Amicus Curiae Brief — Wittman v. Personhuballah, 136 S. Ct. 25 (2015) (No. 14-1504)

No. 14-1504

Su reme Court, U.S.

In The FEB 3- 2016

Supreme Court of the United HE CLERK

°

ROBERT J. WITTMAN, BOB GOODLATTE,

RANDY FORBES, MORGAN GRIFFITH, SCOTT

RIGELL, ROBERT HURT, DAVID BRAT, BARBARA

COMSTOCK, ERIC CANTOR & FRANK WOLF,

Appellants,

V.

GLORIA PERSONHUBALLAH & JAMES FARKAS,

Appellees.

°

On Appeal From The United States District

Court For The Eastern District Of Virginia

°

BRIEF AMICUS CURIAE OF

THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

IN SUPPORT OF APPELLEES

¢

KRISTEN CLARKE MELVIN A. BROSTERMAN

JON M. GREENBAUM Counsel of Record

EZRA D. ROSENBERG MICHAEL C. KEATS

ROBERT A. KENGLE JOEL T. DODGE

ARUSHA GORDON Srroock & STRoocK &

LAWYERS’ COMMITTEE FOR LAVAN LLP

CrviL RIGHTS UNDER LAW 180 Maiden Lane

1401 New York Avenue, NW New York, NY 10038

Suite 400 (212) 806-5400

Washington, DC 20005 mbrosterman@stroock.com

(202) 662-8600

jgreenbaum@

lawyerscommittee.org

Counsel for Amicus Curiae

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COUCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ......................220000+ 1

SUMMARY OF ARGUMENT ..........0...........0000.00 2

EE cctirnsteniinciiicsinseiiniienninsiniiaianniininniaiianiiee 6

I. MILLER AND ALABAMA PROVIDE

CLEAR AND ENFORCEABLE STAN-

DARDS FOR THIS CASE.................00000008 6

Il. MILLER AND ALABAMA PROVIDE

ADEQUATE GUIDANCE TO STATE

LEGISLATURES AND DISTRICT

El ctsnnensecssesnnscnsinsnssannnsnssnsocsenssendeacate 14

Ill. THE DISTRICT COURT CORRECTLY

CONCLUDED THAT THE THIRD CON-

GRESSIONAL DISTRICT WAS SUB-

JECT TO STRICT SCRUTINY UNDER

RE REE SR ATES: Ae eID Ee RAE 16

A. The Evidence Shows Subordination of

Traditional Districting Principles....... 16

B. The District Court’s Finding that

Race Rather than Politics Predomi-

nated was Supported by Substantial

Evidence and Was Not Clearly Erro-

ai al 20

TET TT GE A A ae aR aT 23

APPENDIX A

Map of Virginia’s Third Congressional Dis-

Sou iinncsntntnntentnneccinninsininplighiandactiideeienbiimiaisinisies App. 1

‘3

TABLE OF AUTHORITIES

Page

CASES

Abrams v. Johnson, 521 U.S. 74 (1997)..................... 11

Alabama Legislative Black Caucus v. Alabama,

TE passim

Arizona v. Inter Tribal Council of Arizona, Inc.,

ee: Sah EN WE snevcenenatnninessnssnccnnianstinininnatntes 1

Arlington Heights v. Metro. Hous. Dev. Corp.,

iar itiniaiantipaaintiiditl 8,9

Bartlett v. Strickland, 556 U.S. 1 (2009) ..................... 1

Bush v. Vera, 517 U.S. 952 (1996).................000. passim

City of Mobile v. Bolden, 446 U.S. 55 (1980) ............... 2

Clark v. Roemer, 500 U.S. 646 (1991) .............ccccceceeeeee 1

Clinton v. Smith, 488 U.S. 988 (1988) ................cccc000 1

Connor v. Finch, 431 U.S. 407 (1977) ............ccccccceeeeeee 1

Easley v. Cromartie, 532 U.S. 234 (2001).......... passim

Karcher v. Daggett, 462 U.S. 725 (1983).................... 17

King v. Illinois State Bd. of Elections, 522 U.S.

er a cnsctidinttinntnintdinnnniiennianeinntitetnineiennain 12

LULAC v. Perry, 548 U.S. 399 (2006) ....................002. 15

Miller v. Johnson, 515 U.S. 900 (1995).............. passim

Northwest Austin Municipal Utility District

No. 1 v. Holder, 557 U.S. 193 (2009) ....................00 1

TABLE OF AUTHORITIES — Continued

Page

Reno v. Bossier Parish Sch. Bd., 528 U.S. 320

TTT a dcitapiasieinaeniapesneenembeanmiieadiniaitesieeiieeimmnteS 1

Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex.

ET cctcninnanibetaienagminpeeaebeiesipetentiniaemnemaniete 15

Shaw v. Reno, 509 U.S. 630 (1993) .................... passim

Shelby County v. Holder, 133 S. Ct. 2612 (2013)......... 1

Thornburg v. Gingles, 478 U.S. 30 (1986) ................... 2

United States v. Hays, 515 U.S. 737 (1995)............... 11

Wittman v. Personhuballah, (2015) (No. 14-

Si nssiickisciieaieiisemaiddedaieamennnisidibipedbeaniniiainiaiiaimieenmaieta 22

Young v. Fordice, 520 U.S. 273 (1997) .................000eeee 1

CONSTITUTIONAL PROVISIONS

FR Coane 6, 8

STATUTES

BS WEED. § BRS GED ccccesncccsssccssecccsnsencesennscsoccsenssenes 2,15

1

STATEMENT OF INTEREST’

The Lawyers’ Committee for Civil Rights Under

Law (“Lawyers’ Committee”) was formed in 1963 at

the request of President John F. Kennedy to involve

private attorneys throughout the country in the effort

to ensure civil rights to all Americans. Protection of

the voting rights of racial and language minorities is

an important part of the Lawyers’ Committee’s work.

The Lawyers’ Committee has represented litigants in

numerous voting rights cases throughout the nation

over the past 50 years, including cases before this

Court. See, e.g., Arizona v. Inter Tribal Council of

Arizona, Inc., 133 S. Ct. 2247 (2013); Shelby County v.

Holder, 133 S.Ct. 2612 (2013); Northwest Austin

Municipal Utility District No. 1 v. Holder, 557 U.S.

193 (2009); Rene v. Bossier Parish Sch. Bd., 528 U.S.

320 (2000); Young v. Fordice, 520 U.S. 273 (1997);

Clark v. Roemer, 500 U.S. 646 (1991); Clinton v.

Smith, 488 U.S. 988 (1988); and Connor v. Finch, 431

U.S. 407 (1977). The Lawyers’ Committee has also

participated as amicus curiae in other significant

voting rights cases in this Court, including Alabama

Legislative Black Caucus v. Alabama, 135 S. Ct. 1257

(2015); Bartlett v. Strickland, 556 U.S. 1 (2009); Shaw

* No counsel for a party has authored this brief in whole or

in part, and no counsel or any party made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

No person other than amici or their counsel made a monetary

contribution to its preparation or submission. The parties have

consented to the filing of amicus briefs, and these letters are on

file with the Clerk.

2

v. Reno, 509 U.S. 630 (1993); Thornburg v. Gingles,

478 U.S. 30 (1986); and City of Mobile v. Bolden, 446

U.S. 55 (1980). The Committee has an interest in the

instant appeal because it raises important voting

rights issues that are central to its mission.

J

SUMMARY OF ARGUMENT

Substantial evidence amply supports the District

Court’s finding that Virginia’s Third Congressional

District was the product of a racial gerrymander in

violation of Shaw v. Reno, 509 U.S. 630 (1993), and

represented the misuse of federal civil rights protec-

tions, specifically Section 5 of the Voting Rights Act,

52 U.S.C. § 10301(c). The legal framework set forth in

Miller v. Johnson, 515 U.S. 900 (1995), and Alabama

Legislative Black Caucus v. Alabama, 135 S. Ct. 1257

(2015), calls for affirmance of the District Court’s

conclusions that racial considerations were the Legis-

lature’s predominant concerns in creating the Third

Congressional District triggering strict scrutiny, and

that the design of the Third Congressional District

did not withstand strict scrutiny because it was not

narrowly tailored to achieve compliance with Section

5 of the Voting Rights Act.

This case requires only a straightforward appli-

cation of Miller and Alabama to the facts and demon-

strates that the Court’s framework established in

those cases remains clear and workable. The fact that

members of the Virginia General Assembly charged

3

with redistricting announced a target of 55 percent

for the African American share of the voting age

population in redrawn District 3 is relevant but not

conclusive evidence with respect to the threshold

question of whether District 3 should be subject to

strict scrutiny, as the district court correctly concluded.

Under the Miller and Alabama framework,

redistricting plans that subordinate traditional

districting principles in favor of racial considerations

are subject to strict scrutiny. Evidence that tradition-

al districting principles were subordinated is drawn

first from an objective review of the challenged

district’s shape, compactness, contiguity, and demo-

graphic makeup. Courts may further consider evi-

dence of legislative purpose, such as statements in

the legislative record and post hoc testimony, in order

to assess the extent to which the disregard for tradi-

tional districting principles is causally related to

racial considerations.

The objective, geographic and demographic

evidence before the District Court overwhelmingly

showed that race was the predominant consideration

contributing to the “odd shape” of the Third Congres-

sional District. This evidence included the “disparate

chain” of predominantly African American communi-

ties “loosely connected” by the James River but not

contiguous by land; the undisputed fact that the

District was the least “compact” Congressional Dis-

trict in Virginia; and the conspicuous lack of respect

for political subdivision boundaries shown by split-

ting nine counties or cities. This objective evidence,

4

together with various statements by the legislation’s

sole author that race was “nonnegotiable,” the “pri-

mary focus” and “one of the paramount concerns” in

drawing the Third Congressional District was to

avoid “retrogression,” demonstrated that the contor-

tions of District 3 were not just the product of ordi-

nary partisan concerns, and led the District Court to

the inescapable conclusion that race was the predom-

inant factor behind the Third Congressional District’s

design, achieved by subordinating traditional race-

neutral districting principles.

The ample objective, geographic evidence of

racial gerrymandering here makes it unnecessary for

the Court to reach the question left open in Alabama

of whether a legislature’s decision to set a minority

population target when redistricting by itself triggers

strict scrutiny. See Alabama, 135 S. Ct. at 1272. This

Court has never applied strict scrutiny solely based

upon a state’s decision to achieve a particular racial

percentage within a particular district. See Alabama,

135 S. Ct. at 1272 (citing Bush v. Vera, 517 U.S. 952,

996 (1996)); Shaw, 509 U.S. at 649.

This is consistent with the Court’s jurisprudence

distinguishing election districts that are racial classi-

fications, from those that show only routine legisla-

tive considerations, because an election district’s

minority percentage is not mathematical evidence

that its boundaries are distorted by racial considera-

tions. Rather, it is the implementation of the State’s

racial target policy, and not that the State had targets

5

ab initio, that ultimately determines whether particu-

lar districts are racial classifications. The operative

factors that may trigger strict scrutiny, either indi-

vidually or collectively, are whether a given district

exhibits widely dispersed pockets of minority popula-

tions, highly irregular district boundaries, and/or

extensive splits of political units. See id. at 645 (12th

Congressional District in North Carolina). However,

the mere fact that a state set a population target for a

district is not a basis for subjecting that district to

strict scrutiny, if the challenged district does not

offend traditional districting principles, i.e., so long as

the district unites a reasonably compact and contigu-

ous minority population along local political bounda-

ries, and the district is not dramatically irregular in

its overall shape. It is the subordination of traditional

districting principles, causally linked to racial consid-

erations, which the Court subjects to strict scrutiny.

There is no reason to conclude that establishing

specific numerical targets is per se incompatible with

traditional districting principles or that the resulting

plan will suffer in any way.

This Court’s precedents in Miller and Alabama

provide an effective framework for analyzing the facts

in this case, and the District Court’s factual findings

are fully supported by this record. Accordingly, the

District Court’s decision should be affirmed under the

existing Miller and Alabama framework.

°

6

ARGUMENT

I. MILLER AND ALABAMA PROVIDE CLEAR

AND ENFORCEABLE STANDARDS FOR

THIS CASE

This Court has repeatedly recognized that the

framework first announced in Miller v. Johnson, 515

U.S. 900 (1995) is the touchstone for determining

when state electoral districting plans trigger strict

scrutiny under the Equal Protection Clause of the

Fourteenth Amendment. See, e.g., Alabama Legisla-

tive Black Caucus, 135 S.Ct. at 1264; Easley v.

Cromartie, 532 U.S. 234, 241 (2001) (“Cromartie IT”);

Vera, 517 U.S. at 958. This framework remains a

viable and effective standard for enforcing the Four-

teenth Amendment’s guarantee against racial dis-

crimination in the realm of redistricting, and this

Court need not depart from it.

The Equal Protection Clause prohibits states

from classifying citizens by race, including adopting

electoral redistricting schemes based on racial char-

acteristics without adequate justification. See Shaw,

509 U.S. at 645. To demonstrate that a district vio-

lates the Equal Protection Clause, a plaintiff must

first show that race was the predominant factor in

how the legislature drew district lines. Miller, 515

U.S. at 915. If a plaintiff makes this showing, the

Court then employs its “strictest scrutiny” to deter-

mine whether the redistricting plan was narrowly

tailored to further a compelling state interest. Jd.

7

In determining whether racial considerations

predominated, the constitutional inquiry begins with

an objective spatial analysis of the district and its

minority population. The analysis includes consider-

ing the compactness and dispersal of the minority

population within a district, such as whether it is

connected by artifices such as land bridges or relies

on point contiguity that would not normally be em-

ployed. See Shaw, 509 U.S. at 646; Miller, 515 U.S. at

917. The analysis also includes looking for patterns of

racially-correlated splitting of political units that are

normally kept intact. See Bush, 517 U.S. at 974. In

short, the analysis begins by determining whether

the geography of the challenged district appears to be

a racially-identifiable departure from what would

normally be expected from a compact and contiguous

district, and whether something has distorted the

district’s configuration along racial lines.

The analysis starts with these objective factors

because “reapportionment is one area in which ap-

pearances do matter.” Shaw, 509 U.S. at 647. In some

cases, this objective inquiry is enough to demonstrate

that a state engaged in an unlawful racial gerryman-

der. See id. at 646-47 (citing Gomillion v. Lightfoot,

364 U.S. 339 (1960)). In many cases, however, the

analysis requires looking into the legislative process

to see if racial considerations are responsible for the

district’s configuration. This inquiry searches for any

contemporaneous statements of legislative purpose

and post hoc testimony suggesting that race played

8

an undue role in districting decisions. See Miller, 515

U.S. at 917-18.

The structure of the Miller/Alabama test is

faithful to this Court’s general framework for discern-

ing when facially neutral laws have a discriminatory

purpose in violation of the Fourteenth Amendment.

See Shaw, 509 U.S. at 643 (citing Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-

68 (1977) (“Arlington Heights”)). When searching for

an invidious discriminatory purpose, “[t]he impact of

the official action — whether it ‘bears more heavily on

one race than another[]’... -— may provide an im-

portant starting point.” Arlington Heights, 429 U.S.

at 266 (quoting Washington v. Davis, 426 U.S. 229,

242 (1976)). After analyzing the objective impact of a

law, courts consider other evidence, including “legis-

lative or administrative history ... especially ...

contemporary statements by members of the decision

making body.” Arlington Heights, 429 U.S. at 268.

Therefore, inquiries into whether a facially-neutral

state action — redistricting or otherwise — was moti-

vated by unjustified racial considerations begin with

an objective analysis before probing the legislative

record for indicia of improper purpose.

Accordingly, courts “do not view any of [Miller’s]

factors in isolation.” J.S. App. at 16a.’ On their own,

statements of supposed legislative purpose and post hoc

* “J.S. App.” refers to the Appendix attached to the Appel-

lants’ Jurisdictional Statement.

9

testimony about the legislative process neither prove

nor disprove whether traditional districting principles

— like compactness, contiguity, and respect for politi-

cal subdivisions — were improperly subordinated to

racial considerations. In addition, contemporaneous

legislative statements are often self-serving and

disingenuous, and obtaining post hoc evidence may be

difficult. See Arlington Heights, 429 U.S. at 268.

However, when coupled with other evidence that

traditional districting principles were disregarded,

legislative statements and post hoc testimony can

illuminate whether traditional districting principles

were compromised for racial reasons.

Evidence that a state set a minority population

target for a district may be one consideration in

finding that race was causally related to a departure

from traditional districting principles. But it would

short-circuit Miller’s carefully constructed analytical

framework to treat a population target as a racial

classification per se. When a state professes to target

a majority-minority district generally (a district with

a 50 percent or greater minority population) or a

specific percentage (as in this case), there is no reason

to conclude that those goals are incompatible with

traditional districting principles or that the resulting

plan will suffer in any way. See Shaw, 509 U.S. at 646

(“(W]hen members of a racial group live together in

one community, a reapportionment plan that concen-

trates members of the group in one district and

excludes them from others may reflect wholly legiti-

mate purposes.”).

10

An election district’s minority percentage is not

mathematical evidence of racially driven distortions

of district boundaries. Reaching a 40 percent minority

target might require extensive geographic contriv-

ances in one region, whereas in another region a 60

percent minority district could be the natural result

of following traditional districting principles to the

letter. In other regions, a state might have to violate

traditional districting principles in order to prevent

the creation of a 75 percent minority district. Need-

less to say, a district with a 70 percent minority

population does not necessarily involve twice the

racially driven boundary manipulations of a 35

percent minority district; neither figure in and of

itself indicates that any unusual boundary manipula-

tions occurred.

When adhering to the bounds of traditional

districting criteria, some districts may be majority-

black and others majority-white, but for constitutional

purposes they are just districts. There is no constitu-

tional basis to deem majority-white election districts

as normative, or to presuppose that majority-

minority election districts deviate from the norm.

Such a rule would abandon this Court’s understand-

ing of equal protection because it would create explic-

itly different rules for black and white citizens.

During the redistricting process, any state with a

sizable minority population will assuredly be aware of

the racial consequences of its boundary changes,

particularly where the racial composition of its dis-

tricts has a predictable and substantial electoral

11

impact. See Miller, 515 U.S. at 916 (“Redistricting

legislatures will, for example, almost always be aware

of racial demographics; but it does not follow that

race predominates in the redistricting process.”). It is

simply unrealistic to expect that prohibiting states

from acknowledging racial compositions in their

redistricting decisions will prevent states from ever

being aware of the racial impact of these decisions.

Because states will unavoidably be aware of this

impact, treating evidence of population targets as a

per se racial classification would ultimately lead

states to rely even more upon subterfuge and opacity

in the redistricting process.

This Court never has applied strict scrutiny

solely upon a state’s decision to achieve a particular

racial percentage within a particular district. See

Alabama Legislative Black Caucus, 135 S. Ct. at 1272

(citing Vera, 517 U.S. at 996); Shaw, 509 U.S. at 649.

Rather, strict scrutiny may be triggered by individual

or collective objective facts such as whether the

district exhibits widely dispersed pockets of minority

population, highly irregular district boundaries, and

extensive splits of political units. See Shaw, 509 U.S.

at 645 (12th Congressional District in North Caroli-

na); Shaw, 517 U.S. 899 (1996) (same); Cromartie II,

532 U.S. 234 (same); United States v. Hays, 515 U.S.

737, 741-42 (1995) (2nd and 4th Congressional Dis-

tricts in Louisiana); Miller, 515 U.S. 900 (11th Con-

gressional District in Georgia); Abrams v. Johnson,

521 U.S. 74, 77-78 (1997) (2nd and 11th Congression-

al Districts in Georgia); Bush, 517 U.S. 952 (18th,

12

29th and 30th Congressional Districts in Texas). See

also King v. Illinois State Bd. of Elections, 522 U.S.

1087 (1998) (summarily affirming three-judge court

decision concerning 4th Congressional District in

Illinois).

The implementation of the state’s target policy,

and not the fact that the state had targets ab initio,

ultimately must determine whether particular dis-

tricts are racial classifications. That a state set a

population target for a district is not a basis for

subjecting that district to strict scrutiny if the chal-

lenged district does not offend traditional districting

principles. For example, a state that sets a 55 percent

“target” for a majority-minority district does not

trigger strict scrutiny, so long as the district unites a

reasonably compact minority population along local

political boundaries, and the district is not dramati-

cally irregular in its overall shape.

It is the subordination of traditional districting

principles, causally linked to racial considerations,

that the Court has subjected to strict scrutiny. See

Miller, 515 U.S. at 917. The districts that have been

subjected to strict scrutiny under Shaw had the

following common elements: they achieved a majority-

minority population percentage by (a) uniting widely-

separated minority population concentrations using

geographical contrivances such as “land bridges,”

narrow fingers, wings or other unusually-shaped

appendages or connectors that distorted the perimeter

of the district, and/or (b) they split numerous political

units such as counties, cities or voting precincts in a

13

racially disparate way. See Bush, 517 U.S. at 974;

Miller, 515 U.S. at 917; Shaw, 509 U.S. 630. In no

case has this Court held that the goal of creating a

majority-minority district ipso facto constitutes a

racial gerrymander that requires strict scrutiny.

If a population target alone were sufficient to

trigger strict scrutiny, this would tend to become an

all-inclusive tautology. Because actors are assumed

(outside the criminal context) to intend the conse-

quences of their voluntary actions, and multitudes of

district configurations are typically available, any

district with a sizable minority population could be

viewed as having resulted from an attempt to meet a

target, regardless of whether it was explicitly identi-

fied as such. It would be difficult to identify a princi-

pled distinction in this regard between a district

drawn with a 35 percent minority population, for

example, versus a 45 percent or 55 percent minority

population. It cannot be the Court’s intent to make

every district with a sizable minority population

subject to strict scrutiny, a conclusion that would

invite endless and unnecessary constitutional litiga-

tion over the racial composition of electoral districts.

Nor does it make sense to force states to engage in a

charade in which they are discouraged from disclos-

ing their genuine redistricting criteria. Shaw explicit-

ly acknowledged that officials inevitably are aware of

race when they redistrict, and that such awareness is

not on its own of constitutional import. See Shaw, 509

U.S. at 646 (“[Thhe legislature always is aware of race

when it draws district lines.... That sort of race

14

consciousness does not lead inevitably to impermissi-

ble race discrimination.”) (emphasis in original).

Here, Virginia legislators identified a particular

minority population percentage as a redistricting

target for the Third Congressional District, but this

alone did not establish that the Legislature subordi-

nated traditional race-neutral districting principles to

racial considerations. Rather, it was evidence of the

District’s odd shape, lack of contiguity, and exception-

ally high number of local precinct splits, corroborated

by testimony that race was a singular “nonnegotia-

ble” redistricting criterion for the Legislature, that

indicated that race predominated over traditional

districting principles, as the District Court found. See

J.S. App. 21a-27a.

The Miller/Alabama test strikes a careful balance

that furthers the Fourteenth Amendment’s guarantee

of fair political participation free of unjustified racial

classification while adhering to judicial respect for

state legislatures undertaking the difficult task of

redistricting. This framework remains an effective

safeguard of constitutional rights, and this Court

need not expand the circumstances under which an

electoral district must be subjected to strict scrutiny.

Il. MILLER AND ALABAMA PROVIDE ADE-

QUATE GUIDANCE TO STATE LEGISLA-

TURES AND DISTRICT COURTS

Not only do the standards set down in Miller

effectively balance liberty and federalism values, but

15

state legislatures have also internalized them in their

redistricting processes. States have had little trouble

following the set of rules laid down by Miller. The

post-2000 redistricting cycle in fact generated hardly

any Shaw litigation of note, because states were

careful not to redistrict in a way that would run afoul

of Shaw and Miller.

Alabama, 135 S. Ct. 1257, announced last term,

was only the second Shaw claim that this Court has

reviewed on the merits since Cromartie II. In Ala-

bama, the Court clarified that maintaining popula-

tion equality across districts is a background

constitutional requirement, and not a traditional

districting principle for purposes of the Miller test.

See id. at 1270-71. The Court also explained that a

racial gerrymandering claim “applies district-by-

district. It does not apply to a State considered as an

undifferentiated ‘whole.’” Jd. at 1265. While the

District Court majority erred in Alabama, there is no

indication that other district courts have been unable

to properly apply the Miller factors.

In the original lower court proceedings in LULAC

v. Perry, 548 U.S. 399 (2006), the District Court

evaluated the plaintiffs’ Shaw claim and found that

the challenged district did not constitute a racial

gerrymander. See Session v. Perry, 298 F. Supp. 2d

451, 513 (E.D. Tex. 2004) (vacated on other grounds).

While this Court found that Texas’s redistricting plan

violated Section 2 of the Voting Rights Act, it did not

reverse the District Court’s ruling on the plaintiffs’

Shaw claim. See LULAC, 548 U.S. at 442.

16

No departure from the Miller/Alabama test is

required in this appeal. When the Miller/Alabama

test is applied to the District Court’s findings, the

evidence shows that racial considerations predomi-

nated over traditional districting principles. See infra

§ III. Given the paucity of Shaw claims arising out of

recent redistricting cycles and the relative ease with

which lower courts have evaluated such claims, there

is no reason for the principles of Miller or Alabama to

be revisited or reformulated.

LI. THE DISTRICT COURT CORRECTLY

CONCLUDED THAT THE THIRD CON-

GRESSIONAL DISTRICT WAS SUBJECT

TO STRICT SCRUTINY UNDER MILLER

The District Court correctly found that race was

the predominant factor in how the Legislature drew

the Third Congressional District. The District Court’s

review of the evidence regarding the Third Congres-

sional District substantially supported its finding

that Virginia subordinated traditional districting

principles to racial factors. There is no basis for

arguing that the District Court’s findings were clearly

erroneous.

A. The Evidence Shows Subordination of

Traditional Districting Principles.

The District Court analyzed the Third Congres-

sional District under the proper standard, as stated

17

in Shaw and Miller. In Miller, this Court explained

that:

The plaintiff’s burden is to show, either

through circumstantial evidence of a dis-

trict’s shape and demographics or more di-

rect evidence going to legislative purpose,

that race was the predominant factor moti-

vating the legislature’s decision to place a

significant number of voters within or with-

out a particular district. To make this showing,

a plaintiff must prove that the legislature

subordinated traditional race-neutral dis-

tricting principles, including but not limited

to compactness, contiguity, and respect for

political subdivisions or communities defined

by actual shared interests, to racial consid-

erations.

J.S. App. at 15a (citing Miller, 515 U.S. at 916).

Here, a simple glance at the Third Congressional

District clearly indicates that it is the product of

racial gerrymandering. See Karcher v. Daggett, 462

U.S. 725, 762 (1983) (Stevens, J., concurring) (“[a]

glance at the [congressional] map shows district

configurations well deserving the kind of descriptive

adjectives ... that have traditionally been used to

describe acknowledged gerrymanders.”) (citation

omitted). As the District Court described it, the Third

Congressional District has “an odd shape and a

composition of a disparate chain of communities,

predominantly African American, loosely connected

by the James River.” J.S. App. at 25a. A deeper analy-

sis of the compactness, contiguity, and the political

18

subdivisions of the Third Congressional District

makes it all too clear that the Virginia Legislature

subordinated traditional districting criteria to race.

First, the District Court correctly found that the

Third Congressional District was non-compact and

“bizarrely shaped.” Id. at 36a; see also Appendix A.

The District Court noted that Delegate William Janis,

the architect of the redistricting, “‘didn’t examine

compactness scores’ when drawing the 2012 congres-

sional maps.” J.S. App. at 24a (quoting Pls.’ Trial Ex.

14, at 8). Even the defendants’ expert agreed that

“the three primary statistical procedures used to

measure the degree of compactness of a district all

indicate that the Third Congressional District is the

least compact congressional district in Virginia.” Jd.

at 25a (citing Trial Tr. 375:21-24, 376:9-13). As a

result, it is essentially undisputed that the Third

Congressional District is non-compact. Id. (“Defen-

dants acknowledge the irregularity of shape and lack

of compactness reflected by the Third Congressional

District.”)

The absence of contiguity in the Third Congres-

sional District was also largely undisputed. As the

District Court correctly observed, the Third Congres-

sional District is contiguous in the legal sense only.

See id. at 26a (“While the Third Congressional Dis-

trict is not contiguous by land, it is legally contiguous

because all segments of the district border the James

River.”). In reality, the Third Congressional District

consists of geographically dispersed African American

communities loosely connected by the James River.

19

This indicates that the Legislature most likely used

the James River as a means to bypass white commu-

nities to connect predominantly African American

populations in Norfolk, Newport News and Hampton

with African American populations in the Richmond

and Petersburg areas. See id. The District Court

correctly found that the Legislature’s decision to use a

legal loophole to create the appearance of contiguity

is just further evidence that “the district’s boundaries

were drawn with a focus on race.” Jd.

Finally, the Third Congressional District divides

an excessive number of political subdivisions. As the

District Court correctly found, the Third Congres-

sional District splits more local political boundaries

and more voting tabulation districts than any other

district in Virginia. Jd. at 27a. As a result of the

multitude of splits of political subdivisions, the 2012

Redistricting Plan moved over 180,000 people in and

out of the Third Congressional District. Notably, “the

populations moved out of the Third Congressional

District were predominantly white, while the popula-

tions moved into the District were predominantly

African American.” Jd. (citing Trial Tr. 87 at 81:21-

82:6). Thus, an analysis of the political subdivisions

of Virginia provides further circumstantial evidence

that the boundaries of the Third Congressional

District were drawn as a racial gerrymander.

While these objective geographic factors are

substantial evidence that race was the predominant

factor motivating the Legislature’s redistricting plan,

see Shaw, 509 U.S. at 646-47 (“[A] reapportionment

20

plan may be so highly irregular that, on its face, it

rationally cannot be understood as anything other

than an effort to segregatfe] . . . voters on the basis of

race”) (internal quotation marks omitted), the legisla-

tive history in this case only bolsters Appellees’ claim.

Appellants’ statements and the statements of the

author of the 2012 Redistricting Plan support the

conclusion that race predominated the 2012 Redis-

tricting Plan. See J.S. App. at 17a-23a.

The District Court correctly held that there is

overwhelming evidence that traditional districting

criteria were subordinated to race in this case. See

J.S. App. at 30a.

B. The District Court’s Finding that Race

Rather than Politics Predominated

was Supported by Substantial Evi-

dence and Was Not Clearly Erroneous.

The Appellees established a prima facie case that

traditional districting principles were subordinated to

race. Unable to refute this showing, Appellants

defended the redistricting plan by contending that it

was predominantly motivated by partisan politics,

not race. Id. (“While Defendants acknowledge the

irregularity of shape and lack of compactness reflect-

ed by the Third Congressional District, they submit

that a desire to protect Republican incumbents ex-

plains the District’s shape.”). The District Court

rejected that explanation, finding that “less was done

to further the goal of incumbency protection than to

21

increase the proportion of minorities within the

district.” Jd. at 32a. Appellants cannot demonstrate

that the District Court’s rejection of that explanation

was clearly erroneous, especially when Delegate

Janis, the “architect” of the 2012 Redistricting Plan,

categorically denied under oath that partisan politics

was a factor in his plan. Thus, when asked whether

politics played a role in the formulation of his plan,

Delegate Janis testified: “I haven’t looked at the

partisan performance. It was not one of the factors

that I considered in the drawing of the district.” J.A.

at 456.

Moreover, even if the Appellants had a substan-

tial basis for their contention that this case is a

“mixed motive suit,” in which a state’s conceded goal

of “produciing] majority-minority districts,” was

accompanied by “other goals, particularly incumbency

protection,” that would not immunize the Legisla-

ture’s districting decisions. Bush, 517 U.S. at 959.

Race can still be a predominant factor in the drawing

of a district, without the districting revisions being

“purely race-based.” Id. (emphasis omitted). Indeed,

the Supreme Court has observed that “partisan

politicking” may often play a role in a state’s redis-

tricting process, but the fact “[tJhat the legislature

addressed these interests [need] not in any way

refute the fact that race was the legislature’s predom-

inant consideration.” Shaw II, 517 U.S. at 907.

Appellants’ reliance on Cromartie II is misplaced.

While the record in this case established that politics

was not a factor in the 2012 Redistricting Plan, the

22

record in Cromartie II indicated that partisanship

was a driving factor. See Cromartie II, 532 U.S. at

242; see also J.S. App. at 33a. Appellants also mistak-

enly rely on Cromartie ITs statement that “the undis-

puted evidence that racial identification is highly

correlated with political affiliation in North Caroli-

na,” id. at 243, somehow prevented the District Court

from finding that the Third Congressional District’s

design was motivated predominantly by race. Thus,

Appellants argue that the increase in the Third

Congressional District’s black voting age population

simply mirrored the increase in its Democratic vote

share, and reflected a purely partisan motivation. See

Brief for Appellants at 36, Wittman v. Personhuballah,

(2015) (No. 14-1504).

Cromartie II did not create a per se rule that

there can be no finding of racial gerrymandering

where a racial minority tends to vote more regularly

for one political party or another. Cromartie IJ merely

observed that African Americans in North Carolina

vote Democratic between 95 percent and 97 percent of

the time, and reasoned that, “[a] legislature trying to

secure a safe Democratic seat is interested in Demo-

cratic voting behavior. Hence, a legislature may, by

placing reliable Democratic precincts within a district

without regard to race, end up with a district contain-

ing more heavily African American precincts, but the

reasons would be political rather than racial.” Jd. at

245 (emphasis added). In other words, by focusing on

partisan concerns, a state legislature may incidental-

ly create a majority-minority district. If that is what

the evidence had shown, then the rationale for the

23

creation of such a district would be political rather

than racial. But the extensive record evidence here,

particularly the statement of the redistricting’s prime

architect that he did not take partisan factors into

consideration, establishes that race was the predomi-

nant consideration, if not the only consideration, in

drawing the Third Congressional District.

Substantial evidence supported the District

Court’s conclusion that the intent behind the 2012

Redistricting Plan in creating the Third Congression-

al District was not predominantly political.

+

CONCLUSION

For the foregoing reasons, the Court should

affirm the District Court’s decision.

Respectfully submitted,

KRISTEN CLARKE MELVIN A. BROSTERMAN

JON M. GREENBAUM Counsel of Record

EZRA D. ROSENBERG MICHAEL C. KEATS

ROBERT A. KENGLE JOEL T. DODGE

ARUSHA GORDON Stroock & STROOCK &

LAWYERS’ COMMITTEE FOR LAVAN LLP

CIVIL RIGHTS UNDER LAW ___—i180 Maiden Lane

1401 New York Avenue, NW New York, NY 10038

Suite 400 (212) 806-5400

Washington, DC 20005 mbrosterman@stroock.com

(202) 662-8600

jgreenbaum@

lawyerscommittee.org

Counsel for Amicus Curiae

February 3, 2016

APPENDIX

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