attempt to distinguish Alabama fails.

J.S. 11. Alabama advanced—and the district court

credited—precisely the same argument Appellants

advance here. Compare Ala. Legislative Black Caucus

v. Alabama, 989 F. Supp. 2d 1227, 1305-06 (M.D. Ala.

2013) (district configuration “was motivated as much

by the effort to comply with the requirement of one

person, one vote as by the effort to avoid retrogression”

where challenged district was “sandwiched” between

underpopulated majority-black districts and overpopulated districts and mapdrawers “repopulate[d] the

majority-black districts” while drawing down the

challenged district’s footprint in adjoining county “to

capture” population from overpopulated district), with

J.S. 10 (“[I]f an underpopulated district borders a

district at perfect population that, in turn, is bordered

by an overpopulated district, the legislature may use

the middle district as a funnel to achieve equality[.]”).

This Court cited that analysis and held it “did not

properly calculate ‘predominance.’” Alabama, 135 S.

Ct. at 1270. Appellants’ claim, therefore, is foreclosed.

Moreover, Appellants’ contention that the Panel

disregarded geography ignores the Panel’s findings.

The Panel found that race best explained the way the

General Assembly addressed population inequality.

J.S.App. 22 (“Given th[e] significant underpopulation

in many of the challenged districts, and the geographic

distribution of white and black residents,” the 55%

BVAP threshold “forced” the legislature “to consider

the racial make-up of individual VTDs and, at times,

to split VTDs according to the racial composition of

particular census blocks.”) (emphasis added). Ultimately,

the Panel found that “the overall racial disparities

in population movement, and the splits of VTDs

and geographies along racial lines, are strong evidence

of racial predominance in the challenged districts.”

J.S.App. 38. This was not error.

3. Appellants next claim that there are no “stark”

racial differences between Challenged and non-challenged districts. J.S. 13. They do not dispute the

accuracy of Appellees’ experts’ analyses regarding the

“racial composition of populations moved into and out

of” the Challenged Districts. Bethune-Hill, 137 S. Ct.

at 800. Instead, they brush aside the consistent pattern of division by race as “no big deal.” This claim

rests on a selective recitation of the evidence and

simple math errors.

It is undisputed that, at every level of political

subdivision, “areas of higher concentrations of black

voting-age people were put into the challenged

districts and areas of lower concentrations were put

into the non-challenged districts.” 2nd Tr. 392:13-20;

see also PX71 at 4-16. Indeed, in all but one case in

which a VTD was split between a Challenged and nonchallenged district, “the areas assigned to the

challenged districts had higher BVAPs than the areas

assigned to the non-challenged districts.” J.S.App. 24.

Faced with those cold, hard numbers, Appellants’

only recourse is to mischaracterize them and their

impact.

First, Appellants understate the BVAP difference

between territories moved into and out of the

Challenged Districts by double counting the percentage of black voters moved from one Challenged

District to another. Compare J.S. 13 with PX50 at 77.

Second, Appellants emphasize that several areas

moved into the Challenged Districts included BVAPs

of less than 50%. J.S. 13. But transfers of population

with BVAP less than 50% can still increase a district’s

BVAP overall, if the BVAP moved in is relatively

higher than the BVAP moved out. For example, in

District 75, which concededly was redrawn to satisfy

the 55% BVAP rule, the target was achieved by

swapping areas with 27.1% BVAP for areas with

37.9% BVAP. See PX50 at 77.

Third, Appellants conflate the significance of BVAP

percentages and absolute numbers in selectively

highlighting VTD splits where fewer black voters were

placed in a Challenged District than in neighboring

majority-white districts. J.S. 13-14. Regardless of the

absolute number of black voters shuffled among the

districts, black voters overall comprised a much higher

percentage of the populations placed in Challenged

Districts. See, e.g., PX71 at 52-55 (BVAP percentage

point differences of 46.1 in Hopewell, 39.9 in Belmont,

and 61.7 in John F. Kennedy). Indeed, the BVAP

assigned to the Challenged Districts because of these

splits is, on average, 24 percentage points higher than

that assigned to the non-challenged districts. Id. at 4;

2nd Tr. 374:17-25.

Even assuming no single VTD split presented a

“stark” demographic difference, these racial differences are seen in all but one VTD split between

Challenged and non-challenged districts. PX71 at 6.

This consistent pattern of division by race is difficult

to characterize as anything but “stark.”

Fourth, Appellants congratulate themselves for

excluding “over 158,000 black voting-age persons”

from the Challenged Districts. J.S. 13. In other words,

they argue that their failure to institute total segregation negates any claim of racial predominance. But

predominance does not mandate that every black voter

be drawn into a challenged district. If the mapdrawers

had not been driven by an arbitrary 55% racial floor,

many more black voters would have been placed in

other districts and, together with the other “158,000

black voters,” had greater voting strength across the

map.

Fifth, Appellants argue that because it was possible

for the General Assembly to meet the 55% BVAP floor

in the Challenged Districts in other ways, it is

impossible for race to have predominated. J.S. 12.

That is a non sequitur. The fact that a state “could

construct a plethora of potential maps that look consistent with traditional, race-neutral principles” does

not inform whether race was the “overriding reason for

choosing one map over others.” Bethune-Hill, 137 S.

Ct. at 799.

4. Lastly, Appellants offer a cynical misunderstanding of both the Panel’s Opinion and the VRA.

Contrary to Appellants’ contention, the evidence of

predominance did not “simply describe[] ordinary VRA

compliance.” Nor does the Opinion “render[] every

majority-minority district in the nation presumptively

unconstitutional.” J.S. 15-16. Rather, the Opinion

illuminates the consistent, multiple ways in which the

legislature’s blunt racial rule overrode traditional

districting principles and served as the sole “criterion

that, in the State’s view, could not be compromised.”

Bethune-Hill, 137 S. Ct. at 798 (quoting Shaw II, 517

U.S. at 907).

There are many ways states may properly consider

race to comply with the VRA that do not trigger strict

scrutiny. See, e.g., Brief of the NAACP and Virginia

NAACP as Amici Curiae Supporting Appellants at

22-24, Bethune-Hill v. Va. State Bd. of Elections,

No. 15-680, 2016 WL 4937777 (Sept. 14, 2016). Here,

however, the 55% BVAP rule operated as the sole

proxy for VRA compliance. According to the mapdrawer himself, this mechanical racial threshold

“trump[ed] everything,” 1st Tr. 402:20-24, and was

achieved in each Challenged District regardless of its

unique geography, demographics, or voting patterns.

The admitted use of an inflexible racial threshold is

hardly “normal VRA compliance.” See Alabama, 135 S.

Ct. at 1267 (“[A] policy of prioritizing mechanical

racial targets above all other districting criteria . . .

provides evidence that race motivated the drawing of

particular lines in multiple districts in the State.”);

Cooper, 137 S. Ct. at 1469 (a legislature’s use of a

“racial target that subordinated other districting criteria

and produce[s] boundaries amplifying divisions between

blacks and whites” strongly supports a racial predominance finding). Where, as here, the “primary redistricting

goal” was to achieve a preordained racial percentage

and there is “considerable evidence that this goal had

a direct and significant impact on the drawing” of

district lines, Alabama, 135 S. Ct. at 1271, race

predominates.

Appellants would have this Court believe that the

Opinion simply recounts the extent to which Challenged

Districts include a higher BVAP than non-challenged

districts. That is untrue. Rather, the Opinion explains

the precision with which districts were drawn along

racial lines to achieve the nonnegotiable racial threshold. The careful “separat[ion of] voters into different

districts on the basis of race” is the very essence of

racial gerrymandering, Shaw I, 509 U.S. at 649, and

“the story of racial gerrymandering” here “becomes

much clearer” upon examination of the “racial and

population densities” moved between and among

districts, Miller, 515 U.S. at 917. It is no accident that

the Challenged Districts, as a whole, are less compact

and split more VTDs than the 88 majority-white

districts. PX50 at 18-22. In fact, while the General

Assembly’s purported race-neutral goals gave way

time and again, the 55% BVAP rule was never

compromised.

To the contrary, that unyielding racial threshold

dictated district lines from start to finish. Delegate

Jones rejected alternative maps that did not guarantee at least 55% BVAP in every Challenged District,

PX35 at 70, and proposals for specific districts that

threatened to cause even minor deviations from that

rule, PX30. The 55% BVAP rule was an immutable

principle that drove the redistricting process and was

uniformly achieved, often overriding other districting

considerations. The Court should reject Appellants’

cynical attempt to equate legitimate efforts at VRA

compliance with the singularly race-based redistricting process here.

C. The Panel’s credibility determinations are

not clearly erroneous

Appellants remarkably contend that all the Panel’s

credibility determinations are clear error. They base

this unsupported argument on their belief that “[i]t

is implausible that” the Panel could find Appellees’

witnesses credible and their witnesses not. J.S. 16.

Even a cursory examination of the record proves

otherwise.

Gauging witness credibility is a classic prerogative

of the trial court and, accordingly, “can virtually never

be clear error.” Anderson v. City of Bessemer City, 470

U.S. 564, 575 (1985). Appellate courts “give singular

deference to a trial court’s judgments about the credibility of witnesses . . . because the various cues that

‘bear so heavily on the listener’s understanding of and

belief in what is said’ are lost on an appellate court

later sifting through a paper record.” Cooper, 137 S.

Ct. at 1474 (quoting Anderson, 470 U.S. at 575).

Indeed, in arguing for a new evidentiary hearing on

remand, Appellants specifically invoked the need for

the Panel to assess witness credibility. See Dkt. No.

146 at 9 n.4 (“‘The District Court is best positioned to

determine in the first instance both the questions of

predominance and narrow tailoring,’ in part because it

can weigh testimony and assess credibility, which

Judge Wright Allen has not yet had the opportunity to

do.” (quoting Bethune-Hill, 137 S. Ct. at 800)); see also

J.S.App. 19 n.13 (“[B]ecause this Court unanimously

agreed to allow the presentation of new evidence, the

Court also reopened the question of the credibility of

the witnesses who testified at the second trial.”). The

fact that Intervenors don’t agree with the credibility

determinations that they invited does not establish

clear error.

1. As an initial matter, Appellants’ incredulousness

that the Panel would find “every House expert used

bad methodology,” J.S. 16, is belied by their failure to

even mention, let alone defend, their proffered experts.

Nor is that surprising given the magnitude of those

experts’ shortcomings at trial.

Appellants’ expert Dr. Katz, for instance, proposed

a methodology that produced “illogical results,”

J.S.App. 31, examined an irrelevant set of elections

in only a handful of Challenged Districts, J.S.App. 91

n.57, and “explicitly endorsed use of race . . . as

the foundation for ‘partisan’ line-drawing decisions,”

J.S.App. 85, contrary to this Court’s precedent, see

Cooper, 137 S. Ct. at 1473 n.7 (“[T]he sorting of voters

on the grounds of their race remains suspect even if

race is meant to function as a proxy for . . . political[]

characteristics.”).

Appellants’ expert Dr. Hood provided hypotheses

without statistical support, J.S.App. 93 n.60, and

failed to examine or report confidence intervals

alongside his ecological inference estimates, id., which

both he and Dr. Katz agreed violated “standard

practic[e] in political science,” 2nd Tr. 810:24-811:17,

858:3-8. Dr. Hood’s testimony was consistent with his

dubious track record in other cases. See, e.g., Ne. Ohio

Coal. for the Homeless v. Husted, No. 2:06-CV-896,

2016 WL 3166251, at *24 & n.11 (S.D. Ohio June 7,

2016) (citing cases), aff’d in part, 837 F.3d 612 (6th

Cir. 2016). The Panel had no basis to find Appellants’

experts credible, and Appellants offer none here.

As for Appellees’ experts, Appellants contend the

Panel “erroneously” relied on the race vs. party analysis

of Dr. Ansolabehere. J.S. 16-17. This argument fails on

several counts. First, it overinflates the importance of

that testimony, which was offered only in the first, not

the second, trial. Rather, upon Appellants’ invitation

to re-open the record, Dr. Palmer reexamined the race

vs. party analyses provided by the various experts in

the first trial, bolstered Dr. Ansolabehere’s methodology, identified fundamental methodological errors in

Dr. Katz’s model, and concluded that race was a better

predictor than party of inclusion in the Challenged

Districts. PX71 at 20-24; J.S.App. 28-32. Appellants

never objected to Dr. Palmer’s testimony as improper.

Remarkably, Appellants now contend that the

race vs. party analysis provided by Dr. Palmer for the

first time in the second trial was prohibited by “law of

the case” because it was “materially identical” to Dr.

Ansolabehere’s analysis in failing to “account for

traditional criteria.” J.S. 17. If the Panel was unable

to revisit the legal and factual errors in its predominance analysis that resulted in vacatur (such as its

evaluation of Dr. Ansolabehere’s analysis)—and to

hear new testimony such as that offered by Dr.

Palmer—one wonders why the parties participated in

a second trial at all.

In any event, Appellants’ attacks on Dr. Ansolabehere

fall flat. The original panel’s view of Dr. Ansolabehere’s

race vs. party analysis is hardly “law of the case.” This

Court did not “review[] . . . and rel[y] upon” those

findings in its opinion. State Indus., Inc. v. Mor-Flo

Indus., Inc., 948 F.2d 1573, 1576 (Fed. Cir. 1991); see

also In re Sanford Fork & Tool Co., 160 U.S. 247, 255

(1895) (only those findings that were “before this

[C]ourt, and disposed of by its decree” are “law of the

case” on remand). Rather, this Court declined to

examine factual findings underlying the original

panel’s legally erroneous conclusion regarding predominance and instead “vacate[d]” that portion of the

opinion and remanded to the Panel to determine racial

predominance “in the first instance.” Bethune-Hill,

137 S. Ct. at 795, 800.

The Panel thus properly concluded that “[g]iven that

[its] prior findings were reached while applying an

erroneous legal standard” they were “open to reconsideration.” J.S.App. 19 n.13; cf. Burns v. Uninet, Inc.,

211 F.3d 1264 (4th Cir. 2000). Specifically, the original

panel faulted Dr. Ansolabehere for examining only

race and party, and not the “numerous and malleable”

nonracial factors the original panel improperly

“deploy[ed]” to cancel out evidence of racial predominance. Bethune-Hill, 137 S. Ct. at 799; see J.S.App.

295-96 (“The models that he employed do not, for

example, consider economic factors, social factors,

cultural factors, geographic factors, governmental jurisdictions and service delivery areas.”) (internal quotation

marks and citation omitted). Because the Panel had

originally disregarded the race vs. party evidence

based on an erroneous legal standard, it was appropriate to revisit that evidence on remand.

Appellants next contend that the Panel erred in

admitting and crediting the expert testimony of Dr.

Rodden, citing Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993). But Appellants waived any

objection to Dr. Rodden’s testimony under Daubert

when they stipulated to the admissibility of his expert

report. See 2nd Tr. 24:22-25:5.2

In attempting to object to his testimony during trial,

Appellants were reminded of that fact. See 2nd Tr. 156:14-18 (Q:

“[W]hat’s the effect of your having not objected to his report into

evidence as it pertains to his ability to testify about the report?”

A: “That’s an interesting question, Your Honor. We may have, in

fact, waived it.”). The Panel rightly overruled the objection. See

United States v. Hammoud, 381 F.3d 316, 335 (4th Cir. 2004)

(stipulation on admissibility of evidence waives any objection),

Even if Appellants hadn’t waived their objection to

Dr. Rodden’s testimony, their objection is unfounded.

As an expert in the field of “geo-spatial data analysis,”

Dr. Rodden created “dot density maps” by using census

data to determine the “geographic distribution of

groups of voting-age white residents and voting-age

black residents.” J.S.App. 20-21; see, e.g., Appendix 1a5a. The Panel found these “visual depictions of racial

sorting in the dot density maps . . . telling.” J.S.App.

22. Indeed, these maps revealed the “striking

precision” with which VTDs were split to separate

“predominantly black neighborhoods from predominantly white neighborhoods,” J.S.App. 57, in some

cases “along small residential streets,” including

“multi-family housing occupied by black residents on

one side of a street” in a Challenged District while

“excluding white residents living on the other side of

the same street,” J.S.App. 60. These “visual depictions” led to the “unavoidable conclusion that the

challenged districts were designed to capture black

voters with precision.” J.S.App. 23.

Appellants do not suggest the dot density maps are

inaccurate. Indeed, Appellants’ expert “conceded that

Dr. Rodden used the proper methodology in constructing the dot density maps,” J.S.App. 21 n.16, and

Appellants’ counsel stated they “have no problems

with the Court seeing the maps,” 2nd Tr. 156:19-20.

Instead, Appellants complain that the dot density

maps are irrelevant to legislative intent. But all agree

vacated on other grounds, 543 U.S. 1097 (2005); United States v.

Aptt, 354 F.3d 1269, 1280 (10th Cir. 2004) (“A defendant is free

to waive objections to evidence by stipulation . . . . In such

contexts, admitting the stipulated evidence is so far from being

error that it would be an ‘impertinence’ and ‘gross error’ for a

court to interfere with the stipulation.”) (citation omitted).

that the maps illustrate the objective results of the

redistricting process, and it is indisputably proper for

a court to infer intent from the map itself. Cf. League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

435 (2006) (redistricting map “bears the mark of

intentional discrimination that could give rise to an

equal protection violation”); see also J.S.App. 72 (“We

agree with Dr. Rodden’s assessment that it was

‘very unlikely’ that the legislature would have

achieved this precise racial split of the Granby VTD as

a coincidental side effect of equalizing population.”).

2. Not satisfied with attacking the Panel’s Opinion,

Appellants also attack the Panel’s integrity by insinuating that it operated in bad faith. See J.S. 19-20

(accusing the Panel of “transparently attempting to

insulate [its] findings from review by denominating

them credibility determinations”) (internal quotation

marks and citation omitted). Here again, the record

thoroughly undermines Appellants’ argument.

Appellants first complain the Panel should have

found the testimony of John Morgan more compelling.

Morgan, called for the first time during the second

trial, testified that he “played a substantial role in

constructing the 2011 plan” and provided “considerable detail about his reasons for drawing dozens of

lines covering all 11 challenged districts.” J.S.App. 32.

The Panel was appropriately skeptical of Appellants’

“belated reliance on Morgan’s testimony” because it

smacked of an “attempt at post hoc rationalization.”

J.S.App. 33. Cf. Cooper, 137 S. Ct. at 1476 & n.11

(affirming credibility determination based on one

witness’s “consistent recollection” under “probing

cross-examination” and the State’s decision not to call

a rebuttal witness “even though he was listed as

a defense witness and present in the courtroom

throughout the trial”) (internal quotation marks and

citation omitted). Appellants’ contention that they

could not have known until the second trial that

Morgan’s testimony may be relevant is itself not

credible; he testified that he was responsible in part

for drawing the map being challenged.

Morgan provided ample additional reasons to disbelieve his testimony. His contention that he did not

consider race when splitting VTDs in a manner that

just so happened to divide white and black residents

with near surgical precision is “implausible on its

face.” Anderson, 470 U.S. at 575. Morgan’s explanation

that he “coded all census blocks in a VTD with the

same political data,” J.S. 21, only breeds further suspicion; the data could not show him where Democrats

and Republicans live within a given VTD, only where

black voters and white voters live. See Bush v. Vera,

517 U.S. 952, 970-71 (1996) (given that districting

software “provided only racial data at the block-by-block

level,” splits in VTDs “suggest[] that racial criteria predominated over other districting criteria in determining

the district’s boundaries”). Where different parts of a

VTD appear uniform politically but vary racially, it is

simply incredible that Morgan managed to divide

nearly every VTD along racial lines without using race.

Appellants further fault the Panel for discrediting

the testimony of Delegate Jones “even though the

court’s first opinion credited Delegate Jones.” J.S. 20.

But as Appellants acknowledge, the second trial

brought to light statements by Delegate Jones in the

first trial that were untrue. Appellants dismiss these

supposedly “small discrepancies between his testimony in 2015 and 2017.” J.S. 21. But the discrepancies

were hardly immaterial; they undermined Delegate

Jones’s previous explanations for many line-drawing

decisions and the 55% BVAP threshold itself. For

instance, in 2015, Delegate Jones testified that he split

the Granby VTD to accommodate the incumbent’s

request to keep his local business in his district. 1st

Tr. 344:23-345:9. The original panel credited that

explanation for the district’s awkward configuration.

J.S.App. 333. In 2017, Dr. Rodden revealed that

the incumbent’s business was, in fact, located in a

different (predominantly white) VTD that Jones had

removed from the Challenged District. 2nd Tr. 258:312. Additionally, while Delegate Jones testified in

2015 to receiving “significant” and “extensive” input

from specific incumbent delegates of the Challenged

Districts, those same delegates testified in 2017 that

they provided little to no input whatsoever, let alone

expressed any need or desire for a 55% BVAP floor. See

J.S.App. 36. “In the face of these denials, Jones’

testimony at the second trial was far more equivocal

than the first.” Id.

Appellants contend the Panel should not have

credited the testimony of the African-American delegates because they failed to object on the House floor

to a speech by a single African-American delegate who

apparently supported the Challenged Districts’

configuration—and who Appellants failed to call to

testify in support of Jones’ account. See Cooper, 137 S.

Ct. at 1476 n.11. The African-American delegates

Appellants attempt to impugn, however, testified that,

contrary to Delegate Jones’ account, they were mere

passive recipients of redistricting information, not

active participants in the process. In the face of this

testimony, Delegate Jones could hardly rely on his

alleged conversations with African-American delegates

to justify his race-based line-drawing. Indeed, had

the Panel held firm to factual findings that were

debunked in the second trial, that would have been

clear error.3

The bottom line is that the Panel was in the best

position to assess the witnesses’ testimony and credibility. It did just that. Appellants’ quibbles, based on a

cherrypicked paper record, do not justify an extraordinary post hoc credibility determination by this Court.

II. The Challenged Districts Are Not Narrowly

Tailored

A. The Panel rightly concluded that

Appellants failed to meet their narrow

tailoring burden

To satisfy strict scrutiny, a state must establish “a

strong basis in evidence in support of the (race-based)

choice that it has made.” Alabama, 135 S. Ct. at 1274

(internal quotation marks omitted). Courts assume

that Section 5 compliance is a compelling state

interest. Thus, the “strong basis in evidence” test is

met when a state comes forward with “‘good reasons to

believe’ that its use of race was required under Section

5, even if a court later determines that the state’s

action was not in fact necessary to comply with the

statute.” J.S.App. 15 (quoting Alabama, 135 S. Ct. at

1274).

Appellants fume that it is “implausible that every House fact

witness was dishonest.” J.S. 16. In fact, Appellants offered a total

of six fact witnesses between the two trials, four of whom were

delegates from non-challenged districts who had no insight into

the mapdrawers’ considerations when drawing the Challenged

Districts. While these other witnesses may have added little to

Appellants’ case, it is untrue that the Panel found them

“dishonest.”

The key question here is whether Appellants’ trial

evidence established a “strong basis in evidence” that

a 55% BVAP floor was needed to avoid retrogression

in all 11 Challenged Districts. The answer is,

unequivocally, “no.”

A state cannot establish a strong basis in evidence

without conducting a meaningful “legislative inquiry.”

Abbott v. Perez, 138 S. Ct. 2305, 2335 (2018) (use of

race was not narrowly tailored because the State

“pointed to no actual ‘legislative inquiry’ that would

establish the need for its manipulation of the racial

makeup of the district” and failed to make “a strong

showing of a pre-enactment analysis with justifiable

conclusions”); see also Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act;

Notice, 76 Fed. Reg. 7470, 7471 (Feb. 9, 2011)

(legislatures must engage in a “functional analysis of

the electoral behavior within the particular . . .

election district”).

No such analysis occurred here. It is law of the case

that the 55% BVAP rule was not based on an

evaluation of local conditions in each Challenged

District. Instead, Delegate Jones calculated that

threshold “based largely on concerns pertaining to the

re-election of [the incumbent] in [District] 75.”

Bethune-Hill, 137 S. Ct. at 796 (citation omitted).

Then, “[r]ather than conducting an individualized

assessment of each district, Jones applied the 55%

figure from District 75 across the board to all the

challenged districts,” J.S.App. 89; Bethune-Hill, 137

S. Ct. at 796, all of which vary dramatically in terms

of geography, demographics, and electoral history,

J.S.App. 87.

To be sure, a state need not compile an “administrative record” to ensure that its line-drawing decisions

survive strict scrutiny. Bethune-Hill, 137 S. Ct. at 802

(citation omitted). But here Delegate Jones made no

effort to obtain any evidence supporting the racial rule

he imposed on 12 very different districts. By his own

admission, Delegate Jones “did not compile recent

election results in all the challenged districts”; “did not

consider that the majority-minority districts in the

2011 state Senate map all had less than 55% BVAP”;

and “did not conduct an analysis to determine whether

white and black voters tended to vote for the same

candidates, or exhibited polarized voting behavior, in

any of the challenged districts.” J.S.App. 88. As a

result, Appellants

produced no evidence at either trial showing

that the legislature engaged in an analysis of

any kind to determine the percentage of black

voters necessary to comply with Section 5 in

the 11 remaining challenged districts.

Id.

Faced with that fatal finding, Appellants insist that

the analyses Delegate Jones did not do, and the

evidence that he did not gather, are merely “cosmetics”

and “busywork exercises.” J.S. 31, 33. Hardly. They

are exactly the kinds of inquiries that Appellants

previously applauded Delegate Jones for undertaking

with respect to District 75. See Brief for Appellees

at 54, Bethune-Hill v. Va. State Bd. of Elections, No.

15-680, 2016 WL 6123732 (Oct. 17, 2016) (praising

Delegate Jones for “examin[ing] precisely the kind of

information that DOJ has said bears on retrogression,” including “rates of electoral participation,”

“election history and voting patterns,” and “minority

turnout rates” in District 75). More importantly, these

are exactly the kinds of inquiries that led this Court to

hold that Appellants met their narrow tailoring

burden with respect to District 75. See Bethune-Hill,

137 S. Ct. at 801 (use of the 55% BVAP rule was

narrowly tailored as applied to District 75 because

Delegate Jones considered District 75’s “turnout

rates,” “the results of the recent contested primary and

general elections,” District 75’s “large population of

disenfranchised black prisoners,” and the fact that

“white and black voters in the area tend to vote as

blocs”). Appellants’ current claim that such analyses

are “useless,” J.S. 31, are contrary to the law and their

own prior briefing.4

In sum, the evidence shows that Appellants engaged

in an unjustified, mechanical, one-size-fits-all approach

to racial line-drawing. That is the very antithesis of

narrow tailoring. See J.S.App. 95 (“Selecting a BVAP

figure entirely without evidentiary foundation plainly

does not satisfy [a State’s strict scrutiny] burden.”).

Accordingly, the Panel easily concluded that Appellants’ use of race was not narrowly tailored. See

J.S.App. 96. On this record, that conclusion is

unassailable.

B. Appellants cannot avoid the requirements of strict scrutiny

Because Appellants cannot establish a strong basis

in evidence for their racial decisions, they try to show

that they never bore that burden in the first place.

Those efforts fail.

First, Appellants fault the Panel for “conclud[ing]

that the Challenged Districts are racial gerrymanders

Appellants also assert that the 55% BVAP rule was “tailored

to avoid the twin evils of ‘cracking’ and ‘packing.’” J.S. 33.

Appellants cite no evidence supporting that claim, and for good

reason—there is none.

because they are safe districts around or above 55%

BVAP and not influence districts around or below 50%

BVAP.” J.S. 25. Appellants’ argument simply misses

the mark. This case is not about whether states may

create “safe” districts or “influence” districts. This case

is about whether the Equal Protection Clause imposes

outer limits on a state’s race-based districting

decisions. It does. See, e.g., Shaw I, 509 U.S. at 655

(Section 5 does not “give . . . carte blanche to engage in

racial gerrymandering in the name of nonretrogression”). As a result, a state must have a “strong basis in

evidence” for the racial classifications that it adopts.

Alabama, 135 S. Ct. at 1274.

Appellants dislike that legal regime; they would

prefer one where courts “deem race-based measures

tailored so long as they are appropriate to the ultimate

end.” J.S. 26. Whatever that novel standard means, it

is not the standard this Court has articulated time

and again. Appellants’ mere disagreement with this

Court’s decisions does not justify this Court’s review.

Equally important, Appellants’ strawman description

of the Panel’s supposed “error” bears no resemblance

to the Panel’s actual analysis. The Panel did not

mention “safe” seats or “influence” seats at all. Nor did

it “fault[] the House for not drawing districts at lower

BVAP levels.” J.S.27.5 And the Panel most certainly

The Panel did appropriately credit expert testimony showing

that, in fact, black voters could easily elect their candidates of

choice with less than 55% BVAP. See J.S.App. 90-94. The Panel

considered that testimony because it helped show that the General

Assembly had no basis in evidence for its indiscriminate application of the 55% BVAP floor. See J.S.App 95 (“We do not require

that the legislature determine precisely what percent minority

population § 5 demands nor did Dr. Palmer attempt to ascertain

such a figure.”) (internal quotation marks and citation omitted).

did not declare, as Appellants claim, that states are

not “permitted to make judgments about how best to

prevent retrogression.’” J.S. 26 (quoting Alabama, 135

S. Ct. at 1286 (Thomas, J., dissenting)). In fact, the

Panel went out of its way to acknowledge the

discretion afforded to legislatures. J.S.App. 96.

What the Panel did do was hold that the Challenged

Districts were not narrowly tailored because—after

two trials—Appellants failed to offer any evidence

showing that it was even arguably necessary to apply

the same arbitrary racial threshold to all 11 districts.

That holding was hardly “illogical and legally

baseless.” J.S. 27. It was compelled by this Court’s

precedents. See, e.g., Cooper, 137 S. Ct. at 1472 (this

Court will not “approve a racial gerrymander whose

necessity is supported by no evidence”); see also

Alabama, 135 S. Ct. at 1273 (rejecting Alabama’s

“mechanically numerical view as to what counts as

forbidden retrogression”).

Second, Appellants assert that Justice Souter’s dissent

in Georgia v. Ashcroft, 539 U.S. 461 (2003), actually

required them to draw all 11 Challenged Districts with

55% BVAP or more. Specifically, Appellants claim that

they could not have obtained preclearance of a

redistricting plan that significantly reduced BVAP

levels because Appellants “did not have and could not

have obtained” the evidence that they would have

needed to prove to the Department of Justice that such

reductions were nonretrogressive. J.S. 29.

This is another transparent and unpersuasive attempt

to avoid the “strong basis in evidence” requirement.

Appellants cannot avoid their narrow tailoring burden

simply by throwing up their hands and saying the

requisite analysis is too hard. As the Panel rightly

explained, it is Appellants’ “burden to justify their

predominant use of race.” J.S.App. 95. It follows that

Appellants are “responsible for the state’s failure to

seek relevant information at the time of the

redistricting that would support the legislature’s racebased decision.” Id. To hold otherwise would allow

Appellants to “pack black voters into majorityminority districts in perpetuity, claiming ignorance of

the fact that high BVAP concentrations were not

necessary to comply with Section 5.” Id.

Furthermore, Appellants’ excuses for failing to

analyze voting behaviors in the Challenged Districts

are wholly unpersuasive. They say meaningful

analysis would have been impossible because there are

“too few House of Delegates contested elections” to

analyze; because “voter registration and turnout

records in Virginia do not reference race”; and because

Virginia “holds odd-year elections . . . , rendering

data from congressional and presidential elections

unhelpful in assessing voting patterns.” J.S. 29. Even

if those excuses were facially plausible (they are not),

they did not prevent Delegate Jones from conducting

a more searching analysis for District 75. Appellants

do not even try to explain why these excuses prevented

them analyzing 11 Challenged Districts, but not the

twelfth.

Third, Appellants seem to argue that no analysis

was necessary because it was “obvious” that each

Challenged District needed 55% BVAP or more to

avoid retrogression. J.S. 29. That is pure revisionism.

For example, Appellants claim that they “had evidence

specific to each district and region, similar to the

evidence this Court found to justify a 55% BVAP in

HD 75.” J.S. 30. But the Panel reached the opposite

conclusion based on Delegate Jones’ uncontroverted

testimony. J.S.App. 88. Appellants’ rhetoric cannot

rehabilitate the record.

Appellants also renew the argument that their

racial rule was justified by statements from “Black

Caucus members” who, in 2011, “supported districts of

55% BVAP or higher.” J.S. 29; see also J.S. 30, 35.

Tellingly, however, Appellants “did not produce a

single member of the black caucus at either trial to [so]

testify.” J.S.App. 88-89. (Appellees, by contrast,

offered the testimony of several African-American

delegates that they did not believe the 55% BVAP

threshold was necessary and never told Delegate

Jones otherwise.) In any event, Appellants cannot

establish a strong basis in evidence based solely on the

self-interested advocacy of a few incumbents. See

Abbott, 138 S. Ct. at 2334 (“A group that wants a State

to create a district with a particular design may come

to have an overly expansive understanding of what

[the VRA] demands. So one group’s demands alone

cannot be enough.”).

Lastly, Appellants note that they consulted a

“polarized voting analysis created during the prior

redistricting cycle’s litigation” which “supported

districts of 55% BVAP or higher.” J.S. 31. But Delegate

Jones admitted that he never read (and did not even

have a copy of) the 2001 analysis at the time of the

2011 redistricting process. See 2nd Tr. 572:1-6.

Furthermore, a single report based on data from the

1990s cannot provide a strong basis in evidence for

race-based districting decisions made in 2011. Even

the author of the 2001 report, Dr. James Loewen,

admitted that his report could not be used to determine the level of BVAP needed to avoid retrogression

in 2011. See Dkt. No. 220-1 at 171, 181-86.

In sum, Appellants did not have “impeccable reasons” to apply the same arbitrary racial threshold to

11 very different districts. J.S. 31. To the contrary,

they “produced no evidence” of any plausible reasons

whatsoever. J.S.App. 88. The Panel therefore correctly

concluded that Appellants failed to meet their narrow

tailoring burden.

CONCLUSION

The Court should dismiss the appeal, either on

standing grounds or for the absence of a substantial

question, or summarily affirm the judgment below.

Respectfully submitted,

KEVIN J. HAMILTON

ABHA KHANNA

RYAN SPEAR

WILLIAM B. STAFFORD

PERKINS COIE LLP

1201 Third Avenue

Suite 4900

Seattle, WA 98101-3099

(206) 359-8000

MARC E. ELIAS

Counsel of Record

BRUCE V. SPIVA

ARIA C. BRANCH

PERKINS COIE LLP

700 Thirteenth Street, N.W.

Suite 600

Washington, D.C. 20005-3960

(202) 654-6200

MElias@perkinscoie.com

Counsel for Appellees Golden Bethune-Hill, Christa Brooks,

Chauncey Brown, Thomas Calhoun, Atoy Carrington,

Wayne Dawkins, Alfreda Gordon, Cherrelle Hurt,

Atiba Muse, Nancy Ross, Tavarris Spinks,

Mattie Mae Urquhart, and Sheppard Roland Winston

October 9, 2018

APPENDIX

PX69 at 36 (District 63)

PX69 at 38 (District 63)

PX69 at 58 (District 89)

PX69 at 60 (District 90)

PX69 at 47 (District 95)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.